Tran and Repatriation Commission
[2004] AATA 75
•29 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 75
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/282
VETERANS' APPEALS DIVISION ) Re Minh Tran Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Date29 January 2004
PlaceSydney
Decision The decision under review is affirmed. .............................................
Ms SM Bullock
Senior Member
CATCHWORDS
Veterans’ Affairs – Invalidity Service Pension – Eligibility – Permanent Incapacity For Work
LEGISLATION
Veterans’ Entitlements Act 1986 ss7A, 37, 37AA, 119,120
Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 Clause 5
AUTHORITIES
Repatriation Commission v Smith (1987) 15 FCR 327
Re Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, No N2001/513)
Re Pham and Repatriation Commission [2002] AATA 1279
Re Nguyen andRepatriation Commission [2002] AATA 27
Re Nguyen and Repatriation Commission [2003] AATA 553
REASONS FOR DECISION
29 January 2004 Ms SM Bullock, Senior Member 1. Mr Tran, the Applicant, wishes to obtain an Invalidity Service Pension. He has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a decision made by a Senior Delegate of the Repatriation Commission (“the Respondent”) dated 24 January 2002 (T2), which affirmed or agreed with the decision made by the Respondent on 5 September 2001 (T13), that Mr Tran was not permanently incapacitated for work and was accordingly not eligible to receive an Invalidity Service Pension. Mr Tran had earlier been determined by the Respondent to have qualifying service and to be a veteran under the terms of the Veterans’ Entitlements Act 1986 (T5).
2. A Hearing was held before the Tribunal in Sydney 28 July 2003. Mr Tran was represented by Mr T McCombe, Advocate with the Vietnam Veterans’ Association, Granville. The Respondent was represented by Miss R Henderson of Counsel. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T18) and a number of exhibits listed in Schedule 1 attached to this decision.
issues
3. In order for Mr Tran to obtain an Invalidity Service Pension, he must satisfy a number of requirements under the legislation. Mr Tran has qualifying service and has been determined to be a veteran under the terms of the legislation. Thus he satisfies two of the requirements. At issue for this Tribunal to determine is whether or not Mr Tran satisfies the other qualifying criterion which requires him to be permanently incapacitated for work. In order to satisfy this requirement under the legislation, Mr Tran must have a combined impairment rating of a minimum of 40 points from the relevant Tables contained within the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”). It is solely from these impairments that Mr Tran is required to be found permanently unable to work for periods adding up to more than eight hours per week and the impairments must also be permanent.
legislation
4. A determination in this matter requires consideration of the Veterans’ Entitlements Act 1986 (“the Act”). Contained in Schedule 2 to this decision is the relevant legislation.
background
5. Mr Tran was born 25 September 1955 in Vietnam. He left school at age approximately 16 and then joined the South Vietnamese Army (“the Army”) from 1972 aged 17 years, continuing in this service until April 1975. Following army service, Mr Tran was required to attend Re-education Camp for one month. He later learnt a trade as a spray painter. Mr Tran came to Australia in 1982 and worked as a spray painter and smash repairer before ceasing work in either 1994 or 1996 (Exhibit R1, p3; T6, p27).
6. In 1996, Mr Tran travelled to Vietnam once again, returning to Australia in 2000. During that four year period, Mr Tran owned and managed a smash repair business employing five people (Exhibit R1, pp3, 5).
7. Mr Tran lodged a claim for Invalidity Service Pension on 5 July 2001 detailing his incapacities as spondylosis, hypertension, PTSD/Depression and osteomyelitis (T6, pp28, 29).
evidence of minh tran
8. Mr Tran described an incident while he was serving with the Army when his left leg was injured when he trod on a mine. There were other members of his unit wounded also at that time and Mr Tran was evacuated the next day by helicopter to hospital where he stayed for approximately one month. Mr Tran was then returned to his battalion and again was involved in further service. He ceased his army service when South Vietnam was taken over by North Vietnam. Mr Tran was required to attend Re-education Camp, where he stated he was treated poorly, with very poor food rations and interrogation at all times of the day and night.
9. Following Re-education Camp, Mr Tran moved back to live with his parents. He undertook an apprenticeship course in spray painting and motor vehicle repairs.
10. In 1982, Mr Tran “escaped Vietnam” with his wife and children travelling by boat to Malaysia. During the trip, the boat was apprehended at night by another boat which contained “pirates” who stole various items from Mr Tran’s boat, including engine parts. Several of the women were sexually abused and Mr Tran noted that there was nothing he nor anyone else could do about that. Eventually Mr Tran and his family arrived in Malaysia and were required, he stated, to stay in a refugee camp before travelling on to Australia.
11. In Australia, Mr Tran was an employee in a company which undertook repairs and the spray painting of cars. This position lasted for approximately three or four years. Mr Tran said he was not well during this time. He then started his own car repair business having completed a panel-beating course. Mr Tran was in business for approximately one or two years. It was difficult for him, he told the Tribunal, because his left leg was painful and he could not stand for too long. Mr Tran described himself as the proprietor/manager, but he worked with other people. In 1994, Mr Tran was working in his wife’s takeaway business in Australia, but because it was not doing well, the business had to be closed. He did not work straight away again and in fact went to Vietnam. Mr Tran told the Tribunal that he ceased work in 1997, but added that he found it difficult to remember exact dates. It was Mr Tran’s general evidence to the Tribunal that he found it very difficult to remember details and the chronology of various events in his life.
12. In about 1996, Mr Tran returned to Vietnam. He travelled there with his wife to try and obtain some advice/counselling from his mother in relation to difficulties he and his wife were having with their marriage. During his time in Vietnam, Mr Tran paid for his wife to visit him on a number of occasions. It was however whilst in Vietnam that the couple decided to permanently separate, he told the Tribunal.
13. Whilst in Vietnam, Mr Tran commenced a panel-beating business in 1996. Mr Tran stated that he employed staff to do the work and he used his skills to hire staff and manage the business. Mr Tran found it difficult to manage, he stated, as he could not think properly. He did not have many customers and the business did not run smoothly. Mr Tran explained that in the end, he had to close his business because it was not financially viable. Mr Tran stated that he was in debt and he had to repay these debts by selling car parts.
14. When Mr Tran finally decided to return to Australia, he was apprehended at the airport because of his failure to pay tax debt. Mr Tran disputed the calculation of the tax debt. He eventually was able to leave Vietnam one and a half years after he had intended coming back to Australia, returning in 2000.
15. Back in Australia, Mr Tran did not work again, he stated, because of his left leg. His back was very sore and he was coughing a great deal. Mr Tran stated that he did want to work again and he was seriously looking for work. He was in receipt of a Newstart Allowance for various periods. At other times, Mr Tran undertook casual-type work, including the cleaning and vacuuming of cars, but he stated he could not keep this up. Work ceased when his friend discontinued referring business to him in terms of cleaning and detailing cars. Mr Tran thought that this work declined because he may not have been cleaning the cars thoroughly or he was taking too long to do it. Furthermore, he stated that he was experiencing back pain when he was working.
16. Mr Tran noted that in July 2002, his application for Newstart Allowance was rejected (Exhibit R5, p41). This may have occurred because he had told Centrelink that he was undertaking car detailing work of approximately ten cars, though it is not clear over what period these cars were cleaned. Mr Tran agreed that he did not comply with Centrelink’s request for the names and contact details of the people for whom he had worked. Mr Tran stated that he had not reapplied for any income support from Centrelink since July 2002. Mr Tran told the Tribunal that he was unable to provide the names of the people he worked for or of his friends, because he could not remember. He stated that the work came from friends of friends and often cars would be left outside his home for him to clean.
17. Mr Tran currently rents an apartment and if he is behind in his rent, then his landlord will either allow him to pay late or he will borrow some money from his uncle. From time to time, he is also sent money from his mother in Vietnam. Mr Tran also eats his meals at his uncle’s home. If Mr Tran finds he has no money, and he feels unable to borrow money from his uncle or his mother, he will sell various personal possessions. He believes that he owes approximately a few thousand dollars. His uncle expects repayment but does not push him. Mr Tran’s rent is now $80.00 per week. He stated that he has not paid rent for about two or three months and is waiting for money from his mother.
18. Since returning to Australia in 2000, Mr Tran stated that he has been treated by Dr H Pope, General Practitioner, who is located close to where Mr Tran lives in Fairfield. Dr Pope does not speak Vietnamese, but his secretary does and she would assist when required. Previously, he had attended many doctors but could not remember their names. Dr Pope referred Mr Tran to Dr S K Law, Consultant Psychiatrist, who has treated Mr Tran’s mental health problems, but had also sent him to have an x-ray of his back. Dr Law did not treat the back condition but referred Mr Tran back to Dr Pope for follow up. Mr Tran had ceased consulting Dr Law for a time because, he stated, he was on a great deal of medication which he believed did not seem to assist him. He became “fed up” with the treatment, which included medication for hypertension. Mr Tran thought that he gave up the medication prescribed by Dr Law at about the end of 2002. When he ceased taking the medication, he also ceased consulting doctors. He stated he was very depressed at the time. One week prior to the Hearing, Mr Tran had recommenced consulting Dr Law and had taken medication which Dr Law prescribed to help him sleep. Mr Tran informed the Tribunal that Dr Law does not speak Vietnamese but if required, he calls upon a secretary to interpret.
19. Mr Tran has also consulted Dr A Mach, General Practitioner, for various conditions, specifically he referred to his hypertension and his left leg condition. If Dr Mach could not help, she would refer Mr Tran to a specialist. Mr Tran explained that he did not tell Dr Mach about his back pain even though he had back pain at various times when he consulted her. He had also not talked about his anxiety problems. Mr Tran stated that he did not want Dr Mach to think he was a sick man. Mr Tran consulted Dr Mach for many years. She spoke Vietnamese. Mr Tran did not remember consulting Dr Dao, whose clinical notes have been provided to the Tribunal (Exhibit R4).
20. Mr Tran was questioned about an injury to his left leg which occurred as a result of a motor vehicle accident. He did not remember this and also did not recall telling Dr Mach that a car run over his left heel. When referred to Dr Mach’s clinical notes (Exhibit R3, p16) and specifically a report dated 19 July 1994 from Dr S Myers, Orthopaedic Surgeon, Mr Tran stated he could not pinpoint the crushing injury referred to as having occurred to his left heel in 1981 in Vietnam. Mr Tran strongly denied that he had a motor vehicle accident in Vietnam in 1981, citing as a possible explanation, his poor English and some mix-up.
21. In relation to his current health situation, Mr Tran has not seen Dr Pope for a long time and stated that at the time of Hearing, he is not taking hypertension medication. Mr Tran stated that his coughing and hypertension are very bad and he is unable to drink anything apart from water. Mr Tran is considering consulting another doctor to whom he has been referred by Dr Pope in relation to his incessant coughing.
22. In relation to work, Mr Tran stated that sometimes he wants to work, but is prevented by his health. In relation to the opinion of Dr Burns, Occupational Physician, that Mr Tran is able to work, Mr Tran stated that doctors only see him for a very short period and it is hard for them in that time to know or assess all of his health problems.
evidence of dr a dinnen, consultant psychiatrist
23. The Tribunal had available to it a report from Dr Dinnen dated 5 June 2003 (Exhibit A1). There was an interpreter present during the course of Mr Tran’s examination by Dr Dinnen. Dr Dinnen noted that the interpreter was adequate but not ideal, as the interpreter was not fluent in English. Dr Dinnen concluded however that most of the difficulty in clearly understanding Mr Tran’s circumstances was with Mr Tran and not the interpreter. Dr Dinnen stated that he found Mr Tran very disturbed and difficult to interview and communicate with, even though there was an interpreter present.
24. Dr Dinnen stated it was difficult to obtain a time sequence from Mr Tran and there were inconsistencies in the history he presented. Dr Dinnen opined however that Mr Tran’s guarding during the interview was part of his psychiatric condition. Although Dr Dinnen could not exclude the possibility that Mr Tran was deliberately obstructive, Dr Dinnen thought it highly unlikely that his difficulty in fully understanding Mr Tran’s history related to Mr Tran being a person of poor credibility. Dr Dinnen opined that Mr Tran might have perceived him as an interrogator and this could also have hampered the communication process.
25. From Dr Dinnen’s understanding of Mr Tran’s history, Mr Tran had had extensive involvement with combat and Dr Dinnen opined that the correct diagnosis of Mr Tran’s psychiatric condition is chronic post traumatic stress disorder. Furthermore, Dr Dinnen opined that Mr Tran is unable to work more than eight hours per week because of his psychiatric disorder.
26. Dr Dinnen noted that Dr Shand changed his initial opinion which was that Mr Tran suffered from post traumatic stress disorder with depressed and anxious mood (Exhibit R2(a)).. Dr Dinnen noted that following receipt of Dr Mach’s clinical notes, Dr Shand opined that the clinical notes did not support the diagnosis of a psychiatric disorder, particularly post traumatic stress disorder, as there was no record of any relevant symptoms. Furthermore, Dr Shand opined that Mr Tran could work for periods adding up to eight hours per week.
27. Dr Dinnen noted that Dr Shand’s initial opinion was made on similar information to that obtained by Dr Dinnen. The second opinion provided by Dr Shand, in Dr Dinnen’s view, placed too much importance on the information from Dr Mach and also that Mr Tran had undertaken some work as referred to in the Centrelink documents (Exhibit R5). Dr Dinnen’s opinion was that any work undertaken by Mr Tran was not successful, inefficient and that he was not capable of working. This opinion was supported by the failure of Mr Tran’s business in Vietnam because Mr Tran was unable to function competently or effectively.
28. Dr Dinnen further opined that it was not uncommon for General Practitioners not to pick up psychiatric problems or to deal with anything other than the matter presented by the patient to the General Practitioner. Dr Dinnen explained that post traumatic stress disorder and major depression are not easily diagnosed. Dr Dinnen would have expected however, that if there were sleep problems or agitation, then it would be recorded by a General Practitioner in his or her notes. Dr Dinnen noted the medication “Catapres” is a Betablocker used for hypertension and also to control anxiety. If Dr Dinnen was treating Mr Tran, he would use one of the “SSRI” drugs.
29. One of the difficulties with Mr Tran is his non-compliance with treatment including taking medication and Dr Dinnen stated that this is a very common problem with patients suffering from a psychiatric condition. It is important for psychiatrists to know that a patient is not taking his or her medication. It could be, Dr Dinnen explained, that Mr Tran does not think that medication will help and he is not persuaded by the benefits of taking medication.
30. Dr Dinnen told the Tribunal that he did not know that Mr Tran had had a break from consulting Dr Law. Dr Dinnen stated that if Mr Tran could be persuaded to take medication and continue treatment for his psychiatric problems, he would expect improvement in his energy levels, a lessening of distress in terms of sleep problems and anxiety and also in terms of symptoms of depression.
31. In relation to Mr Tran’s work, he had told Dr Dinnen that he ceased work in 1994, but subsequently stated that he had worked as a car detailer in Vietnam. Mr Tran is very damaged, Dr Dinnen stated and he is putting his effort into indicating he is coping better than he is in fact. Mr Tran’s return from Vietnam occurred, in Dr Dinnen’s opinion, because of his poor level of functioning. Dr Dinnen referred to Mr Tran as being “helpless and hopeless” and this is reflected in his giving up his medication.
32. Dr Dinnen did not think that the outcome of the Tribunal’s decision would make much difference to Mr Tran. Dr Dinnen opined that Mr Tran needs to be under reasonable supervision.
evidence of dr j w shand, consultant psychiatrist
33. The Tribunal had available to it two reports from Dr Shand dated 19 August 2002 (Exhibit R2(a)) and 14 April 2003 (Exhibit R2(b)). Dr Shand had initially opined that the correct diagnosis of Mr Tran’s psychiatric disorder is post traumatic stress disorder and major depression. Dr Shand noted that his history differed significantly from that of Dr George and also Dr Shand had made a different diagnosis and findings to that of Dr George. Dr Shand noted that the problem in establishing a diagnosis occurred because of the difficulty in obtaining a complete and consistent history from Mr Tran. On the other hand, Dr Shand noted that Dr Law both mentioned and was treating Mr Tran’s depression. Dr Shand indicated that Mr Tran should be more vigorously treated than he was currently.
34. Dr Shand noted that Mr Tran was a soldier in the South Vietnamese Army and that in about 1972, he trod on a landmine and injured his left leg. Dr Shand also noted terrible and frequent nightmares containing much death and these affected his mind. The nightmares involved seeing fighting from both sides, with soldiers chasing and shooting at him. Dr Shand also noted Mr Tran was entered in a Re-education Camp where he was badly treated with insufficient food. The history provided to Dr Shand was of Mr Tran being interrogated, including physical torture, during the first month in the camp, occurring at any time of the day or night. Mr Tran also had nightmares about that experience. He had flashbacks to events during his army service which caused him fear. Dr Shand also noted Mr Tran would become angry and violent at home at times, arguing with his wife and smashing things. Mr Tran told Dr Shand he had no hope for the future and that he had stopped seeing Dr Law. Mr Tran believed that he had tried hard with his treatment but told Dr Shand that nothing had improved. He does not see his children at all regularly as they live with their mother. In his first report, Dr Shand undertook an assessment from Chapter 4 of the Guide and concluded that the correct impairment rating for his psychiatric condition is 40 points.
35. In his second report of 14 April 2003, Dr Shand changed his opinion because he had received additional information from Dr Mach’s clinical notes which indicated no mention of psychiatric symptoms in addition to information from Centrelink which indicated that Mr Tran had worked beyond the level understood by Dr Shand, when he first reported on Mr Tran. As a result of those two new pieces of information, Dr Shand opined that a diagnosis of post traumatic stress disorder was not supported and that Mr Tran is able to work from both the psychiatric and physical point of view, for periods adding up to more than eight hours per week. Dr Shand noted the unreliability of Mr Tran as an historian.
36. At Hearing, Dr Shand agreed with Dr Dinnen’s view that people who are motivated to purposively mislead a doctor often do present irrelevant material. Furthermore, Dr Shand opined that it is reasonable to accept that depression could in fact make it possible that Mr Tran may not have been able to accurately present his history. He noted that Dr George had reported Mr Tran’s depressed presentation, but had not formally diagnosed that condition. Dr Shand further stated that Mr Tran “appears to be stranded and apparently helpless in the face of his circumstances”. Dr Shand acknowledged that if the degree of depression is such that a person feels hopeless and helpless, then it is understandable and indeed plausible that he or she may give up their treatment, as occurred with Mr Tran. Such behaviour was not inconsistent with the diagnosis of major depression. Dr Shand stated that given Dr Dinnen’s opinion and also the fact that Mr Tran had returned to consult Dr Law, that he reconsidered his second opinion with respect to the diagnosis of depression and possibly post traumatic stress disorder. Dr Shand stated that it was because of the lack of backup from Mr Tran’s doctors that made him question the story provided by Mr Tran. If in fact Mr Tran was depressed, then it was conceivable that depression could have been responsible for the different histories given to different psychiatrists. It is a common occurrence in Dr Shand’s practice, he noted, that when someone has not been treated for a psychiatric condition which is present, for there to be an inconsistent history. This happens less when there is a more established therapeutic relationship with the treating doctor and Dr Shand stated that Dr Law “should be in a better position from that point of view to get inside this fellow and understand his disorder”.
37. In relation to the type of symptoms that a general practitioner’s notes would be expected to contain in relation to someone suffering from depression, Dr Shand listed some common symptoms: loss of appetite; interference with sleep; lack of interest; poor concentration; lethargy; self-neglect of various kinds; anti-social behaviour; suicidal ideation; a slowing up of both physical and psychological cognitive functions; and, irritability. Such symptoms would be consistent with depression and often consistent with post traumatic stress disorder, Dr Shand stated. Unfortunately, Dr Mach did not mention such symptoms, but they have been mentioned by Dr Law and also Dr Pope.
evidence of dr m burns, occupational physician
38. Dr Burns provided a report dated 19 July 2002 (Exhibit R1). Dr Burns noted Mr Tran’s conditions of nightmares; osteomyelitis of the left heel; back pain; hypertension and headaches. Dr Burns undertook an assessment under the Guide and opined that a rating of 17 was appropriate under Chapter 4 for post traumatic stress disorder. A rating of 10 points from Table 3.2.2 was appropriate for osteomyelitis of the left leg and in relation to lumbar spondylosis, a nil rating was appropriate from Table 3.3.1 of the Guide. The combined impairment rating was 25 points. Dr Burns concluded that he did not believe that Mr Tran was unemployable and in fact considered that he could work for more than 30 hours per week. In this regard, Dr Burns noted that Mr Tran was working in Vietnam before returning to Australia but also noted that at the time of Dr Burns’ report of 19 July 2002, Mr Tran had told Dr Burns that he was currently undertaking spray painting for friends on an irregular basis.
39. At Hearing, Dr Burns opined that Mr Tran could undertake work where he could sit down and stand up at various times for example undertaking minor stores work. He could undertake moderate physical activity from the point of view of walking but would not be able to stand for eight hours per day, particularly because of his left heel, but could stand for periods of up to an hour or an hour and a half. In relation to the lumbar spondylosis, while Mr Tran gave a history of low back pain, Dr Burns noted that he did not have any significant medical evidence to the degree of x-ray changes and his movements on examination were reasonably good. In relation to dealing with the interpreter and Mr Tran, Dr Burns noted he did not have any particular difficulties arising out of that dynamic. Dr Burns noted that Mr Tran was reluctant to discuss what he had actually done when he was back in Vietnam between 1996 and 2000. He also did not volunteer what he had been doing since he returned to Australia in 2000. Dr Burns confirmed that Mr Tran had told him that since being back in Australia, he had undertaken some car detailing work and spray painting of motor vehicles for friends, but was reluctant to give that history. He did not in fact say that he had ceased that work, only saying that he had done it for friends.
40. In relation to Mr Tran’s psychiatric problems, Dr Burns noted that he was not a psychiatrist but in terms of assessing as an occupational physician, he did not have the feeling that when he examined Mr Tran that Mr Tran was in any way clinically depressed. There was no evidence of avoiding eye contact and in terms of other non-verbal communication cues, Dr Burns did not find any particular difficulty.
evidence of dr s k law, consultant psychiatrist
41. The Tribunal had available to it two reports from Dr Law dated 12 April 2001 and 25 May 2001, both of those reports having been prepared for Mr Tran’s General Practitioner, Dr Pope. It was Dr Pope who actually referred Mr Tran to Dr Law. In terms of symptomatology, Dr Law reported that Mr Tran had been suffering in the past few years from headaches and insomnia which had become worse in the past year. He often has bad dreams and nightmares, some of which are related to his past war experiences such as someone wanting to kill him. Mr Tran often woke up perspiring and was scared. He complained of forgetfulness. Dr Law noted on the second consultation that Mr Tran had slept better for the first week after seeing him but then his sleep pattern deteriorated. Dr Law subsequently increased the medication “Deptran” to 100 mg at night and also prescribed Catapres 100 mcg also at night. Dr Law reported that Mr Tran was dejected and held a bleak view of his future. Dr Law had counselled him, encouraging him to continue his medication. Dr Law concluded that Mr Tran had post traumatic stress disorder causally related to his past adverse war and re-education experiences. The symptoms of post traumatic stress disorder have become significant and disabling in the past year. Mr Tran’s spondylosis was also undermining his mental resilience. The treatment plan comprised of supportive counselling and psychotropic medication. Dr Law undertook an assessment under the Guide and indicated that the appropriate impairment rating from Chapter 4 is 46 points. Dr Law also noted that mental examination revealed that Mr Tran was clearly anxious and depressed (T6, pp 33, 36).
evidence of dr g j george, consultant psychiatrist
42. Dr George prepared a report for Health Services Australia Ltd dated 20 August 2001 (T10). Dr George noted Mr Tran’s service in the South Vietnamese Army from 1972 until 1975. He noted than Mr Tran was wounded in his left heel in 1972 and that many of his comrades died in the war in Vietnam. Dr George also noted that Mr Tran was placed in a Re-education Camp for approximately one month. Mr Tran reported to Dr George that he had nightmares involving his war experiences. He denied having any flashbacks and did not volunteer any other symptoms he was having to Dr George. Mr Tran told Dr George that he spent his day staying at home or going to a local club where he would have an evening meal. He did not indicate that he had any close friends and indicated that he led a solitary life.
43. Dr George noted in terms of the mental state examination that Mr Tran appeared “extremely withdrawn”.. He did not give much detail in answers he provided and his affect appeared “somewhat depressed”.. Dr George opined that Mr Tran was able to concentrate and his memory appeared reasonable. Dr George concluded there were elements of a post traumatic stress disorder but not sufficient symptoms to justify making that diagnosis. The only symptoms recorded with respect to any trauma associated with Vietnam in Dr George’s view were the nightmares. Dr George concluded that there appeared to be no reason why Mr Tran could not engage in part or full-time work but that this ability to work would depend on the state of Mr Tran’s infected heel and would have to take into account any retraining or rehabilitation.
evidence of dr e ooi, departmental medical officer
44. Dr Ooi undertook a combined impairment assessment for the purposes of Mr Tran’s claim for an Invalidity Service Pension. Dr Ooi assessed Mr Tran’s post traumatic stress disorder under Chapter 4 of the Guide with the appropriate rating being 22 points. For Mr Tran’s osteomyelitis the assessment made by Dr Ooi was 10 points from Table 3.2.2 with the total or combined impairment rounded to thirty points (T11). The assessment was undertaken on 5 September 2001.
radiological evidence
45. An x-ray of the lumbosacral spine was undertaken and on 11 May 2001, Dr A Leung reported that there was lumbar spondylosis present and that there was a narrowing of the L5/S1 disc (T6, p37).
evidence of associate professor r monroe, infectious diseases consulting
46. Associate Professor Monroe reported on 28 February 2001, that Mr Tran has chronic osteomyelitis of the left lower leg. Associate Professor Monroe noted that Mr Tran trod on a landmine in Vietnam in 1972, sustaining an injury to his left leg. The problem with the left foot recommenced in 1994, when a sinus developed and the wound began discharging (T6, p32).
clinical notes of dr a mach, general practitioner
47. The Tribunal had available to it the clinical notes of Dr Mach. In the clinical notes there is a report to Dr Mach from Dr S Myers dated 19 July 1994 (Exhibit R3, p16). Dr Myers reports a crushing injury to Mr Tran’s left heel in Vietnam in 1981, when a car ran over his heel. Dr Myers reported that Mr Tran sustained a laceration to the heel region and the possible injury to the calcaneus. Mr Tran reported chronic pain and discharging sinus since that time.
consideration and findings
48. Mr Tran is a veteran and has qualifying service as is required as part of the eligibility criteria for an Invalidity Service Pension. To qualify for the Invalidity Service Pension, Mr Tran must also be found on the balance of probabilities to be suffering from permanent incapacity which is assessed under the Guide and Mr Tran must have his incapacities rated as at least 40 points.
49. Mr Tran has incapacity rising from the conditions of lumbar spondylosis, hypertension and osteomyelitis of the left foot. In contention is whether or not Mr Tran also has a diagnosable psychiatric condition. Dr Dinnen and Dr Law opined that Mr Tran has post traumatic stress disorder and is permanently disabled from this condition as a result of his war and Re-education Camp experiences. Dr Shand’s opinion has changed from diagnosing post traumatic stress disorder and major depression to Mr Tran having no sign of a psychiatric condition. However at Hearing, given the opinions expressed by Dr Dinnen and a further consideration of Law’s opinion, Dr Shand changed his opinion once more, conceding that it is possible that Mr Tran has major depression and post traumatic stress disorder and that the untreated symptoms of those conditions could account for Mr Tran’s inconsistent history. Dr George found elements of post traumatic stress disorder and depressed effect, but considered these not sufficient to justify the diagnosis of a psychiatric disorder.
50. I must determine whether or not Mr Tran has a psychiatric disorder and if so, what is the diagnosis of that psychiatric condition and is the condition permanent. Dr Law, the treating psychiatrist and Dr Dinnen opined that Mr Tran has post traumatic stress disorder consequent on his war service and Re-education Camp experience. Dr Shand in oral evidence conceded that Dr Law, as the treating psychiatrist, is best placed to give a diagnosis because of his more frequent contact with Mr Tran than that of either Dr Shand or other experts providing medico-legal opinion. Dr Shand further conceded, and the Tribunal agrees, that without treatment, the symptoms of forgetfulness and seemingly inconsistent histories could be in fact attributable to psychiatric disorder of major depression and possibly post traumatic stress disorder. The Tribunal notes Dr George’s assessment indicating that there was no diagnosable psychiatric condition, however there was present post traumatic stress disorder symptoms and depressed effect, but not sufficient for Dr George to diagnose under the terms of the American Psychiatric Associations’ “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition (“DSM-IV”).
51. Turning to the criteria under DSM-IV for post traumatic stress disorder, I accept that Mr Tran experienced an event of having his left foot injured when he trod on a mine or tripped on a mine wire and this wound caused actual serious injury to Mr Tran and he was very afraid (Criteria A (1), (2)). Mr Tran experienced nightmares about being killed and, while I acknowledge Miss Henderson’s submission that the dreams described were not specifically of his foot being blown up, I accept that he has had dreams of being chased by people with guns and of being killed. Mr Tran has reported to Dr Shand, Dr Dinnen and Dr Law of having occasional intrusive thoughts (Criteria B (1), (2)). Mr Tran also reports avoiding thoughts associated with the trauma of being blown up. He reports forgetfulness about his history of the traumatic event. Furthermore, there are reports by various doctors of Mr Tran’s sense of a foreshortened future, particularly as admitted to Dr Shand, Dr Dinnen and Dr Law. Mr Tran has a restricted range of affect, presenting as being very flat (Criteria C (1), (3), (6), (7)). Mr Tran also has difficulty falling and staying asleep and difficulty concentrating (Criteria D (1), (3)). The duration of the symptoms has been greater than one month (Criteria E) and in the Tribunal’s view, there has been impact upon Mr Tran both socially and occupationally (Criteria F).
52. In relation to the trauma, the Tribunal notes that Dr Myers reported that the left foot injury is as a result of a motor vehicle accident in Vietnam in 1981. This history is at variance with all the other histories provided to psychiatrists, general practitioners and Associate Professor Monroe. The Tribunal cannot explain this variation, but considers the consistency of reporting of Mr Tran treading on or tripping on a land mine during his Vietnam war service the more likely history, and the Tribunal is reasonably satisfied that Dr Myers’ report is in error, possibly because of the difficulty in translation.
53. In making a decision about the presence of a psychiatric condition, the difficulty recognised by all involved in this matter is the fact that Mr Tran is a very poor historian. It has been contended by the Respondent that Mr Tran lacks credibility that he is intentionally guarded and seeking advantage. Dr Dinnen recognised this is a possibility, however noted that it is common for people with untreated psychiatric conditions such as depression and post traumatic stress disorder to be very poor historians. This proposition was acknowledged by Dr Shand. Dr Law has treated Mr Tran and also acknowledged that he is unreliable in taking his medication. Dr Law accepts as genuine, the nature of Mr Tran’s symptoms to the point where he has diagnosed post traumatic stress disorder and also depression as acknowledged by his treatment of Mr Tran with Deptran. On the balance of probabilities, although there are some difficulties with the history, I consider that the opinions of Dr Dinnen, Dr Law and most recently, Dr Shand, are more likely than not to be correct and accordingly I am reasonably satisfied that Mr Tran suffers from post traumatic stress disorder with associated symptoms of depression. I prefer the opinions of Dr Law, Dr Dinnen and Dr Shand to Dr George whose opinion did not reflect the depth of inquiry and opinion provided by the other medical experts.
54. While Dr Mach has not recorded symptoms of a psychiatric disorder in her notes, it was Dr Pope who referred Mr Tran to Dr Law before Mr Tran made a claim for Invalidity Service Pension. Mr Tran’s explanation to Dr Dinnen and to the Tribunal was that he did not speak to Dr Mach about the “nervous problems” but rather spoke to Dr Pope and preferred to speak to Dr Law to whom he was referred and who he saw as the expert in the field dealing with his psychiatric symptoms.
55. Having found that Mr Tran suffers from post traumatic stress disorder with associated symptoms of depression, I also find that Mr Tran has not been reliable in his treatment and hence improvement of his condition has been poor. It is noted that at the time of hearing, Mr Tran has recommenced his consultations with Dr Law.
56. I have been referred by the parties to some caselaw [see: Repatriation Commission v Smith (1987) 15 FCR 327; Re Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, No N2001/513); Re Pham and Repatriation Commission [2002] AATA 1279; Re Nguyen and Repatriation Commission [2002] AATA 27; Re Nguyen and Repatriation Commission [2003] AATA 553], which may be instructive in making a finding in this matter. Mr Tran’s circumstances and the facts of his case are unique. While I note the special care that must be taken in such matters especially where there is the use of an interpreter, I consider that the facts of Mr Tran’s case are sufficiently different and can be distinguished from the caselaw referred to above.
57. Turning to the matter of assessment, I am satisfied that the assessments from the Guide made by Dr Burns in respect of osteomyelitis and lumbar spondylosis are correct. That is, for osteomyelitis of the left foot, an assessment from Table 3.2.2 of the Guide of ten points is correct and reflective of the evidence of that condition. In relation to lumbar spondylosis, from Table 3.3.1 of the Guide, a nil rating is appropriate reflecting no localised tenderness on examination, extension about normal and flexion forward possible to touching the ankles. Furthermore, Dr Burns noted that straight leg raising of 80 degrees bilaterally with a negative sciatic stretch test. Furthermore, Dr Burns noted power, tone, sensation and reflexes were normal.
58. In relation to hypertension, it would appear that there is no treatment being provided, although consideration of the clinical notes of Dr Mach and various reports by the medical experts indicate that from time to time Mr Tran has been treated for hypertension. I note that on 4 September 2000, Dr Mach reported on Mr Tran’s “poorly controlled moderately severe hypertension” with it being present since 1992 (Exhibit R3, p29). Dr Pope in his medical report attached to Mr Tran’s claim for Invalidity Service Pension, noted on 3 July 2002, that Mr Tran has hypertension that is poorly controlled (T6, p28). There has been no impairment rating provided for hypertension by Dr Burns or the Department of Veterans’ Affairs medical officers in their assessment. It would appear from the various medical notations that Mr Tran does not suffer from any target organ damage. Dr Burns in his report noted that Mr Tran’s blood pressure was 200/100. He noted that Mr Tran did not give a significant history of problems associated with hypertension and headaches (Exhibit R1, pp 3, 4). In making an assessment from Table 2.1.1 of the Guide, it is clear to me from the documentary evidence that Mr Tran suffers from long term hypertension. The difficulty is his poor compliance with treatment by way of medication. It is not clear whether the diastolic pressure is continually at or greater than 90 mm Hg. The Tribunal is reasonably satisfied that the impairment rating is at least two points from Table 2.1.1of the Guide, to represent that Mr Tran requires long-term medication and that there is no evidence of target organ damage. It may be that the rating could be higher, but the Tribunal is not in a position given the evidence, to assume a higher rating is appropriate.
59. In relation to the assessment of post traumatic stress disorder and the associated symptoms of depression, I find the following ratings appropriate from Chapter 4 of the Guide. From Table 4.1 of the Guide concerning Subjective Distress, considering all of the evidence, I find that the appropriate rating is three points, to reflect that there are recurring symptoms of anxiety, fear, loss of concentration and nightmares which causes Mr Tran mild distress, but from which Mr Tran is able to distract himself.
60. From Table 4.2 of the Guide concerning Manifest Distress, again, considering the evidence, Mr Tran has vocalised and been active during his nightmares as reported by himself and his ex-wife. He also reports nervousness. The appropriate rating is three points, indicating a significant condition which is noticeable as was evident in the hearing but also reflects his ability to get on with his life.
61. From Table 4.3 of the Guide concerning Functional Effects, I consider that the appropriate rating is one point to reflect that there is intermittent interference with some aspects of his daily living. Mr Tran is however able to deal with matters of personal hygiene, he can prepare food and in the main, conduct activities of daily living.
62. In relation to Table 4.4 of the Guide concerning Occupation, Dr Law has assessed this rating as eight points, reflecting that Mr Tran cannot work. I have some difficulty with Dr Law’s assessment. There is evidence provided by Mr Tran to Dr Burns at the time of his interview that he was still undertaking work in the form of detailing and cleaning of cars, which he does for his friends. Also of significance in my view are the Centrelink records, specifically in relation to the claim for Newstart Allowance in July 2002, that reflect that he had been working as a car detailer and cleaning cars for friends. The difficulty is that Mr Tran could not supply details of friends’ names or the amount of work he was undertaking. I also find it difficult to accept that given Mr Tran has not made any further application for income support from the Department of Family and Community Services, that he is able to pay his rent, feed himself and attend to his daily needs. It is true that Mr Tran’s evidence that he borrows money from time to time from an uncle and that his mother sends him money from Vietnam. I am not satisfied that this level of financial support could on its own cover all of Mr Tran’s financial needs. It would appear to me that considering all of the evidence, and considering what Mr Tran told Dr Burns, Mr Tran is capable and is possibly currently working to a greater degree than he has admitted. In such circumstances, while I recognise that all of Mr Tran’s conditions have an impact on his ability to work, I think that the appropriate rating is three points.
63. From Table 4.5 of the Guide concerning Domestic Situation, I consider the appropriate rating is six points, to reflect the continual conflict with family members. Mr Tran does continue to have contact with his mother and uncle. Mr Tran’s domestic interpersonal relationships are limited. He is divorced and it seems, estranged from his children
64. From Table 4.6 of the Guide concerning Social Interaction, the appropriate rating in my view is three points, to reflect a significant reduction in Mr Tran’s social interaction. Mr Tran does have limited social interaction with a small number of friends.
65. From Table 4.7 of the Guide concerning Leisure Activities, there has been a loss of interest and significant reduction in Mr Tran’s leisure activities particularly as reported by Dr Law and Dr Dinnen and Mr Tran. Accordingly, I consider that the appropriate rating for this category is five points.
66. From Table 4.8 of the Guide concerning Current Therapy, I consider the appropriate rating is three points to reflect that psychiatric treatment in the form of medication and supportive counselling is appropriate. I do not consider that a higher rating is appropriate as there is no suggestion in any of the material that Mr Tran requires in- patient psychiatric care.
67. Applying the requirements of Chapter 4 of the Guide, I consider that the impairment rating for Mr Tran’s psychiatric condition is 3 + 3 + 6 + 5 + 3, which provides an impairment rating of 20 .
68. Thus, the impairment ratings for all of Mr Tran’s conditions which I find are permanent, as supported by all the evidence, are:
·Post traumatic stress disorder with depression: 20 points
·Osteomyelitis of the foot: 10 points
·Lumbar spondylosis: 0 points
·Hypertension: 2 points
Applying Scale 18.1 of the Guide, the combined impairment rating is 29 points rounded to 30 points (as required by Step 8 in the Instructions to Scale 18.1).
69. Accordingly, as Mr Tran does not have an impairment rating of 40 points or more, he does not satisfy one of the legislative criteria for the Invalidity Service Pension and therefore is not eligible to receive an Invalidity Service Pension.
70. In all of the circumstances and for all the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock,
Senior Member.Signed: .......................................................................................
AssociateDate of Hearing 28 July 2003
Date of Decision 29 January 2004Representative for the Applicant Mr T McCombe, Vietnam Veterans' Association, Granville
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Ms S Kirby, Solicitor, Legal Services Group, Department of Veterans' Affairs
SCHEDULE 1
EXHIBIT NO
DESCRIPTION
DATE
A1
Report from Dr A Dinnen, Consultant Psychiatrist
5 June 2003
A2
Letter to Dr J W Shand, Consultant Psychiatrist, from Ms S Kirby, Department of Veterans’ Affairs
31 March 2003
R1
Report by Dr M Burns, Occupational Physician
19 July 2002
R2 (a)
Report of Dr J W Shand, Consultant Psychiatrist
19 August 2002
R2 (b)
Supplementary Report by Dr J W Shand, Consultant Psychiatrist
14 April 2003
R3
Clinical Notes from Dr A L Mach, General Practitioner
Various
R4
Clinical Notes of Dr Dao, General Practitioner
Various
R5
Documents from Centrelink, with Cover Letter dated 13 December 2002
Various
Schedule 2
1. The eligibility criteria for Invalidity Service Pension are found in section 37 of the Act which states, as relevant:
“37 Eligibility for invalidity service pension
(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.
Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.
…”
2. Under section 37AA of the Act, it must be determined the circumstances in which persons are permanently incapacitated for work. Section 37AA states, as relevant:
“37AA Commission must determine circumstances in which persons are
permanently incapacitated for work(1)The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).
Variation or revocation
(2) The Commission may, by written determination, vary or revoke a determination under subsection (1).
Disallowable instrument
(3)A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”
3. The relevant Disallowable Instrument under section 37AA of the Act is the Veterans’ Entitlements (Invalidity Service Pension-Permanent Incapacity for Work) Determination 1999 (“the Determination”). Clause 5 of the Determination states:
“Circumstances of permanent incapacity
(1)A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a) is permanently blind in both eyes; or
(b) is a veteran to whom section 24 of the Act applies; or
(c) satisfies subsection (2).
(2) A person satisfies this subsection if:
(a)the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide, and
(b)solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c)the Commission is satisfied that the impairment is permanent.
...”
4. Section 119 of the Act is a general provision in relation to pensions, which deals with decision-makers not being bound by technicalities and specifically, subsection 119(1)(h) deals with any difficulty a veteran might have because of the passage of time, the non-availability of witnesses and including an absence or deficiency in relevant official records or the dimming of memory.
5. Under subsection 120(4) of the Act, a decision in relation to Mr Tran’s Invalidity Service Pension must be made to the Tribunal’s reasonable satisfaction. Subsection 120(4) states:
“120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
0
5
0