Lowe and Repatriation Commission - [2001] AATA 638

DECISION AND REASONS FOR DECISION [2001] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/31

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM LAWRENCE LOWE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Mr G A Mowbray, Member

Date9 July 2001
PlaceCanberra

Decision      The Tribunal affirms the decision under review.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension - hiatus hernia with reflux oesophagitis - hypertrophied breast tissue - solar keratoses – facial disfigurement – operational service - Guide to the Assessment of Rates of Veterans' Pensions – impairment ratings
Veterans' Entitlements Act 1986, ss 13(1)(b), (d), 14(1), (3), (4), 15(1), (3), (4), 20(1), 21(1), 21A, 120(4)
Repatriation Commission v Smith (1987) 12 ALD 798

REASONS FOR DECISION

Mr M J Sassella, Senior Member Mr G A Mowbray, Member

History of the application

On 7 July 1998 William Lawrence Lowe ("the Applicant") lodged an application for Disability Pension with the Department of Veterans' Affairs ("the DVA") (T3). He claimed that his appendiceal cancer, bilateral sensorineural hearing loss ("BSHL") and tinnitus were war or service caused conditions. The Applicant stated his belief that his cancer was the result of his smoking habit which he took up whilst serving with the occupation forces in Japan in 1947 and 1948. He further stated that his hearing loss and tinnitus were caused by exposure to gunfire and the wearing of headphones whilst using communications equipment.
The Repatriation Commission ("the Respondent") had previously decided that the Applicant had accepted disabilities in the nature of hiatus hernia with reflux oesophagitis, peptic ulcers, gastritis, duodenitis, solar keratoses, hypertrophied breast tissue, anxiety state and chronic solar skin damage.
On 11 September 1998 the Respondent issued its decision on the Applicant's claim (T10). The Respondent accepted BSHL as war or defence caused with date of effect being 7 April 1998. However the Pension was continued at 90% of the general rate.
On 23 September 1998 the Applicant lodged an application for review of the Repatriation Commission decision with the Veterans' Review Board ("the VRB") (T11). He disputed the impairment ratings which were used by the Respondent in relation to the accepted conditions of hiatus hernia with reflux oesophagitis, hypertrophied breast tissue, solar keratoses and tinnitus. The Applicant stated that the former three conditions had all had their impairment ratings reduced and that his tinnitus had received a rating of 0 points.
On 21 October 1998 the Respondent wrote to the Applicant informing him it had been decided not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T13).
On 9 June 1999 the VRB decided to adjourn the hearing of the Applicant's case, pending the receipt of a report from Dr Bassett in relation to a query over his impairment rating for the Applicant's oesophagitis (T17).
The decision under review
On 20 October 1999 the VRB affirmed the Repatriation Commission decision of 11 September 1998 (T22). That decision contained an assessment in regard to BSHL/tinnitus of 5 points. The VRB, noting that the Applicant needed a shielding device (a walkman radio) to get to sleep, found that a rating of 10 points from Table 7.1 of the Guide to the Assessment of Rates of Veterans' Pensions (5th edition) ("GARP") was appropriate. In relation to chronic solar skin damage and solar keratoses the VRB was satisfied that the ratings of 3 and 2 respectively were appropriate, as per the Repatriation Commission decision. In respect of the Applicant's hypertrophied breast tissue the VRB took careful note of the Applicant's evidence in regard to avoiding public places due to breast tissue and facial scarring caused by the removal of skin lesions. However the VRB agreed with the report of Dr Howe (T4) that the Applicant's facial disfigurement was relatively minor and should be given a rating of 5 points under Table 17.1. The Applicant shows "avoidance of some normal activities" as opposed to "many", in which case he would qualify for a rating of 10 points. The VRB then considered the report of Dr Bassett (T20) in relation to oesophagitis. Dr Bassett found endoscopic evidence of this condition and favoured an impairment rating of 10 points. The VRB agreed with this assessment. There was no issue in relation to the rating for peptic ulcer and anxiety state. In summary the VRB found a combined impairment rating of 52 points, rounded down to 50.
This rating, combined with "a lifestyle rating broadly consistent with impairment", ie four points, results in a disability pension at 90% of the general rate.
On 2 January 2000 the Applicant lodged an application for review of the VRB decision with the Tribunal (T1).
Background
The Applicant was born on 26 August 1928. He served in the Royal Australian Navy ("the RAN") and completed just over three years of operational service.
On the basis of the history taken by Dr Scott (Exhibit A1), the Tribunal understands that the Applicant left school at the age of 13 and worked in a rubber factory for three years. He joined the RAN in 1946 and was discharged at the rank of chief petty officer in 1963. He then joined the Australian Public Service where he was involved in space tracking in conjunction with NASA. He left the public service in 1988. The Applicant is currently retired on the south coast of New South Wales.
Relevant legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act) ss 13(1)(b), (d), 14(1), (3), (4), 15(1), (3), (4), 20(1), 21(1), 21A, 120(4):
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"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.
…"

Documentary evidence

The Tribunal had before it a quantity of documentary evidence which was admitted into evidence and marked with exhibit numbers. The Exhibits were:

Exhibit TD1 – Section 37 Statement and associated T documents, 26 February 2000.

Exhibit A1 – Report by Dr R J Scott, occupational physician, 12 September 2000.

Exhibit A2 – Applicant's statement of facts and contentions, 19 March 2001.

Exhibit A3 – Clinical notes of Dr Howe.

Exhibit R1 – Report by Dr D McGrath, physician, 24 May 2000.

Exhibit R2 – Respondent's statement of facts and contentions.

Hearing and appearances

The Tribunal convened a hearing on 2 July 2001 in Canberra. Mr Paul Crabb, solicitor, represented the Applicant. Ms Melinda Doggett from the DVA represented the Respondent.
Findings on material questions of fact with reference to the evidence and other material in support of those findings
The Tribunal finds that the Applicant has been in receipt of a Disability Pension since before 1992 (Section 37 Statement). He has been receiving payment at 90% of the general rate for a considerable period of time.
The Tribunal finds that the Applicant lodged a valid claim for a Disability Pension in respect of additional conditions on 7 July 1998 (T3).
Despite acceptance by the Respondent of an additional condition as war caused on 11 September 1998, the Applicant continues to receive a pension paid at 90% of the general rate (T10 – Respondent's decision; T22 - VRB decision). The issue is whether the Applicant can qualify for payment at 100% of the general rate.
The Tribunal finds that the date of effect of any decision in the Applicant's favour would be 7 April 1998 (s 20(1) of the Act).
The Tribunal observes that, although Mr Lowe rendered operational service, the standard of proof in assessment matters requires that the Tribunal reach a level of reasonable satisfaction as to necessary matters (s 120(4) of the Act). As was said in the Federal Court in Repatriation Commission v Smith (1987) 12 ALD 798, this equates to proof on the balance of probabilities.
The parties have agreed that many of the impairment ratings accorded the Applicant are correct (Exhibits A2 and R2). This is true of anxiety state (26 points), BSHL and tinnitus (10 points), hiatus hernia, peptic ulcer, gastritis and duodenitis (in as much as they attract 10 points in GARP table 6.1.6 and zero points under tables 6.1.2 and 6.1.5).
The disputed ratings relate to hiatus hernia/peptic ulcer/gastritis/duodenitis (should the rating for table 6.1.4 be 10 points or 20 points?), solar keratoses and skin damage and hypertrophied breast tissue (should the rating for table 11.1 be five or 10 points?; should the rating for table 17.1 be 10 or 20 points?).
Applicant's evidence
On 30 July 1998 the Applicant completed a lifestyle questionnaire for the DVA (T5). He variously stated that he did not sleep well and that he often gets cranky from pain. He found it difficult to discuss problems and stated that he was moody and irritable most of the time. The Applicant was forced to sleep in an adjustable bed because of his reflux condition and described his loss of confidence due to the facial scarring resulting from the removal of skin lesions. Further, the Applicant stated that he suffered panic attacks, mood swings and argued constantly with his wife. He cannot eat meals at night and he and his wife sleep in different beds due to his reflux. In terms of domestic activities, the Applicant could not work in the garden because bending caused him pain in the oesophagus. Recreationally he has given up golf, tennis and swimming because of his disabilities. The Applicant has someone come in to take care of house maintenance, window cleaning, wood chopping and heavy gardening. Further, his disabilities have curtailed any sexual activity.
On 31 July 1998 the Applicant signed a Lifestyle Rating Option 1 form, his lifestyle rating being four points (T6).
At the hearing the Applicant's evidence was as follows. During his period of 17 years in the RAN (1946-1963) the Applicant sailed on ships in tropical areas early in his naval career. He visited the tropics later also on navy ships. The inference was that this part of Mr Lowe's service sewed the seeds of his solar keratoses and solar skin damage. He was a chief petty officer at the time of his discharge.
He gave evidence as to his hypertrophied breast tissue condition. ("the breast condition") to the following effect. It emerged as a side-effect of Tagamet, a medication he had been given for his gastric condition. He had since replaced Tagamet with Pepcidine and now Losec. Hypertrophy involves the enlargement of breast tissue. Advice from a plastic surgeon, Dr Ferguson, is that it could be treated only by way of a double mastectomy. Liposuction is not an option.
The Applicant finds the breast condition very embarrassing. It can be obscured by loose clothing and by wearing a coat. However, some onlookers notice the breast condition even so. Children are prone to comment. Additionally, it is not possible to wear a coat at all times. Problems arise if he attempts golfing, swimming or wearing a t-shirt. The breast condition means that the Applicant cannot meet new people readily. He has experienced a measure of social withdrawal. In cross-examination the Applicant agreed that he occasionally attends a social club. The Applicant would say that the level of his embarrassment on a scale of 1 to 10, with 10 being the highest level, would be 9. The breast condition is "a daily worry". He said in cross-examination that, in playing golf, the problems arise mainly in the change room. There were no comments on the golf course.
The Applicant has had gastric problems of one or other kind since 1953. He was hospitalised in Japan in the 1950s with a duodenal ulcer for six weeks. He now has hiatus hernia, reflux and oesophagitis. He takes strong antacids – up to the strength of Losec. Medication can control the condition.
The gastric conditions have required the Applicant to adapt his life. He has had to buy an adjustable single bed. He needs to sleep in a bed with the foot of the bed raised. This is therapeutic. He has to eat a controlled diet heavy with cereal at breakfast time, fish or white meat at lunch time and soup or ice cream and fruit salad at night. He can eat fruit and vegetables.
He sees Dr Bassett, the gastroenterologist, every two or three years. He last saw Dr Bassett in February 1999. He is due to see Dr Bassett again soon. He has not had surgery. He has an endoscopy whenever he sees Dr Bassett. One particular endoscopy resulted in an increase in medications. The endoscopy was accompanied by a biopsy.
Mr Lowe has had his skin condition for over 20 years. He has had lesions burned off. He sees Dr Miller, a dermatologist, six-monthly. One of his lesions on his leg was so large that it had to be removed by a plastic surgeon, Dr Ferguson, who also sutured the wound. This was a basal cell carcinoma too large for the dermatologist to handle. He experiences these lesions on his face, arms, legs, "everywhere". He finds shaving difficult when he has facial lesions.
In cross-examination the Applicant said that he had not had skin grafts. The treatments for the skin condition have been liquid nitrogen, ointment and the plastic surgery.
The Applicant's general practitioner is Dr Howe whom he sees in Canberra three or four times a year. He sees a Dr Rouch in Moruya in emergencies. Dr Howe checks the skin condition and refers him to Dr Miller if concerned.
He was prescribed Effudix cream last August or September by Dr Miller so that he could self-administer treatment, being a distance away from Dr Miller. After this ointment is applied red welts appear and things clear up in three or four weeks. The lesions fall off. A white mark remains and gradually disappears. He agreed in cross-examination that he does not have permanent facial scarring. The Applicant estimated that for three months of a year he is under treatment, or recovering from treatment, for his skin. There is no time when the Applicant is free of skin cancer. The Applicant has permanent scarring on his back.
The Applicant uses sorbolene moisturiser as a relief for pain or itch on his legs. He uses quasi-medicinal soaps such as Dove. Skin problems cause itching on his arms and legs. Drying himself with a towel can be difficult. He can tend to scratch at facial lesions which can then bleed. He finds that people notice the facial lesions and tend to ask questions about them. People can be hesitant shaking hands. If he has a shower after sport people notice the lesions. Some have tried to touch the lesions.
Medical evidence
On 11 September 1998 a Combined Impairment Report was produced by the Respondent (T9), which accorded the Applicant an impairment rating of 45 points.
On 25 February 1999 a histopathology report indicated that the Applicant had reflux oesophagitis, mild non-specific chronic gastritis and focal intestinal metaplasia (T16). This report said that the Applicant's biopsy features were consistent with reflux oesophagitis. "No Barrett's mucosa is present."
On 26 February 1999 Dr Bassett, gastroenterologist, reported on the Applicant to Dr Howe (T15). He found that the Applicant had a hiatus hernia, probable short Barrett's segment, probable helicobacter pylori gastritis and duodenitis with superficial ulceration and scarring.
On 8 March 1999 the Applicant wrote to the Respondent providing information about his application for review of its decision (T14). He stated (in part):
"In 1994 Dr Christine Bennett (MB BS BSc LLB (Hons) - solicitor, took my case to the AAT and obtained 20 impairment points for oesophagitis with ulceration. Since this time these points have been erroded [sic] to five (5) with no medical evidence. The Reports show no improvement since my last endoscopy in fact Dr Bassett recommended a threefold increase in my medication…
Secondly I also have chronic gastritis which was rejected by the DVA in 1992 and accepted by the VRB in 1994. Along with duodenitis (no impairment points) these conditions which were so hard to have accepted certainly add to my gastro intestinal problems."

On 9 June 1999 the Applicant provided another statement for the benefit of the VRB hearing (T18). This largely restated the information of his statement of 8 March 1999. However, in addition he said that he had been operated on for an inguinal hernia in September 1998 and during this operation it was discovered that he had prostate cancer. In March 1999 he had his prostate gland removed.
On 27 July 1999 Dr Bassett provided a supplementary report at the request of the VRB (T20). This report was requested in order to clarify the Applicant's impairment rating according to table 6.1.4. He stated:
"In summary, the combined information from clinical assessment, endoscopic assessment, and histological assessment indicates that Mr William Lowe has marked symptoms of gastro-oesophageal reflux which are not controlled with H2 antagonists.
…
On the endoscopic and histological assessment, Mr Lowe has a hiatus hernia, oesophagitis, no ulceration of the oesophagus and no Barrett's mucosa…
According to the impairment ratings as outlined in Table 6.1.4, Mr William Lowe would have an impairment rating of 10 because he has oesophagitis, active disease with moderate symptoms on most days…I would not regard Mr William Lowe as having an impairment rating of 20…"

On 24 May 2000 Dr McGrath, specialist physician in musculoskeletal and occupational medicine, reported on the Applicant at the request of the Respondent (Exhibit R1). He addressed the three conditions for which the assessment ratings are in contention; hiatus hernia with reflux oesophagitis, solar keratoses and hypertrophied breast tissue. He agreed with Dr Bassett's assessment of 10 points for the former of these conditions based on the fact that, although there is some Barrett's type mucosa there are no complications that have arisen from it. Because there is no functional impairment in regard to his solar keratoses, Dr McGrath found that five points was the correct level of assessment. In regard to the third condition, he noted that the assessment is based very much on interpretation of the subjective reaction of the sufferer. A favourable interpretation would imply a rating of 10 points for this condition.
On 12 September 2000 Dr Scott, occupational physician, reported on the Applicant (Exhibit A1). He found for an impairment rating of 56 points, rounded to 60 points. Dr Scott had noted the reports of Drs Bassett and Clark in making this assessment. He noted that Dr Bassett had found a Barrett's mucosa, although the report of 27 July 1999 (T20) specifically denies this. He further noted the Applicant's embarrassment when having to change clothes in public or when swimming and so increased the disfigurement rating to 5 points. Because of the masking device that the Applicant needs to distract himself from his tinnitus, Dr Scott upgraded this rating to 10 points.
Dr Scott gave oral evidence at the hearing. He addressed the tables in GARP and changed some of the impairment ratings he had given in his report. As regards table 6.1.4 concerning oesophagitis he assessed the rating as 20. This was because the descriptor for a 20 rating is "Oesophagitis, proven endoscopically: active disease with complications, eg Barrett's epithelium, blood loss, aspiration or stricture". Mr Lowe had had endoscopy and Dr Bassett had considered that Barrett's mucosa could not be entirely ruled out (T20). Dr Scott noted that Dr Bassett had relied on the histopathological results, including a biopsy, in having doubts about the presence of Barrett's mucosa. Dr Scott observed that a biopsy can miss a condition if the tissue extracted happens to be from the wrong place.
In cross-examination he agreed that there was no reference to the Applicant suffering any blood loss or aspiration. He said that he raised his rating to 20 because of the endoscopy but he could not say why that factor alone would justify a rating of 20.
As regards table 11.1 in GARP pertaining to skin disorders, Dr Scott said he would now raise his rating from five to 10 points. This was after it was put to Dr Scott that today the Applicant's skin cancers occur all year. They are under treatment for three months of the year. They cause constant itching. They require use of sorbolene and mild soaps. Mr Lowe sees a dermatologist twice a year and a local doctor three or four times a year. He has large scars on his body. He has transitory white facial scars.
Dr Scott discussed table 17.1 on disfigurement. He had assessed the Applicant as meriting a five-point impairment rating. He raised the rating to 10 points because of the mechanisms the Applicant uses to obscure the condition and because of the Applicant's measure of embarrassment.
Under cross-examination Dr Scott agreed that he noticed only some facial scarring when he first saw Mr Lowe. He did not perceive the breast condition until Mr Lowe undressed. It was put to Dr Scott that the examples of disfiguring conditions applicable to table 17.1 stress immediately perceptible conditions. Dr Scott considered that the examples of facial scarring and severe pruritic conditions causing the veteran to scratch even though restraint would be usual in a public place are examples cited in table 17.1 not unlike the Applicant's breast condition.
Ms Doggett also queried whether Mr Lowe's embarrassment resulting from the breast condition occurs in "ordinary public places" as required in 17.1 when the evidence was that it occurs in the golf change room or at swimming pools and beaches.
Dr Scott told Ms Doggett that the prescription of Effudix suggested to him that the skin condition was worse than he had believed it to be. That was why he had raised his rating under table 17.1. Ms Doggett reminded the Tribunal that Effudix had been prescribed because Mr Lowe was a distance away from Dr Miller and needed to self-medicate.
The Tribunal will now consider the tables and assign its ratings.
Table 6.1.4
The Tribunal considered the descriptors for ratings of 10 and 20 and finds that 10 is the appropriate rating. It is considered that the Applicant's condition satisfies the descriptor for a 10 rating but not for 20. A 10 rating requires "Oesophagitis: active disease with moderate symptoms on most days, despite regular use of H2 receptor antagonist medication". It is clear from Dr Bassett's report that the Applicant has oesophagitis. The Applicant's evidence was that he takes medication which controls it. He has had to adapt his lifestyle in the way of an adjustable bed and as regards diet. It seems that this suggests moderate symptoms most days. The Applicant's condition does not attract a 20 rating. There are only two factors that suggest a 20 rating. One is the necessary, but not sufficient, requirement that he has had endoscopy. While an endoscopy is required the emphasis in the descriptor is on the seriousness of the condition. That seriousness might be demonstrated by associated blood loss, aspiration or Barrett's epithelium. That brings in the second factor. Dr Bassett thought there might be Barrett's mucosa. He had histopathology carried out which did not find Barrett's mucosa. Dr Bassett says in T20 that Barrett's mucosa cannot be completely excluded as a possibility. However, he says in his final paragraph:
"According to the impairment ratings as outlined in Table 6.1.4, Mr William Lowe would have an impairment rating of 10 because he has oesophagitis, active disease with moderate symptoms on most days despite regular use of H2 receptor antagonist medication. He thus requires a stronger medication. He would not have a rating of 20 since he does not have active disease with complications. Even if it were shown in future that there is a small amount of Barrett's type mucosa present, I would not regard Mr William Lowe as having an impairment rating of 20 since many patients have more advanced gastro-oesophageal reflux disease than he has, with complications such as a long Barrett's segment, stricture, and risk of aspiration. Mr William Lowe does not come into this category."
The Tribunal is impressed by Dr Bassett's standing as the only specialist gastroenterologist who has given evidence in this matter. His understanding of the essential differences between the descriptors for the ratings of 10 and 20 in table 6.1.4 accords with that of the Tribunal. As regards Dr Scott's opinion, the Tribunal does not accept the mere reference to the use of an endoscope in the descriptor for a 20 rating as justifying the application of that rating.
To be fair to Dr Scott, he relied also on the suggestion by Dr Bassett that Barrett's mucosa could not be ruled out entirely. However, he did not address Dr Bassett's conclusion (above). In view of the standard of proof applicable in assessment matters (the balance of probabilities) the Tribunal cannot agree with Dr Scott in his conclusion.
Table 11.1
The Tribunal finds that a rating of 10 is appropriate under this table.
The GARP descriptor for a 10 rating is in three bullet points:

"Skin disorders, or combination of disorders, resulting in significant loss of structural integrity of face, eg total loss of pinna, skin graft, scar following trauma or burns.
Severe and persistent pruritus causing difficulty in concentrating and loss of sleep.
Persistent skin disorder, or combination of disorders, resulting in continuous signs and significant symptoms of moderate degree, present for most of the time."

The Tribunal was impressed by the Applicant's evidence and his moderate presentation of his evidence. He was not noticeably inclined to exaggerate his symptoms. He gave honest answers to certain questions that resulted in his satisfaction of some requirements being put at risk. The Tribunal tends to the view that the Applicant satisfies a 10 rating on the basis of the third of the three bullet points. The Applicant's skin condition is constant, if most evident three months in the year. He has constant itching relieved to some extent by use of sorbolene and mild soaps. He sees doctors about his skin a number of times each year. He has large and permanent scars on some parts of the body and scarring on the face that comes and goes.
The relevant bullet point requires continuous signs. The Tribunal finds that these are present in the continuity of the keratoses effect on the Applicant's face. The bullet point requires significant symptoms of moderate degree for most of the time. The continuity of the keratoses effect on the face satisfies this requirement.
Ms Doggett submitted that the table refers to solar skin lesions specifically in relation to ratings of nil, two and five, but not at all in relation to the 10 rating. In the Tribunal's view it is not correct to read this as meaning that solar skin lesions can never attract a 10 rating. In the Tribunal's view, solar skin lesions, if sufficiently disabling to fit the descriptor for a 10 rating, can result in a 10 rating.
Table 17.1
The Tribunal finds that the appropriate rating under table 17.1 is five. The GARP descriptor for a five rating is, "A very noticeable condition which causes marked embarrassment to some people in ordinary social contacts and causes avoidance of some natural activities. For example, a severe skin disorder of the face and/or hands, or a gross and persistent stutter or stammer". In the Tribunal's view this aptly describes the combined effect of the Applicant's skin conditions and his breast condition.
The Tribunal accepts Ms Doggett's submissions in relation to the definitions to be applied to table 17.1. Those definitions have the following implications:

The condition has to be a "disfiguring condition". It must be noticeable. The Tribunal finds that it is doubtful that the Applicant's breast condition is relevantly noticeable. Dr Scott did not notice it until the Applicant undressed. The Tribunal has no doubt that the Applicant himself notices it all the time and wishes it were gone. However, it is the perceptions of third parties that are keenly relevant. The examples listed in the definition panel in table 17.1 are of conditions that are perceptible immediately or very soon after a third party meets an affected veteran. The breast condition is not like these conditions. The Applicant's facial scarring is, however, a relevant condition.

The embarrassment caused to the sufferer must be experienced in "ordinary public places". These are defined in GARP as limited to such places as suburban streets, shopping centres, public transport, theatres, clubs and sporting venues. The GARP makes clear that if the embarrassment is experienced only in "places where a great part of the skin is customarily bared such as swimming pools and beaches", then the embarrassment is not regarded by GARP as having been experienced in ordinary public places. In Mr Lowe's case, the breast condition causes embarrassment most acutely in swimming and change room environments. These are not ordinary public places within the GARP definition.

It might be thought that the fact that Mr Lowe has given up golf and swimming largely because of his breast condition would satisfy the second bullet point in the descriptor for a ten rating in the table. The descriptor reads, "A severe and marked condition which causes embarrassment and causes much avoidance of many public places and social intercourse. For example, severe facial disfigurement." The concept of avoidance might be seen to assist Mr Lowe in that he has given up golf and swimming largely because of the exposure of his breast condition when he undresses to swim or in the change room after golf. The definition of "avoidance" ties this type of behaviour or avoidance to public places. As was seen above, public places do not include places where a great part of the skin is customarily bared. For these reasons the second bullet point in the ten rating descriptor is not considered applicable in Mr Lowe's case.

The Tribunal noted that Dr McGrath, who provided a report for the Respondent, gave some support for a 10 rating under table 17.1. However, Dr McGrath does not give a "ringing endorsement" to a rating of 10. He writes,
"either 5 or 10% impairment could be seen as appropriate. Both refer to a very noticeable condition. I would have to say that [the breast condition] is only a very noticeable condition with light clothing. If we take into account the moderate facial disfigurement from solar keratoses, which can be considered under Disfigurement and Social Impairment, in addition to the separate impairment under skin, then 10% may apply. The definitions refer to subjective reaction from the sufferer which increases the variance of interpretation between these definitions. A favourable interpretation for William would imply a 10% impairment rating for disfigurement and social impairment."

The Tribunal notes also that the DVA review officer conducting the s 31 review favoured a rating of 10 for table 17.1 (T13). The reasoning is not provided, however, so the opinion is of limited use.
The Tribunal has therefore found that the correct impairment ratings for the Applicant's war caused disabilities are:

Anxiety state (tables 4.1-4.8) 26
Hiatus hernia, peptic ulcer, gastritis, duodenitis
Table 6.1.2  0
Table 6.1.4  10
Table 6.1.5  0
Table 6.1.6  10
Hearing loss (tables 7.1.3-7.1.9) 0
Tinnitus (table 7.1.11) 10
Solar keratoses, solar skin damage (table 11.1) 10
Hypertrophied breast tissue (table 17.1) 5

In making these findings the Tribunal has endorsed the ratings that were agreed between the parties. Although at law the application before the Tribunal has resulted in a hearing de novo and the Tribunal is not compelled to accept the views of the parties as to the correctness of the undisputed ratings, the Tribunal is in possession of no evidence that would suggest that those ratings are in any way doubtful. The Tribunal has concluded that it does not need to examine those ratings any further in order to make the correct or preferable decision on the present application.
The Tribunal finds that Mr Lowe's appropriate lifestyle rating under chapter 22 of GARP is four points, as Mr Lowe assessed on his own behalf, and as the Respondent accepted.
Applying the combined values chart in chapter 18 of GARP, the impairment ratings found by the Tribunal result in a combined value of 53 points. Rounding to the nearest multiple of five, as in chapter 23 of GARP, 53 points becomes 55 points. An impairment rating of 55 points, with a lifestyle rating of four points, results in a degree of incapacity of 90% under GARP scale 23.1. These calculations are authorised under s 21A of the Act.
Conclusion
The Tribunal has concluded that the Applicant's appropriate rate of Disability Pension is 90% of the general rate, the rate he currently receives. The Tribunal has, however, increased the Applicant's impairment rating under GARP table 11.1 from five points to 10 points.
Decision
The Tribunal affirms the decision under review.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Mr G A Mowbray, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  2 July 2001
Date of Decision  9 July 2001
Representative for the Applicant              Mr P Crabb
Representative for the Respondent        Ms M Doggett