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.
.................................[Sgd].......................................
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 2724
Decision Date: 20 December 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Anderson against a decision of the Repatriation Commission regarding his entitlement to a disability pension at the Extreme Disablement Adjustment (EDA) rate. The core of the dispute revolved around the assessment of the veteran's lifestyle rating, which, when combined with his impairment rating, determines eligibility for the EDA. The case was heard by Deputy President Sosso P.

The legal issues before the Tribunal were whether the veteran's self-assessed lifestyle rating was appropriate, or if a lower rating proposed by the Repatriation Commission was more accurate. Specifically, the Tribunal had to consider the veteran's reported difficulties with mobility, personal relationships, recreational and community activities, and domestic and employment activities, in light of the criteria set out in the relevant Guide for assessing lifestyle impacts. The Tribunal was also required to determine the correct application of the legislative provisions concerning the calculation and rounding of the lifestyle rating.

The Tribunal applied the principles outlined in the Guide, which permits veterans to self-assess their lifestyle impacts. While acknowledging that a self-assessment should not usually be queried, the Guide also permits a determining authority to reject a self-assessment if it is not broadly consistent with the level of impairment. The Tribunal considered the veteran's detailed evidence regarding his physical limitations, his living arrangements, and his inability to participate in social or recreational activities. It also considered the contrasting assessment provided by the Repatriation Commission. Drawing on the principle that veterans' entitlement legislation is beneficial and should be interpreted in favour of the veteran, as observed in a previous determination, the Tribunal found that the veteran's self-assessment was broadly consistent with his level of impairment.

Consequently, the Tribunal set aside the decision under review and substituted it with a decision that Mr. Anderson is eligible for a pension at 100% and the Extreme Disablement Adjustment. The matter was remitted to the Repatriation Commission to determine the precise date from which the EDA is to be paid.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONIntroduction 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: Personal relationships 5 Mobility 6 Recreational and community activities 6 Domestic and employment activities 5Total 22 Personal relationships 5 Mobility 6 Recreational and community activities 6 Domestic and employment activities 5 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: Personal relationships 3 Mobility 4 Recreational and community activities 5 Domestic and employment activities 5Total 17 Personal relationships 3 Mobility 4 Recreational and community activities 5 Domestic and employment activities 5 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.”