Anderson and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2724

Anderson and Repatriation Commission (Veterans' entitlements) [2017] AATA 2724 (20 December 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/2065
Re:Mr Kenneth Anderson
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:20 December 2017
Place:Brisbane

The Tribunal sets aside the decision under review and substitutes it with a decision that the veteran is eligible to be paid a pension under section 22 of the Act at 100% and, in addition, be paid the Extreme Disablement Adjustment.
The matter is remitted to the Respondent to determine, having regard to these findings, the correct date from which the Extreme Disablement Adjustment is to be paid.
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Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – entitlement to Extreme Disablement Adjustment rate – assessment of disability and lifestyle rating – decision under review set aside
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Collins v Repatriation Commission (1994) 33 ALD 557
Howard and Repatriation Commission [2015] AATA 922
Kershaw v Repatriation Commission [2000] FCA 1802
Smith v Repatriation Commission (2014) 220 FCR 452
Secondary Materials
Guide to the Assessment of Rates of Veterans’ Pensions, Department of Veterans’ Affairs, Canberra, 1998
REASONS FOR DECISION
Deputy President J Sosso
20 December 2017
INTRODUCTION

The Repatriation Commission (the Respondent) determined on 15 August 2014 (Exhibit 1 T16 pp. 92 – 96) to increase the disability pension paid to Mr Kenneth Anderson (the veteran) to 100% of the General Rate pursuant to the Veterans’ Entitlements Act 1986 (the Act). This decision followed a determination by the Veterans’ Review Board (the Board) on 24 July 2014 that the veteran’s osteoarthritis of both hands was service related – Exhibit 1 T11 pp. 55 – 68.
The veteran requested the Board reconsider the Respondent’s decision, however the Board affirmed it on 12 February 2016 – Exhibit 1 T2 pp. 2b – 2f.
On 18 April 2016 the veteran applied to this Tribunal for a review of the Board’s decision – Exhibit 1 pp. 1a – 1e.
MEDICAL HISTORY OF THE VETERAN
The veteran was born in 1948 and is currently 69 years of age. He served in the Royal Australian Navy between 1966 and 1978, and rendered operational service at various times between 1966 – 1969 in Vietnam, Malaysia and Singapore while serving on HMAS Vampire, HMAS Sydney and HMAS Duchess – Exhibit 1 T12 p. 58.
The veteran suffers from the following conditions which have been accepted by the Respondent:
·Bilateral pterygium;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Atherosclerotic peripheral vascular disease affecting both legs;
·Erectile dysfunction;
·Lumbar spondylosis; and
·Chronic bronchitis and emphysema.
The Respondent has not accepted the Applicant’s hypertension and alcohol abuse as service-related conditions.
The Tribunal was presented with a medical report of Dr Angus Forbes which is dated 11 July 2016. Although it was not admitted into evidence, its contents were not contested. Dr Forbes provides useful background information on the nature and impact of the veteran’s accepted conditions (pp. 3 – 4):
“Spine
Mr Anderson recalls first experiencing back pain in the mid-1970s. He reports having pain and stiffness in his lumbar spine at that time. This has become more severe and more frequent over time.
He underwent steroid injections into his lumbar spine several years ago. He believes these may have been into his facet joint. He does not recall them offering any relief in either the short or medium term.
Peripheral Vascular Disease
Mr Anderson reports gradual onset of cramping pains in both calves which were worsened by exercise. Some time in 2010 he underwent a stenting procedure in his left leg under the care of Professor Harris in Sydney. He reports this required a secondary operation approximately a month later, as the original stent failed.
He has also had surgery on his right leg, the most recent of which was in December 2015, in Brisbane, where he had a stent put in his leg. He believes he had surgery some time in the years preceding that as well.
These operations were all successful in reliving (sic) his exercise related leg pain.
Bronchitis and Emphysema
Mr Anderson reports a long history of feeling short of breath. He reports that he always has phlegm. This varies between clear and black. He has occasional coughing fits. He does not believe he has had a chest infection for a number of years. He has been compliant with flu vaccination and his medication…
Current State
Spine
Mr Anderson reports his spine is his major limiting factor. He has constant pain around his lower back, worse on the right side. There are no radiations to the legs.
He finds his pain is improved with lying down and with extension. It is worsened with sitting.
Peripheral Vascular Disease
Mr Anderson reports cramping pain in his legs which currently comes on his right calf after approximately 20 yards of walking. These pains settle when he rests for a relatively short period. He is not using any walking aids and does not feel he requires them. He reports he does not drive but this is primarily due to his back pain rather than leg pain.
Bronchitis and Emphysema
Mr Anderson reports he is short of breath all the time. However, this does not significantly limit his activities as they are limited by back pain for physical activities and leg pain for exercise tolerance.”
ISSUE TO BE DETERMINED
The issue before the Tribunal is whether the veteran is entitled to the disability pension at 100% plus the Extreme Disablement Adjustment (EDA). No submissions were made that the veteran qualifies for either the intermediate or special rate of pension (under ss 23, 24), and, accordingly, the sole focus of this matter has been on the requirements of s 22.
THE LAW
The starting point is s 15 of the Act which permits a veteran, in receipt of a pension, to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was either assessed or last assessed.
In determining if a veteran is eligible for an increased rate of pension, s 19 provides, inter alia, that the veteran’s entitlement is to be assessed with respect to any circumstance arising during the assessment period. That term is defined in s 19(9) as “the period starting on the application day and ending when the claim or application is determined.” Useful guidance is provided by Buchannan J in Smith v Repatriation Commission (2014) 220 FCR 452, where his Honour said (at 462/[40]):
“This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of the decision. The entitlement may increase or decrease during that period…”
Section 22 of the Act provides both for the General Rate of pension as well as the requirements for payment of the additional EDA. The pension is payable at 150% of the general for those severely disabled veterans not otherwise qualifying for the intermediate or special rate of pension. In order to be paid the EDA, s 22(4) requires that a veteran:
- Is entitled to the pension at 100% of the general rate;
- Is aged 65 years or older;
- Has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points; and
- Is not receiving the pension at the intermediate or special rate or special rate on a temporary basis.
Section 21A requires the Respondent to determine the degree of incapacity of a veteran from service-caused injury or disease, or both, according to the provisions of the approved “Guide to the Assessment of Rates of Veterans’ Pensions” (the Guide), which is prepared pursuant to s 29. Subsection 21A(2) provides that the degree of incapacity is to be determined in increments of 10%, and is not to exceed 100%. If a veteran’s incapacity is less than 10% a pension will not be granted – s 21A(3).
Section 29 of the Act provides for the Respondent preparing the Guide, which sets out:
- criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
- methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100%.
Importantly, s 29(4) provides, inter alia, that when the Tribunal is required to review the assessment of the extent of the incapacity of a veteran resulting from a war-caused injury or disease (or both), the provisions of the Guide are binding on the Tribunal in carrying out that review.
In Collins v Repatriation Commission (1994) 33 ALD 557, Olney J said (at 566):
“The Guide is part of the law of Australia. It is authorised by the Act and has binding effect according to its terms. To apply the Guide to the facts of a case is not to be bound by a legal form or technicality, but rather, is simply to apply the law.”
THE GUIDE
Under the Guide, “medical impairment” has two components:
(a)physical loss of, or disturbance to, any body part or system; and
(b)resultant functional loss.
The Guide places greater emphasis on functional loss as a basis for assessment. This is measured by reference to an individual’s performance efficiency compared with that of an average, healthy person of the same age and gender.
A number of Tables are prescribed, each containing benchmark values, generally at intervals of five points. Each benchmark is a threshold value, and the rating applies only if the threshold is achieved or exceeded. Ratings are not rounded up to the next benchmark.
Medical impairment is expressed in impairment points out of a maximum rating of 100, with 100 corresponding with death and 0 with nil or negligible impairment.
Lifestyle effects are dealt with in Chapter 22 of the Guide.
A lifestyle effect is a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition(s).
There are three optional methods of assessing lifestyle effects. The veteran is given the option of choosing which method will be used as the basis of the assessment.
The effects of impairment on lifestyle are determined by reference to four components of that veteran’s life:
- personal relationships – Table 22.1;
- mobility – Table 22.2;
- recreational and community activities – Table 22.3; and
- employment and domestic activities – Tables 22.4 and 22.5.
In the case of Tables 22.4 and 22.5, the Tribunal is required to compare the lifestyle ratings obtained from each and to adopt the higher rating.
A four-step process is mandated by the Guide which entails adding together the lifestyle ratings from Tables 22.1 – 22.3 and the higher of either 22.4 or 22.5 and then dividing by four. The result is rounded up to the nearest integer, with a fraction of 0.5 rounded up. The figure obtained from this calculation is the final lifestyle rating to be used in the assessment.
APPLICATION OF THE GUIDE TO THE VETERAN
As previously noted, s 24(4)(c) requires that a veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points. The Delegate of the Respondent determined on 15 August 2014 that the Applicant had an impairment rating of 59 points (rounded up to 60) and a lifestyle rating of 4 – Exhibit 1 T16 pp. 94 – 95. Following consideration of the report of Dr Forbes referred to previously, the Respondent reassessed the impairment rating and the veteran was awarded 65 points on 12 August 2016 – Respondent’s Facts and Contentions para 2.6.
The Tribunal was informed at the hearing that the Respondent had conceded that the veteran has an impairment rating of 70 points. The Tribunal was presented with a document headed “Pulmonary Function Test Results”, which test was, apparently, conducted on 21 August 2017 – Exhibit 5. In light of this concession, based on the detailed findings in that report, the sole focus of this matter has focused on the lifestyle rating of the veteran.
EVIDENCE GIVEN AT THE BOARD HEARING
In the reviewable decision, the Board outlined the veteran’s evidence, which was, in broad terms, identical to the evidence given to the Tribunal – Exhibit 1 T2 pp. 2d – 2e:
“Mr Anderson spoke about the difficulties in walking resulting from his bronchitis and emphysema and his vascular disease affecting his legs. With this combination of disabilities he was restricted to walking about 100 yards on flat ground. On an incline this distance was greatly reduced. He is on three different types of medication for his breathing problems. In relation to his tinnitus he said this is constant and severe and never stops. It interferes with his sleep. In speaking about osteoarthritis in both hands he said his thumbs are restricted in movement and he has lost grip strength. Handling small items is particularly difficult.
When asked about lifestyle he said he lives with his sister and her husband in Queensland. They are on a farm about 30 kilometres out of town. He has been with them about 3 years. He said he gets on well with them. The veteran said he has 5 children altogether and keeps in touch with them all. Around the house he is able to help with some washing up and drying dishes. He said he cannot use a vacuum cleaner because of his back problems. He no longer owns a car and does not drive because of the discomfort from his back. As a passenger he will feel discomfort after about 15 minutes and if on a long trip will need to stop and get out of the car and stretch. He is able to wash some windows but cannot climb on a ladder and can use a broom to do some light sweeping. He said if he was on his own he would need to get assistance for any heavy work around the house. In relation to recreational activities he said he used to enjoy his lawn bowls. He had to stop that about 3 years ago because of his back.”
VETERAN’S STATEMENTS
The Tribunal admitted into evidence a written statement of the veteran dated 15 September 2016 – Exhibit 2. This statement is set out in full below:
“1. In my evidence I spoke about the difficulties I have in walking any distance because of my bronchitis, emphysema and vascular disease affecting my legs and breathing. At the time I could walk approximately 100 yards on level ground and on any incline it is greatly reduced. I am on three different types of medication for my breathing problems and peripheral vascular disease.
2. My current lifestyle is very restricted. I was living independently in Sydney and it became very hard for me to maintain a normal life due to my accepted conditions. I did not have a family nearby who could care for me. My sister and her family owns a 4,000 acre cattle farm and also own and run their business in town 5.5 days a week (town is 30 km away) invited me to live there and do manual jobs. I spend 5.5 days on my own except if I have to attend doctors or physiotherapists or any other medical needs. In these instances, my sister is required to take time off from running the business to take me. Due to my restricted lifestyle, I have no social life or close friends.
3. I had to give up all recreational activities such as lawn bowls, due to constant back pain. I cannot drive a car and as a passenger I have to stretch every hour or so. Hence, on lengthy trips become even more so.
4. The VRB did not consider my VVPPA submissions. In the past, I have been requested by my doctor to seek advice from other sources, as opposed to DVA, to help me such as Genesis Sleep Care for sleep apnoea and mental health organizations.
5. I take Nurofen and Ibuprofen for pain. I have been prescribed others but they were addictive.
6. I have limited contact with the rest of my family due to my isolated location and the impact my medical conditions have on my lifestyle.
…
8. I told the review board I live with my sister and brother in law on a cattle farm but did not mention that I am on my own from 6am – 6pm Monday – Friday and 6am – 1pm on Saturday which at times can be very lonely.
9. I am unable to form social relationships as I am reliant on others to take me into town for medical appointments. Therefore, my trips are limited to these occasions and I do not have the opportunity to socialize with others.
10. I do not own a motor vehicle. I cannot travel long distances because of my back problems. Walking can become a problem with cramping, pain and difficulty breathing.
11. My activities of daily living are limited due to my accepted conditions. I am unable to undertake simple tasks such as cleaning due to my accepted conditions.
12. Due to my accepted conditions, I cannot participate in recreation and community activities, such as lawn bowls.”
The Tribunal also admitted into evidence a Supplementary Statement of the veteran which was neither signed nor dated, but which was received by the Tribunal on 9 March 2017 – Exhibit 3. The veteran provided the following additional information:
“1. As my sister and brother in law would be at work during the day, meals for the next day would be prepared the night before which would only have to be put in the microwave or have cold that day.
2. During my long hours alone during the day, I would spend a lot of hours reading, and very simple tasks like dusting and feeding the cats and dogs. Vacuuming and making the beds were out of the question.
3. I also go for short walks until my calf muscles cramp (about 30 meters), take a short rest, massage the calf muscles, a puff on the ventilator and try for more. I am not usually able to get much further and go home to rest.
4. Since my last statement, my sister and brother have sold their business in town and are full time on the farm so my sister is a carer for me, along with the farm duties and also drives me to and from town appointments.”
The Tribunal also admitted into evidence a statement of the veteran’s sister, Mrs Wendy Wildman – Exhibit 4:
“2. My brother is living with my husband and myself and he spends most of his days reading or going for very short walks.
3. I make all the meals each day for him.
4. The only task Kenneth does around the home is feeding the cats and dogs and keeps an eye on the property when we are not home.
5. I do all the house work including, cooking, cleaning and washing etc.
6. Kenneth is unable to carry out most household tasks.”
THE HEARING
A hearing was convened in Brisbane on 24 October 2017. The veteran was represented by Mr Matthew Taylor of KCI Lawyers. The Respondent was represented by Mr Bruce Williams. The veteran and Mrs Wendy Wildman both gave evidence via videoconference.
The veteran testified that he has eight grandchildren and speaks to his children approximately once each week for approximately 30 minutes. He has two children plus step-children. His son lives in Perth and he speaks via telephone approximately once each fortnight for up to an hour. His youngest daughter has visited him twice in five years, but he tries to visit Sydney twice each year.
Apart from speaking to family members, the veteran said he had no friends who he spoke to. He engages in no non-family social activities and his hobbies are reading and crosswords.
On most days the veteran reads and takes a couple of short walks, usually from the house to the front gate, which is a distance of approximately 30 metres. He takes a “puffer” with him, and by the time he reaches the front gate his legs usually cramp.
He tries to assist in some household chores such as dusting and light cleaning, feeding the cats and dogs and doing the washing up, however, he tires easily.
He last visited his son in Perth approximately two years ago. When the veteran travels to Sydney, he stays with family for up to two weeks. On arrival to Sydney he does not engage in too much other travel.
CONSIDERATION
Introduction

The Guide allows for three optional methods of assessment. In this matter the veteran chose Option 1, which allows for self-assessment of the effects of accepted conditions on a person’s lifestyle.
A veteran electing Option 1 must complete a Lifestyle Rating Self Assessment Form which covers the four key components of lifestyle. Importantly, the Guide states:
“The self-assessed rating should not usually be queried although further information may be requested if necessary. It is expected that the self-assessed lifestyle rating would be broadly consistent with the level of impairment. A determining authority may reject a self-assessment of lifestyle rating because it overestimates, or underestimates, the level of rating that is broadly consistent with the level of impairment from the accepted conditions.”
The Tribunal admitted into evidence (Exhibit 6) an undated Lifestyle Rating Self Assessment Form which bears a facsimile date of 12 December 2016. The veteran’s self-assessment was as follows:
1. Personal relationships 5
2. Mobility 6
3. Recreational and community activities 6
4. Domestic and employment activities 5
Total 22
Applying the steps used to calculate the lifestyle rating, the total of the above ratings (22) is then divided by four to produce 5.5 points. As a fraction of 0.5 is required to be rounded up to the nearest integer, the lifestyle rating is six points, and therefore meets the second requirement of s 22(4)(c).
In contrast with the veteran’s assessment, Mr Williams, on behalf of the Respondent, submitted that the preferable assessment was as follows:
1. Personal relationships 3
2. Mobility 4
3. Recreational and community activities 5
4. Domestic and employment activities 5
Total 17
Dividing that total (17) by four produces a rating of 4.25, which when rounded to the nearest integer produces a lifestyle rating of 4.
Mr Taylor, on behalf of the veteran, submitted on the basis of the evidence presented, that the preferable rating for domestic and employment activities was 6 and not the 5 nominated by the veteran. If this were accepted, then the total would be 23, and divided by four result in a lifestyle rating of 5.75, which again would be rounded up to 6.
Mr Taylor drew the Tribunal’s attention to a recent Tribunal determination – Howard and Repatriation Commission [2015] AATA 922. In that matter Deputy President Constance made the following observations:
“83. The evidence does suggest that a rating of four points is more appropriate than Mr Howard’s self-assessed rating of five points. However, guided by the instructions given in Chapter 22 that a self-assessed rating should not usually be queried, and bearing in mind that the variation of the assessment is only one point, I am of the view that Mr Howard’s assessment should be accepted. In reaching this conclusion I have taken into account that the Veterans’ Entitlement Act is beneficial legislation and should be interpreted in favour of the veteran.”
I prefer to approach the task before the Tribunal is a slightly different way.
The admonition that a veteran’s self-assessment should not usually be queried, does not raise a presumption that such self-assessment is correct and should only be displaced in a rare or unusual circumstance. The Guide makes it clear that the Respondent is at liberty to reject a self-assessment where it believes it is incorrect. A sensible reading of the Guide, in the context of the administration of the Act, requires the Respondent to accept a self-assessment unless it is obviously in error. Clearly a beneficial gloss will be placed on the self-assessment, and it would not be in accord with the spirit of the Guide or the Act for the Respondent to adopt a pedantic, prescriptive or overly inquisitorial approach. Nonetheless, the Respondent is entitled to reject a self-assessment where it believes it is plainly wrong.
If the rating ascribed by a veteran is overly generous, neither the Respondent nor the Tribunal is bound to accept it. There is no onus placed on the determining authority to accept a self-assessment that is plainly wrong. No beneficial principle overrides the onus placed on the determining authority to apply the Guide. It is not open to the Respondent, the Board or the Tribunal to ignore the evidence presented and proceed to a default position of uncritically adopting a veteran’s self-assessment.
Finally, the Guide has binding effect according to its terms – Collins v Repatriation Commission (1994) 33 ALD 557. The various Tables dealing with lifestyle effects are not prescribed to give general guidance to the Tribunal. They contain examples that, as far as is possible, need to be adopted in determining a rating. In short, the Guide is not a document designed to give general guidance, but a prescriptive document whose terms carefully delineate the parameters for determining a lifestyle effect rating – Kershaw v Repatriation Commission [2000] FCA 1802 at [12] per Heerey J.
It is therefore necessary to consider the veteran’s lifestyle rating assessments in light of the evidence presented.
Personal Relationships
The veteran gave a rating of five under Table 22.1. In order to be rated 5, the following circumstances must apply:
“Severely affected relationships. Able to relate only to particular, or few people, e.g. spouse or children. These remaining relationships are strained and of low quality.”
Mr Williams suggested a rating of 3, namely:
“Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.”
The various criteria in Table 22.1 focus, essentially, on two factors. First, the quantity and frequency of the veteran socialising with persons, and, second, the quality of those relationships.
The evidence before the Tribunal is that with the exception of telephone calls with his children and the occasional interstate visit, the veteran is a recluse. He lives with his sister and brother-in-law on a remote rural property in central Queensland and has no friends or acquaintances. He does not engage in any social activities, and would appear to be an extremely introspective individual.
The evidence does not disclose that his relationship with his family members is strained or of low quality, but, as stated, perhaps this is the case because contact is relatively infrequent.
The veteran’s circumstances do not readily fit within the confines of Table 22.1, and the Tribunal is presented with the not unusual task of trying to use the rather blunt instrument of the Tables to dovetail into the much more nuanced factual matrix presented by the evidence.
Applying a beneficial approach, the preferable rating is five. The veteran’s accepted conditions have resulted in a severe reduction in interpersonal contact. The cumulative impact of the accepted conditions on the veteran’s personal relationships has been significant, resulting in him becoming a recluse and shutting himself off from all persons other than his immediate family. While the relationship he holds with his family is positive, it is a relationship born of distance and relatively little contact other than with his sister and her husband.
A rating of three or four is predicated on a veteran having relations with persons outside his or her family, namely friends, neighbours and colleagues. In contradistinction the criteria for a five rating is predicated on a veteran only having relationships with a few people, with the example given of a spouse or children. Having regard to the veteran having no relationship with “friends”, “neighbours” or “colleagues”, the descriptors for the ratings of three and four are less relevant than the descriptor for the rating of five.
Mobility
The veteran assessed a rating of six, namely:
“Severe impediments to mobility:
- restricted to home and immediate vicinity, unless door to door transport and assistance from others are provided;
- unable to drive a car in any circumstances whatever.”
The evidence presented was that the veteran can only walk small distances (100 yards on level ground) and after 30 metres his calf muscles cramp. He finds it difficult to climb more than two or three stairs, cannot drive a car, cannot sit in a car for any period of time and has to be driven by his sister to attend medical appointments.
Conversely the veteran testified that he travels on annual basis from Gladstone to Sydney by aeroplane. Clearly, he experiences difficulty in so doing, but nevertheless his mobility is sufficient to permit him to undertake this activity, which entails a flight from Gladstone to Brisbane and then Brisbane to Sydney and a two aeroplane return trip.
In these circumstances a rating of six is not permissible. Clearly the veteran exceeds a rating of four (markedly reduced mobility), and his circumstances fall more readily within the broad spectrum of “Major impediments to mobility”. Accordingly, a rating of five is the preferable assessment.
Recreational and social activities
The veteran assessed a rating of six under Table 22.3:
“Able to engage in only a very few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors.”
The evidence presented suggests that the veteran engages in no social activities other than face to face conversations with his sister and her husband and occasional telephone conversations with some of his children.
The veteran ceased playing lawn bowls, and has not engaged in any social activities since moving from Sydney to central Queensland in 2012. He has not played lawn bowls in Gladstone or struck up any friendships when he irregularly visits the town for medical examinations.
The only recreational activity he regularly engages in is reading.
The material suggests a rating of six is the most appropriate.
Domestic activities
The veteran assessed a rating of six under Table 22.4:
“Able to carry out only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example:
-able to do very light tidying, dusting, but unable to cook or prepare meals;
-has difficulty standing to set table or wash dishes.”
The veteran testified that he feeds the cat and the dog and sometimes helps with the washing up. However he does not put the dishes away, does not cook meals and does not do the general washing. His sister makes all the meals and he simply put the meals in the microwave to heat them up. Mrs Wildman testified that she did almost all of the domestic duties and that the veteran was physically incapable of assisting, even though he would like to. The veteran tries to assist with some minor tasks from time to time, including washing some of the windows.
The domestic situation outlined in the evidence most clearly comports with the descriptor for the six rating.
Total rating
The veteran lifestyle ratings from Tables 22.1, 22.2, 22.3 and 22.4 are 5, 5, 6 and 6, producing a total rating of 22. When that figure is divided by 4, the result is 5.5, which is then rounded up to produce a final lifestyle rating of 6.
The veteran, accordingly, satisfies the second requirement of s 22(4)(c) of the Act.
The veteran is, as a consequence, entitled to the Extreme Disablement Adjustment in accordance with s 22 of the Act.
DECISION
The decision under review is set aside and is substituted with a decision that the veteran is eligible to be paid a pension under section 22 of the Act at 100% and, in addition, the Extreme Disablement Adjustment.
The matter is remitted to the Respondent to determine, having regard to these findings, the correct date from which the Extreme Disablement Adjustment is to be paid.

76. I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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Associate
Dated: 20 December 2017

Date of hearing: 24 October 2017

Advocate for the Applicant: Mr Matthew Taylor, KCI Lawyers

Advocate for the Respondent: Mr Bruce Williams

Date of hearing:	24 October 2017
Advocate for the Applicant:	Mr Matthew Taylor, KCI Lawyers
Advocate for the Respondent:	Mr Bruce Williams