Arnold Higham and Repatriation Commission

[2016] AATA 107

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2014/4226

Veterans' Appeals Division  )

Re: Arnold Higham

Applicant

And: Repatriation Commission

Respondent

CORRIGENDUM

TRIBUNAL:   Miss E A Shanahan, Member

DATE:            2 March 2016

PLACE:         Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In paragraph 92;

Where reference is made to a lifestyle rating of 5, rather than 3, the latter being the rounded (up or down) average of ratings 5, 2, 3 and 3, delete 5 and replace with 3. 

[sgd]...................................................................

Member

Higham and Repatriation Commission (Veterans’ entitlements) [2016] AATA 107 (26 February 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2014/4226
Re	Arnold Higham
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Miss E A Shanahan, Member
Date	26 February 2016
Place	Melbourne

The Tribunal affirms the decision under review.  Mr Higham does not qualify for the extreme disablement allowance.

[sgd]……………………………..

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – extreme disablement allowance – pension at 100 per cent of the general rate – several accepted conditions that have resolved, have been negated by investigation or do not result in incapacity – lumbar vertebral disc prolapse post service was work related and the subject of workers’ compensation payments – disc prolapse persists despite three spinal operations – applicant has not worked for 25 years – disablement primarily not war-caused.

Legislation

Veteran’s Entitlement Act 1986

Guide to the Assessment of Rates of Veterans’ Pensions 5^th edition

Cases

Re Higham and Repatriation Commission [2005] AATA 719

REASONS FOR DECISION

Miss E A Shanahan, Member

February 2016

1. Mr Higham lodged a claim for an increase in pension on 2 April 2013 and made a further lodgement on 9 September 2013.  He has been receiving a disability pension at 100 per cent of the general rate since 3 May 2000 and was assessed as having a medical impairment rating of 70 points under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) on 9 January 2001.

2. Both claims were rejected at the delegate level of the Repatriation Commission (the Commission) and Mr Higham sought a review of the determination by the Veterans’ Review Board (VRB) on 27 August 2013 and again on 22 November 2013.  On 8 July 2014 the VRB affirmed the decision to reject the claims and affirmed the earlier (28 March 2007) VRB decisions that Mr Higham did not qualify for the special or intermediate rate.  In regard to the extreme disablement allowance (EDA), it was accepted by the Commission that Mr Higham had now turned 65 (although he was not 65 at the time of his application) and therefore satisfied s 32(3)(b) of the Veterans’ Entitlement Act 1986 (the Act). The Commission accepted that he had the requisite impairment rating of 70 points, but said he did not meet the requirements of s 22(4)(c) in that he did not have a lifestyle rating of 6 points in accordance with the GARP.

3. On 18 August 2014 Mr Higham lodged his application for review of the VRB decision by the Administrative Appeals Tribunal.

4. At the hearing, Mr Higham was represented by Ms Fiona Spencer of counsel instructed by Williams Winter solicitors. The Commission was represented by Mr Ken Rudge, a lawyer with the Commission. The Tribunal was provided with the documentation lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Both parties tendered a large volume of reports, the details of which are appended to this decision.

5. The hearing was originally listed for one day on 25 May 2015. However, it became clear that the medical evidence provided was lacking in detail, particularly in relation to Mr Higham’s disc protrusions at L4/5 and L5/S1 which had been attributed to workplace injuries in 1976 and 1983.  Mr Higham had received workers’ compensation payments for an unknown period of time from 1990 onwards. 

6. As Mr Higham relied on the decision of Senior Member Handley (Re Higham and Repatriation Commission [2005] AATA 719), namely, that his lumbar spondylosis was war-caused, it was necessary for the Tribunal to examine the medical data founding this decision. Senior Member Handley had specifically excluded Mr Higham’s lumbar disc protrusions, as opposed to ligamentous spinal injury or strain, as being war-caused. The Tribunal adjourned the hearing and both parties elected to obtain further expert medical opinion.

   background to the application

7. Mr Higham served in Vietnam during his national service and was a storeman in the Australian Army for a period of five months. He was posted to the Southern Zone in Vietnam.  With the exception of the repair of an inguinal hernia, his service medical records were confined to minor illnesses.  In earlier hearings regarding his claims for a disability pension, Mr Higham had outlined the duties he had performed in Vietnam. These included being able to lift items weighing up to 50 kilograms.  He gave evidence in 2005 that he would occasionally suffer from back pain, but this usually resolved with rest. 

8. Following his discharge from the Army, Mr Higham did not work for a period of 12 months.  He appears to have spent his time mainly drinking and socialising before he commenced working as a fox hunter.  In 1973 he obtained employment with the Ballarat Water Board (water board) as a labourer. He remained employed by the Water Board until approximately 1990.  In 1976 he first experienced acute severe back pain when he bent over to pick up a cigarette.  He was hospitalised and spinal traction was put in place. He was diagnosed with lumbago. Plain x-rays of his lumbosacral spine at that time were reported as being normal.  Traction was continued for a period of two weeks and following further rehabilitation, Mr Higham returned to work. 

9. Mr Higham first consulted Mr Paul Kierce in October 1983 for recurrent severe back pain radiating to his left buttock. He had previously been treated by Mr Pierce for a hand injury. The back pain had become constant and more severe after lifting a manhole cover.

10. Over the next five and a half years, Mr Higham had a variety of investigations of and treatment for his back pain, commencing with manipulation of his spine under a general anaesthetic in March 1984 and a caudal anaesthetic in June 1984, which was followed by further traction. From July 1984 he experienced severe pain radiating beyond his buttocks to the calf of his left leg.  A myelogram was performed and showed a disc protrusion at L4/5 compressing the left L5 nerve root.  A laminectomy was performed in the same month and the operative notes stated that the disc was completely removed.  There were short periods during which Mr Higham was free of pain, but by March 1985 his pain was severe and continuing to radiate to his left leg.  A caudal anaesthetic was given, providing temporary relief.  By November 1985, the pain was interfering with his sleep and was particularly severe when Mr Higham sat for long periods in his vehicle. 

11. After shovelling dirt in September 1986, Mr Higham suffered another exacerbation of severe pain and required further physiotherapy and traction, which did not produce any persistent improvement.  A manipulation of his back under general anaesthetic was performed and from 1987 he was certified as fit only for light duties, if available.  These light duties included washing the Water Board’s motor vehicles.  In July 1988 he exacerbated his back pain while washing a car.  He was extremely tender over L5 and S1 vertebrae and his straight leg raising on the left was limited to 45 degrees. 

12. A myelogram performed on 3 August 1988 showed a posterior bulge of the L4/5 disc and the left L5 nerve root could not be seen.  On 17 August, a laminectomy was performed and the operative notes state that the L4/5 disc was removed in pieces and the left L5 nerve root freed in the foramen.  Mr Higham’s pain persisted. A CT scan performed in February 1989 revealed an L5/S1 disc protrusion to the left compressing the S1 nerve root. It also showed quite extensive fibrosis in the previous operative area affecting the left L5 nerve root. 

13. In the same month, a percutaneous lumbar discectomy at the L5/S1 level was performed and the operative notes state that a considerable amount of disc tissue was removed in pieces.  Post-operatively, Mr Higham was said to have improved; but by October 1989 the back pain had recurred including the radiation to the left leg in an S1 distribution.  As all of these injuries were attributed to his work with the Water Board, they were accepted as employment related and Mr Higham received workers’ compensation, which included a lump sum payment.  Mr Higham has not worked since 1990.  Throughout the period from 1983 to 1990 he did return to work for short periods of time, but was severely limited in his physical activities. 

14. Mr Higham has recently undergone CT scanning of his lumbosacral spine. The latest CT scan undertaken in May 2012, revealing an L5/S1 left sided disc herniation compressing the left S1 nerve root, a diffuse disc bulge at the L4/L5 disc level possibly irritating both L4 nerve roots, left more so than right, and L4/L5 facet joint osteoarthritic changes.  There was a mild listhesis at the L4/L5 level (anterior movement of L4 on L5 by 3 millimetres).

15. Mr Higham has experienced chronic back pain with left sided sciatica.  For the past few years, he has also experienced right sided leg pain of similar severity according to the evidence that he has given in this matter.

16. In 2000 Mr Higham’s claim for an abdominal aortic aneurysm was accepted as war-caused, as was a claim for chronic bronchitis and emphysema.  His abdominal aortic aneurysm was asymptomatic, but it was noted on physical examination and monitored for some years until its transverse diameter reached a size at which surgical intervention was advised.  The aneurysm resection was uncomplicated with the exception that at operation in November 2008 he was found to have a considerable amount of organised laminated clot in the lumen of the aneurysm which had to be removed in order to place the graft. 

17. In early 2009, Mr Higham having fully recovered from the surgery was commenced on Clopidogrel (Plavix), a platelet inhibitor to prevent clotting in the graft.  In her evidence, Mrs Higham said that she and her husband had been told by Mr Ventura that Mr Higham would have to take Plavix for the rest of his life as a consequence of the aneurysm resection (Transcript p 98, Line 24 and 41). 

18. In 2000 Mr Higham was diagnosed with chronic bronchitis and emphysema attributable to his increased smoking while in service.  He has more recently undergone investigation and treatment of these conditions. While CT scanning confirms the presence of apical emphysema and some basal pulmonary fibrosis, the cause of the condition is not fully explained.  In 1994 Mr Higham had several episodes of both right and left lower lobe pneumonia including varicella (chickenpox) pneumonia. He was admitted to the Ballarat Base Hospital for a period of four days and an x-ray report on the day of his admission showed increased lung markings (compared to December 1990), these being fluffy opacities throughout both lung fields, typical of viral pneumonia associated with the known varicella infection.  The chickenpox virus was identified in the blisters on his thorax.  Viral pneumonia can lead to pulmonary fibrosis.  More recent investigations in the form of lung function testing revealed normal lung volumes (bronco-spirometry) and normal gas exchange (diffusing capacity).

19. In January 2001 the Department of Veterans’ Affairs (the Department) accepted Mr Higham’s psychiatric disorder (then termed generalised anxiety disorder (GAD)) and alcohol abuse as being war-caused.  In June 2005 his psychiatric disorder diagnosis changed to post traumatic stress disorder (PTSD). The Tribunal takes it that this is now the accepted psychiatric disorder replacing the GAD.  In terms of his alcohol abuse, Mr Higham gave evidence that until 2009 he drank 12 bottles (750mls) of full strength beer per day and for the past six years this has been reduced to six stubbies (375mls) per day. 

20. On 29 July 2005 the Administrative Appeals Tribunal determined that Mr Higham’s asymptomatic myelodysplastic disorder characterised by a low platelet count was war-caused and due to the effect of alcohol on Mr Higham’s bone marrow.  Despite having platelet counts in the order of 90 000 to 100 000 from 2008, Mr Higham does not have easy bruising or easy bleeding and his thrombocytopenia is essentially asymptomatic.  According to his general practitioner’s clinical records (Exhibit R2 and R6), as of 2014 his platelet count is within the normal range, being 185 000 on 14 April 2014.

21. In January 2013 the Department accepted Mr Higham’s claim that his ischaemic heart disease was war-caused.  This claim was based on a report from his general practitioner, Dr Churcher, stating that Mr Higham had chest pain in January 2009 and had been placed on Plavix which was to continue indefinitely. Dr Churcher did not refer to the investigations that had been undertaken which showed that on 9 January 2009, Mr Higham’s troponin level (the measurement of cardiac muscle damage) was less than 0.1, his stress ECG performed on 26 March 2009 was entirely normal and he was said to have had a CT coronary angiogram which was also normal.  It was Mrs Higham’s evidence that the Plavix was being taken for the repaired aortic aneurysm, not for any cardiac condition.

22. Similarly, a claim for a cerebrovascular accident was accepted by the Department in June 2013. This claim depended on a report from Dr Churcher and it seems to be based on his interpretation of Mr Higham’s CT examination of his brain performed on 26 June 2013. This did not reveal any acute ischaemia or haemorrhage, but showed diffuse parenchymal involution which was attributed to microvascular ischaemic changes which are age related and within the expected range for his age. 

23. Mr Higham’s accepted and non-accepted disabilities are:

    Disabilities: Accepted

4/5/2000	Aortic Aneurysm
4/5/2000	Chronic Bronchitis and Emphysema
4/5/2000	Tinea
4/5/2000	Gastro-Oesophageal Reflux Disease
4/5/2000	Bilateral Sensorineural Hearing Loss
9/1/2001	Generalised Anxiety Disorder
9/1/2001	Alcohol Abuse
29/7/2005	Lumbar Spondylosis
28/6/2005	Post Traumatic Stress Disorder
17/4/2008	Irritable Bowel Syndrome
2/4/2013	Ischaemic Heart Disease
2/4/2013	Diabetes Mellitus
2/1/2013	Umbilical Hernia
9/6/2013	Cerebrovascular Accident

Disabilities: Not Accepted

13/7/1993	Right Inguinal Hernia (Repaired)
13/07/1993	Osteoarthritis Knee
13/7/1993	Prolapsed Intervertebral Disc
5/10/2000	Asthma
21/12/2000	Myelodysplastic Disorder
29/7/2005	Alcohol Affected Bone Marrow Disorder-no incapacity
29/7/2005	Intervertebral Disc Prolapse at L4-L5
29/7/2005	Intervertebral Disc Prolapse at L5-S1
24/07/2008	Hiatus Hernia
8/7/2014	Dementing Illness (No Incapacity Found)

1. The intervertebral disc prolapses at L4/L5 and L5/S1 were specifically rejected as being war-caused in the Decision and Reasons for Decision in V2003/431 in 2005.  In that decision, the Commission conceded the point that the spondylosis arising from ligamentous strain was war-caused.

2. Mr Higham claims that his back pain and sciatica have increased appreciably in the last nine months and this in combination with his PTSD has resulted in extreme disablement.  It is clear from the medical records that as of December 2012 he was regarded as being very well. On 14 December 2012 Mr Ventura, the surgeon who resected his AAA, described him as looking fit and well and spending a lot of time in the bush hunting, shooting and cutting firewood. Similarly, Mr Higham’s physician, Dr Brett Knight, described him as being much more active since moving to his three acre property in Clunes (Report of 9 May 2012).

   evidence before the tribunal

   Mr Arnold Higham

3. In his oral evidence, Mr Higham addressed his major symptom of pain in his back. This he stated was present 24 hours per day and radiated to his left leg to the calf level for 24 hours per day and to his right leg to a lesser level 12 hours per day.  He had also experienced numbness of his feet, and based on his pain, had ceased driving at Christmas time in 2014. Mr Higham’s decision to stop driving was also motivated by two near motor vehicle accidents in late 2014. Though he avoided the accidents, he believed they were due to his failure to concentrate on his driving tasks. 

4. These symptoms, in particular the pain in his lower limbs, restricted Mr Higham’s mobility and his ability to walk on uneven ground.  He said he was now confined to walking his dogs on three to four days per week in finer weather, and he walked the animals in a paddock where there are three tree stumps on which he can sit and rest. These stumps are spaced 250 metres apart.  Thus, on the mornings when he walked the dogs, he would walk one kilometre with three rest stops. 

5. As a result of his pain and some of his PTSD symptoms, in particular dreams and nightmares, his sleep was poor and this he said had been the case since his Army service.  He did not comment on any changes in his quality of sleep relating to his recent diagnosis of sleep apnoea.  However, he did give evidence that he would frequently sleep for two or more hours in the afternoon. 

6. Given his level of pain and his general lack of confidence, Mr Higham requires assistance with public transport.  In order to attend the hearing, Mr Higham travelled by train from Ballarat to Melbourne, disembarking at Southern Cross station after which he took a tram for a small distance. Mr Higham stated that he had walked the equivalent to three to four city blocks. It would appear that he walked over the Princes Bridge and along St Kilda Road.  He had used his walking stick and perhaps wore his brace, which he said was now in his satchel. 

7. Mr Higham confirmed that he was receiving no treatment for his PTSD and had not seen a psychiatrist for many years.  He has never attended a psychologist.  His wife and his daughter have both attended lectures for children and family of PTSD Vietnam Veterans. 

8. Various aids have been installed in Mr Higham’s low level maintenance house in Clunes and these include rails in the shower, toilet, elevation of his bed and toilet seat and he has a reclining chair which assists in attaining the upright position.  Mrs Higham performs most of the household tasks including the cooking, but Mr Higham will microwave a meal that she has previously prepared for him.  He cuts the lawns using a ride-on mower and maintains weed control by spraying Roundup frequently.  The garden is planted with natives and cacti and there is a rose garden tended by Mrs Higham.  Mrs Higham is also responsible for most of the vegetable growing, although he has a long-handled garden fork with which he is able to weed the built-up vegetable beds. 

9. Mr Higham last went hunting in March 2015.  Most of his hunting has been undertaken at Lake Bolac, on farming properties where he and up to 15 others spend a weekend shooting foxes.  Mr Higham says that he has continued to shoot rabbits, which he does from the passenger seat of their car while his wife drives. According to Mr Higham, he has done this once a week as they enjoy eating rabbit and rabbit meat is also used to feed his three dogs.  In the past he would go fishing on a camping holiday for two weeks twice a year, but this has ceased.  Mr Higham stopped duck shooting five years ago because of his back pain and sciatica.  The pain has also forced him to stop cutting up any trees that fall in storms. His friend Jason, from across the road, now does that for him.  

1. In relation to his social life, Mr Higham said he had been involved in more fights than he had had free dinners since Vietnam. He argues with his wife over the children and financial matters and when he suffers one of his black moods he throws objects such as hammers and nails.  He sees his daughter Kirsten approximately once a month and she and her husband visit. Mr Higham cannot stand the children if they are noisy or crying.  He said he had never been good with kids.  He sees his stepdaughter Helen approximately three times a year; and he and his wife are estranged from his wife’s daughter Lisa.  When he is in a black mood following an argument with his wife, he will not speak with her for up to one week. 

2. Mr Higham sees his friend and fellow Vietnam Veteran Lyle Raison every two to three months. Mr Raison was Mr Higham’s immediate commanding officer in Vietnam and also represented him in his application to the AAT in 2005.  Mr Higham’s other close mate from Vietnam lives in Tamworth and he only sees him every 12 to 18 months.  Mr Higham and his wife do not go out socially as he says there is not much to do in Clunes and the local pub is, in his opinion, terrible.  He avoided travel to restaurants and hotels in Ballarat because of the length of the drive and its effect on his l back pain.

3. Mr Higham confirmed that he was paid weekly workers’ compensation payments during the 1980s.  After he ceased work in 1990, he received a lump sum payment.  He also confirmed that having been diagnosed with sleep apnoea, he had undertaken continuous positive airways pressure (CPAP) treatment but had ceased this because he found the machine too noisy.  He said that when he worked with the Water Board in the 1980s, it had been suggested that the changes in his lung had been related to the inhalation of cement dust and should be monitored. 

4. Mr Higham said his current relationship with his wife was really good and that he gets along reasonably well with his grandchildren if they are not crying.  He is in dispute with one neighbour regarding overhanging trees and does not speak with that particular individual. He goes shopping with his wife in Creswick and stated that he was real good friends with another neighbour Jason and his wife from across the road.  While he spends much of his time resting, he watches television, predominately programs involving animals.  He always watches Friday night Australian Rules football and the cricket and has a particular interest in watching national and international swimming.  He reads the daily newspapers and listens to the radio. 

   Mrs Brenda Higham

5. Mrs Higham confirmed the evidence that her husband gave, although she believed that he had last driven just before Anzac Day in 2015.  She also confirmed that she has to assist him in drying after a shower and that she walks the dogs or releases them to run wild in the paddocks four days a week, with Mr Higham doing this task three days a week.  On one occasion in 2015, Mrs Higham had been overcome by the effects of one of his black moods, left the marital home and stayed at a motel overnight but returned early the next morning.  She believed that the gaps between his black moods were shortening and this she attributed to an increase in his drinking. This is at odds with Mr Higham’s evidence.  Apparently Mr Higham has a bar fridge on the back porch and will sit out there, relax and drink. Mrs Higham said she had only driven her husband rabbit shooting on one occasion.

6. Mrs Higham says she prepares all the meals but this she does predominately because of her husband’s diabetes requirements as she does not believe her husband would be capable of doing that cooking.  Mrs Higham confirmed that their house at Clunes was essentially maintenance free as was the garden and that they had purchased the property because of these features. 

7. Mrs Higham described the somewhat trying relationship between Mr Higham and their daughter Kirsten, who despite having attended the children of Vietnam Veterans’ courses and studied PTSD, had troubles coming to terms with her father’s behaviour. While Kirsten had visited with her husband and older child every two weeks up until the birth of her son 14 months ago, these visits are now less frequent. Mrs Higham identified Mr Higham’s only real friends as Lyle Raison, who also has PTSD, and their neighbour, Jason, who sees Mr Higham once or twice per week.  Apparently, Mr Higham participated in the Anzac Day march in 2015 at Creswick, following which he was exhausted despite it only being a three minute march.  Apparently on that day his blood glucose was 17.5. 

8. The Tribunal posed several questions to Mrs Higham relating to the treatment with the medications Stilnox and Imovane, both of which had been prescribed for his insomnia.  She advised that the Stilnox had been stopped because of its adverse cerebral function effects and replaced with Imovane. Following Mr Higham’s assessment by Dr Street, Geriatrician, of the Cognitive Dementia and Memory Service, he recommended that the Imovane be ceased because of the interaction with alcohol as a cerebral depressant. An effort was made to reduce Mr Higham’s Imovane dosage from two tablets a night to one.  Despite her efforts, she has not been able to delete the one tablet of Imovane every night.  

9. The Tribunal sought further information regarding Mr Higham’s poor sleep.  Mrs Higham stated that his sleep was interrupted by frequency of micturition due to an enlarged prostate, night sweats and dreams.  She had observed that the dreams increased in frequency around the anniversary of the battle of Long Tan, although she agreed that he was not in Vietnam at the time of that event and had no real knowledge of the battle.  She also noticed his dreams were worse after Lyle Raison had visited them. 

   INITIAL SUBMISSIONS

10. At the completion of the evidence of Mr and Mrs Higham, Ms Spencer commenced submissions in relation to the claim for EDA. She relied on the decision of Senior Member Handley, dated 29 July 2005, wherein the diagnosis of alcohol affected bone marrow disorder and lumbar spondylosis were accepted as being war-caused.  The acceptance of lumbar spondylosis was based on the respondent’s concession during that hearing.   The decision had been handed up to the Tribunal prior to the commencement of submissions and the Tribunal had read the entire decision of some 34 pages.  The Order was made at the commencement of the decision and did not reflect the detail of the reasons for the decision or that the lumbar disc prolapses had been determined not to be war-caused. The respondent’s concession regarding lumbar spondylosis was limited to consideration of Factor 5(g) of the relevant Statement of Principle, in that he suffered from a permanent ligamentous disability of the lumbar spine. 

11. Additionally, the factual content of the 2005 decision varied with respect to some diagnoses and to the evidence given by Mr Higham and some of the medical experts.  For these reasons, the hearing was adjourned to enable the location of the entire file concerning Mr Higham’s previous applications for review and for the parties to obtain further medical expert opinion should they consider that necessary. 

12. The hearing resumed on 15 December 2015. 

13. The Department had located the entire records relevant to Mr Higham and these included the complete notes of the orthopaedic surgeon Mr Paul Kierce, the complete clinical records from his general practitioner, the records of the Ballarat Health Services, the St John of God Hospital, the Ballarat Base Hospital and the original reports of all expert medical witnesses.  Further opinions had been sought from Dr Brett Knight, physician, in Ballarat and recent assessments and reports were provided by Associate Professor Bruce Love and Professor Brian Brophy. 

14. Associate Professor Love, Dr Knight and Professor Brophy gave evidence before the Tribunal at the resumed hearing. 

    Associate Professor Bruce Love

15. Associate Professor Love is an orthopaedic surgeon. He provided two reports dated 30 July 2015 (Exhibit A3) and 15 September 2015 (Exhibit A4).  It was his opinion that all of Mr Higham’s back and lower limb symptoms were attributable to spondylosis.  He included both disc degeneration and protrusion and facet joint changes under the term spondylosis.  In his evidence before the Tribunal, Associate Professor Love affirmed his written opinions but also agreed that Mr Higham had a failed spinal surgical syndrome.  

16. While Associate Professor Love was not prepared to state the exact cause of the backache, he believed that the pain in Mr Higham’s legs was due to foraminal stenosis compressing nerve roots.  Professor Love considered any pain in the lower limbs, even that above the knee as being sciatica, although he agreed that this was not the normal definition of this condition.  However, he did attribute the symptoms and clinical signs from 1976 until the late 1980s to disc protrusion.  In his opinion, the foraminal stenosis contribution was more recent. 

17. When asked to review the x-rays, myelograms and a CT scan between 1976 and 1988, he agreed that there was no evidence of facet joint arthritis and degenerative changes were not reported by the radiologists until 2009.  Associate Professor Love was of the opinion that the fibrosis revealed in the CT scan of the lumbar spine in 1987 had resulted from the previous surgery.  Also, he believed that the osteophyte formation at the L4/5 and the L5/S1 vertebral level was due primarily to the previous surgical intervention. 

18. Under cross-examination, Associate Professor Love agreed that the L5/S1 disc protrusion was the same lesion as that present in 1984, as was the S1 nerve root compression demonstrated  on 29 June 2009

19. Despite these opinions and despite the negative x-ray findings in regard to degenerative osteoarthritis of the spine prior to 2009, Associate Professor Love maintained his position that the causes of Mr Higham’s pain in the back and nerve root compression pain radiating to his left leg was due to spondylosis. This opinion was firmly held even in the presence of S1 nerve root compression on the 2012 CT scan resulting from a disc protrusion.

    Dr Brett Knight

20. Dr Knight is a physician with an interest in respiratory medicine.  He has been treating Mr Higham for the last five years. Mr Higham initially presented with a chronic cough and shortness of breath on exertion.  Investigations conducted by Dr Knight revealed that there is high resolution CT scanning evidence of emphysematous changes at the apices of both lungs and some degree of interstitial fibrosis in the lower lobes of both lungs, more so on the right than the left side.  Despite this, Mr Higham’s lung function tests are well preserved, as both his lung volumes (broncho-spirometry) and his gas diffusion (carbon monoxide diffusing capacity) are well within normal limits and do not explain his symptom of dyspnoea. 

21. More recently, a colleague of Dr Knight’s investigated Mr Higham for sleep apnoea which has been confirmed.  A continuous positive airways pressure (CPAP) machine has been provided although Mr Higham is not using it. 

22. Given the normality of the lung function testing, Dr Knight has attributed Mr Higham’s shortness of breath on exertion to ischaemic heart disease, although he himself has no knowledge of that condition, as it was treated by Mr Higham’s general practitioner.  In his written reports and his oral evidence before the Tribunal, Dr Knight confirmed that the radiological changes of emphysema and fibrosis have been unchanged over a five year period and the symptoms have also been stable over this period.  Dr Knight could not be certain as to the cause of the cough and whether it was associated with the bronchitis and emphysema or was caused by the CPAP machine, given that the latter was the initiating cause as far as Mr Higham was concerned.

23. Dr Knight appears to have no information regarding Mr Higham’s exposure to cement dust in the 1970s and it would seem that Mr Higham’s evidence before this Tribunal is the first time he had mentioned the investigation that was undertaken at that time by the Ballarat Water Board. 

    Professor Brophy

24. Professor Brophy is the Director of Neurosurgery at the Royal Adelaide Hospital. In this unit, 50 per cent of the neurosurgical workload is spinal surgery.  He provided a written report and oral evidence.

25. Professor Brophy made a diagnosis of failed back surgery syndrome, with the surgery not having relieved the disc lesions and in fact having accelerated the degenerative changes of non-disc spondylosis.  He was of the opinion that Mr Higham’s major cause of symptoms was the failed surgery and that his current degenerative changes were commensurate with his age of 66 years.  Professor Brophy confirmed the contents of his report.  He said Mr Higham’s pain radiating only as far as his left knee was not true sciatica, he being of the opinion that sciatica must involve a radiculopathy of one of the nerve roots of the sciatic nerve.  He disagreed with Associate Professor Love’s opinion in most respects.  He did agree that surgery accelerates the degenerative changes and osteophyte production.  In Professor Brophy’s experience, most patients with age related osteoarthrosis (spondylosis) are asymptomatic. 

26. Professor Brophy was taken to the serial x-rays performed between the early 1980s and the more recent CT and MRI examinations. He agreed that the CT scan of 1989 showed normal facet joints and epidural fibrosis, that is, thickening and scaring of the dura.

    DOCUMENTARY EVIDENCE

27. A considerable volume of documentary evidence was produced after the hearing had been adjourned in May 2015.  In particular, this included the clinical records and reports of Mr Paul Kierce, the orthopaedic surgeon who performed the spinal surgery during the 1980s and the records of the Ballarat Health Services and the St John of God Hospital.  The salient points of evidence provided by these reports have been summarised under BACKGROUND TO THE APPLICATION.  A report was also received from Dr Amanda Silcock, Occupational Health Physician, who provided a GARP assessment relating to Mr Higham’s disabilities in terms of their lifestyle effect.

    relevant legislation

28. Section 22 of the Act outlines the eligibility for both the general rate of pension and the extreme disablement adjustment.  This section states as follows:

    22  General rate of pension and extreme disablement adjustment

    (1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

    (2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war‑caused injury or war‑caused disease, or both, as the case may be.

    (3)For the purposes of this section, the maximum rate per fortnight is $338.94 per fortnight.

    (4)Where:

    (a)either:

    (i)     the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or

    (ii)     a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);

    (b)the veteran has attained the age of 65;

    (c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and

    (d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;

    the rate at which pension is payable to the veteran is $510.40 per fortnight. ...

    SUBMISSIONS

29. Ms Spencer submitted that the only question before the Tribunal was that of the appropriate lifestyle rating, given that Mr Higham has had an impairment rating of 70 points since 9 January 2001.  From that date until 8 July 2014, his eligibility level was at 100 per cent, his medical impairment rating at 70 points and his lifestyle rating at five.  Ms Spencer submitted that his lifestyle rating should be six. 

30. Ms Spencer submitted that the Tribunal should not and was not required to revisit the acceptance by the Commission of various disabilities as being war-caused. 

31. Ms Spencer rejected Dr Sillcock’s rating of Mr Higham’s lifestyle of four as at 4 February 2015, and that of the VRB at five points as of 8 July 2014.  Ms Spencer argued that Dr Sillcock had no expertise in the interpretation of the lifestyle rating tables and had not provided reasons for figures she had allotted to personal relationships, mobility, recreational and community activities and domestic activities.  It was also submitted that where a condition was multi-factorial in origin, the Act only required that the war-caused condition, either a disease or an injury, was one of the contributing factors and not the major factor.  No legal precedent was cited to support this contention. Similarly, Ms Spencer said there was no legal precedent regarding the use of the lifestyle rating tables and their interpretation. 

32. Based on the symptomatology described by Mr Higham, who claimed that his conditions had all deteriorated significantly since the VRB hearing in July 2014, and in particular since Christmas 2014, Ms Spencer addressed each of the categories considered. She recommended a rating of at least six in respect to personal relationships, given Mr Higham’s isolation, lack of friendships, poor tolerance of grandchildren and reliance on his wife. His mobility was such, in terms of his lumbar spondylosis, emphysema and pulmonary fibrosis and ischaemic heart disease that this rating should be six or at least five.  All of these conditions impacted on his recreational activity in accordance with the Guide to the Assessment of Rates of Veterans’ Pensions 5^th ed (GARP V) and Ms Spencer contended the conditions attracted a rating of six as did his ability to cope with domestic activities, in that he did not perform any domestic activities.

33. Mr Rudge disagreed that only Mr Higham’s back pathology, the so-called spondylosis, needed to be a cause and not the main cause.  He contended that based on the evidence before the Tribunal, the main cause of Mr Higham’s back pain radiating to his left thigh was a failed surgery syndrome as diagnosed by Professor Brophy. The Tribunal must differentiate between the disc lesions leading to this failed surgical syndrome and the other osteoarthritic changes related predominantly to the aging process and affecting facet joints and intervertebral foraminae. Similarly, while chronic bronchitis and emphysema were accepted as a war-caused disability, they did not cause any incapacity given Dr Knight’s evidence and the results of lung function testing showing that all tests are normal.

34. Ischaemic heart disease has been accepted as a war-caused condition. But as Mr Rudge argued, there is no objective evidence of ischaemic heart disease, in that Mr Higham’s exercise stress test was negative at a level of 10 METS, his troponin levels were normal and a CT coronary angiogram was also said to exclude any haemodynamically significant coronary artery stenosis. 

35. The evidence in relation to spondylosis and disc disorders had shown that all of Mr Higham’s symptomatology from 1984 to 1989 was related to L4/5 and L5/S1 disc prolapses with no radiological evidence of osteoarthrosis in the form of facet joint changes and/or foraminal stenoses.  Mr Rudge accepted that such changes did appear at much later dates, but on the evidence of Professor Brophy these changes had been accelerated from the usual age-related degeneration by surgical intervention.

1. As a result of these considerations, the evidence and the expert opinion, Mr Rudge contended that the rating for Mr Higham’s mobility, recreational/community activities and domestic activities had to be determined in relation to the degenerative changes and not the disc pathology which had been attributed to work-related injuries and compensated under State legislation. 

2. In relation to the lifestyle rating for personal relationships, Mr Rudge acknowledged that Mr Higham had limited interpersonal relationships and had ceased many of his group activities such as fox hunting. However, he still regularly saw a neighbour, Jason and Jason’s wife, and does have regular but limited contact with his own daughter and one step-daughter.   

3. Based on these considerations, Mr Rudge submitted that Mr Higham attracted a rating of four points for his personal relationships, two or three points for his mobility (excluding the contribution by continuing vertebral disc protrusions), and a rating of three points for his recreational and community activity (again making allowance for the exclusion of the disc pathology resulting in chronic back pain radiating through the left thigh, but incorporating consideration of Mr Higham’s PTSD and alcohol abuse).  

4. Mr Rudge accepted that Mr Higham performed no domestic activities other than letting his dogs out for a run and occasionally microwaving a pre-prepared meal.  However, once again Mr Rudge said his domestic activities were limited by his chronic disc pathology, back and thigh pain resulting in a discounted recommended rating of three. 

5. On Mr Rudge’s calculations of the lifestyle ratings in accordance with Tables 22.1 to 22.4, Mr Higham’s rating would be 3.25 rounded to three.  He therefore would not qualify for the extreme disability allowance.

   tribunal’s deliberations

6. The Tribunal agrees that the issue for decision is the lifestyle rating of Mr Higham.  It is accepted that his impairment rating is 70 points.  The ratings in terms of his lifestyle effects have varied at all levels of review.  The Tribunal accepts Ms Spencer’s submission that it is not the Tribunal’s role to revisit the validity of previous decisions accepting various conditions as being war-caused.  However, the Tribunal rejects Ms Spencer’s submission that the Act does not require any or a particular condition to be the major cause of incapacity and that it is sufficient that a war-caused condition is only one of multiple causes when the cause is multifactorial.  While this certainly applies within the compensation jurisdiction, the Veterans’ Entitlement Act and in particular the relevant section, s 22, in relation to the extreme disablement adjustment payment, refers to incapacity of the veteran from war-caused injury or war-caused disease or both. 

7. In order for the Tribunal to determine the incapacity arising from war-caused injuries and diseases, it is necessary to consider the contribution of the accepted conditions to lifestyle effects. 

8. The medical evidence before the Tribunal and the expert opinion provided is that Mr Higham’s chronic bronchitis and emphysema do not result in any disability as his lung function tests both in terms of volume and diffusing capacity are within normal limits.

9. There is no evidence to support a diagnosis of ischaemic heart disease (IHD), with all relevant investigations being negative for haemodynamically significant coronary artery disease.

10. While Mr Higham was determined in 2005 to have a bone marrow disorder due to alcohol abuse, this condition remains asymptomatic. Based on haematology results from 2014 of a normal platelet count, the possibility arises that this condition has completely resolved.  Be it resolved or still effective, it does not produce any incapacity.  

11. Mr Higham, based on his general practitioner’s report, has the accepted condition of a cerebrovascular accident despite there being no clinical or radiological evidence that this is the case.  He does have MRI evidence of cerebral involution commensurate with his age and considered due to microvascular changes.  Mr Higham has undergone abdominal aortic aneurysm resection and graft replacement from which has recovered fully, except that he is required to take the medication Plavix for life.  His abdominal hernia, or umbilical hernia, or (as suggested by some an incisional hernia) does produce minor symptoms.

12. Mr Higham continues to exhibit symptoms of PTSD and alcohol abuse, neither of which is receiving psychological or psychiatric treatment or medication.  The accepted condition of umbilical hernia does give rise to pain on occasions when Mr Higham stands or alters his position. 

13. Mr Higham’s diabetes mellitus is not completely controlled following his conversion from Type II to Type I; and he has recently commenced new medication which has the side effect of chronic diarrhoea. This side-effect clouds any contribution from his accepted IBS. 

14. Mr Higham’s major disabling symptoms result from his lumbar intervertebral disc prolapses.  These prolapses persist radiologically despite three operations in the 1980s.  In 1984 a myelogram revealed an L4/5 disc protrusion with left L/5 nerve root compression.  The findings on the myelogram on 3 August 1988 were the same.  A CT scan of his lumbosacral spine in May 2012 showed an L4/5 disc bulge with both right and left nerve root irritation, more on the left than the right.  A CT scan of the lumbosacral spine in February 1989 had shown an L5/S1 disc protrusion compressing the left S1 nerve root and also showed fibrosis at a higher level involving both L5 nerve roots.  This was attributed to post-surgical scaring.  The CT scan of 2012 again shows an L5/S1 disc protrusion compressing the left S1 nerve root. 

15. While imaging techniques have differed and the resolution of such investigations has greatly improved between 1983 and 2012, the radiologists’ interpretations and final conclusions are the same despite the time intervals.  Between the CT scan of 1989 and that of 2012, Mr Higham has developed radiological evidence of degenerative changes in the form of facet joint irregularity and foraminal stenosis.  Both Professor Brophy and Associate Professor Love considered this age related but also accelerated by past surgical intervention.  Associate Professor Love believed that there was an ongoing contribution from Mr Higham’s five months service in Vietnam. 

16. Based on the radiological evidence and the expert opinion, the Tribunal determines that the persistent disc pathology arising from work-related injuries is the major cause of Mr Higham’s back pain and referred or radiating (radiculopathic) pain to both lower limbs.  The Tribunal prefers and accepts the opinion of Professor Brophy that the symptoms are due to a failed spinal surgical syndrome.  It is Mr Higham’s psychological status, his PTSD and his lumbar spinal condition (predominately the unaccepted intervertebral disc prolapse at L4/5 and L5/S1 but with some minor contribution from lumbar spondylosis) that impact on all of the tables relating to lifestyle effects (Table 22.1, 22.2, 22.3 and 22.4) Table 22.5 effects is not attracted in Mr Higham’s case as he ceased work in 1990 as a result of his workplace disc injuries as opposed to any accepted war-caused condition.

17. The estimations of the lifestyle effects on Mr Higham’s capacity and enjoyment of life has been  provided by Dr Amanda Sillcock, occupational health physician, the Veterans’ Review Board, Ms Spencer on behalf of the applicant and Mr Rudge on behalf of the respondent. 

18. Dr Sillcock is a very experienced occupational health physician whose opinion the Tribunal values.  The Tribunal does not agree with Ms Spencer’s submissions that Dr Sillcock has no expertise in the area, that her report is out of date and that she has failed to give reasons for the various table findings she has provided.  Dr Sillcock’s assessment was:

Table	Rating
22.1	3
22.2	3
22.3	4
22.4	4
Giving an overall lifestyle rating of 4

The VRB ratings for the same tables were:

Table	Rating
22.1	5
22.2	4
22.3	6
22.4	5
Giving an overall lifestyle rating of 5

Ms Spencer based on the history and opinions recommended the following:

Table	Rating
22.1	6
22.2	6
22.3	6
22.4	6
Giving an overall lifestyle rating of 6

and

Mr Rudge provided alternative figures depending on whether all symptoms were to be attributed to a war-caused condition, or whether differentiation between war-caused conditions relating to the symptoms or workplace injury causation was to be differentiated. Based on this differentiation, Mr Rudge calculated at the highest an overall lifestyle rating of 5, and allowing for the contribution by non war-caused conditions, recommended that the rating should be:

Table	Rating
22.1	4
22.2	2 or 3
22.3	3
22.4	3
Resulting in a rounded down average of 3

1. It would appear that there is no case law regarding the interpretation of the GARP V and as a result the Tribunal accepts Ms Spencer’s contention that the Tribunal is as qualified as anyone else to determine the appropriate rating. 

2. Based on the evidence and opinion before it, the Tribunal has concluded that in terms of table 22.1 relating to personal relationships, Mr Higham attracts a rating of 5 in that his relationships are severely affected, and he relates only to a few people, in particular his spouse, a neighbour, his wife and two of his ex-Vietnam colleagues. Certainly, the relationships with his daughter and occasionally with his wife are strained but generally the quality of his relationship with his wife is excellent. Mr Higham’s personal relationships are affected predominately by his PTSD, but to a lesser degree by the accentuation of that condition by his chronic pain.

3. Table 22.2 relates to mobility.  Without demarcating between war-caused and non war-caused conditions affecting mobility, Mr Higham would attract a rating of 4 in that his mobility is reduced to the extent that he requires assistance with public and private transport, has difficulty in travelling to and from various destinations and his restrictions in regard to public transport involve both trains and trams.  However,  much of this effect relates to his work-caused lumbar disc protrusions and nerve root compression, attributed to his injuries while working for the Ballarat Water Board and specifically excluded by the decision of the Administrative Appeals Tribunal in 2005. Therefore, the Tribunal has, in the absence of any evidence of impaired lung function or ischaemic heart disease, determined that the rating should be 2 and that this rating is attracted by the non-disc changes of spondylosis which have the effect of slowing Mr Higham’s pace of walking, particularly in relation to uneven ground and his need to use a walking stick.

4. Table 22.3 relates to recreational community activities.  Mr Higham’s involvement in recreational activities, both in terms of socialising and in pursuance of a hobby, if taken as a whole would attract a rating of 5, in that he requires assistance when visiting and needs to be taken to and from the destination. Additionally, he can no longer enjoy his hobbies and sports, in particular fishing, fox hunting and walking due predominately to pain. But once more, adjusting this figure based on the fact that his disc lesions are not war-caused, the rating is reduced to 3.  A rating of 3 states that the Veteran is unable to continue some accustomed and recreational pursuit and community activities. This certainly applies in terms of Mr Higham’s long standing hunting, fishing and shooting but also limits his community activities such as his attendance at RSL functions, marches and more general activities such as shopping, dining out and pursuing previous activities wherein he assisted his wife with her hobby of making dolls and doll’s houses. 

5. Table 22.4 relates to domestic activities.  It is not clear to the Tribunal whether Mr Higham has ever participated in domestic activities as he did not marry until 1985, by which time he had already suffered his back injuries.  Once more, if all of his incapacities relating to all his conditions are considered he would attract a rating of 5, as he is limited in his household activity to a small range of light tasks such as watering the garden or doing light activities. However, he is unable to weed or prune in the garden, make a bed and put out the rubbish bins.  Mr Higham does cut his lawns using a ride-on mower but the lawn area is restricted and apparently he can cut the lawn in about five minutes.  He does attempt light maintenance work but becomes readily frustrated. He has a specially constructed gardening fork with a long handle which allows him to do some weeding.  As a result, he attracts a rating of 3 under Table 22.4. 

6. As previously stated, Table 22.5 is not attracted given he has not worked for over 25 years. 

7. As Mr Higham has a lifestyle rating of 5, based purely on his accepted war-caused conditions, he does not qualify for the extreme disablement allowance.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of reasons for the decision herein of:
Miss E A Shanahan, Member

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

[sgd].......................................................................

Associate

Dated   26 February 2016

Dates of hearing	15 December 2015 & 16 December 2015
Counsel for the Applicant	Ms Fiona Spencer
Solicitors for the Applicant	Williams Winter Solicitors
Advocate for the Respondent	Mr Ken Rudge - Department of Veterans' Affairs

Appendix

A01 Statement of Applicant, Arnold Higham, dated 6 August 2014.

A02 Statement of Brenda Joy Higham dated 6 August 2014.

A03 Report of Associate Professor Bruce Love dated 30 July 2015

A04 Supplementary Report of Associate Professor B Love dated 15 September 2015

R01 Repatriation Commission -T Documents

R02 Repatriation Commission - Clinical notes of Dr Churcher.

R03 Repatriation Commission - Report of Dr Amanda Sillcock

R04 Repatriation Commission - Transcript of VRB proceedings dated 8 July 2014.

R05 Repatriation Commission - Mr Paul Kierce (Orthopaedic Surgeon dated 31/5/2004

R06 Repatriation Commission - Health Summary of Ballarat Base Hospital

R07 Repatriation Commission - Ballarat & District Base Hospital dated 26/9/2016

R08 Repatriation Commission - St John of God Hospital 23/2/1983

R09 Repatriation Commission - Medical Report by Dr Brett Knight dated 15 July 2015

R10 Repatriation Commission - Report of Dr Stephen Hall dated 9 November 2004

R11 Repatriation Commission - Reports of Mr Hugh Hadley, Orthopaedic Surgeon dated 11 November 2003, 15 June 2004 and 18 October 2004

R12 Repatriation Commission - Mr Richard Fox, Professor and Director Clinical Haematology dated 18 November 2003 and 2 December 2003

R13 Repatriation Commission Plain X-ray Reports St John of Good Pages 40-78

R14 Repatriation Commission - Ballarat Health Services

R15 Repatriation Commission - Report by Associate Professor Brian Brophy Consultant Neurosurgeon dated 13 July 2015