Curtis and Repatriation Commission - [2000] AATA 297

DECISION AND REASONS FOR DECISION [2000] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/195

VETERANS' APPEALS DIVISION        )
           Re       JOHN CURTIS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member Ettinger

Date 18 April 2000
Place Sydney

Decision       The decision under review of the Repatriation Commission of 31 May 1997 which affirmed the decision of the Veterans' Review Board of 27 October 1998 deciding that the disability pension be paid to Mr John Curtis at 40% of the General Rate on and from 3 December 1996, is set aside. In substitution therefor, the Tribunal decides that the veteran is eligible for the disability pension at 80% of the General Rate with effect from 3 December 1996.
  ..............................................
  Ms G Ettinger
  Senior Member

CATCHWORDS
Veterans - entitlement issue - higher rate of pension sought - conflicting doctors' reports regarding PTSD - pension increased.

Veterans' Entitlements Act 1986 s 120(4)
Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition, Department of Veterans' Affairs, Canberra, 1998 ("GARP")

REASONS FOR DECISION

18 April 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission of 31 May 1997 (T8), affirmed by the decision of the Veterans' Review Board of 27 October 1998 (T15) finding that the veteran Mr John Curtis' post traumatic stress disorder and bilateral sensorineural hearing loss with tinnitus were war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 ("the Act"). A disability pension at 40% of the General Rate had been granted from 3 December 1996. Before this Tribunal, the applicant was seeking a higher rate of disability pension.
Mr Curtis served on operational service in Vietnam from 6 May 1966 to 12 May 1967 and eligible service from 7 December 1972 to 3 January 1982.
At the Tribunal hearing, the applicant veteran was represented by Mr N Dawson of counsel and the respondent by its advocate, Mr P Godwin. Oral evidence was heard from Mr John Curtis and Mrs Barbara Curtis, his wife.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents as Exhibit R1, and the following other documents:
ITEM DATE NAME
Medical report of Dr A Dinnen      29 July 1999 Exhibit A1
Chronology of events in Vietnam by Mr J Curtis 19 July 1999 Exhibit A2
Medical report of Dr R Lewin        27 July 1999 Exhibit R2

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether Mr Curtis was eligible for the disability pension at a rate higher than 40% of the General Rate.
LEGISLATION
The relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 120(4), and the Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition("GARP") also applied.
The standard of proof in section 120(4) of the Act was to the reasonable satisfaction of the Tribunal and is as follows:
"120 Standard of proof
….
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."

EVIDENCE OF MR JOHN CURTIS

I noted that Mr Curtis whose date of birth was 10 October 1946, joined the Australian Army in January 1962 at the age of sixteen just after leaving school. He spent two years at the army school of music and played in the town band at Mullimbimby. Mr Curtis said that he then played in the Duntroon band in Canberra for eleven months and was then transferred to Brisbane, then Sydney, and then to Vietnam in May 1966. He was on a twelve month posting and was a medic/stretcher bearer. He said that he had little time to play in the band.
On his return from Vietnam, Mr Curtis played in the band, but wanting to return to mainstream employment, as he put it, took a clerical job in the army from 1979. This lasted for three years, and in January 1982, he left the army. He said that he was restless and had seven or eight jobs following his discharge, ranging from his own takeaway food shop, to cooking in a hotel, to travelling around selling hats and leather garments, followed by other jobs which included working as a removalist, delivering fruit and vegetables, and delivering furniture.
Mr Curtis joined the Junee Correctional Centre, a private correctional facility operated by Australian Correctional Management, in February 1993 and has remained there as a manager of a unit, supervising three staff and 90 prisoners. Mr Curtis said that this was by far the longest time he had remained in one position. He said that the reason he remained there was that he was in uniform, a daily routine was set out, he was covered by regulations, was well trained for the job and he had the companionship of his fellow workers from 8:00 am to 4:00 pm. He indicated that he had good relationships with the people at work, but did not mix with them outside of work. When asked what the best aspects of the job were, he answered "going home at 4 – I used to enjoy work when I started – now I have no interest in work."
Mr Curtis described reporting to the Assistant and Operations Managers at Junee. He said that the jail housed a maximum of 600 prisoners and had 245 staff. He said that back in 1993 or 1994/5, before the Vietnam veterans meeting at which his personal crisis came to the fore, he would have been interested in trying for the assistant governor's job, but this no longer applied. Mr Curtis said notwithstanding his condition, he performed adequately at work, because he was well trained and knew what to do – there was nothing new he said. The statements about aiming for promotion were corroborated by the evidence of Mrs Curtis.
Mr Curtis said that he had time off work from time to time because in the morning he sometimes felt agitated or in the alternative didn't "give a damn" and thus did not feel motivated to attend at work.
Mr Curtis recounted how his psychiatric symptoms emerged in February or March 1997 at a Vietnam veterans' memorial service in Victoria honouring a colleague who had died. "I crashed" he said. Mr Curtis described himself as a nervous wreck as a result of the contact with his colleagues and the service, and said that he was upset and crying. He said that all his experiences in Vietnam that he had previously suppressed came flooding back, and in the three days of the get- together he did not improve.
Mr Curtis said that on his return he consulted the Vietnam Veterans' Association in Granville in Sydney to seek help. He also consulted psychiatrist Dr K Koller in Goulburn in March 1997. Mr Curtis said that he still consulted Dr Koller every six to eight weeks, although I noted that the interval between his last appointment in February 2000 and the next one in June 2000 was considerably longer. He said that in early 1997 he also consulted clinical neuropsychologist Dr Apathy, whose report was at T14, and with whom he had had quite a number of visits.
Mr Curtis said that psychiatrist Dr Westerink, whose report was at T13, had suggested a live-in counselling course of a one month duration, but that he had been worried about his job and had not yet undertaken the counselling. He had however booked a week long residential course with his wife in mid-March 2000 in rural New South Wales.
Mr Curtis said that he was irritable and became "cranky" very easily. This was demonstrated in a reaction at the hearing to a straightforward question asked by Mr Godwin about what his salary comprised at the Junee Correctional Centre. Mr Curtis became very angry and asked Mr Godwin why he was asking the question and why it was relevant. He did not want to answer the question, and replied by asking Mr Godwin how much money he, Mr Godwin, earned.
Mr Curtis stated that he had lost interest in everything including his work, his garden and his 150 roses of which he had previously been very proud. He said that all that he had in his life now was his wife and his dog. Mr Curtis said that he mowed his lawn, watched television, looked after his car, and sometimes went shopping with his wife, but hated the "crowds and hustle and bustle". Mr Curtis said that he owned a block of vacant land either side of his house, and did not have contact with his neighbours. He said that he had no social life whatsoever.
Mr Curtis said that he did not have good relations with his three children (born in 1966, 1968 and 1972). He said he was afraid of starting arguments if he saw them; in particular he did not get on with his eldest son. Two of his children worked at the jail, his daughter as a roster clerk, and one of his sons as a correctional supervisor. He said that he did not often see his children at work. The applicant said that he did not go to his children's homes, and that they rarely came to his home. At the time of the hearing on 29 February 2000, he had not seen them since Christmas, apart from the occasional contact through work on a professional basis. He said that his grandchildren did sometimes drop by his house on the way home from school. He said that he did not deal well with this contact, and would go outside or for a walk with his dog when they came. Mr Curtis referred to the dog as "my lifesaver". I was mindful that all the points raised in this paragraph and the ones above in which Mr Curtis discussed his feelings about work and his relationships with his children were corroborated by the evidence of Mrs Curtis.
Mr Curtis said that he no longer had any social interests. He had not played darts or lawn bowls for years and only went to the local club once a month on a Monday night just for a short time. He said he no longer went to films, dances or functions. He also said he could not tolerate crowds and had no interest in going out. He said that he had stopped playing music in 1979.
Mr Curtis described his medication and said that when taking it, he could cope with his life. He said that when he became upset, particularly in relation to matters related to Vietnam, he would cry easily and that could occur as frequently as one day a week.
EVIDENCE OF MRS BARBARA CURTIS
Mrs Curtis, whose statement was at T19/56, gave oral evidence before the Tribunal. The majority of her evidence corroborated the evidence of Mr Curtis, and there were no points made which contradicted his evidence.
She said that it was difficult to communicate with her husband and that he went off by himself in anger. She said she did not argue with him. Mrs Curtis said that her husband was agitated, nervous and scratched himself, and did not sleep well.
Mrs Curtis said that her husband did not have good relationships with their three children. She indicated that one of the results of his problems was that although one child, Damian (and his girlfriend), lived with the parents for some time, Peter left home when he was 17 years old and Karen was 18 or 19 when she left home.
Mrs Curtis told me that she had known for years before his breakdown in 1997 that something was wrong with her husband, by observing his conduct and through talking with other Vietnam veterans' wives. She said that Mr Curtis had not wanted to admit his problems. Mrs Curtis corroborated the applicant's evidence that he did not go out much, or socialise at all. She said that they had not gone to the club for a period of approximately two years, but now occasionally went for a short period, mostly for the badge draw.
Mrs Curtis said that her husband was a different person when he was in uniform, and that when he came out of the army and its cushioning effect, he lost confidence. She said that she handled the accounts and family affairs, because her husband lost his temper easily just in ordinary dealings with others. Mrs Curtis said that her husband had just one good friend and he lived in South Australia.
Mrs Curtis corroborated her husband's evidence that the dog was much loved, and added that Mr Curtis enjoyed some driving and listening to some band music. She said that he was jealous even of her doing sewing and handwork and did not want her to go to work. He just wanted them both to sit together with the dog.
SUBMISSIONS AND CONCLUSIONS
Taking into account all the evidence both written and oral, the legislation and case law, I had to consider whether Mr Curtis was entitled to a disability pension at a rate higher than 40% of the General Rate.
I say from the outset that I found both Mr and Mrs Curtis highly credible, and was satisfied both had lived with great distress over a long period of time.
I noted that there was no disagreement between the parties, and I accepted that the date of effect in this matter in the event of a successful application would be 3 December 1996. I noted also Mr Curtis had had operational service from 6 May 1966 to 12 May 1967, and eligible service from 7 December 1972 to 3 January 1982.
I turned then to assess the evidence in relation to the various relevant Tables in Chapter 4 of GARP. The parties were in agreement, and I accepted, that based on the medical evidence, the bilateral sensorineural hearing loss with tinnitus should be rated at 5 impairment points.
I noted that Mr Curtis' condition of Post Traumatic Stress Syndrome ("PTSD") had been accepted as war-caused by the Repatriation Commission (T8) and the Veterans' Review Board (T15). Psychiatrist, Dr R Lewin, however opined as follows at Exhibit R2 dated 27 July 1999, under the heading of "SUMMARY DIAGNOSIS AND OPINION":
"Mr Curtis describes a range of low grade anxiety symptoms including agoraphobic symptoms and some Post Traumatic Symptoms of Anxiety. I have some doubt whether his case would fulfil the first diagnostic criteria regarding the nature of the stressor. If the test was 'reasonable hypothesis', then I would conclude that it is a reasonable hypothesis that Mr Curtis developed an Anxiety Disorder in response to his Military Service in Vietnam."
Mr Godwin, who appeared for the respondent, stated that notwithstanding Dr Lewin's diagnosis of the veteran (Exhibit R2), the respondent would not oppose the diagnosis of Post Traumatic Stress Disorder ("PTSD") as an accepted disability. Mr Dawson was satisfied with that on behalf of his client, and I concurred with the parties that the acceptance of PTSD as a war-caused disability should not be further questioned in connection with these proceedings.
I noted Mr Dawson's submission that Dr Lewin's report should be disregarded because he had made a misdiagnosis of the applicant, and that his rating of impairment must therefore be defective.
I noted that Doctors Koller, Dinnen and Lewin used Tables 4.1 - 4.8 inclusive to rate Mr Curtis' condition. I considered that the treating doctor, Koller, and neuropsychologist Apathy whom Mr Curtis consulted fairly regularly were in a preferred position to assess his condition over time. Accordingly I have accorded more weight to their reports than to the report of Dr Lewin upon whose diagnosis neither party nor the Tribunal relied.
I noted that the assessments of Mr Curtis made by the doctors were as follows:
·     Dr Koller 21 April 1997 (T5)  30 impairment points
·     Dr Koller, 29 September 1998 (T17)              35 impairment points
·     Dr A Dinnen, 29 July 1999 (Exhibit A1)        40 impairment points

Dr Lewin, 27 July 1999 (Exhibit R2) 22 impairment points

The tables in GARP under which Mr Curtis had been assessed were Tables 4.1 - 4.8. The parties agreed, and I accepted that bilateral sensorineural hearing loss with tinnitus should be rated at five impairment points. I was mindful that after impairment ratings had been obtained for all the accepted conditions, they must be combined to a single value known as the combined impairment rating, calculated by applying Table 18.1. I noted that the main points in contention between the parties were assessments with regard to Tables 4.1, 4.2 and 4.8 of Chapter 4 in GARP, and turned then to consider these.
table 4.1 functional loss – subjective distress
I turned then to consider Table 4.1 in relation to Mr Curtis. The relevant sections of the Table are reproduced below.
"NIL….
….
SIXFrequent symptoms causing moderate distress. The veteran will sometimes be unable to distract himself or herself from the distress.
TENVery frequent symptoms causing moderate distress. The veteran will often be unable to distract himself or herself from the distress.
FIFTEENPersistent symptoms causing considerable distress. Relief for the veteran from that distress is difficult to achieve even with a high level of support and reassurance.
…."
Mr Dawson submitted that Mr Curtis should be assessed at 15 points, or at the very least, at ten points of impairment. He referred to the evidence of both Mr and Mrs Curtis that indicated that Mr Curtis was persistently agitated, angry, "cranky" and short tempered. The latter was demonstrated, Mr Dawson submitted, even at the hearing itself, in a heated oral exchange during the hearing between Mr Curtis and Mr Godwin.
Mr Dawson referred to Dr Koller's reports which I noted were at T5, T11 and T17. I noted from the report of 21 April 1997 at T5 that Dr Koller opined: "The symptoms of PTSD are moderate and persistent." I noted that Dr Dinnen awarded 15 impairment points in relation to Table 4.1 and opined as follows: "Symptoms are there most of the time and without the medication I don't think I [sic: he] could cope." I noted that Dr Lewin awarded six impairment points with regard to Table 4.1 and opined: "Mr Curtis referred to his agitated movements and hand wringing. He described being easily upset and tearful. He told me that it helps him to be busy with something."
Mr Godwin on the other hand emphasised that Mr Curtis coped at work from 8:00 am – 4:00 pm, a substantial part of the waking day. He acknowledged that Mr Curtis' home and social life were affected by his war–caused disabilities. He acknowledged that Mr Curtis was "nervous and cranky", but submitted that he did not suffer from problems with concentration either persistently or frequently. If so, he submitted, Mr Curtis would experience some lack of concentration at work; however the evidence was that he functioned well at work. Mr Godwin submitted that the correct measure on Table 4.1 for Mr Curtis was six impairment points.
I accepted that Mr Curtis was nervous and bad tempered and that his symptoms were present most of the time as commented on by Dr Dinnen, who also opined that the veteran could not manage without his medication. I preferred the opinions of Dr Koller and Dr Dinnen with regard to the veteran's subjective distress, finding that he had persistent symptoms causing considerable distress. I held from the evidence that Mr Curtis found relief from these symptoms difficult to achieve even with the level of support his wife and doctors gave. Thus I considered 15 impairment points the correct level with regard to Table 4.1.
table 4.2 – functional loss – manifest distress
I then turned to consider submissions made with regard to Table 4.2 of GARP in relation to Mr Curtis. . The relevant sections of the Table are reproduced below.
"NIL               ….
….
SIXDistress is apparent, and/or the veteran's pre-occupation with the symptoms is noticeable to astute observers or persons familiar with the veteran.
TENObvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran.
…"
Mr Dawson submitted that Mr Curtis suffered manifest distress outside of work. He no longer had a drinking problem but had no conversations other than with his wife, and was totally withdrawn socially. Mr Dawson referred to Dr Koller's assessments as confirmed by Dr Dinnen, and submitted that ten impairment points was the appropriate level pursuant to Table 4.2.

Mr Godwin, after first submitting that six impairment points was an appropriate assessment, also accepted ten as the correct figure. To qualify for ten impairment points pursuant to Table 4.2, the veteran had to suffer: "Obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran."
Given all the evidence before me, I agreed with the assessment of ten points.
table 4.8 – functional loss – current therapy
Mr Dawson then turned to make submissions with regard to Table 4.8 of GARP. The relevant sections of the Table are reproduced below.
"NIL ….
….
THREEPsychiatric treatment, at least in the form of medication or psychotherapy, has been used (or deemed necessary), and/or periods of regular supportive therapy at an outpatient level or similar.
FIVENeed for intensive specialist psychiatric treatment on an outpatient basis, including medication and/or inpatient hospital care for short periods.
…."
Mr Dawson submitted that therapy for Mr Curtis consisted of intensive specialised psychiatric treatment. I noted the evidence that Mr Curtis had in 1998 been booked, on the recommendation of psychiatrist Dr Westerink, into a month long residential course of treatment which he said he had not undertaken because of fears about interference with his employment. The evidence at the time of hearing was that Mr Curtis was booked for a week long residential course with his wife, and had sick leave approved by his employer.
I noted that Dr Apathy, clinical neuropsychologist writing to the Clinical Psychology Adviser, Department of Veterans' Affairs, opined at T14/39 dated 1 September 1998: "I don't think he [Mr Curtis] can continue working at the jail where he has a very senior position, for much longer. He is already a danger to himself and others and the possible serious consequences of any mistakes he makes are all too obvious."
On the basis of the evidence and medical reports, including the fact that Mr Curtis was reliant on continuing medication, and some residential in-patient treatment, I was satisfied that Mr Curtis should be rated at five impairment points according to Table 4.8.
summary of the other tables
Mr Dawson submitted that the applicant's rating as to the other relevant Tables should be five impairment points for each table. He also referred me to T17/51 the 'Emotional and Behavioural Medical Impairment Worksheet' completed by Dr Koller with regard to the applicant. I noted that Dr Koller had rated Mr Curtis at ten for Table 4.1, ten for Table 4.2 and that the three highest of the ratings for Tables 4.3 – 4.8 were 5, 5, and 5. The final rating given on that document dated 29 September 1998 was 35 points.
Dr Dinnen found 40 points the level to apply to Mr Curtis in his report dated 29 July 1999 (Exhibit A1). He rated Mr Curtis at 15 for Table 4.1, ten for Table 4.2 and five points each for Tables 4.3 – 4.8 of Chapter 4 in GARP.
Mr Godwin on the other hand relied on the report of Dr Lewin of 27 July 1999 (Exhibit R2) in which he found Mr Curtis rated at 22 impairment points, based on six points for Table 4.1 Subjective Distress, three in Table 4.2 Manifest Distress, nil for Table 4.3 Functional Effects, two for Table 4.4 Occupation, two for Table 4.5 Domestic Situation, five for Table 4.6 Social Interaction, five for Table 4.7 Leisure Activities and three for Table 4.8 Current Therapy.
Having considered all the evidence, and the Tables in Chapter 4 of GARP, I reiterate my findings in relation to these, that is 15 impairment points in relation to Table 4.1, ten impairment points in relation to Table 4.2 and five points in relation to Table 4.8. I was also satisfied with the joint submission of the parties that bilateral sensorineural hearing loss with tinnitus should be awarded five impairment points. In calculating the combined values pursuant to Table 18.1, I was satisfied to the requisite standard that the appropriate rating for Mr Curtis was 45 impairment points.
lifestyle
The parties also made submissions with regard to Mr Curtis in the application of the tests in Chapter 22 regarding "Lifestyle Effects". I noted that these are determined by reference to: 1) personal relationships; 2) mobility; 3) recreational and community activities; and 4) employment and domestic activities.
lifestyle effects
table 22.1 - personal relationships
In considering Mr Curtis' personal relationships, I noted that it was necessary to take into account the friction in his life he experienced with regard to his children, and his withdrawal from social relationships which has been discussed above. Mr Godwin submitted that a rating of two was at the right level to describe Mr Curtis' problems. The relevant sections of Table 22.1 are reproduced below.
"NIL ….
….
TWOMildly affected personal and social relationships. Social contacts and activities are reduced, veteran's participation in the accustomed range of activities is restricted.
THREEModerately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOURMarkedly 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 formerly.
FIVESeverely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality.
…."
Mr Dawson submitted that Mr Curtis had no social relationships, and that his contact with people other than his family was simply at work and in the nature of a purely work relationship. The evidence that I accepted, was that Mr Curtis had no social relations with his colleagues at work. I accepted the evidence which indicated that Mr Curtis could relate to his wife but not even to his children with whom relationships were strained. I accepted a rating of five for Mr Curtis pursuant to Table 22.1.
table 22.2 - mobility
Mr Dawson submitted that Mr Curtis did not go out anywhere because he could not deal with crowds, and had not been to a club for two years. He submitted that on the face of it, Table 22.2 dealt with physical mobility, but that in this case there was an overlay of psychological inability to move around.
I noted that the ratings in Table 22.2 were as follows:
"NIL               No or minimal restrictions of mobility, ie full mobility.
….
FOUR           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 respondent submitted that nil was the correct rating for Mr Curtis in regard to this table.
As both physical and psychological factors can be taken into account in considering the veteran's condition pursuant to Table 22.2, I rated Mr Curtis at four. I based this on the evidence before me that Mr Curtis, can drive, (although his wife often drives), and that he does not use public transport, or indeed go anywhere much except to and from work and to the occasional band concert with his wife.
table 22.3 – recreational and community activities
The ratings in Table 22.3 were as follows:
"NIL               ….
….
THREEUnable to continue some accustomed recreational pursuits and community activities, for example:
-competition sporting activities (golf, tennis, bowls etc)but is still able to enjoy most other activities (camping out, hobbies going visiting, watching sport etc);
-unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc.
FOURUnable 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).
FIVEGreater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example:
-       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.
SIXAble to engage in only a very few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors.
….."
Mr Dawson submitted that Mr Curtis rated six in Table 22.3 whereas the respondent submitted that he had the ability to attend band concerts with his wife as given in her evidence, and was able to watch television, so that the more appropriate rating was four.
There was no dispute with regard to the evidence which was that Mr Curtis could attend and enjoy band concerts with his wife, and watch television, and I found that the appropriate rating was four.
table 22.4 – domestic activities
The ratings in Table 22.4 were as follows:
"NIL               ….
….
TWOAble to carry out accustomed tasks, but has difficulty with some heavier tasks, for example:
-has difficulty with heavy gardening activities such as digging, pruning trees etc.
THREEUnable to perform heavy activities, but able to carry out lighter household tasks, taking breaks during sustained activity, for example:
-     mowing the lawn
-     washing the car;
-performing light maintenance or gardening activities if working at own pace, taking breaks as necessary.
FOURUnable to carry out a full range of normal household activities, particularly some moderate tasks which require exertion. Needs assistance with some activities, for example:
-     vacuuming carpets, cleaning floors, or mowing lawns;
-     home repairs and maintenance, etc.
FIVELimitation 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."
Mr Dawson submitted that Mr Curtis should be rated at five as he had difficulty with motivation to do domestic tasks. Mr Godwin on the other hand submitted that two was a more appropriate figure. I was mindful that Mr Curtis had no physical restrictions to carrying out domestic duties but was mindful that his motivation and mood played a significant role. I found, taking into account the evidence, that he was not able to do much at home. The evidence was that he no longer tended his formerly beloved roses, although he did mow lawns. I rated him at four.
table 22.5 – employment activities
The parties agreed and it was clear from the evidence that Mr Curtis was in employment and managed his work, so I decided a rating of nil was appropriate for this table.
closing
In closing, Mr Dawson submitted that a concession to accept the shaded area of GARP would not result in an incorrect result for Mr Curtis' situation. He also referred to the method of calculation as set out in GARP. He said that if his submissions were accepted, the rating for Table 22.4 would be five to which the results for the other Tables would be added, then according to the formula in GARP, be divided by four, giving a lifestyle rating of five. He also submitted that if the assessments of Doctors Koller and Dinnen were accepted, then Mr Curtis would receive a rating of 90% of the General Rate of pension.
Mr Godwin on the other hand, using the same formula, calculated Mr Curtis' lifestyle rating at two. I noted his ratings: Table 22.1 (two); Table 22.2 (nil); Table 22.3 (four); Table 22.4 (two); and Table 22.5 (nil).
I was mindful that on a self-assessment, Mr Curtis rated himself at 5 for personal relationships, 3 for mobility, 4 for recreational and community activities, and 3 for employment and domestic activities.
I found on the evidence before me and was satisfied to the requisite standard that Mr Curtis rated as follows: Table 22.1 (five); Table 22.2 (four); Table 22.3 (four); Table 22.4 (four); and Table 22.5 (nil). I was satisfied to the requisite standard that this gave the veteran a lifestyle rating of four, which with the impairment rating of 45 as found above, gave him the pension at 80% of the General Rate.
DECISION
The decision under review of the Repatriation Commission of 31 May 1997 which affirmed the decision of the Veterans' Review Board of 27 October 1998 deciding that the disability pension be paid to Mr John Curtis at 40% of the General Rate on and from 3 December 1996, is set aside. In substitution therefor, the Tribunal decides that the veteran is eligible for the disability pension at 80% of the General Rate with effect from 3 December 1996.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 February 2000
Date of Decision  18 April 2000
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         N/A
Counsel for the Respondent    N/A
Advocate for the Respondent Mr P Godwin