Ashenden and Repatriation Commission
[2006] AATA 1102
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISIONS [2006] AATA 1102
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/253 & S2005/254
VETERANS' APPEALS DIVISION ) Re OLIVER KEITH ASHENDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)Date20 December 2006
PlaceAdelaide
Decision The Tribunal:
(a) affirms the decision made by the respondent on 2 September 2004 (S2005/253) to assess pension at no greater than 100 percent of the general rate;
(b) sets aside the decision under review in respect of gastro-oesophageal reflux disease (GORD) (S2005/254) and substitutes a new decision that GORD be accepted as war-caused with effect from 28 July 2004; and(c) assesses the rate of pension payable to Mr Ashenden as a result of its acceptance of GORD at 100 percent of the general rate.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – gastro-oesophageal reflux disease – caused by a pathological rate of alcohol consumption – assessment – extreme disablement adjustment – lifestyle rating less than 6 – assessment decision affirmed – entitlement decision set aside
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 23, 24,120(1), 120(3), 120A
REASONS FOR DECISIONS
20 December 2006 Mr J G Short (Member)
Professor P Reilly AO (Member)
background
1. The entitlement application (S2005/254) sought review of a decision made by the Repatriation Commission (the Commission) on 28 April 2005 to reject as not war-caused, conditions of gastro-oesophageal reflux disease (GORD), asthma and pleural plaques. Prior to or during the hearing, Mr Ashenden (through his counsel Mr Churches) withdrew the application as it related to asthma and pleural plaques. The Commission said that it would agree acceptance of GORD on the basis of alcohol consumption, with effect from 28 July 2004. The submission in respect of GORD was that Mr Ashenden had a service related pathological consumption rate of alcohol at the time of the clinical onset of GORD.
2. Application S2005/253 is an appeal against a decision of the Commission made on 2 September 2004 to assess Mr Ashenden’s rate of pension at no more than 100 percent of the general rate. This assessment followed acceptance of post-traumatic stress disorder (PTSD) as being war-caused. It is common ground that the veteran has accepted disabilities of:
·sensorineural deafness with tinnitus
·PTSD
·ischaemic heart disease
·atrial fibrillation
·hyperidrosis
·flat feet with plantar warts
·athersosclearotic peripheral vascular disease both legs
and now, following the Tribunal’s decision in application number S2005/254, the veteran’s accepted disabilities also include GORD.
issues
3. The issues before the Tribunal are:
·whether Mr Ashenden’s experience of GORD is war-caused; and
·what is the appropriate rate of pension payable to Mr Ashenden following acceptance of PSTD and now GORD.
background
4. Mr Ashenden was born on 25 August 1923. He served in the Australian Army from 5 February 1942 until 27 August 1945. All of his service constituted operational service which is also eligible service for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
mr ashenden’s evidence
5. Mr Ashenden told the Tribunal that he had been drinking large amounts of alcohol prior to the diagnosis of GORD. He suggested that GORD was alleviated following surgery in early 2005 although he still has some symptoms.
6. In respect of his lifestyle, Mr Ashenden said that he regards his lifestyle as equivalent to or perhaps a little better than, most 83 year olds. Mr Ashenden said that in addition to his accepted disabilities he also suffers from asthma. He said this produces shortness of breath. He said that he has had to cease playing indoor bowls as it was difficult to get “up and down”. Mr Ashenden said that he was unsure whether his shortness of breath, flowing from asthma, or his peripheral vascular disease was the main cause of his limitation in walking significant distances. He did say however that he has had asthma since he was 10 years old. He currently takes steroids prescribed by his local medical practitioner for this condition. The Tribunal notes that asthma is not an accepted disability.
personal relationships
7. In respect of his personal relationships, Mr Ashenden said that his hearing loss made it difficult to understand people. He said he does attend RSL sub-branch meetings on average once a month, although he said he no longer holds any official positions within the league.
8. Mr Ashenden said that he gets on well with his wife and his step children and with one of his sons. He does have a difficult relationship with his other son, however Mr Ashenden did not suggest that this was in any way related to his accepted disabilities.
9. Mr Ashenden said that he drives to the RSL meetings. He said that the distance is approximately 1 mile or 1 kilometre and that the meeting is normally held between 4 and 6 pm. Mr Ashenden said that he does not get on with others as well as once was the case. He related this to his hearing loss, together with emotional problems, probably flowing from his PTSD. Mr Ashenden said that he manages to get on quite well with new people he may meet, more so however with people his own age.
mobility
10. I relation to his mobility, Mr Ashenden said that he is still able to drive his car, although usually his wife accompanies him. He said that he generally drives short distances, perhaps to the shop approximately one mile from his home. He also drives to RSL meetings. He said that he rarely drives further than his local RSL headquarters, although he did say that on the first day of hearing he had driven to town with his wife, parked in the car park and managed to get to the Tribunal hearing room.
11. Mr Ashenden said that he generally walks to a local shop where he purchases a newspaper. This is approximately 500-600 yards from his home. He said that on the way he might have to stop on a couple of occasions due to leg pain and shortness of breath. Mr Ashenden said that he has been considering obtaining home aids for such things as showering. He said that he rarely vacuums, but is able to dry the dishes. He said that he does not use a walking stick and that he does not use the bus because the bus stop is too far from his home.
recreational and community activities
12. In relation to his recreational and community activities, Mr Ashenden said that in the past he enjoyed indoor bowls, but ceased this activity 5-6 years ago. He said that his legs did not like getting up and down to bowl. He has not played any other sports in the last 20 years. He watches television at night for perhaps 2-3 hours. He said that he goes to bed at midnight. He does not enjoy television much because he has difficulty hearing adequately. His hearing loss also limits his enjoyment of any theatre he may wish to attend. He said that visits from family members have “slightly” diminished over the years. He referred to family members as having their own lives to lead. He said that generally he will sit in his back yard and read the paper, listening to the radio.
domestic activities
13. In relation to his domestic activities, Mr Ashenden said that he very rarely does the vacuuming, and if he did, he would only do a bedroom and the lounge area. He said he has not washed his car himself for 4-5 years as he would become short of breath if he did so. He also indicated that mobile car washes were easier.
14. Mr Ashenden said that his wife does most of the washing, however he dries the dishes each evening and also manages to put out the garbage bin (wheeling it approximately 22 yards) each week. He said that his children and step children assist him with the pruning and mowing in the garden and that his wife does the weeding. He said that he does not do any cooking, although he hastened to add that he never did any cooking anyway. He said that he feels he could do some light weeding for perhaps 10 minutes and could also prune for approximately 10 minutes and could water by hand. He said that he could make beds, although he does not do so. He said that he does do the weekly shopping, although his wife usually accompanies him and helps in carrying the shopping.
gord entitlement
15. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
16. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
17. As Mr Ashenden has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
18. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
consideration of entitlement matter
19. The Tribunal has noted the Commission’s concession that GORD is war-caused with effect from 28 July 2004.
20. The Tribunal has considered the evidence before it and is satisfied that the material raises a hypothesis linking GORD to Mr Ashenden’s service-related pathogenic alcohol consumption pattern. The Tribunal notes that a Statement of Principles has been issued (Instrument No 52 of 2002) in relation to GORD. The Tribunal is satisfied that the hypothesis meets the template laid down in the Statement of Principles and is not satisfied beyond reasonable doubt that the incapacity did not arise from war service. In these circumstances, and having noted the Commission’s submission at hearing to the effect that the Tribunal should find GORD as war-caused, the Tribunal so finds with effect from 28 July 2004, that is three months prior to the lodgement of the claim for acceptance of this condition on 28 October 2004.
assessment
21. Application S2005/253 requires the Tribunal to consider the appropriate rate of pension to be paid to Mr Ashenden with effect from 25 December 2003, that is the date with effect from which PTSD was accepted as war-caused.
22. Mr Churches, for the applicant, told the Tribunal that there was no suggestion that Mr Ashenden’s GORD was such that it materially affected his lifestyle on an ongoing basis, either prior to his surgery in January 2005 or subsequently.
23. In the light of the applicant’s submissions, the Tribunal considered it appropriate to proceed to the issue of assessment following acceptance of GORD with effect from 28 July 2004 and, as the Tribunal is required to do, in answer to the appeal against the Commission’s decision of 2 September 2004 to maintain Mr Ashenden on no more than 100 percent of the general rate of pension.
24. The Tribunal reminds itself that in determining an appropriate rate of pension for Mr Ashenden, it must make findings to its reasonable satisfaction on the balance of probabilities.
25. In relation to impairment points, the Tribunal noted the following points were ascribed by the Commission on 2 September 2004:
·hearing and tinnitus – 18 and 10
·cardio-respiratory – 19
·emotional and behavioural – 36
·spine and limbs – lower limbs/sciatica – 20 and 22
·spine and limbs – resting joint pain – 0
·disfigurement and social impairment – 0
·vascular (lower limbs) – 0
·hyperidrosis – 0
These points are not added arithmetically, but combined in accordance with the Combined Values Chart found at page 234 of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) 5th edition.
26. The Tribunal is reasonably satisfied that the impairment points provided by the Commission are appropriately reflective of Mr Ashenden’s accepted disabilities and combine to 70 points. With the addition of GORD with effect from 28 July 2004, the Tribunal was required to consider an appropriate impairment rating for this condition. The Tribunal was satisfied that a rating of 5 points under Table 6.1.7 of GARP “past gastric surgery with intermittent dyspepsia and/or mild dumping syndrome” was appropriate. Under the Combined Value Chart, the addition of these impairment points does not take Mr Ashenden’s combined impairment rating to more than 72 points. Seventy two points rounds down (under the instructions contained in GARP) to 70 points. These points still predict (under the conversion to degree of incapacity) an incapacity of 100 percent and in this case a rate of pension of 100 percent.
27. As the Tribunal was satisfied that the degree of incapacity was at least 70 percent, it was necessary to consider whether an earnings related rate of pension was payable. The criteria for the payment of those rates are set out in ss 23 and 24 of the VE Act. In this case Mr Ashenden was 81 years of age at the date of his application. As he had turned 65 before the claim was made the Tribunal considered whether he had been engaged in remunerative work after the age of 65 years and whether that work was in the same business or employment in which he had been working for a continuous period of at least 10 years prior to turning 65. In this case the Tribunal was satisfied that Mr Ashenden had retired from remunerative work due to age in 1990 and had not been engaged in remunerative work thereafter. In these circumstances, neither of the earnings related rates of pension are payable to Mr Ashenden.
28. As the Tribunal found that Mr Ashenden’s degree of incapacity was 100 percent and that he was at least 65 years of age and not entitled to either of the earnings related rates of pension, the Tribunal considered whether Mr Ashenden might be eligible for the extreme disablement adjustment. The two remaining criteria for payment of that rate are that the veteran has a lifestyle rating of 6 points and an impairment rating of at least 70 points. The Tribunal has already found that Mr Ashenden has an impairment rating of at least 70 points and consequently the remaining issue for the Tribunal to consider was whether Mr Ashenden’s lifestyle warranted 6 lifestyle points.
29. The Tribunal carefully considered the evidence provided by Mr Ashenden and by his local medical officer, Dr Trigg. Dr Trigg said that his assessment of Mr Ashenden’s lifestyle was based substantially upon the lifestyle report signed by Mr Ashenden (Exhibit R2/T5).
30. The Tribunal has carefully considered this last-mentioned report. The report, although signed by Mr Ashenden, may not have been written by him. As pointed out by the Commission’s advocate, the report contained some statements which were clearly contrary to the oral evidence provided by Mr Ashenden at hearing. Exhibit R2/T5/28 recorded the following statement “I am now unable to get along with anyone and this has been a major turning point in my life”. The same questionnaire indicated that the veteran had extreme difficulty in family relationships and that pain and shortness of breath and difficulty hearing, together with an emotional state caused very limited mobility, irritability and frustration which caused the veteran to have problems coping with life. These suggestions contrast markedly with Mr Ashenden’s evidence at hearing to the effect that he got on well with his wife and one son and with RSL friends. Question 12 of the above-mentioned lifestyle report indicated that there are restrictions in Mr Ashenden’s ability to sit in or drive a car “My legs and feet ache and then I get angina and breathless plus traffic and my ability to cope cause me to be unable to drive or only drive in an emergency”. Again, this written evidence contrasts with the oral evidence provided by Mr Ashenden at hearing to the effect that he drives to his local RSL club and to local shops and indeed was able to drive to the City for the Tribunal hearing. The Tribunal has significant concerns in relation to the authorship and reliability of the information contained in the lifestyle report.
31. Having considered all of the evidence, the Tribunal is reasonable satisfied that a lifestyle rating of 4 is appropriate for Mr Ashenden’s personal relationships.
Such a rating is appropriate for:
“Markedly affected relationships. Most relations are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult. Much less time is spent socialising than was the case formally.”
In the light if Mr Ashenden’s evidence concerning his relationship with his wife, children, step children and others, the Tribunal is not satisfied that a rating of 5 is appropriate. Such a rating is appropriate for:
“Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality.”
32. In relation to Mr Ashenden’s mobility, the Tribunal has noted that a rating of 4 is appropriate for:
“Markedly reduced mobility:
- assistance is needed to cope with public or private transport;
- there is considerable difficulty in travelling from home to destination;
- restricted in the use of at least two forms of public transport.”
The Tribunal has noted Mr Ashenden’s evidence that he is able to drive and that although his wife accompanies him on most occasions, he is able to drive alone. The Tribunal considers that Mr Ashenden’s circumstances do not warrant a rating of 5 for which examples are given including:
“- dependent upon others, or mechanical devices such as wheelchairs;
- unable to use most forms of public transport;
-able to drive a car only in a situation of emergency and then only for a short distance.”
The Tribunal recognises that it can be argued that a rating of 3 is more appropriate. The Tribunal considers however that Mr Ashenden may have so some extent exaggerated his abilities and is reasonably satisfied that a rating of 4 is appropriate for mobility.
33. In relation to recreational and community activities, the Tribunal was satisfied that a lifestyle rating of 4 was appropriate. Such a lifestyle rating is appropriate in circumstances where a veteran is:
“Unable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:
-restricted to generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc); and
-unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels).”
The Tribunal was not satisfied that Mr Ashenden’s lifestyle warranted a rating of 5 for which the following examples are provided:
“- can only visit or go out if taken to and from destination;
-finds doing a hobby or relaxing (for example, stamp collecting, art & crafts, playing or listening to music, playing cards, etc.) difficult to enjoy due to pain, suffering or loss of dexterity.”
34. In relation to domestic activities, the Tribunal reached the view, in the light of the oral evidence provided by Mr Ashenden, that a rating of 5 is appropriate. Such a rating is appropriate in the following circumstances:
“Limitation of household activity to a small range of light tasks, for example:
- watering the garden but has difficulty in weeding or pruning;
-able to do some light household activities but has difficulty bending to make beds, or in putting out the rubbish bin;
- requires assistance with grocery shopping.”
35. It may be argued that a rating of 4 was more appropriately reflective of Mr Ashenden’s domestic activities. However, as previously mentioned, the Tribunal considers that Mr Ashenden may have exaggerated some of his abilities while playing down some of his limitations. On balance the Tribunal has considered that a rating of 5 is appropriate in these circumstances.
36. Lifestyle ratings then of 4, 4, 4 and 5 total 17 and average 4. In order to qualify for the extreme disablement adjustment, Mr Ashenden’s average lifestyle rating must be 6. At this point in Mr Ashenden’s life he does not warrant the extreme disablement adjustment. The Tribunal consequently affirms the assessment decision under review, but has, as mentioned, accepted GORD as war-caused with effect from 28 July 2004. Following the acceptance of this condition, the Tribunal has assessed Mr Ashenden’s appropriate rate of pension throughout the assessment period and continuing, at 100 percent of the general rate.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Professor P Reilly AO (Member)Signed: .............J Coulthard..........................................
AssociateDates of Hearing 26/27 October 2006
Date of Decision 20 December 2006
Counsel for the Applicant Mr S Churches
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe (DVA)
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