Vock and Repatriation Commission

[2006] AATA 837

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 837

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/487

VETERANS' APPEALS DIVISION		)
Re		ERIC VOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Ms MJ Carstairs, Member

Date2 October 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that anxiety disorder social phobia and alcohol abuse were war-caused – decision under review affirmed

Veterans’ Entitlements Act 1986 s 9,13,120

Repatriation Commission v Budworth (2001) 116 FCR 200
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission [2001] FCA 1879

REASONS FOR DECISION

2 October 2006  Senior Member P McDermott
  Ms MJ Carstairs, Member

Introduction

1.      Mr Eric Vock was engaged in operational service in Vietnam from 19 December 1968 to 30 December 1969.  We have to consider whether Mr Vock is entitled to a pension in respect of his claimed conditions of anxiety-social phobia and alcohol abuse, which he contends are war-caused.    

Decisions

2.      On 10 November 2000 Mr Vock lodged his claim for a pension in respect of “shortness of breath, gastro reflux, hearing loss, PTSD, alcohol abuse”.  Having regard to certain medical conditions, on 14 March 2001 the Repatriation Commission (the “Commission”) granted Mr Vock a disability pension at 50% of the general rate which took effect from 10 August 2000. However, the Commission refused the claim for anxiety-social phobia on the ground that the condition was not war-caused. The Commission also refused the claim for alcohol abuse on the basis that investigations had failed to show the condition to be present.

3.      Mr Vock sought a review of the decision of the Commission from the Veterans’ Review Board (“the Board”).  On 28 November 2001 the Board affirmed the decision of the Commission in relation to anxiety social phobia and alcohol abuse. This matter was then reviewed by the Administrative Appeals Tribunal, who also affirmed the decision on the basis that Mr Vock did not suffer from anxiety-social phobia or alcohol abuse or dependency. The Federal Court of Australia, on 14 July 2005, set aside the decision of the Tribunal and remitted the matter to this Tribunal for further consideration in accordance with s 43(2B) of the Administrative Appeals Act 1975. 

Issues before the Tribunal

4.      The issues that we have to decide is whether the conditions of anxiety-social phobia and alcohol abuse are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the “Act”).

5.      It is common ground that if Mr Vock is successful in his claim, the date of effect would be 10 August 2000.

Service

6. Mr Vock served in the Australian Army from 6 February 1958 until 5 February 1970. For the purposes of the Act he rendered operational service in Vietnam from 19 December 1968 to 30 December 1969.

Background

7.      Mr Vock was born on 22 March 1947. After he completed his schooling he obtained a scholarship from the Department of Education. He also completed the first year of a Bachelor of Science degree. He then graduated from the Kelvin Grove Teachers College after the completion of a further year of studies.

8.      Mr Vock was called up for national service after he graduated. He was able to defer his national service until he had successfully taught at Texas High School for a year.

9.      In 1968 Mr Vock undertook rookie training at Singleton and then completed his jungle warfare training at Canungra. In that year he also passed his corporal’s course.

10.     When he was posted to Vietnam in December 1968 Mr Vock served as a clerk technical with 2 AOD (Advanced Ordinance Depot). Within a year he had attained the rank of sergeant. 

11.     Mr Vock prepared a statement in which he listed the numerous stressors that he suffered during his service.  He stated that his main stressor was that he continuously feared for his life.

12.     Mr Vock referred to a night-time rocket attack on Vung Tau. A Writeway Research Service report confirms that at the relevant time the Australian Army Logistic Support Group in Vung Tau was not exposed to any rocket attack from the Viet Cong.

13.     Mr Vock also mentioned an incident when the Vietnamese civilian police blew a whistle and fired shots whilst he was in Vung Tau on day leave. When Dr Wainwright asked him how close the bullets got to him, he replied: “There were none in my close proximity, but in the street they were” (Dr Wainwright’s report, 9 September 2002, at 8).  

14.     Mr Vock stated that he commenced heavy drinking in Vietnam to assist him to overcome sleeplessness.

15.     Mr Vock stated that after he was discharged from the Army he did not want to return to teaching. In 1970 he commenced study for the second year of a Bachelor of Science degree. However, he failed all his subjects, attributing this to his smoking and drinking.

16.     In 1971 Mr Vock was transferred by the Education Department to a school in Clontarf. He then obtained employment as a clerk with T A Field Meat Company which was a meat exporting company. He gained that employment without an  interview as his boss had been impressed in the past by ex-Army workers. He held that job for 5 years until 1976.

17.     Mr Vock then worked at a motel on the Gold Coast for some two years. He assisted his first wife who needed help in the management of the motel. In Dr Wainwright’s report of 9 September 2002, Mr Vock remarked that he “did everything – maintenance, running of the motel, catering and room service” (at 11). His wife had a lease on the motel for only two years and after the expiry of that lease they were forced to give up the motel because the owners had put the rent up “astronomically”.

18.     In 1979 Mr Vock obtained work at a services club. He has been employed at that club ever since. As a poker machine attendant at the services club, Mr Vock’s duties include the arranging of payouts to members of the public.

19.     In 1982 Mr Vock became the treasurer of a charity and was still the treasurer of the charity in 2002 when he was interviewed by Dr Wainwright.

20.     In 1984 Mr Vock was divorced from his first wife. In 1984 Mr Vock met his second wife at the services club where she had been playing the poker machines. They married in 1988.

Medical Evidence

21.     It is fair to say that there is a divergence of opinion of medical evidence as to whether Mr Vock has an anxiety disorder.

22.     Dr C Danesi, a consultant psychiatrist, has diagnosed Mr Vock as having a social anxiety disorder – social phobia. Dr Danesi considers that Mr Vock had a number of symptoms of anxiety before leaving for Vietnam and since then his symptoms have worsened.

23.     Dr Danesi has consistently maintained that Mr Vock suffers from social phobia. Dr Danesi bases this diagnosis on his observation that there were prominent symptoms of anxiety.

24.     In a report dated 13 March 2002 (at 2), Dr Danesi also reported that Mr Vock “previously suffered from alcohol abuse and he presently doesn’t meet diagnostic criteria for this”.

25.     Dr J Boulnois, a specialist psychiatrist, reported on 4 April 1996 that he did not consider that Mr Vock suffers from post-traumatic stress disorder. Dr Boulnois also considered that Mr Vock was not suffering from any psychiatric disorder, although he did appreciate the effects of Dilantin and epilepsy.

26.     Dr Boulnois (at 3) also mentioned that Mr Vock had the benefit of an excellent general practitioner, “…a man who is no stranger to the need for patients to at times have psychiatric referral”, who had not suggested that Mr Vock required psychiatric referral.

27.     Dr J Wainwright, a psychiatrist, has reported that Mr Vock does not have a psychiatric disorder. Dr Wainwright has concluded that Mr Vock does not fulfil the criteria for an anxiety disorder or any other psychiatric disorder.

28.     Dr Wainwright considers that there is no evidence that Mr Vock suffered any psychiatric illness in Vietnam or that his experiences in Vietnam created ongoing difficulties in his life. Dr Wainwright has mentioned that he showed no evidence of hyperarousal and was able to recount his difficulties in Vietnam with no apparent discomfort.

29.     Dr Wainwright has pointed out that throughout his life Mr Vock has had a good work history and it is unfortunate that his personality has prevented him from attaining his academic potential. Dr Wainwright considers that Mr Vock’s development history, together with an overbearing, emotionally distant father who set high standards which Mr Vock was unable to reach, is much more suggestive of an avoidant personality style, rather than social phobia.

30.     Dr Wainwright in his 2002 report set out reasons why Mr Vock does not suffer from social phobia. Dr Wainwright mentioned that Mr Vock works in a situation where he is exposed to the public and has been a long-standing treasurer of a charity.

31.     Dr Wainwright recognised that Mr Vock has anxiety in certain social situations. However, Dr Wainwright reported that it has not interfered significantly with the normal routine, occupational functioning or relationships of Mr Vock. Dr Wainwright reported that Mr Vock does not show any evidence of having any marked distress about his anxiety.  Mr Vock has had two longstanding relationships which have been largely successful. He has also had a good relationship with the children who come into both relationships.

32.     In 2005 Dr Wainwright reiterated his diagnosis that Mr Vock does not suffer from a social phobia. He expressed disagreement with Dr Danesi that Mr Vock fulfils the criteria for this illness.

33.     Dr Wainwright reported that Mr Vock has understandable anxieties concerning financial considerations and the state of his health. He does not consider that the war service experiences of Mr Vock have resulted in any longstanding anxiety disorder.

34.     In his 2002 report, Dr Wainwright also reported that he did not consider that Mr Vock suffers from post-traumatic stress disorder. Dr Wainwright came to this view because Mr Vock did not show any persistent avoidance of stimuli associated with his time in Vietnam. Mr Vock also did not show persistent symptoms of increased arousal on mental state examination, even when talking about those events which he found traumatic in Vietnam.

35.     Dr Wainwright also reported that blood and urine testing revealed normal CDT, CGT and MCV results, which do not indicate an excessive alcohol intake.

36.     The epilepsy condition of Mr Vock has been confirmed in a recent report from Dr Hunter, his general practitioner [exhibit A3]. There is evidence that Mr Vock experienced his first epilepsy attack during rookie training in 1968 [exhibit A4].

37.     In 2001 Dr M Thompson, a consultant respiratory and sleep physician, first suspected that Mr Vock has obstructive sleep apnoea. Dr Thompson then recommended that Mr Vock be further reviewed by sleep studies. In 2002 Dr Wainwright also reported that Mr Vock could have sleep apnoea and that this possibility should be investigated. In 2005 Dr Wainwright reiterated the need to investigate the issue of sleep apnoea as well as epilepsy, which could contribute to any depressive or anxiety symptoms that Mr Vock may have.

Legislative Background

38.     Section 9 of the  Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“9 War-caused injuries or diseases

(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”

39. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.

40. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

41. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether he suffers from his asserted conditions is to be decided to our reasonable satisfaction by applying s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200; Fogarty v Repatriation Commission [2003] FCAFC 136.

42. In determining whether the conditions are war-caused, the standard of proof to be applied is provided for by s 120(1) and (3) of the Act as varied by s 120A of the Act.

Consideration of claims

43.     We find to our reasonable satisfaction that Mr Vock does not suffer from any alcohol abuse. Dr Danesi has reported that he does not fulfil the diagnostic criteria for this disease. Dr Wainwright has also reported that testing (CDT, CGT, MCV) do not show any excessive alcohol intake by Mr Vock.

44.     We find to our reasonable satisfaction that Mr Vock does not suffer from anxiety-social phobia. We have come to this conclusion for a number of reasons.

45.      We consider that Dr Wainwright has correctly diagnosed that Mr Vock does not suffer from anxiety-social phobia.

46.     We consider that Dr Wainwright in his 2002 report has set out cogent reasons why he considers that Mr Vock does not suffer from social phobia. Dr Wainwright mentioned that Mr Vock works in a situation where he is exposed to the public and has been a long-standing treasurer of a charity. Dr Wainwright recognised that Mr Vock has anxiety in certain social situations. However, Dr Wainwright reported that it has not interfered significantly with the normal routine, occupational functioning or relationships of Mr Vock. Dr Wainwright reported that Mr Vock does not show any evidence of having any marked distress about his anxiety.  Mr Vock also has had two longstanding relationships which have been largely successful. He has also had a good relationship with the children who come into both relationships.

47.     Dr Wainwright has also mentioned that Mr Vock showed no evidence of hyperarousal and was able to recount his difficulties in Vietnam with no apparent discomfort. Dr Wainwright in his 2002 report comprehensively discusses the various stressors that have been mentioned by Mr Vock.

48.     We prefer the diagnosis of Dr Wainwright to that of Dr Danesi who has reiterated his diagnosis in three reports.

49.     We mention that Dr Danesi has opined that Mr Vock had a pre-existing social phobia condition before his Vietnam service.  However, on Mr Vock’s own evidence, he did not suffer any anxiety in social settings before his tour of duty.  Mr Vock also had the confidence to stand before a class and have a successful teaching experience before his tour of duty.

50.     We are also concerned that Dr Danesi, as recognised by the applicant, “discounted sleep apnoea as an applicable condition”.   However, there have been no sleep studies undertaken even though this course of action was suggested by Dr Thompson in 2001.  We point out that Statements of Principle have been issued in respect of the condition of Sleep Apnoea.

51.     We mention that the diagnosis of Dr Wainwright is consistent with the opinion of Dr Boulnois, another psychiatrist.

52.      Dr Boulnois pointed out that Mr Vock is attended to by a general practitioner, who has experience in recognising whether a patient requires psychiatric care. Mr Vock’s general practitioner never made a psychiatric referral for Mr Vock.

53.     We also mention that when the parties initially appeared before us we called for the service medical records of Mr Vock to be placed in evidence before us (exhibit R3).  Having regard to our inquisitorial role as confirmed by the Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 at [47], we have examined those records which do not contain any material which suggests that Mr Vock had any psychiatric injury whilst he served in Vietnam.

Conclusion

54.     For the above reasons, we affirm the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McDermott and Ms MJ Carstairs, member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  24 May 2006, 2 August 2006
Date of Decision  2 October 2006
For the Applicant  Mr R Clutterbuck, of Counsel
  Haney Lawyers
For the Respondent                  Ms H Bowskill, of Counsel
  Australian Government Solicitor