Connolly and Repatriation Commission - [2000] AATA 217

DECISION AND REASONS FOR DECISION [2000] AATA 217

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1997/908

VETERANS APPEALS DIVISION )

Re THOMAS MICHAEL CONNOLLY
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date15 March 2000
PlaceMelbourne

Decision The application is remitted to the respondent for reconsideration in accordance with the Reasons.

........Sgd. Mr J. Handley.......
Senior Member
CATCHWORDS
Veterans Entitlements : Whether entitled to Special Rate pension – whether entitled to EDA – inability to assess loss of vision – whether related to or caused by other accepted disabilities – application remitted for reconsideration by respondent.

REASONS FOR DECISION

15 March 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board of 5 May 1997 which affirmed a decision previously made by the respondent on 21 April 1995 to asses Disability Pension at 100% of the General Rate.
At the hearing Mr Pentland appeared on behalf of Mr Connolly and Mr Douglass appeared on behalf of the respondent.
At the conclusion of the applicant's evidence I indicated to Mr Pentland that I was concerned that a number of the qualifying criteria for Special Rate Pension under s.24 of the Veterans Entitlements Act 1986 had not been satisfied nor had some issues been explained, namely-

The effect of non-accepted disabilities upon the applicant's incapacity and his ability to earn remunerative income.
The effects of a cerebro vascular accident suffered after retirement and before the date of claim.
Whether the applicant could satisfy the "alone" test under s.24 having regard to the extent of non-accepted disabilities, his age at the date of claim (71 years) and the intervening period of 6 years between retirement (which was compulsory) and the date of claim.
The unsatisfactory nature of the documented evidence with respect to earnings and income.

Mr Pentland requested a short adjournment to obtain instructions. Upon the application proceeding he indicated that the applicant was not pursuing a claim for special rate pension and sought pension at the rate of extreme disablement adjustment.
Mr Pentland then took Mr Connolly through the accepted disabilities by reference to the Guide to the Assessment of Rates of Veterans Pensions (GARP).
Mr Douglass also cross-examined Mr Connolly with respect to his accepted disabilities. At the conclusion of the evidence with respect to the accepted disabilities I made findings pursuant to the impairment tables as follows-
Accepted Disability Table Impairment Rating
Recurring Synovitis of Right Knee 3.2.2   20
Joint Pain     3.4.1   2
Tinea 11.1    5
Eczema         11.1    5
Sensori Neural Hearing Loss        7.1      23
Tinnitus        7.1.11 5
Irritable Bowel Syndrome   6.1.8 & 15.4   20
Dyspepsia     6.1.5   10

By reason of the ambit of the review having been reduced to assessing an entitlement to Extreme Disablement Adjustment and by reason of there being little controversy at to the above findings with respect to impairment, I directed the parties to lodge any additional medical evidence with respect to accepted disabilities of hypertension and cataracts and/or any written submissions and I would then conclude the review.
Subsequently Mr Douglass on behalf of the respondent has conceded that the appropriate rating under table 2.1.1 for hypertension is 10 impairment points. Mr Pentland, in his written submissions has given a similar submission. Having observed Table 2.1.1 and read the medical evidence and read the transcript of the applicant's evidence with respect to hypertension I am satisfied that a rating of 10 points under Table 2.1.1 is appropriate.
The remaining accepted disability, which was the subject of the hearing, was "bilateral cataracts with operation".
There was no evidence from Mr Connolly with respect to this condition. It was agreed between the parties that for practical purposes Mr Connolly is blind. The debate between the representatives concerned the extensive medical evidence on the Tribunal file comprising reports from Dr Hugh Ryan, Dr Gerard Crock, Dr Alex Harper and Dr Goldman.
Unfortunately Mr Connolly has had a tragic history with respect to his eyes and vision loss. It would appear that he had cataracts removed in 1974. Later he developed bilateral aphakia (absence of lens). Again later the applicant suffered venous occlusion which appears to be related to hypertension which is an accepted disability. Mr Connolly also suffers from macular degeneration.
The respondent submitted that the applicant's cataracts only contribute 5% to his visual loss and that assessment creates a minimal contribution to the loss of vision and is incapable of assessment under chapter 19 with respect to the partial contributing impairment tables.
Mr Pentland submitted that the applicant should be assessed at 25 impairment points under table 8.1.2 with respect to the listed condition of "gaze defects vertical and horizontal".
Mr Douglass also submitted that no greater assessment than 5 impairment points should be permitted for cataracts by reason of the conditions of macular degeneration and branch vein occlusion not being accepted disabilities and not being part of this review.
Infact I note that the applicant was an applicant in proceeding V98/558 where on 20 January 1999 Deputy President Forrest affirmed a decision made by the respondent where macular degeneration was found not to be war-caused. In those proceedings Deputy President Forrest had regard to an applicable Statement of Principle.
The respondent I believe is harsh in its rejection of the opinion of Dr Crock. It was put that Dr Crock had not examined the applicant. Dr Morgan a medical officer with the respondent also concluded that the opinion of Dr Crock should be excluded in part because he had not examined Mr Connolly. This submission is unimpressive. Dr Morgan did not examine Mr Connolly. It would follow, on his submission, that his opinion should also be excluded. More to the point, the submission is wrong.
Page 42 of the T-documents clearly indicates that Dr Crock has examined Mr Connolly. He examined him on 11 February 1997 and it would appear from the language of the report that appears at page 42 that he had previously examined him. Nonetheless as a matter of strict application of the Administrative Appeals Tribunal Act and the Veterans Entitlements Act, the conditions of macular degeneration and branch vein occlusion, which significantly contribute to the applicant's visual loss, are not conditions which are subject to the present review. Nonetheless I note that Dr Crock has concluded in his report of 29 July 1999 that the branch vein occlusion is related to the accepted disability of hypertension (an opinion also expressed by Dr Ryan). I note also that Dr Crock concluded that the branch vein occlusion was "an initiating factor in the left macular degeneration".
For the reasons expressed by me at the hearing, I found as a fact that a monocular assessment of 5 under Table 8.1.2 should be allowed with respect to the conditions of bilateral aphakia.
For the reasons that appear above and by reason of having received submissions and medical evidence subsequent to the hearing, I am unable to assess loss of vision under 8.1.3. I would recommend that this be reconsidered by the respondent having regard to paragraph 22 below.
It would appear – although I stand to be corrected – that the combined assessment charts do not permit a finding of 70 impairment points when the above ratings for the accepted disabilities are considered, subject to an assessment for loss of vision.
I am left however with the uncomfortable feeling that the applicant's loss of vision has not been properly investigated or submissions made to the respondent. It would appear that if both Dr Ryan and Dr Crock are correct in their conclusions that there is a relationship between the branch vein occlusion and the accepted disability of hypertension that that condition should be taken into account when assessing loss of vision. Additionally if there is a relationship between branch vein occlusion and macular degeneration then I would recommend that that connection also be investigated. Whilst I acknowledge that the Tribunal has conducted a review of the nexus between macular degeneration and service, the Tribunal found no such nexus existed by reason of a Statement of Principle, which connected service with injury only by smoking. If the loss of vision is a sequel to treatment of or a consequence of the hypertension then arguably the applicant should have the benefit of an assessment in his favour with respect to loss of vision. If that were to occur he would undoubtably achieve 70 impairment points and I would have thought, having regard to the severity and multiplicity of his accepted disabilities that he may qualify for extreme disablement adjustment.
The application is remitted to the respondent for reconsideration of entitlement to extreme disablement adjustment in accordance with these reasons and these findings.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ..Carolyn Irons .............................................
  Secretary
Date/s of Hearing  8/12/98 & 27/4/99
Date of Decision  15 March 2000
Counsel for the Applicant
Solicitor for the Applicant         Mr M. Pentland, Belleli King & Assoc.
Counsel for the Respondent
Solicitor for the Respondent    Mr R. Douglass - Departmental Representative