Francis and Repatriation Commission [2000] AATA 529 (30 June 2000)

Last Updated: 21 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/90

VETERANS' APPEALS DIVISION )

Re ROBIN JOHN FRANCIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 30 June 2000

Place Canberra

Decision The tribunal sets aside the decision under review and in substitution therefore decides that the veteran has a degree of incapacity of 70% or more, and that he is entitled to pension at special rate.

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

Pamela Burton Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veteran's rate of entitlements - accepted conditions of post traumatic stress disorder and gunshot wound to the foot - whether capacity to work more than eight hours per week - whether entitled to pension at special rate - whether medical impairment assessment and lifestyle effects amount to 70% or more degree of incapacity

Legislation

Veterans' Entitlements Act 1986, ss24, 120(4)

Guide to the Assessment of Rates of Veterans' Pensions (Fifth ed.)

REASONS FOR DECISION

30 June 2000 Pamela Burton, Senior Member

1. This is an application for an increase in the rate of pension pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act"). The veteran has two accepted conditions: post traumatic stress disorder ("PTSD") and gunshot wound to the foot. The decision under review dated 24 July 1997 assessed the veteran's pension at 50% of the General rate. On 30 October 1998 the Veterans' Review Board ("the VRB") set aside the decision under review and increased the rate of pension to 60% of the General rate to operate from and including 5 March 1997. The veteran claims his degree of incapacity is 70% or more and that he is entitled to pension at special rate.

2. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents") and material tended in evidence. Mr Thorley appeared for the veteran and Mr Godwin appeared for the respondent. The veteran gave evidence in person. Dr White, consultant psychiatrist, and Dr Scott, occupational physician, gave telephone evidence on behalf of the veteran. Dr Burke, consultant rehabilitation physician, gave telephone evidence on behalf of the respondent.

Background

3. The facts are not in dispute. The veteran was born on 7 June 1945. He enlisted in the army in 1963 when he was 17. He married in 1967. In 1968, at the rank of private, he was transported to Vietnam on the HMAS Sydney. He served in Vietnam until late 1968. This constitutes "operational service" for the purpose of the Act. Whilst in Vietnam the veteran was involved in three specific traumatic incidents relevant to his accepted conditions.

4. The veteran gave evidence that when he was posted to Vietnam he was not convinced that Australia should be involved in the Vietnam War. He was against national service, believing that the conscripts were not trained sufficiently for "that sort of war". The veteran was initially posted on active duty in Vietnam and then to troop carriers. This required him to drive soldiers in and out of the battlefield. He said that when he drove the young conscripted soldiers in he saw fear in their faces, and he observed some "crying and spewing". He said they were clearly inexperienced and extremely afraid. He said in the course of the Nui Dat search and destroy missions he drove 20 to 30 soldiers in and he came back with 10 to 13. On one occasion the veteran was required to assist with the clearing out of civilian dead and wounded from a cinema the subject of a rocket attack. On another occasion he was forced to shoot dead a 10 year old Vietcong escapee. This evidence was not challenged.

5. The veteran said that after these episodes he drank alcohol to excess. He said "it helped". On one occasion he drank so much he "got paralytic" and he shot himself in the foot. He seems now to have little recollection of this event, although it is suggested that in his drunken state his motivation was to wound himself so that he would be sent home. His next recall is waking up in hospital bitterly ashamed of what he had done. He was dispatched home in late 1968 and he left the army in 1969. In evidence he said that he has lived with guilt and shame for thirty years.

Contentions

6. After being discharged the veteran had worked as a civilian in labouring and driving jobs until 1976. He then joined NSW Rail where he worked for some 21 years. This was his last employment. He was retired from this work on 24 April 1998 (T12) on medical grounds when it became clear that he lacked concentration at work, which, given the nature of his duties, posed a risk for him, other employees and the public at large. The veteran was not diagnosed with PTSD or effectively treated until he saw Dr White, consultant psychiatrist, on 16 July 1997 (T7). The veteran indicated that after he ceased work he felt some improvement in his condition with counselling and appropriate medication over the last couple of years. The veteran contends that he is incapacitated for work and that there is no suitable work available that he could reasonably be expected to undertake.

7. The respondent points out that the veteran held down a job and successfully carried out his duties for some 21 years and that after he was correctly diagnosed and treated, his condition improved somewhat. The respondent contends that it follows that the veteran now has a capacity for suitable work.

The standard of proof

8. In assessing pensions, subsection 120(4) of the Act applies. Therefore, in deciding the correct rate of pension, the tribunal must be satisfied that all relevant matters are established to its reasonable satisfaction, that is, on the balance of probabilities.

The medical evidence about PTSD

9. At the hearing, Dr White, consultant psychiatrist, gave an impressive account of the mechanism of PTSD. He explained that so long as a person with an undiagnosed PTSD goes untreated, he or she might work hard or "over work" and distract themselves from the emotional pain being suffered. Such persons tend to withdraw socially and there is a point where, as the person gets older and physically less robust they get tired more easily and less able to cope, and consequently become psychologically less robust, which further reduces the coping mechanisms. He concludes that this process explains the worsening of the veteran's condition to the point where he became incapacitated for work and was retired on medical grounds. The effect of the treatment undertaken by the veteran is to have made him more comfortable, and to make more comfortable his family and those who live with him. The treatment does not cure the condition, which, according to Dr White, the veteran still has and always will have. In Dr White's opinion the veteran's PTSD condition, more than the physical disability caused by the gunshot wound to his foot, is the cause of his permanent incapacity to work. Dr Knox, consultant psychiatrist, provided reports dated 7 September and 1 November 1999 (Exhibit A) in which he agrees with the diagnosis and opinions of Dr White.

10. In the course of the veteran's evidence it transpired that his lessening ability to do responsible jobs such as that of a driver, is substantially a result of the problem he often experiences of dizziness or vertigo. There was no evidence before the tribunal as to whether this complaint was a symptom of PTSD or not. At the request of the tribunal the parties made inquiries of Dr Gillies, the veteran's general medical practitioner, and obtained a report dated 23 August 1999 which had been provided to Dr Gillies by Dr Pham, an ear, nose and throat specialist (Exhibit E). This material was put to Dr White and questions were asked of him as to the relationship between the dizziness and vertigo symptoms and PTSD.

11. Dr White said that he had been aware of the condition of lightheadedness when he first prescribed medication for the veteran. He took him off that medication while he was at work because it was dangerous to work in that state. Dr White said that the medication alone could account for the dizzy attacks, and so could the veteran's tiredness from his interrupted sleep, in itself a symptom of PTSD. However, he also explained that dizziness is a common symptom of the condition of PTSD.

12. Dr White was satisfied from the description of the symptoms given to him by the veteran to him that the veteran suffered from faintness and lightheadedness and dizziness and that this did not amount to vertigo. On the veteran's description the room, or the road upon which he was driving, swayed from side to side - his surrounds did not spin around. He was quite clear about that in giving his evidence to the tribunal. With that history and Dr Pham's negative physical examination in relation to the ear nose and throat, and the fact that a previous MRI appeared normal, Dr White was confident that the veteran did not require further neurological investigation. Dr Pham's suggestion that it might be necessary was not acted upon by either Dr Pham or Dr Gillies. It is open for the tribunal to infer that those doctors took the same view as Dr White as to the cause of the dizziness complaints. Dr White is competent to comment on the dizziness in so far as it is his opinion it is related to the veteran psychological condition or his medication. I am satisfied that whichever of the explanations given by Dr White as to the cause of the veteran's dizziness is the correct one, the incapacity that the veteran's intermittent dizziness causes him, is PTSD related and war-caused.

Capacity to work

13. Dr Burke, consultant rehabilitation medical physician, states in his reports of 27 July 1999 and 27 October 1999 (Exhibit 1), that he is not convinced that the veteran's accepted disabilities alone would currently prevent him from working more than 20 hours per week, or that this would have been so from 5 June 1997. He says that he has not seen any evidence to suggest that the veteran's psychiatric condition deteriorated in 1997 and 1998, and that in fact it improved slightly since being treated by Dr White. As to this, I accept Dr White's explanation of the deterioration in the veteran's condition to the point where it was unsafe for him to continue to work for NSW Rail from the date he ceased work in April 1988. I also accept Dr White's evidence as to the limited effect on the veteran's capacity to work or the improvement in his condition achieved by treatment for PTSD.

14. Dr Knox, consultant psychiatrist, in his report dated 7 September 1999 (Exhibit A), is of the opinion that the veteran does not have the capacity to work 8 hours a week or more. In his opinion if the veteran were to return to work his PTSD would worsen.

15. I prefer the opinions of psychiatrists Dr White and Dr Knox in relation to the effect of the veteran's PTSD on his capacity to work, to that of Dr Burke. Dr Burke is not a specialist in the field of psychiatry, and the PTSD condition, according to the specialist psychiatrists, on its own is sufficiently incapacitating to prevent the veteran from ever returning to his previous employment or other suitable work.

16. The veteran is no longer able to work with the NSW Rail. His doing so would pose a danger to his own and others' wellbeing. The issue then arises as to whether the veteran has capacity to do any other work. Dr White agreed that the veteran might be capable of some driving duties, such as driving labourers to work, if his physical condition allowed him to do so. However, the evidence is that the veteran is not able to drive safely for long distances because he is likely to become fatigued and then suffer dizzy attacks.

17. I accept the opinion of Dr Scott, occupational physician, in relation to the veteran's left foot condition. In his report dated 17 September 1999 (Exhibit B), Dr Scott notes that the veteran is unable to walk more than 300 metres, and that he can stand for no longer than 15 to 20 minutes. He is of the opinion that the veteran should cease physical unskilled work. He states that the veteran's left foot and ankle conditions are now permanent and likely to worsen if and when arthritis develops, which he believes has already occurred. Dr Scott dismisses Dr Burke's concern expressed in his report of 27 July 1999 (Exhibit 1) that the veteran's haemorrhoid condition contributed to his inability to stand and walk for long periods. Dr Scott says that haemorrhoids can probably be treated and fixed, whereas an arthritic condition in the foot is permanent. The evidence does not support the conclusion that the haemorrhoid condition is a factor in the veteran's incapacity to obtain employment. Dr Scott is of the opinion that the veteran is totally and permanently incapacitated for work (Exhibit B).

18. The veteran is unable to do labouring work because of the pain from which he suffers as a result of the wound to his left foot and the arthritis that has set in. He has little education and his age, lack of qualifications, other skills and experience, and his current physical and psychological condition means he is virtually unemployable. I accept that the veteran left his last employment because of his war-caused injuries alone. He is not able to work in any suitable employment for more than eight hours per week. This has been the situation since 24 April 1998.

Assessment as to the degree of incapacity

19. The method of assessing the medical impairment rating is set out in the Guide to the Assessment of Rates of Veterans' Pensions (Fifth ed.) ("the Guide") which is approved under section 29 of the Act. The assessment period commences on 5 June 1997, the date the veteran's application for an increase in pension was received by the respondent, and continues to the date of determination. However, the veteran was not declared medically unfit to work until 21 April 1998.

20. There is no issue about the impairment ratings as assessed by the respondent in relation to the veteran's left foot. Arthritis has developed and the condition is likely only to get worse. The agreed impairment ratings are 5, 2 and 5 under Tables 3.2.2, 3.2.3, and 3.4.1, respectively.

21. The medical impairment rating in respect of the PTSD condition is in dispute. Tables 4.1 to 4.8 are the relevant Tables under the Guide. Dr White in his report dated 21 July 1997 (T7) gave a rating of 45 under the Guide. In his report dated 29 June 1998 (T16) he reduced this to 40. However, in giving oral evidence Dr White indicated that when he saw and assessed the veteran on 25 November 1999, his condition was worse and he assessed his medical impairment rating once again at 45.

22. The respondent contends that irrespective of the findings of the VRB, having heard the evidence of the veteran and taking into account the other evidence and material before the tribunal, the tribunal should assess the medical impairment arising out of the veteran's PTSD condition as 23. This brings a rating of 30 when combined with the left foot impairment ratings under Table 18.

23. The respondent submits that the veteran's self-assessed lifestyle rating is higher than what is considered reasonable when compared with the lifestyle rating expected for the level of his medical impairment as indicated by the shaded area of Scale 23 in the Guide. However, the respondent generally accepts 1 point higher than that indicated as reasonable by the shaded area where a self-assessment has taken place, and concedes a lifestyle rating of 3. That converts to a degree of incapacity under Scale 23 of the Guide of 60%.

24. If Dr White's assessment of 45 is accepted for the medical impairment rating for the veteran's PTSD, when combined with the agreed medical impairment ratings for the left foot condition, a combined medical impairment rating under Table 18 of 50 is given. In that event, even if the veteran's lifestyle assessment is assessed at 3 rather than 4 or 5, an 80% degree of incapacity is achieved according to Scale 23 of the Guide, qualifying the veteran to be assessed for eligibility for pension at special rate.

Findings

25. The respondent relies upon the evidence and opinion of Dr Burke, consultant rehabilitation medical physician, who says in his medical reports of 27 July 1999 and 27 October 1999 (Exhibit 1) that the ratings urged by the veteran should, from the perspective of his specialty, be modified. Dr Burke thought the veteran had capacity to work more than 20 hours per week. I have already found on the psychiatric and other evidence before me that the veteran in effect has no capacity to work as a consequence of his war-caused conditions. Further, I have accepted that the veteran's dizziness complaints are related to his accepted condition of PTSD.

26. The veteran lives a fairly quiet life on the South Coast. He gave evidence as to the sort of things he does around the house. He is able to accompany his wife shopping. He doesn't push the shopping trolley because of his dizziness. He attends a market with his wife once a week, and he walks his dogs. He watches television a lot. He can drive medium distances and he operates a small fishing boat, although he cannot go out on his own. He enjoys seeing his grandchildren though he has difficulty relating to them. He has established cordial relations with his neighbours.

27. I accept the credibility of the veteran's evidence. Dr Scott, in giving evidence, said that when he saw the veteran in August 1999 he found that he minimised his problems and complaints because he was loathe to discuss them. He formed the view that the veteran did not exaggerate his disabilities.

28. Dr White in his report of 21 February 2000 (Exhibit C), details the effect of the veteran's PTSD condition on his family. He reports that the veteran hit his wife accidentally on one occasion during restless sleep. The veteran's wife often sleeps in another room. As a result of medication the veteran's relationships have improved making it "more comfortable", as Dr White describes it, for those who live with him. However, it is still difficult for those around the veteran. He has poor concentration and forgets names. He forgets messages shortly after taking them. His family members comment on his poor memory. The veteran tends to withdraw when distressed and has difficulty trusting people. Dr White also comments about the difficulty the veteran has in trusting people and discussing distressing issues, and that his illness has been underestimated in the past.

29. I have taken into account the evidence that points to the veteran having a relatively peaceful and pleasant life at the South Coast and the fact he is not completely socially isolated and that he is able to get out and about physically. However, given his previous level of physical fitness, and the social and sporting activities he indulged in before he went to Vietnam, and his relatively young age now of 55, it is clear that he leads a restricted emotional and physical life. On the whole of the evidence before me, the picture is that the veteran has a very restricted physical and social life and needs a fair degree of medical and family supervision and attention.

30. The respondent blames some of this on the veteran choosing to remove himself and his family from his friends in Yass to live at the coast. This choice is a consequence of his need to be in a warmer climate, his inability to work, and his tendency to withdraw and seek seclusion.

31. Having heard the evidence and the submissions, and taking into account the impairment ratings given by the various doctors under Table 4, by and large I accept the assessments made by Dr White. He sees the veteran monthly. His assessments and reasons for them are considered. He has been careful to assess any deterioration and improvement since his earlier assessment, and he gave comprehensive reasons for them. It generally accords with the evidence I heard and it is consistent with the material before me. I detail some of those assessments and indicate where, on the evidence before me, I depart from those assessments.

Table 4.1 - Subjective Distress

32. In 1998 Dr White assessed this at 10 and increased the rating to 15 in 1999. I accept the previous lower assessment of 10. While the veteran has persistent symptoms required for the rating of 15, they cause moderate rather than considerable distress. I accept that the veteran's new lifestyle at the coast allow him to distract himself from the distress, for example by walking the dog or taking out his boat with his wife.

Table 4.2 - Manifest Distress

33. The respondent submits that only the veteran's family members are aware of his distress. I have had the advantage of observing the veteran in the witness box and it was apparent that he is depressed, and he was clearly distressed when relaying events which occurred in Vietnam, and the effect the memories had on him. However, in the context of the veteran giving evidence I was astutely observing the veteran. It is not likely, and there is little evidence to support the proposition, that the veteran's distress is obvious and his pre-occupation with his symptoms is evident to casual observers. I am of the opinion that 6 is the appropriate rating under this Table.

Table 4.3 - Functional Effects

34. Dr White assesses this at 3, reflecting that the veteran suffers moderate interference with functions in many every-day situations. This is a reasonable assessment on the evidence before me, which I accept.

Table 4.4 - Occupation

35. The veteran is unable to work. Drs Knox, White and Scott say this is so. The rating of 8 is the appropriate assessment under this Table.

Table 4.5 - Domestic Situation

36. Dr White originally assessed this at 3 and has now increased his assessment to 6. The veteran's evidence is that his best friend is his wife and he does what she tells him. The tribunal did not hear from the veteran's wife, and it is unlikely that the veteran has complete insight into, or wants to admit, the difficulties his condition poses for her and their relationship. Dr White was seeing the veteran monthly and assessed that his domestic situation is deteriorating. Dr White is perhaps in the best position to provide this assessment. I accept his assessed rating of 6.

Table 4.6 - Social Interactions

37. Dr White assesses this at 5 at least, or perhaps 6. He points out that the veteran has not led a normal social life over the past 30 years because of his unrecognised PTSD condition for most of that time. Despite the fact that the veteran worked for NSW Rail for 21 years he did not develop close friendships. He did not socialise at home after work. Socially he has been withdrawn. His social interaction now is limited to his close family and one or two of his neighbours. I take into account that he is now relating to a small extent to his neighbours and is able to attend the market once a week and go shopping with his wife. I accept the rating of 5.

Table 4.7 - Leisure Activities

38. As to this, Dr White sees some improvement since the veteran moved to the coast. He reduced his previous assessment from 6 to 5. The veteran's leisure activities have been restricted because of his PTSD condition for many years. Before his posting to Vietnam the veteran participated in sports and fox shooting and other activities. He cannot participate in those activities now. His left foot pain now further restricts him. Though requiring his wife to accompany him, he is able to go fishing in his boat. I accept Dr White's assessment of 5.

Table 4.8 - Current Therapy

39. Again, Dr White has seen improvement which has resulted in less intensive therapy. Dr White having originally assessed the veteran as having a rating of 5 under this Table, now rates him at 3. The respondent does not argue with this assessment, and accordingly I accept it.

Scores

40. Adding the ratings from Table 4.1 and 4.2 and the highest three impairment ratings from Tables 4.3 to 4.8 results in a score of 35. When this is combined in accordance with Scale 18, the combined values chart, with the accepted scores for the left foot impairment a rating of 42 is given. This rounds down to 40.

Lifestyle assessment

41. The applicant submits that the veteran's assessment of 5 should be accepted converting the degree of incapacity to 100%. However, the reasonableness of that submission is largely dependent upon an acceptance of a combined medical impairment score of 50. However, I have found a combined medical impairment rating of 40, and therefore the veteran's self-assessment of his lifestyle rating should not exceed 4. Whether 3 or 4 is accepted, the veteran has an assessed degree of incapacity of 70% or more.

42. Having found that the impairment rating is 70% or more the veteran is entitled to be assessed for eligibility for pension at special rate. I have found that the veteran is prevented from working more than 8 hours a week by reason of his war-caused conditions. It is clear that, having been medically retired from his last employment on 24 April 1998 because of his PTSD condition, he has suffered a loss of salary, wages or earnings. He therefore meets the criteria under section 24 of the Act and is entitled to special rate pension.

Date of effect

43. The earliest date of effect for pension above general rate is 30 September 1998, being 6 months prior to the veteran's application for review being received by this tribunal. This date is arrived at because the veteran's application to the tribunal was lodged out of time and pursuant to section 177(2)(b) of the Act the earliest effective date is a date not more than 6 months before the date on which the application was made.

Decision

44. The tribunal sets aside the decision under review and in substitution therefore decides that the veteran has a degree of incapacity of 70% or more, and that he is entitled to pension at special rate.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member

Signed: .....................................................................................

Associate

Dates of Hearing 16 & 17 March 2000

Date of Decision 30 June 2000

Counsel for the Applicant Mr David Thorley

Solicitor for the Applicant Gary Robb & Associates

Counsel for the Respondent Mr Peter Godwin

Solicitor for the Respondent Department of Veterans' Affairs, Advocacy