Howard and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 922

Howard and Repatriation Commission (Veterans’ entitlements) [2015] AATA 922 (30 November 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/3059
Re	Peter Howard
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	30 November 2015
Place	Sydney

1.      The decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension is set aside.

2.      In substitution it is decided that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

.....................[SGD]...................................................

J W Constance
Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS – pension – special rate of pension – whether veteran prevented by war-caused incapacity alone from continuing to undertake remunerative work – whether post-traumatic stress disorder, depressive disorder and alcohol use disorder are separate conditions

VETERANS' ENTITLEMENTS – pension – extreme disablement adjustment – whether veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points – decision set aside and new decision is substituted

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 15, 19, 22, 23, 24

CASES

Repatriation Commission v Richmond [2014] FCAFC 124

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

SECONDARY MATERIALS

Guide to the Assessment of Rates of Veterans’ Pensions (Fifth Edition)

REASONS FOR DECISION

Deputy President J W Constance
30 November 2015 

A. INTRODUCTION

1. Mr Howard was born in March 1949. He served in the Australian Army from July 1970 to June 1971. During part of this time he served in the Vietnam War, mainly as a rifleman on jungle patrol.

2. The Repatriation Commission has accepted that Mr Howard suffers from a number of medical conditions arising from his military service. As a result, Mr Howard is currently in receipt of a disability pension at 100 per cent of the general rate. The pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).

3. On 25 July 2013, Mr Howard applied for an increase in the rate at which his pension was payable.  At the time he applied he was less than 65 years old. The Repatriation Commission refused his request.

4. Mr Howard appealed to the Veterans’ Review Board. His application for payment of the pension at the Special Rate was again refused. The rate of pension was continued at 100 per cent of the General Rate.

5. Mr Howard has applied to the Tribunal for a review of the decision of the Commission. For the reasons which follow, the decision under review will be set aside.  The decision refusing payment at the special rate will not be changed, although Mr Howard will be entitled to receive the extreme disablement adjustment.

   B. BACKGROUND

6. Prior to his joining the Army in 1970, Mr Howard had been employed as a clerk by the Sydney County Council for about 4 ½ years. This was his first job having finished school and he thoroughly enjoyed it.

7. Upon his discharge from the Army he returned to his previous position at the Council. However he found the resumption of civilian employment very difficult. He no longer enjoyed the work and described himself as “very angry”. He was moved to another position, outside of the Head Office.

8. Mr Howard married in 1972, shortly after his return from Vietnam. In 1978 his wife died and he became solely responsible for the care of their two young children. Fortunately, family members assisted him with this task.

9. In 1979 he was retired from the Sydney County Council as being medically unfit for work as a result of stress and anxiety.  A short time later Mr Howard and his children moved from the family home to a hotel owned and operated by his late wife’s sister and her husband.  This move was to enable them, and Mr Howard’s parents, to assist Mr Howard with the care of the children. Whilst living at the hotel Mr Howard spent considerable time with his brother-in-law and gained some experience in the skills needed to manage a hotel.

10. Some time prior to 1980 it was suggested to Mr Howard that he and his brother-in-law and sister-in-law could purchase a hotel in partnership which would allow Mr Howard to employ a professional housekeeper to assist with the care of the children. In January 1980 Mr Howard and his brother-in-law purchased the Royal Hotel in Leichardt and Mr Howard and his children began living on the premises. Mr Howard and his brother had equal shares in the hotel property and business.  Mr Howard held the licence for the hotel.

11. Mr Howard’s brother-in-law spent some months assisting Mr Howard in managing the new business.  His brother-in-law visited the hotel every week and assisted Mr Howard with monthly stock-takes.  At this stage Mr Howard ran the front and back of house, attending to the payment of wages, banking and bar work. He had the assistance of a full-time manager and the usual staff. He was working full-time.

12. Approximately 12 months after the hotel was purchased the partnership between Mr Howard and his brother-in-law was dissolved. The brother-in-law’s share in the property and business was purchased by Mr Howard’s father and a new partnership entered. When Mr Howard’s father retired in 1985 he started working at the hotel two days per week. He continued to do this until he became ill in 2003.

13. By about 1984 Mr Howard was experiencing difficulties with the work involved in managing the hotel. He continued to suffer disrupted sleep and had problems with his relationship with members of the public. He withdrew from the front of house work and concentrated on the clerical work. He continued work such as taking deliveries, stocking the cellar, banking and preparation of wages.

14. In late 1980 Mr Howard had re-married. From about 1984 his wife took over the management duties to an increasing extent and the hours worked by Mr Howard reduced accordingly. He described his work at the hotel as in a “slow decline” until 1995, at which stage he was “doing nearly nothing”.[1] As his children became older they also assisted with the work previously done by him.

    [1] Transcript 10/09/15 p.15.

15. Mr Howard and his wife divorced in 2000. Mr Howard took out a significant loan to pay his former wife for her share in their property.

16. Mr Howard’s father died in 2005. Prior to his father’s death, Mr Howard understood that he would inherit his father’s share of the hotel and his two siblings would inherit the rest of his father’s estate. After his father’s death, he discovered that his father had changed his will and had left all of his estate (including his share in the hotel) to Mr Howard’s brother and sister. A dispute as to the distribution of the estate followed, and was not resolved until the hotel was sold in 2013.

17. From 2005 until 2013 the hotel continued to operate. Mr Howard continued as the licensee.  The management of the hotel was carried out by his children, his brother-in-law and employed staff.

18. In 2009 Mr Howard purchased a residential property in anticipation of his being required to move out of the hotel. In 2013 he moved into that property. He has not undertaken any work of any nature since the hotel was sold.

    C. LEGISLATION

19. Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension which is being paid to Mr Howard is payable in accordance with this Part.

20. Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was assessed or last assessed.

21. In determining whether a veteran is eligible for an increase in the rate of pension payable, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 25 July 2013) up to the decision of this Tribunal.[2] As stated by Buchanan J in Smith and Repatriation Commission:[3]

    The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.

    [2] Subsection 19(9).

    [3] [2014] FCAFC 53 [40].

22. Section 19 sets out the manner in which applications are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:

    ·Section 22 General rate of pension and extreme disablement adjustment;

    ·Section 23 Intermediate rate of pension

    ·Section 24 Special rate of pension.

    D. IS MR HOWARD ENTITLED TO PAYMENT OF THE PENSION AT THE SPECIAL RATE (S 24)?

23. The Commission concedes that Mr Howard meets the requirements of subparagraphs (aa), (aab), (a) and (b) of subsection 24(1) of the Act. In brief these requirements are that:

    ·he is a veteran who has made an application under section 15 for an increase in the rate of a pension he is receiving;

    ·he had not turned 65 when the application for an increase was made; and

    ·the degree of his incapacity from war-caused injury or war caused disease, or both, has been determined to be at least 70%;

    ·his incapacity from war-caused injury and/or disease alone is such that he is incapable of working for more than eight hours per week

24. I am satisfied on the facts before me that these are proper concessions.

25. Further requirements for eligibility for payment at the special rate are set out in subsection 24(1)(c). The Commission argues that Mr Howard does not satisfy the requirements of this sub-section.

    D1.  Does Mr Howard meet the requirements of subsection 24(1)(C )?

26. Subsection 24(1)(c) provides:

    (1) This section applies to a veteran if:

    ……

    (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…

27. Subsection 24(2) provides:

    (2) For the purposes of paragraph (1)(c):

    (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

    (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

    (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

    (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

28. In Smith v Repatriation Commission,[4] the Full Court said in relation to section 24 that: .

    Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Second, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (not for other reasons) from continuing earlier remunerative work. Third, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.

    The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2)… (emphasis added)[5].

    [4] [2014] FCAFC 53

    [5] Ibid at [48]

29. In Repatriation Commission v Richmond,[6] the Full Court of the Federal Court warned that the application of subsection 24(1)(c) "is not to be ascertained by construing the words in the authorities as if they were the words of the statute". However, with this in mind, the issues set out in Smith v Repatriation Commission are appropriate to determine the issues in this matter.

    [6] [2014] FCAFC 124 [50].

30. With regard to the “alone” test, in an interpretation approved on appeal by the Full Court, the Federal Court stated in Richmond v Repatriation Commission:[7]

    ... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.

    D.1.1   Was Mr Howard prevented, by war-caused incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work?

    [7] [2014] FCA 272 [108]; see also Repatriation Commission v Richmond [2014] FCAFC 124 [65].

    What was Mr Howard's “earlier remunerative work”?

31. On the basis of the evidence of Mr Howard I am satisfied that the remunerative work he was undertaking was that of the licensee/manager of a hotel, which included associated clerical work.

32. Counsel for the Commission argued that Mr Howard never managed the hotel, as, although he had been the licensee for many years, the management tasks had always been carried out by others. Counsel relied on Mr Howard’s evidence that the hotel was initially purchased as a means of enabling Mr Howard to care for his two young children. I was also referred to Mr Howard’s evidence that since 1995 he performed very limited tasks in relation to the management of the hotel’s business.

33. Whilst I accept that in later years Mr Howard’s role was extremely limited, I am satisfied that with the assistance of his brother-in-law, from the time the hotel was purchased he did undertake an active role in management. I accept Mr Howard’s evidence that initially he was engaged in both front-of-house and back-of-house work, including clerical work in relation to payment of wages, ordering of stock and work in the bar. I am satisfied that Mr Howard continued this work until around 1995.

    What is the extent of Mr Howard's accepted war-caused incapacity?

34. This case is somewhat unusual in that an issue has been raised as to the extent of Mr Howard's diagnosed war-caused incapacity.  It is necessary to decide this issue before deciding whether that incapacity prevented him from continuing his remunerative work.

35. Mr Howard has a number of conditions which have been accepted as being a result of his service.  The conditions relevant to this application are:

    ·anxiety state;

    ·post-traumatic stress disorder;

    ·osteoarthritis affecting both knees;

    ·lumbar spondylosis.

36. The question which has arisen is whether the acceptance of Mr Howard's post-traumatic stress disorder as a war-caused incapacity includes an acceptance of his depressive disorder and/or his alcohol use disorder.  He has been diagnosed as suffering from both these conditions but neither has been accepted by the Commission as being war-caused.

    The evidence of Dr Dinnen, Consultant Psychiatrist

37. Dr Dinnen assessed Mr Howard in September 2014 at the request of his Solicitors.  He provided reports dated 11 September 2014[8], 25 November 2014[9] and 27 May 2015[10] and gave evidence.

    [8] Exhibit A3.

    [9] Exhibit A4.

    [10] Exhibit A5.

38. Dr Dinnen took a detailed history from Mr Howard.  This history is set out in his report of 11 September 2014.

39. In that report Dr Dinnen stated that he diagnosed Mr Howard as suffering post-traumatic stress disorder, depressive disorder and alcohol use disorder.  Each condition commenced at the time of his service in Vietnam. In his opinion these psychiatric conditions prevented his working more than 8 hours per week

40. In his later reports and when he gave evidence, Dr Dinnen explained that the separation of three aspects of Mr Howard’s psychiatric disorder (i.e. post-traumatic stress disorder, depression and alcohol abuse) does not mean thatthere are two separate conditions apart from post-traumatic stress disorder.

    Evidence of Dr Smith, Consultant Psychiatrist

41. Dr Smith assessed Mr Howard in February 2015 at the request of the Solicitors for the Commission. He provided a report dated 23 February 2015[11] and gave evidence.

    [11] Exhibit R4.

42. Dr Smith does not agree that the conditions of depressive disorder and alcohol use disorder from which Mr Howard suffers are to be classified as part of his post-traumatic stress disorder.

43. When he gave evidence Dr Smith said:

    The symptoms that he displayed were also consistent with a major depressive disorder. The cause of the major depressive disorder in all probability was multifactorial. I would view his major depressive disorder as reactive to significant events in his life. The death of his wife via suicide I think in 1978 following a series of miscarriages was I think a significant psychological blow to him. He had the added task of rearing two young girls. There were significantly family conflicts. He was also experiencing a number of physical problems that were causing him pain, restrictions of movement. He was utilising, in my view, an excessive number of benzodiazepine medications and other tranquillising medications, and put that cocktail together, in my view that would have been significant in contributing to a major depressive disorder. A major depressive disorder is often associated with individuals who also experience post-traumatic stress disorder, but it’s very difficult to be categorical in regard to whether the post-traumatic stress disorder has been a substantial contributor of the major depressive disorder. In regard to his alcohol use disorder. There’s no question in my mind that Mr Howard has a significant problem with alcohol, has had in the past a clear and convincing evidence of alcohol to a marked degree…

    … I disagree with Dr Dinnen …. These are separate diagnoses, quite discrete. Certainly they can be often be found in individuals with post-dramatic stress disorder.

    …

    … if you look at the diagnostic criteria for PTSD , alcohol doesn’t get a mention. Depression doesn’t get mentioned. PTSD historically was under the broad umbrella of an anxiety disorder…[12]

    [12] Transcript 11/09/15 pp.105-108.

44. In his report of 23 February 2015[13], Dr Smith stated:

    There is no clear and convincing clinical evidence that his alcohol utilisation has arisen directly from his Post-Traumatic Stress Disorder. Certainly it is my experience that patients who suffer from a Post-Traumatic Stress Disorder or a Major Depressive Disorder often resort to the utilisation of alcohol as a method of coping with their symptoms. It should also be noted that Mr Howard was engaged in the hotel business and given his close proximity to alcohol would not be unusual to experience such an occupational hazard as drinking excessively.

    [13] Exhibit R4.

    Report of Dr Tayar, Local Medical Officer

1. Dr Tayar assessed Mr Howard on 21 August 2009 in relation to his ability to work.  He reported to the Department of Veterans’ Affairs on the same date[14] Dr Tayar diagnosed Mr Howard as suffering depression with the year of onset being 1978.  The report also noted the accepted condition of post-traumatic stress disorder with a year of onset being 1972, i.e. six years earlier than the onset of depression.

   [14] Exhibit R1 p.134.

   Consideration

2. I prefer the opinion of Dr Smith that Mr Howard suffers from three distinct psychiatric disorders – chronic post-traumatic stress disorder, major depressive disorder and alcohol use disorder. 

3. The diagnosis of three distinct conditions is consistent with the opinion initially expressed by Dr Dinnen in his report of 11 September 2014.  It is also consistent with the diagnosis of Dr Tayar referred to above and the opinion of Dr Keshava.  In his report of 11 June 2015 Dr Keshava stated that Mr Howard suffers from “war related Post Traumatic Stress Disorder, Depressive Disorder and Alcohol Use Disorder.” [15]

   [15] Exhibit R2.

4. Both Dr Dinnen and Dr Smith agreed that a significant proportion of sufferers of post-traumatic stress disorder do not suffer from either depression or alcohol use disorder.  This supports the view that Mr Howard's alcohol use disorder and depression are not necessarily to be treated as simply part of his post-traumatic stress disorder.

   Was Mr Howard prevented, by his war-caused incapacities alone (i.e. not for other reasons) from continuing earlier remunerative work?

   The evidence of Mr Howard

5. Mr Howard says that he could not continue to carry out the duties involved in managing the hotel as he was unable to stand or sit for very long and could not lift or bend.  On some days he was unable to get out of bed to shower or dress himself.  He continues to suffer from nightmares associated with his service in Vietnam and continues to suffer pain associated with the condition of his back and his knees.  In his opinion he did not suffer psychologically as a result of the death of his wife, but rather it was the ongoing effects of post-traumatic stress disorder which caused him difficulties in caring for his children and performing his role as the manager of the hotel.

6. In addition to his accepted conditions, Mr Howard suffers from an injury to a right knuckle which has been replaced by surgery, a meningioma in his right temple and a neck condition. He says that all of these injuries have been treated and do not affect his ability to work.

   The evidence of Dr Keshava, Consultant Psychiatrist

7. Dr Keshava was Mr Howard’s treating psychiatrist from 2000 until June 2015.  He provided reports dated 21 May 2001[16], 10 September 2009[17], 16 September 2009[18], 22 July 2013[19] and 11 June 2015.[20]

   [16] Exhibit R1 p.441.

   [17] Exhibit R1 p.439.

   [18] Exhibit R1 p.141.

   [19] Exhibit R1 p.438.

   [20] Exhibit R2.

8. In the opinion of Dr Keshava, by 2013 Mr Howard was not capable of continuing with clerical work by reason of his forgetfulness and poor attention and concentration which had resulted from his chronic alcohol use disorder. His physical conditions had deteriorated so that he could no longer work as a barman.

   Evidence of Dr Rosenthal, Specialist Occupational Physician

9. Dr Rosenthal assessed Mr Howard in October 2014 at the request of his Solicitors.  He provided a report dated 10 October 2014[21] and gave evidence.

   [21] Exhibit A6.

10. In the opinion of Dr Rosenthal Mr Howard “is unable to continue his usual employment in regards to the physical aspects of running his hotel and also the clerical aspects which are impacted by psychological condition. The physical aspects of his work are affected by his lower back condition and his knee condition. Thus the psychiatric condition plus the physical conditions are preventing him from performing his usual employment”.[22]

    [22] Exhibit A6 p.7.

    Evidence of Dr Chase, Occupational Physician

11. Dr Chase assessed Mr Howard in February 2015 at the request of the Solicitors for the Commission. He provided a report dated 23 March 2015[23] and gave evidence.

    [23] Exhibit R3.

12. In the opinion of Dr Chase, Mr Howard is not capable of continuing employment as a manager of a hotel. This is a result of his accepted disabilities alone, “in particular his psychiatric condition in conjunction with the low back and osteoarthritis of the knees”.[24]

    [24] Exhibit R3 p.7

    Evidence of Dr Dinnen, Consultant Psychiatrist

13. In the opinion of Dr Dinnen, Mr Howard “suffers from post traumatic stress disorder, previously diagnosed as anxiety disorder, and that this condition alone is the cause of his inability to work“.[25]

    [25] Exhibit A4 p.2.

    Evidence of Dr Smith, Consultant Psychiatrist

14. It is Dr Smith’s view that Mr Howard’s excessive consumption of alcohol was the major factor in causing his inability to work.  He agreed that the pain he suffered from his accepted physical conditions also contributed to this inability.

15. On 23 February 2015 he reported:

    Mr Howard’s predominant clinical presentation in my opinion relates to his Alcohol Use Disorder. He has consumed over the years significant quantities of alcohol. He appears to have a strong desire to continue to utilise alcohol. In all probability it is my opinion that his recurrent alcohol and excessive use has resulted in a failure to undertake major obligations at his place of work. In all probability it has intruded into his interactions not only with family members but with the public at large. It has been a substantial contributor in my opinion to his irritability and outburst of anger. Despite having intellectual awareness of the adverse effects alcohol is having on him he has continued to utilise alcohol. I have also noted his attendance at hospital for what he described as “organ failure” associated with his excess alcohol utilisation. By his own account he has experienced ongoing difficulties with concentration and memory. He has experienced blackouts.[26]

    [26] Exhibit R4 pp.10-11.

    Consideration

16. On the basis of Dr Smith’s evidence I am satisfied that Mr Howard's depression and alcohol use disorder were factors which prevented Mr Howard undertaking his previous work as well as his accepted condition of post-traumatic stress disorder.  Dr Smith’s opinion is supported by Dr Keshava, Mr Howard's treating psychiatrist for 15 years.  It is supported also by Dr Dinnen who agreed that the alcohol use disorder and depression played a role in Mr Howard's inability to work, although he maintained that they were part of the post-traumatic stress.

17. In his report of 10 October 2014 Dr Rosenthal noted that it was a matter for the psychiatrists to separate the diagnoses of the conditions in terms of their impact on Mr Howard's work. Dr Chase did not address this issue.

18. Taking these considerations into account, I am not satisfied that Mr Howard's war-caused conditions alone have prevented him from continuing to undertake work as a hotel licensee/manager.

19. On the basis of the above finding Mr Howard's application for payment of the pension at the special rate cannot succeed.  It is unnecessary to consider the further questions referred to in Smith v Repatriation Commission.

    E. IS MR HOWARD ENTITLED TO PAYMENT OF THE PENSION AT THE INTERMEDIATE RATE (S.23)?

20. In view of my findings as to the contribution of Mr Howard's conditions which were not war-caused, he is not eligible for a payment in accordance with section 23.  Counsel for Mr Howard did not argue otherwise.

    F. IS MR HOWARD ENTITLED TO THE EXTREME DISABLEMENT ADJUSTMENT IN ACCORDANCE WITH SECTION 22 OF THE ACT?

21. As I have decided that Mr Howard is not entitled to payment of the pension at either the special or intermediate rate, it is necessary to consider whether he is entitled to the extreme disablement adjustment in accordance with section 22.

22. Section 22 provides, in part:

    (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) ...

    (3) ...

    (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)     ...;

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

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

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

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

23. There is no dispute that Mr Howard meets the requirements of this section, with the exception of the requirements of section 22(4)(c), which remain in question. 

    The Guide to the Assessment of Rates of Veterans’ Pensions (Fifth Edition) (“GARP”)

24. The purpose of the Guide is stated in its Introduction:

    This Guide is to be applied to assess the extent of incapacity from war-caused or defence-caused injury or disease. Its provisions are binding on the Repatriation Commission, the Veterans’ Review Board, and the Administrative Appeals Tribunal.

25. The Guide also refers to the duration of the assessment period as follows:

    While the Act requires the assessment of a rate or rates of pension over an “assessment period” (see section 19 of the Act), that assessment can in practice only be made by reference to the available medical and other material that, of necessity, relates to a particular point or period in time. Therefore, the assessment of the impairment and lifestyle ratings during the “assessment period” must be based on the assessor’s reasonable satisfaction as to those ratings throughout the assessment period, based on the available material. If there is a significant change in impairment or lifestyle during an assessment period, the assessment period must be divided into appropriate periods to reflect those changes, and separate assessments made of the degree of incapacity. 

    Impairment Rating

26. Medical impairment has two components, the physical loss of, or disturbance to, any body part or system and the resultant functional loss.[27]  Tables are set out in the Guide for the calculation of the effects of the impairments.

    [27] GARP p.5.

27. In his report of 23 March 2015[28], Dr Chase provided a calculation of Mr Howard’s impairment rating at 76 points in accordance with the Guide.  As Mr Howard was assessed by Dr Chase on behalf of the Commission for the purpose of these proceedings, and as his report was tended on behalf of the Commission, I accept this assessment. This means that Mr Howard meets the impairment rating requirement of section 22(4)(c).

    [28] Exhibit R3.

    Lifestyle Rating

28. Chapter 22 of GARP deals with the assessment of lifestyle effects of accepted conditions.  A “lifestyle effect” is defined as “a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition.”[29]

    [29] GARP p.263.

29. The Guide provides three optional methods of assessment, the first of which allows a veteran to self-assess the effects of the accepted conditions on his or her lifestyle. To do this the veteran is required to complete a Lifestyle Rating Self Assessment Form which covers the four key components of personal relationships, mobility, recreational and community activities and employment and domestic activities.

30. The Introduction to Chapter 22 states, in part:

    The self-assessed rating should not usually be queried although further information may be requested if necessary. It is expected that the self-assessed lifestyle rating would be broadly consistent with the level of impairment. A determining authority may reject a self-assessment of lifestyle rating because it overestimates, or underestimates, the level of rating that is broadly consistent with the level of impairment from accepted conditions.

31. When Mr Howard applied for an increase in his pension on 25 July 2013 he also lodged with the Commission a Lifestyle Questionnaire dated 24 July 2013[30] and a Lifestyle Rating Form (Option 1) dated 25 July 2013[31].

    [30] Exhibit R1 p.443.

    [31] Exhibit R1 p.452.

32. Mr Howard’s self-assessment is as follows:

    ·Personal Relationships  5

    ·Mobility  5

    ·Recreational and Community Activities        6

    ·Domestic and Employment Activities           6

    22

33. Applying the rules set out in Chapter 22 the total of the ratings is divided by four, with the result of the division to be rounded to the nearest integer. The fraction of 0.5 is to be rounded up. This gave Mr Howard a lifestyle rating of six points and met the second requirement of paragraph section 22(4)(c).

34. During the hearing of this application Counsel for the Commission questioned Mr Howard as to his rating of his mobility impairment at five points.  It was suggested to him that the appropriate rating was four points.

35. It is to be noted that the difference of one point would give Mr Howard a total rating of 21 points, giving an average of 5.25. This would then be rounded down to 5 and Mr Howard would not meet the requirement of a lifestyle rating of six points.

36. For a rating of four points Table 22.2 of GARP provides:

    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.[32]

    [32] GARP p.269.

37. For a rating of five points Table 22.2 provides:

    Major impediments to mobility:

    -   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.[33]

    [33] GARP p.269.

38. Dr Chase was of the opinion that the appropriate rating in respect of mobility for Mr Howard was four, based on his ability to drive a motor vehicle. Mr Howard gave evidence that he drives himself for physiotherapy treatment once per week, a distance of about 3 kilometers each way. 

39. The evidence does suggest that a rating of four points is more appropriate than Mr Howard’s self-assessed rating of five points. However, guided by the instructions given in Chapter 22 that a self-assessed rating should not usually be queried, and bearing in mind that the variation of the assessment is only one point, I am of the view that Mr Howard’s assessment should be accepted. In reaching this conclusion I have taken into account that the Veterans’ Entitlement Act is beneficial legislation and should be interpreted in favour of the veteran.

40. For these reasons I am satisfied that during the assessment period, Mr Howard has a lifestyle rating of six points and therefore meets the second requirement of section 22(4)(c).

    Conclusion in relation to section 22 of the Act

41. Mr Howard is entitled to the extreme disablement adjustment in accordance with section 22 of the Act.

    G. CONCLUSION

42. The decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension will be set aside.

43. In substitution it will be decided that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

.......................[SGD].................................................

Associate

Dated 30 November 2015 

Dates of hearing	10 September 2015- 11 September 2015
Counsel for the Applicant	Ms C Mudge
Solicitors for the Applicant	KCI Lawyers
Advocate for the Respondent	Mr T O'Reilly; Department of Veterans' Affairs