Raymond De La Rue and Repatriation Commission

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[2013] AATA 464 

Division VETERANS' APPEALS DIVISION

File Number

2012/1357

Re

Raymond De La Rue

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Egon Fice, Senior Member
Date 5 July 2013
Place Melbourne

The Tribunal affirms the decision of the Veterans’ Review Board dated 20 March 2012.

.......[sgd Egon Fice].................................................................

Egon Fice, Senior Member

VETERANS’ AFFAIRS – Pension – Sleep Apnoea – Obesity – Clinical onset – Diagnosis – Connection with operational service – Reasonable hypothesis – War-caused – Alcohol – Claimed stressors

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Veterans' Entitlements Act 1986 (Cth) ss 5D, 7, 9, 13, 120, 196B

Cases

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437

Law v Repatriation Commission (1980) 29 ALR 64

McKenna v Repatriation Commission (1999) 86 FCR 144

Repatriation Commission v Cornelius (2002) 69 ALD 250

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Smith (1997) 15 FCR 327

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Walsh v Rother District Council [1978] 1 ALL ER 510

Secondary Materials

Chambers 21st Century Dictionary (1999, reprinted 2004)

Dorland’s Illustrated Medical Dictionary (27th ed, 1988)

Repatriation Medical Authority, Statement about the causes of “being obese” (16 August 1996)

Statement of Principles, Alcohol Dependence and Alcohol Abuse (Instrument No.  1 of 2009)

Statement of Principles, Morbid Obesity (Instrument No. 31 of 2003)

Statement of Principles, Sleep Apnoea (Instrument No.  13 of 2005)

REASONS FOR DECISION

Egon Fice, Senior Member

5 July 2013

  1. Mr Raymond De La Rue was a National Serviceman who served in the Australian Army from 9 July 1969 until his discharge on 8 July 1971.  He had operational service in South Vietnam between 23 April 1970 and 21 April 1971 as a transport driver with 85 transport platoon.

  2. Prior to his most recent application for the disability pension, the Repatriation Commission accepted Mr De La Rue's claims of Post-Traumatic Stress Disorder (PTSD), malignant neoplasm of the colon, alcohol abuse disorder and erectile dysfunction.

  3. On 12 April 2011 Mr De La Rue lodged a claim in respect of type II diabetes mellitus, sleep apnoea, obesity and hypertension.  On 23 June 2011 the Department of Veterans’ Affairs notified Mr De La Rue that his claim for hypertension had been accepted and was to take effect from 12 January 2011.  It also determined that his claim for sleep apnoea and diabetes mellitus were not related to his service and that no medical condition was present to answer his claim for obesity.

  4. Mr De La Rue applied to the Veterans' Review Board (VRB) seeking review of the decision made on 23 June 2011.  On 20 March 2012 the VRB determined that his claimed diabetes mellitus was war caused but rejected his claims regarding sleep…

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Details
Case
[2013] AATA 464
Decision Date

CaseChat Overview and Summary

The matter before the court involved Raymond De La Rue, who sought to establish a connection between his operational service and a medical condition. The primary issue was whether Mr De La Rue's sleep apnoea was caused by his service, specifically his smoking habit which he claimed intensified during his time in South Vietnam and subsequently led to weight gain and sleep apnoea after he quit smoking in 2003. The court had to decide if Mr De La Rue's evidence was credible and if the onset of his sleep apnoea was connected to his service.

The court examined the reliability of Mr De La Rue's evidence, particularly his account of his involvement in the Ferriday shootings and his smoking habit. The court found his evidence regarding the shootings to be unreliable due to inconsistencies and lack of corroboration. Furthermore, the court noted that Mr De La Rue's smoking habit began well before his service, casting doubt on the claim that his smoking was war-caused. The court also considered the absence of medical evidence linking the cessation of smoking to the onset of sleep apnoea. Despite the beneficial nature of repatriation legislation, the court found that the evidence did not establish a reasonable hypothesis connecting Mr De La Rue's sleep apnoea to his operational service.

The court concluded that Mr De La Rue's sleep apnoea was diagnosed in March 2010, and there was no credible evidence to support the claim that its clinical onset was in 1995 as suggested by Dr Reid. The court determined that Mr De La Rue's smoking habit, which began long before his service, did not constitute a war-caused injury. The evidence did not substantiate the claim that his cessation of smoking in 2003 led to increased alcohol intake and weight gain that caused his sleep apnoea. Therefore, the court found that Mr De La Rue's sleep apnoea was not connected to his operational service.

The court's final orders would reflect the finding that Mr De La Rue's sleep apnoea was not connected to his service, thereby denying his claim for a war-related injury. The court did not find the evidence credible or sufficient to establish the necessary connection between his service and the onset of his condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion, Mr De La Rue's evidence regarding his involvement in the Ferriday shootings is wholly unreliable. The objective evidence regarding this incident and the extensive reporting and investigation which took place would have identified Mr De La Rue as a witness whose evidence could have assisted the investigation. The fact that he was not called to give any evidence weighs heavily against his claim that he spoke with Ferriday before the incident or that he witnessed the bodies lying in the Sergeants’ mess. There is also the unsatisfactory explanation Mr De La Rue gave for not disclosing this incident to Dr Pomorin in 1995 but subsequently, some 18 years later, having a very clear recollection of what occurred. Of the four incidents to which he has referred for the purposes of this claim, this is surely the most significant where he claimed to have seen the bodies of soldiers who had been shot. He even referred to this incident as being one of two which he described as most significant. It is simply implausible that he would not have recalled this incident in 1995. In addition to that, although Mr Drummond attempted to support Mr De La Rue's account of the incident, the evidence Mr Drummond gave was significantly at odds with what Mr De La Rue claimed occurred. For those reasons, I find that the evidence discloses beyond reasonable doubt that Mr De La Rue had no involvement in this incident.CONCLUSION Mr De La Rue claimed that his sleep apnoea, which was caused by his obesity, was war-caused. I have found that Mr De La Rue has sleep apnoea and that its clinical onset was in March 2010. The foundation for Mr De La Rue's claim was that he ceased smoking in 2003 which resulted in him suffering a significant weight gain due to a combination of increased alcohol intake and the intake of snack foods which he said were a substitute for his smoking habit. The first and obvious problem encountered by Mr De La Rue is that he commenced the smoking habit at least two years prior to joining the army. He did not commence smoking as a consequence of his experiences while on operational service in South Vietnam. I believe it is uncontroversial to say that smoking tobacco is an addiction. Therefore, Mr De La Rue acquired his addiction in circumstances which had nothing to do with his operational service. He claimed that his level of smoking increased in South Vietnam as a consequence of a number of stressors which he experienced while on operational duty. However, his claim has nothing to do with his level of smoking. Rather, it is about the consequences he claimed followed as a result of him ceasing smoking. While Mr De La Rue claimed that his increase in alcohol consumption and food intake was directly attributable to ceasing smoking, I had no medical evidence before me which would suggest that those consequences necessarily follow the cessation of a smoking habit. I was simply asked to accept that has a known fact. Despite that, and mindful of the beneficial nature of the legislation involved in repatriation matters, I have found that the material before me does raise a hypothesis linking his operational service with his weight gain. That was because the material disclosed that his smoking and alcohol intake was linked to the stressors he claimed he encountered in the course of his operational service.

Ratio Decidendi

Legal Principle Established

Mr De La Rue appears to have been diagnosed with sleep apnoea following a diagnostic sleep study conducted on 22 March 2010. In a medical report prepared by Dr Reid on 21 May 2011 he noted that the clinical onset of sleep apnoea was in about 1995. The problem with Dr Reid's opinion regarding the clinical onset of sleep apnoea is that he provided no reasons why he found the clinical onset was in 1995 and Mr De La Rue, in his statement made on 4 April 2012 simply said: I understand that Dr Reid has written a report indicating that the onset of the sleep apnoea occurred in 1995. I did not seek treatment from Dr Reid until 2007 and I believe that his comments that the onset of the sleep apnoea was in 1995 is simply inaccurate. The only evidence before me regarding the clinical onset of Mr De La Rue's sleep apnoea was the sleep study report done on 22 March 2010. Accordingly, I find, on the balance of probabilities, that Mr De La Rue has sleep apnoea, the clinical onset of that condition being March 2010.CONNECTION WITH OPERATIONAL SERVICE As the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the process of making the connection between the disease or injury and the service of the veteran involves four steps. They are:(a)consider all the material and determine whether it points to a hypothesis connecting the disease, injury or death with the circumstances of the particular service rendered;(b)if the material raises a hypothesis, ascertain whether there is in force a SoP concerning the disease, injury or death;(c)if there is a SoP in force, form an opinion whether the hypothesis raised is a reasonable one by reference to the "template" found in the SoP; and(d)proceed to consider under s. 120(1) of the VE Act whether I am satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.Hypothesis Mr De La Rue's evidence was that prior to his tour in South Vietnam between 1970 and 1971, he smoked cigarettes at the rate of about 10 to 15 cigarettes per day. He testified that his smoking increased to about 30 cigarettes per day in Vietnam as a result of stressors to which he was exposed in the course of his operational tour. Mr De La Rue said that he ceased smoking in 2003 and, as a result, suffered a significant weight gain. He attributed that weight gain to a combination of increasing his alcohol intake and the intake of what he described as snack foods, which he said were a substitute for his smoking habit. In his written statement of evidence, Mr De La Rue said that prior to ceasing smoking in 2003 he consumed alcohol on most, but not every, day. He said that at that time, he consumed alcohol on about two evenings during the working week and on weekends but did not consume alcohol during the day between Monday to Friday. He claimed that on the weekend, he would consume about 4 to 5 bottles of wine and occasionally drink whiskey or beer. However, after ceasing smoking, he said he started to consume alcohol virtually every evening at the rate of one bottle of wine and he also started to regularly consume alcohol on at least one lunchtime during the working week. He said that on some occasions, he would consume alcohol at lunch twice per week and on those occasions would consume 2 to 3 bottles of wine. He said his intake of alcohol following cessation of smoking was about eight bottles of wine over the weekend.