Evans and Repatriation Commission - [2002] AATA 1336

DECISION AND REASONS FOR DECISION [2002] AATA 1336

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/734

)

VETERANS' APPEALS DIVISION       )
           Re      ROY JOSEPH EVANS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member Dr M E C Thorpe - Member

Date 24 December 2002

PlaceSydney

Decision     The Administrative Appeals Tribunal affirms the decision of the Veterans Review Board dated 1 March 2001 that pension be assessed at 100 percent of the General rate to operate from and including 17 January 2000. Accordingly, pension is not payable at the Extreme Disablement Adjustment rate pursuant to the Veterans' Entitlements Act 1986. The Applicant's representative told the Tribunal that he was not pursuing the claim for hypertension with left ventricular hypertrophy, and accordingly that part of the decision of the Respondent is affirmed without further hearing evidence about it.
   Ms G Ettinger
  Senior Member

CATCHWORDS
Veteran's Appeals - war service – whether EDA - decision affirmed

LEGISLATION
Veterans' Entitlements Act 1986 s22
Guide to the Assessment of Rates of Veterans' Pensions ("GARP")

REASONS FOR DECISION

24 December 2002 Ms G Ettinger - Senior Member
Dr M E C Thorpe - Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was the application of Mr Roy Evans ("the Applicant") for pension to be paid at the Extreme Disablement Allowance ("EDA").
The application followed a decision of the delegate of the Repatriation Commission ("the Respondent") dated 24 July 2000 (T14), which accepted Mr Evans' anxiety disorder, bilateral sensorineural hearing loss with tinnitus, and aortic atherosclerotic disease as war-caused pursuant to the Veterans' Entitlements Act 1986 ("the Act"), and refused Mr Evans' application for hypertension with left ventricular hypertrophy, and his osteoarthritis left knee to be accepted as war-caused pursuant to the Act. The Repatriation Commission granted disability pension at 80 percent of the General Rate with effect from 17 January 2000.
On appeal by Mr Evans, the Veterans' Review Board ("VRB"), on 1 March 2001 (T18), affirmed the decision in respect of hypertension with left ventricular hypertrophy. In relation to osteoarthritis left knee, the VRB set aside the decision of the Repatriation Commission, and found that the condition was war-caused within the terms of the Act, and found further that pursuant to section 13 of the Act, the Respondent was liable to pay pension for any incapacity arising from that condition from and including 17 January 2000. The VRB also set aside the decision of the Repatriation Commission in relation to assessment, and substituted its decision that pension be assessed at 100 percent of the General Rate to operate from and including 17 January 2000.
The Applicant's representative, Mr B Winship of Rockliffs Solicitors & Attorneys told the Tribunal that Mr Evans was not pursuing the claim for hypertension with left ventricular hypertrophy, and accordingly the Tribunal affirmed that part of the decision of the Respondent without further hearing evidence about it.
The Respondent was represented by its advocate, Ms T McConnell at the hearing.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:

· Whether pension was payable at the Extreme Disablement Adjustment rate pursuant to section 22 of the Veterans' Entitlements Act 1986.

LEGISLATIVE FRAMEWORK

The relevant legislation was the Veterans' Entitlements Act 1986, while the eligibility for Extreme Disablement Adjustment is conditional upon meeting the requirements of section 22 of the Act.
"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 $216.90 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 increased by 50% of the maximum rate set out in subsection (3).
(5)       For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b)amounts are being deducted from the pension under section 79, 30P or 205; or
(c)       the pension has been suspended under subsection 31(6)."
The standard of proof with regards to assessment of Mr Evans' pension was to the reasonable satisfaction of the Tribunal, applying section 120(4) of the Act. As relevant it follows:
"120 (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."
Note: This subsection is affected by section 120B.
The Respondent submitted, that the earliest date of effect in regard to eligibility for pension at the EDA rate was 1 March 2002, the date of Mr Evans' relocation from Sydney to Sussex Inlet, while the Applicant submitted 17 January 2000 was more appropriate.
EVIDENCE BEFORE THE TRIBUNAL
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 additional exhibits:
ITEM DATE NAME
Statement of Mr R Evans   24 May 2002 Exhibit A1
Ms C Andrew (with amendment on page 3)       22 August 2002       Exhibit R2
Dr P Harvey Sutton 7 December 2001    Exhibit R3

Mr and Mrs Evans and Ms C Andrew, occupational therapist gave oral evidence before the Tribunal.
mr roy evans – the applicant
Mr Evans, whose date of birth was 23 April 1926, and whose statement of 24 May 2002 was before the Tribunal as Exhibit A1, gave oral evidence. He was asked why he had left Sydney to live in Sussex Inlet and replied that it was to leave the "rat race". He said that his duties as part of the body corporate at his block of villas had caused him increasing anxieties, and that living at the retirement village at Sussex Inlet meant he had no chores and no worries. The Sydney villas were 20 years old, he said, and required substantial maintenance which was difficult to organise due to a shortage of tradespeople. However the main reason for moving from Sydney apart from the anxiety factor, Mr Evans said, was his unpleasant neighbour who built a two storey house next door, and who had a 17 year old son with noisy, partying friends.
Mr Evans gave evidence that he first consulted Dr Koller, psychiatrist, in 1999, and now saw him every four months. He said they had a chat about sport, health and other things, but that no medication was prescribed. He said that he felt better as a result of the talk. Mr Evans indicated that he liked Dr Koller, but felt that as far as he was concerned, he could see a different psychiatrist, or no psychiatrist at all. His next appointment was a month or so from the date of giving evidence, and he said that he would keep that.
When asked whether he was better or worse now, Mr Evans said that going to the psychiatrist did not make much difference. He said that he was handling things reasonably well, although he suffered anxiety and had a panic attack at the football recently. He said that he became anxious over anything at all. Mr Evans said that in 1960 he took medication prescribed by a psychiatrist which made him worse; it tensed him up right from the arms he said. Mr Evans indicated he could deal with it himself, take his mind off the anxiety, and thus handle himself better without medication.
When asked about what Dr Koller had written at T12/51, (a report of 29 June 2000), which was in relation to the Medical Impairment Worksheet, Table 4.1 Subjective Distress, "excessive anxiety, worries, moody irritable, sleep disorder, poor concentration, tenesmus, drinks much beer every day", Mr Evans replied that he was a born worrier. He said that he worried about the least little things, but not to excess. He said however that he had some days without anxiety.
When asked by Mr Winship how bad his anxiety was, Mr Evans said that he worried about little things, his family and his wife. He said that without his wife he would be in deep trouble, because she had been doing most things for him. He said that he could not help in the house or garden, and that she helped with showering, dressing, and assisted with picking things up because of his arthritis. Mr Evans said that he had arthritis in his hands and found it difficult to deal with taps. He said that he had been told he had prostate cancer, but that things seemed to have improved, and he did not need to see his doctor further in that regard.
When asked why Dr Koller would have rated him as "moody/irritable" pursuant to Table 4.1, Mr Evans said that his knees worried him. He said that he could not do what he used to. He said that he had played golf for 40 years, then had to learn bowls. He said that he had problems with his knees, his right was not as bad as his left. Mr Evans said that he could not afford to have a golf cart, and could not walk sufficiently well to play golf.
When asked about driving, Mr Evans said that the last time he drove a car was some six months previously. He had driven from Sydney to Sussex Inlet. He said that he, rather than his wife, shopped for home brew equipment in Nowra, and he periodically visited the skin specialist and St George Bank.
As to Dr Koller's assessment of "sleep disorder"; (T12/51 Medical Impairment Worksheet), Mr Evans said that he was not a good sleeper and that the noise in the city woke him, whereas in Sussex Inlet it was quiet.
As to Dr Koller's assessment of "poor concentration"; Mr Evans said that it was hard to concentrate with a pain in the knee. He said that he was wearing magnets in his left leg and knee, and that this helped.
As to Dr Koller's assessment of "tenesmus"; Mr Evans said that he had a lot of wind because he ate a lot of fruit and salad.
As to Dr Koller's assessment of "drinks beer every day"; Mr Evans affirmed that he drank because it soothed his anxiety. He said that he drank 4 – 5 stubbies starting at 11 am.
When asked about Dr Koller's assessment at Table 4.2 of the Medical Impairment Worksheet (T12/51), which was that Mr Evans was "tense, anxious, poor concentration, drinks every day continues", the Applicant said that at 5 pm, he and his wife had a happy hour, and that his wife drank a couple of scotches. He said that he got on well with her, and with the grandchildren. He said that he got on well with his children, his eldest daughter ringing daily.
When asked about the assessment by Dr Koller at Table 4.6 which indicated that Mr Evans had "little social interaction, reduced", Mr Evans stated that he could not play bowls as often as he wanted. He said that he played one game, and spent two days afterwards "in agony". Mr Evans said that he was afraid of having a stroke as both his parents had suffered strokes.
Mr Evans said that he had a lot of friends in the bowling club, although he had left many behind in the Bexley (Sydney) area from which they had moved. Mr Evans said that at Bexley he used to go to the club daily, whereas at Sussex Inlet he rarely went, and that consisted only of the sub-branch meetings. He said however that he attended the Senior Citizens Club, and the Tasman Club run by the RSL. Mr Evans also said that his wife drove him to an activity centre where he played snooker a couple of times a week. He said he had made some new friends within that circle.
As to Table 4.7, (Leisure Activities), Mr Evans said that he used to have a big orchid house, but that the orchids had died due to lack of light. He said he was disappointed because a neighbour had built a two storey house next to his, and that had blocked the light to the orchids.
As to Table 4.8 where Dr Koller had assessed, "requires psychiatric intervention", Mr Evans said that he did not know what was meant by that.
Mr Evans told the Tribunal that Dr Harvey-Sutton, (whose report was before the Tribunal as Exhibit R3), and he, had not understood each other. He pointed out what he considered to be inaccuracies in Dr Harvey-Sutton's report regarding driving, walking and other activities.
mrs margaret (peggy) hilda evans – the wife of the applicant
Mrs Evans who has been married to Mr Evans for 52 years, gave evidence before the Tribunal. She said that they moved from Bexley to Sussex Inlet to get out of the "rat race", and because of her husband's health. Mrs Evans said that the work of the body corporate in their villas was causing her husband stress, and that after the last mini-stroke he suffered, she felt they should leave Sydney. Mrs Evans also found that the young people in Bexley intimidated her when she was driving. Mrs Evans said that she "pushed" her husband into leaving Bexley, which was difficult because he had to leave his golfing friends of 40 years standing, noting he could not play golf or bowl any more. She also said that because Mr Evans lost his orchids, he lost interest.
Mrs Evans told the Tribunal that their Bexley house had six steps, and that due to her hip problem and Mr Evans' knees, they required a house with no steps. She said they had found one in Peakhurst which they both loved, but could not afford it, hence Sussex Inlet.
Mrs Evans told the Tribunal that her husband attended the RSL sub-branch meetings and the Tasman Club. She said that she encouraged Mr Evans to go to billiards as that was men's company for him. Mrs Evans said that because they had only been at Sussex Inlet for six months at the time of the Hearing, they did not yet have close friends or many visitors.
As to Mr Evans' anxiety; Mrs Evans told the Tribunal that he was a "time bomb at times". She said that he was a wonderful man but that everything upset him, and he became very "uptight". Mrs Evans said that her husband loved all the children and his family. Mrs Evans said it was hard to watch her husband lose his independence because she had to assist him with personal care such as showering and putting on his underpants and socks. She said that Mr Evans could assist with wiping up breakfast dishes, but that she was impatient and would rather do it herself. She said that he was spoilt as far as housework went because she had always made the bed.
As to mobility; Mrs Evans said that Mr Evans was not worse since moving to Sussex Inlet, but needed encouragement from her. She said that his knees had deteriorated, however. When shopping, Mr Evans sat in the car while she shopped, Mrs Evans said. He did however drive her to the doctor recently, when she felt dizzy, she said. Mrs Evans said that her husband could not take public transport, but that the retirement village bus which had special steps was useful for attending doctors' appointments.
In summary, Mrs Evans said that her husband's activities which he really enjoyed, were going on picnics (by car), billiards and the Tasman Club which had interesting weekly guest speakers. Mrs Evans said that she was conscious of the effects of the mini-strokes on her husband's brain, and tried to keep him stimulated with travel videos, sport on television and classical music, all of which he enjoyed.
SUBMISSIONS AND CONCLUSIONS
The Tribunal had to consider assessment of service pension for Mr Evans, and was mindful that, in this regard, the standard of proof was for the Tribunal to be convinced to its reasonable satisfaction, that is applying section 120(4) of the Act. The Medical Impairment Worksheets were to assess the level of the Veteran's impairment, and Chapter 22 of GARP, the Lifestyle Effects, was also used to assess Mr Evans' pension entitlements.
The Tribunal noted that Mr Evans' accepted disabilities were anxiety disorder, bilateral sensorineural hearing loss with tinnitus, aortic atherosclerotic disease, and osteoarthrosis left knee.
The non-accepted disability was hypertension with left ventricular hypertrophy, for which no claim was made at this Hearing. Accordingly, the Tribunal affirmed that part of the VRB's decision without hearing further evidence on that condition.
The Tribunal was mindful that an impairment rating of 70 points was necessary for the Veteran to be considered for EDA, and that this was not agreed between the parties. As Mr Evans was over 65 years old at the time of his application, he could not be considered for Special or Intermediate Rate of pension. The Tribunal moved then to consider whether Mr Evans was eligible for EDA pursuant to section 22 of the Act.
whether mr evans was eligible for pension at the level of eda pursuant to section 22 of the act
lifestyle
To decide whether Mr Evans was eligible for pension at the level of EDA pursuant to section 22 of the Act, the Tribunal had to consider the relevant Tables in GARP. The Tribunal noted the parties' submissions with regard to Mr Evans in the application of the tests in Chapter 22 of GARP regarding "Lifestyle Effects". The Tribunal noted that these are determined by reference to: 1) personal relationships; 2) mobility; 3) recreational and community activities; and 4) employment and domestic activities.
The Tribunal considered these in connection with the Respondent's acceptance of Mr Evans' conditions of anxiety disorder, bilateral sensorineural hearing loss with tinnitus, aortic atherosclerotic disease, and osteoarthrosis left knee as war-caused.
lifestyle effects
table 22.1 - personal relationships
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.
SIX                Extreme difficulty in relating to anyone, for example:
- difficulties in relating because of psychosis; or
- social interaction limited to carer(s) due to confinement; or
- ability to communicate is restricted due to stroke or other effect of accepted conditions.
…."

In considering Mr Evans' personal relationships, the Tribunal noted that he and his wife had been married 52 years, and that the evidence of both was that they got on well with each other and their children. Mrs Evans did say that Mr Evans was very emotional and that things upset him easily.
Mr Evans rated himself at four for Table 22.1 at T9, dated 15 May 2000. To attract that rating, he would have to have: "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 formerly."
Dr Gill (T11/41) commented in regard to the Medical Impairment Assessment, that Mr Evans suffered from tinnitus every day but that it was "tolerable for much of the time."
Dr Gill (T11/44) also recorded in his Medical Impairment Assessment that Mr Evans was having: "frequent discord with family members", (based on the patient's information). The Tribunal noted that this did not accord with the oral evidence given at the Tribunal by Mr Evans or Mrs Evans, and preferred their oral evidence which was that they got on well and that Mr Evans got on well with his children and grandchildren.
Dr P Harvey-Sutton, occupational physician, rated the Applicant at four for Personal Relationships in GARP (Exhibit R3). Referring to the relationship between Mr and Mrs Evans, she reported that "There appeared to be no strain in the relationship."
Ms C Andrew, occupational therapist, rated Mr Evans at one in Table 22.1 for Personal Relationships. She opined at Exhibit R2, that: "the fact that he spends a significant amount of time with his wife is indicative of their shared lifestyle choices rather than Mr Evans' need for assistance with all routine daily activities." She considered that Mr Evans had been able to adjust to establishing social relationships in his new environment and had been able to transfer his social interests to bowls and other activities.
The Respondent submitted that the correct rating pursuant to Table 22.1 of GARP was one, in that Mr Evans got on well with his wife and children and had made new friends in Sussex Inlet.
The Tribunal took into account all the evidence before it, noting that the move from Bexley to Sussex Inlet was a lifestyle decision as well as catering for Mrs Evans' hip problems and Mr Evans' knees. The Tribunal was mindful that the couple managed well together in spite of Mr Evans' anxiety, and his short temper. The Tribunal considered that a rating of two in Table 22.1 was appropriate, in that Mr Evans was able to adjust to his new environment, meet new people at sub-branch meetings, and go to snooker regularly.
table 22.2 - mobility
The Tribunal noted that the ratings in Table 22.2 of GARP were as follows:
"NIL               No or minimal restrictions of mobility, ie full mobility.
ONE              Intermittent or periodic effects on mobility:
·mobility affected only when impairment e.g. migraine, angina, sciatica, or panic attack is present. Between attacks there are no restrictions.;
·if there is permanent impairment, e.g. night blindness, the effect is only sporadically limiting.
TWOMild effects on mobility, e.g. slowing of pace in some circumstances, or need for a walking stick.
THREEModerately reduced mobility:
·mobility curtailed or diminished because of frailty, lack of confidence; or moderate agoraphobia;
·travel as a passenger in private and public transport, possible in most circumstances without undue difficulty ('undue difficulty' not being the need for a break in travel or for special seating arrangements);
·dependent on a walking stick or similar device. Independent on leaving home and reaching destination, but has some difficulty
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.
FIVE              Major impediments to mobility:
- dependent upon others, or mechanical devices such as wheelchairs;
- unable to use most forms of transport;
- able to drive a car only in a situation of emergency and then only for a short distance.
…."
Mr Evans rated himself at three for mobility in Table 22.2 (T9). This meant that he perceived he had:
"Moderately reduced mobility:
·mobility curtailed or diminished because of frailty, lack of confidence; or moderate agoraphobia;
·travel as a passenger in private and public transport, possible in most circumstances without undue difficulty ('undue difficulty' not being the need for a break in travel or for special seating arrangements);
·dependent on a walking stick or similar device. Independent on leaving home and reaching destination, but has some difficulty"
Dr Harvey-Sutton rated Mr Evans at four for mobility in Table 22.2. She noted that Mr Evans described no difficulty driving, and that he attended the shopping centre with his wife once or twice a week. She noted that he sat and waited for his wife, but was able to walk 100 metres or so. (Exhibit R3).
Ms Andrew (Exhibit R2), rated Mr Evans at three in GARP'S Table 22.2. She stated that he was able to travel by coach (although the Applicant, added for the Tribunal, not by train), and that he was dependent on a walking stick. She noted that Mr Evans maintained a licence and was able to drive a car.
The Respondent submitted that the correct rating in Table 22.2 was three as Mr Evans could drive a car, attend at the bank, and that restrictions to his finger movements were not war-caused disabilities as arthritis had not been accepted. Ms McConnell submitted that any mobility problems Mr Evans had were exacerbated by his hip and right knee which were not accepted as war-caused, and correctly submitted that hence these restrictions could not be taken into account.
The Tribunal agreed with Ms Andrew that Mr Evans should be rated at three for mobility in Table 22.2 of GARP as he could drive a car, and walk certain distances. The Tribunal noted that he is aided by a walking stick.
table 22.3 – recreational and community activities
The ratings in Table 22.3 of GARP 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 Evans rated himself at four in Table 22.3 in GARP. To be able to achieve that rating, he would have to be:
"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)."
Dr Gill (T11/42) the Medical Impairment Assessment, opined that as a result of Mr Evans' anxiety, he had a "substantial reduction in most recreational activities." At T11/44, Dr Gill stated that Mr Evans had "significant reduction in social interaction."
Dr Koller, psychiatrist, (T12/51) who assessed Mr Evans on the Medical Impairment Worksheet, opined that Mr Evans suffered excessive anxiety, had poor concentration, and drank beer every day. He stated that Mr Evans required psychiatric intervention and that he had reduced social interaction and had lost interest in golf and bowls.
Dr Harvey-Sutton (Exhibit R3), rated Mr Evans at four for Recreational and Community Activities in Table 22.3 of GARP. She based this on the information supplied by Mr Evans regarding his loss of interest in his orchids, but noting that he continued to bowl and attend the club.
Ms Andrew rated Mr Evans at five for Tables 22.4 and 22.5 of GARP. She stated he could assist with washing up, although Mr Evans corrected that to be the drying of dishes. He could shop for light items and assist with bed making, she said. Mr Evans told the Tribunal that he had never made the bed as "that would be taking over the boss' job".
Ms McConnell submitted that Mr Evans could participate in recreational and social activities and that he should be rated at three pursuant to Table 22.3. She noted that he attended various clubs and activities such as billiards.
The Tribunal found that the appropriate rating in this category was four for Mr Evans. He is still able to participate in snooker, and some sport even though he is restricted in his golf playing and physical activities.
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
SIXAble to carry out only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example:
able to do very light tidying, dusting but unable to cook or prepare meals;
has difficulty standing to set table or wash dishes;
…"
Mr Evans rated himself at four in GARP's Table 22.4. To achieve that rating, he would have to be:
"Unable 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."
Dr Harvey-Sutton (Exhibit R3), rated Mr Evans at five for Domestic Activities in Table 22.4 of GARP. She said that he could water the garden, set the table and put out garbage. The Tribunal noted Mr Evans' evidence that Dr Harvey-Sutton had misunderstood his efforts at watering the garden which he said, consisted of sitting on a chair and holding the hose.
Ms Andrew rated Mr Evans at five for Tables 22.4 and 22.5 of GARP.
Ms McConnell submitted that Mr Evans be rated at five for domestic activities as he was able to do certain household chores, heat a meal in the microwave and deal with the home brew. She noted that Mrs Evans did the household chores as she always had.
The Tribunal accepted that Mr Evans was only able to carry out limited domestic duties such as watering the garden while sitting in a chair, and drying up dishes, and rated him at five in relation to Table 22.4 of GARP.
table 22.5 – employment activities
It was clear from the evidence and his age that Mr Evans was not in employment because he would be unable to do paid work due to his disabilities. The rating is five.
the tribunal
The Tribunal noted that Mr Evans rated himself at four for personal relationships, three for mobility, four for recreational and community activities, and four for employment and domestic activities in relation to GARP (T9/37).
As to impairment points, the Tribunal noted that the VRB assessed the Applicant as follows (T18/84):

Osteoarthrosis left knee 30 points
Anxiety disorder 23 points
Atherosclerotic disease 20 points
Bilateral hearing loss 12 points
Tinnitus 5 points
Osteoathrosis (pain at rest) 5 points

Combined Impairment Rating 66 points (rounded to 65)

At T14/67, the Respondent stated that it agreed with Mr Evans' self assessment of his Lifestyle ratings, which when calculated came to four.
The VRB stated that it was satisfied the Veteran's degree of incapacity was 100 percent but that he was older than 65 years, and that Special or Intermediate rate of pension were therefore not to be considered. The VRB refused Mr Evans' EDA on the basis that he did not have a lifestyle rating of at least six points, neither an impairment rating of at least 70 points.
The Tribunal noted that on 24 July 2000, Dr N Preswick who assessed the Veteran on behalf of the Respondent, rated him as follows on the Interim Combined Impairment Report :

Hearing and Tinnitus 14 points
Cardiorespiratory 20 points
Emotional
& Behavioural 13 points
Total Impairment 40 points

The Tribunal noted that Dr Harvey-Sutton (Exhibit R3), rated Mr Evans as having a total combined impairment rating of 66 impairment points, and four pursuant to the Lifestyle Effects table. Ms Andrew rated Mr Evans overall at four pursuant to the Lifestyle Effects tables (Exhibit R2). Dr Koller rated the Applicant at 41 impairment points on the "Emotional and Behavioural Medical Impairment Worksheet" (T12). The Tribunal was mindful that he is the treating psychiatrist, but was satisfied to the requisite standard from the evidence of Dr Harvey-Sutton (dated 7 December 2001 and more recent than that of Dr Koller, dated 30 June 2000), and Ms Andrew (22 August 2002), as discussed above, that Mr Evans' overall rating did not reach 70 impairment points.
As to Lifestyle Effects, the Tribunal rated Mr Evans as follows:

Table 22.1 (two)
Table 22.2 (three)
Table 22.3 (four)
Table 22.4 (five)
Table 22.5 (five)

In the Tribunal's view Mr Evans' lifestyle rating was therefore 14 which when calculated according to GARP and rounded up, makes four. He is therefore not eligible for pension at the EDA rate, and accordingly the decision of the VRB is affirmed.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Veterans Review Board dated 1 March 2001 that pension be assessed at 100 percent of the General rate to operate from and including 17 January 2000. Accordingly, pension is not payable at the Extreme Disablement Adjustment rate pursuant to the Veterans' Entitlements Act 1986.
The Applicant's representative told the Tribunal that he was not pursuing the claim for hypertension with left ventricular hypertrophy, and accordingly that part of the decision of the Respondent is affirmed without further hearing evidence about it.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger and Dr M E C Thorpe, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  2 October 2002

Date of Decision 24 December 2002
Solicitor for the Applicant Mr B Winship, Rockliffs Solicitors & Attorneys
Advocate for the Respondent Ms T McConnell, Repatriation Commission