Marie McKinnon (as legal personal representative of the estate of Charles Thomas McKinnon) and Repatriation Commission

[2015] AATA 395

[2015] AATA 395  

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2014/2493
Re	Marie McKinnon (as legal personal representative of the estate of Charles Thomas McKinnon)
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	John Handley, Senior Member
Date	4 June 2015
Place	Melbourne

The decision under review is affirmed.

.....[sgd]...................................................................

John Handley, Senior Member

VETERANS’ AFFAIRS – Application for pension at the rate of Extreme Disablement Adjustment – accepted disabilities of bilateral osteoarthrosis of hips and hearing loss – deceased veteran was assessed at 100 per cent – 95 years at application date – diagnosed also with multiple myeloma – admitted to palliative care about two months before commencement of the assessment period – died about four months later – application of Chapter 19 of Guide to the Assessment of Rates of Veterans’ Pensions (GARP) – contribution to impairment by the osteoarthrosis about one third  – 70 impairment points not achieved – decision affirmed

Legislation

Veterans’ Entitlements Act 1986 sections 19(5), 19(9), 22(4) and 35D

Secondary Materials

Guide to the Assessment of Rates of Veterans’ Pensions (5^th ed, 1998)

REASONS FOR DECISION

John Handley, Senior Member

4 June 2015

1. The applicant is the widow of the late Charles Thomas McKinnon (the veteran) who died on 9 September 2013 at the age of 95. Mrs McKinnon, the applicant, is the executrix of the estate of the veteran having been appointed by his last will and testament executed on 4 July 1986.

2. Mrs McKinnon applies on behalf of the estate to review a decision of the Veterans’ Review Board (the VRB) dated 24 February 2014 which affirmed a decision of the respondent made on 29 August 2013 to reject a claim made by the veteran, prior to his demise, for acceptance of the illness, multiple myeloma (MM). The veteran also applied for an increase in pension, which was allowed and was increased to 100 per cent of the general rate (T8, pages 33-39).

3. Prior to review by the VRB, the claim for acceptance of MM was withdrawn (T13, page 46). Although the respondent’s decision-maker increased pension to 100 per cent of the general rate (pension was previously paid at 80 per cent), entitlement to pension at the Extreme Disablement Adjustment (EDA) rate was disallowed because it was decided the veteran was assessed as having an impairment rating of 65 points, which was less than the statutory minimum of 70 points. The decision maker did accept, on the basis of a self-assessment completed by the veteran, that he attracted a lifestyle rating of seven points (refer s 22(4) of the Veterans’ Entitlements Act 1986 – the Act).

4. An issue emerged during the hearing concerning the commencement date of the assessment period.

5. An informal claim for disability pension was received by the respondent on 21 June 2013 (T3, page 1). The claim then was only in the form of a letter claiming acceptance of the condition of advanced myeloma. A proper claim, made consistent with the terms of s 35D of the Act, for acceptance of that condition, was received at an office of the Department of Veteran’s Affairs (DVA) on 10 July 2013 (T3, pages 2-12).

6. The applicant contends the earlier date commenced the assessment period and the respondent contends that it is the latter date.

7. An assessment of the rate or type of pension payable is to be determined within the assessment period. The assessment period commences on the application day, being the day the claim was received at a DVA office (refer ss 19 (5C) and (9) of the Act).

8. The assessment period in this application commenced on 10 July 2013, when a claim was made in accordance with the Act and concluded on 9 September 2013 being the date of the veteran’s demise. Payment of pension at the rate of EDA, if payable, is to be assessed within that period.

9. The veteran had the conditions of bilateral sensorineural hearing loss and osteoarthrosis of both hips accepted as war-caused. He also suffered from tinnitus and MM. The MM became significantly disabling and the effects of it were considered in the assessment of his impairment and lifestyle ratings.

10. Evidence was heard from Mrs McKinnon and her son, John McKinnon, concurrently. Shortly prior to the commencement of the hearing, Mrs McKinnon had a fall and suffered a fractured leg. She was admitted to the Geelong Hospital. She and her son gave evidence from that location by telephone. Ms Spencer appeared on behalf of Mrs McKinnon and Mr Rudge appeared on behalf of the respondent.

11. A summary of the combined contents of statements lodged by Mrs McKinnon and Mr McKinnon prior to the hearing (Exhibits A1 and A2) and from the evidence during the hearing indicate the veteran had a profound hearing loss and he suffered tinnitus, which manifested as a ringing sensation. He left a radio on at night to mask the irritation that it caused him.

12. Mr McKinnon said his father had difficulty communicating with other persons. He said if there was background noise or other persons were talking, his father became confused. In the absence of background noise and if located close to him, it was possible to have a conversation.

13. The veteran played nine holes of golf at Torquay for many years. He last played golf in January 2008, when he was aged 90, that being the only occasion that he used a buggy. Thereafter, he was mainly confined at home with limited mobility. He used a walking stick for a few years but as his hips deteriorated and his pain increased, he used a four-wheel walking frame. He had to be assisted to get out of bed and experienced severe pain, as he did also when his bed linen was changed and when he was bathed. His use of the walking frame reduced as he increased the amount of time he spent in bed. He found walking when using the frame caused shortness of breath and he was unstable. There were occasions when he fell within the home. Mrs McKinnon and Mr McKinnon said they observed the veteran deteriorating and his mobility reducing before the MM was diagnosed (in January 2011).

14. Mrs McKinnon and Mr McKinnon agreed with a recording the veteran had made in his lifestyle questionnaire on 27 July 2011 (Exhibit A3, page 13) that he was unable to undertake any of the listed domestic functions. They also agreed with a comment that he recorded that he had to stop all domestic activities due to always feeling tired, dizzy and just not copeing (sic).

15. The veteran continued to reside at home after MM was diagnosed but his health deteriorated and he was admitted into palliative care in Geelong about four months before he died. For about three months before he was admitted to palliative care he was bedbound. Heat packs were frequently applied to reduce his chronic and acute hip pain. The veteran would lie either flat on his back in bed with his legs partially elevated and bent at the knees with pillows placed underneath to support. Alternatively, he would lie on his side with his legs bent and his knees brought up towards his chest. Some care was provided to him by Mrs McKinnon but he was also cared on a regular basis by district nurses. Mr McKinnon and his brother would attend the home daily to assist their mother with meals and other domestic jobs and provide assistance to the veteran.

16. The veteran used to make Mrs McKinnon’s breakfast each morning and washed the dishes but ceased being able to do so as his health deteriorated. It was from that time that Mr McKinnon attended the home each morning for that purpose and to provide other assistance. Home help was also made available by the local council.

17. The veteran and Mrs McKinnon had previously been socially active through their local church and had many friends. He used to attend football at the Geelong football ground but ceased in about 2008 or 2009 because of cold weather and walking up stairs into the football ground caused increased hip pain. At about this time the veteran also stopped travelling to Melbourne for Anzac Day parades. When the veteran gave up his driver’s licence, he and Mrs McKinnon ceased attending mass at their local church which they did regularly on Wednesdays and Sundays. Thereafter, he was visited at home by a layperson to give him mass. He and his wife listened to church services on the radio. After he became virtually housebound, some friends visited him. He did attend birthday parties of some of his grandchildren, at their homes, but about 12 months before he died he was incapable of getting into or out of a motor car.

18. Mrs McKinnon and Mr McKinnon said the health of the veteran significantly deteriorated after MM was diagnosed. They noticed that he suffered considerable loss of weight and it was noticeable that his bones were protruding around his shoulders, knees and hips.

    Dr Deborah Harley

19. Dr Harley is a general practitioner in Geelong. She first consulted with the veteran on 7 December 2010. He had previously been treated elsewhere, however when he gave up his driver’s licence it was convenient for him to consult with Dr Harley who was Mrs McKinnon’s doctor. The clinical file of Dr Harley was received as Exhibit A7 and it indicates she completed a referral letter to Mr Simon Williams, an orthopaedic surgeon on 4 January 2011 to review past bilateral hip replacements which he had performed.

20. The clinical file of Mr Williams (Exhibit A6) contains a letter from a Mr Richard Grills to the applicant’s previous treating doctor, Dr Julian Crawford (page 32) on 8 April 2008 recording a suspicion that the veteran’s left hip prosthesis was loose. A letter to Dr Crawford from Mr Williams records a history of left hip and thigh pain and x-rays showed the presence of osteolysis which Dr Harley said was reduced bone density. Mr Williams recorded that he gave the veteran the option of either having revision surgery or to continue to put up with the pain running the risk of sustaining a fracture through his femur (page 33). The veteran declined surgery and arrangements were made to review him six months later.

21. At review with Mr Williams on 6 February 2009 and 18 August 2009 (pages 35 and 37), the applicant presented with continuing left hip pain. The letter from Mr Williams of 18 August 2009 records that the pain had been increasing, was radiating down his left leg, he was having difficulty walking, was becoming frail and had ceased playing golf. Mr Williams was satisfied that x-rays demonstrated the prosthesis had become loose and it was the cause of the veteran’s pain. Mr Williams recorded that it was a dilemma whether there should be revision surgery or whether the veteran should have his pain managed with analgesia and restriction of activity. It was noted that the veteran was then 91 years of age. The veteran again declined surgery. Letters to Dr Crawford of 18 February 2010 and 13 August 2010 (pages 39 and 40) again recorded the presence of left hip pain. Mr Williams recorded in the letter of 13 August 2010 that surgery should only be undertaken if the veteran’s left hip collapses.

22. Dr Harley was asked to consider an x-ray report of 14 February 2011 (Exhibit A7, page 281) which recorded that the [b]ilateral total hip joint prostheses are insitu in satisfactory alignment. She said that finding would indicate that both hips were in a satisfactory position. She was asked to compare that finding with an x-ray taken two months later on 14 April 2011 (page 320) following a fall the veteran suffered at home two days ago. The radiologist recorded that the right hip prosthesis appeared to be intact, however the left prosthesis appeared to have loosening of the acetabular component with some lucency at the cement bone interface. The joint itself appears to be enlocated. Dr Harley said she interpreted the latter report to indicate that there was a loosening of the left prosthesis which would explain left hip pain the veteran reported at consultation with her on 14 April 2011 (page 26).

23. Dr Harley completed an impairment assessment of the applicant’s hips on 5 August 2011 (Exhibit A3, page 26) and recorded, with respect to joint stability, that the left hip feels unstable. She said that was the description given to her by the veteran. She found both hips to have a loss of half of normal range of movement.

24. Dr Harley said she found the veteran to be a difficult person to assess. She said he was stoic and proud and would not have complained. She said pain that the veteran experienced in his hips, especially his left, continued for the remainder of his life and more than likely it increased after she commenced to treat him. She said it was inevitable that his pain would increase and his hip function would worsen.

25. On 23 July 2013, Dr Harley completed another impairment assessment of the veteran’s hips and recorded the veteran suffered discomfort/pain – due solely to [osteoarthrosis], inability to mobilise due to severe anaemia, generalised weakness and postural hypotension (T4, page 15). Dr Harley said she maintained that opinion despite MM having been diagnosed in January 2011.

26. On 30 July 2013, Dr Harley completed another impairment assessment (T5, page 20) of the veteran’s hips and recorded he had been [complaining of] increasing pain in his hips to the staff of the facility he now resides in. His requirements for analgesia have subsequently increased. In a separate part of the form she also recorded that the veteran was unable to weight bear and often [complaining of] pain when resting, but particularly when he is transferred or his position is changed. She said the veteran did not complain to her of his pain and the complaints recorded above were communicated to her by the staff of the palliative care facility where the veteran was residing.

27. Dr Harley said she agreed with an impairment rating of 15 points against the resting joint pain criteria at Part 3.4 of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) which is recorded as follows under Table 3.4.1:

    Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.

28. Dr Harley said that entries in her clinical notes on 17 and 30 April 2013 and 1 May 2013 of the veteran being restless, because of difficulty being comfortable, supported and was the basis for her being satisfied that an impairment rating of 15 points for resting joint pain was appropriate. (In cross-examination Dr Harley said her clinical notes of the veteran being restless were observations she made, and not intended to be interpreted as a symptom of his illness).

29. She recalled that the applicant was losing weight and his hip joints became more painful because of less padding. A special mattress had been obtained for his use at home (before admission into palliative care) which reduced the intensity of pressure points. Cushions were inserted under his knees and he was turned regularly in bed.

30. In a report to the applicant’s solicitors dated 10 November 2014 (Exhibit A5), Dr Harley recorded that the osteoarthrosis which affected the veteran’s hips also affected his mid and lower back. She said the pain experienced by the veteran in his hips was probably worse than in his back. She said the back pain was probably associated with prolonged periods of lying in a static position. She agreed that entries in the clinical notes of no pain on 9 and 17 July 2013 and 27 August 2013, was the history she obtained from the nursing staff. She said the veteran had suffered constant severe pain for many years which was being treated and controlled regularly by strong analgesia.

31. In cross-examination Dr Harley said the veteran had been prescribed Endone, for pain relief together with other analgesia. She acknowledged that her entry on 29 August 2013 that no analgesia required in past 3/7 was made when the veteran was in his terminal phase, his body was shutting down, he was in palliative care and he was sedated.

32. Dr Harley agreed that the MM suffered by the veteran was his overwhelming illness and it was responsible for his demise. She disagreed with an opinion expressed by Dr Markov, a consultant rheumatologist who provided a report to the respondent of 21 October 2014 (Exhibit R2) that the hip pain experienced by the veteran arose from his multiple myeloma (which typically causes malignant deposits in the bones), his severe weight loss and the pressure complications of being bedbound (paragraph 16). Dr Harley said that malignant deposits are sometimes deposited in the bones of the MM patients but not always. She said the primary cause of the veteran’s pain was his hips and in her experience, boney pain is not typical in patients who suffer MM.

33. Dr Harley was taken to a number of documents she completed which are found within the material lodged by the respondent at Exhibit A3 and mostly completed on 1 February 2011, shortly after she commenced treating the veteran and diagnosed MM.

34. Dr Harley confirmed that the veteran suffered from postural hypotension which made him dizzy and prone to falling. Anaemia, which he also suffered, was probably secondary to MM (Exhibit A3, pages 2 and 5). Dr Harley recorded that the veteran’s hips contributed to a restriction in his activities and he needed to rest because of fatigue and shortness of breath, to which anaemia probably contributed. She recorded that his mobility was slow and he was capable of walking 50 metres without needing to rest (page 6). On 5 August 2011, six months after she completed her earlier forms, Dr Harley recorded that the applicant could walk 20 – 40 metres without rest (page 24).

35. Dr Harley said that it was impossible to apportion the effects of the veteran’s mobility, lifestyle and impairment between the osteoarthrosis of his hips and MM. She said from December 2010, when she first commenced to treat the veteran, the major contributor to his immobility was the osteoarthrosis of his hips. As time progressed, the MM equally contributed to the immobility. During his terminal phase, his immobility was largely the consequence of the MM however the veteran was then unable to bear his weight because of the disease in his hips and he had become bedbound.

    Conclusion and Reasons for Decision

36. This is an unfortunate application. Had it been made a few years before 10 July 2013, I think it is likely that the claim for EDA would have succeeded.

37. The applicant had his left and right hips replaced in1993 and 1994, respectively (Exhibit A6, pages 4 and 11). Despite the progression of his osteoarthrosis, he remained relatively mobile. He played golf until he was 90 years of age, he attended football in Geelong until about 2008, he drove a car and he attended his church. The osteoarthrosis progressed and eventually he needed assistance with walking – initially with a single point stick and later with a four-wheel walking frame. He suffered increasing pain and was frequently required to rest.

38. In January 2011 he was diagnosed with MM. That condition caused his health and his mobility to deteriorate. He progressively became weak, he suffered falls and he was unable to perform simple domestic tasks which he had previously undertaken.

39. The progress of the MM advanced to a stage that he was no longer able to continue to live in his home despite the care that was provided to him by Mrs McKinnon, her two sons, Dr Harley and regular visits from a nursing service.

40. The veteran was admitted to the Grace McKellar Centre in Geelong on 3 May 2013. It would appear that his health continued to deteriorate because he was admitted to the Alan David Lodge in Geelong on 10 June 2013 having been assessed as needing permanent high level residential care. On 7 August 2013, his demise appeared to be relatively imminent because the nursing notes record, following a discussion with the veteran that he declined any intervention to prolong his life and Dr Harley had certified him as not to be resuscitated (Exhibit A4, pages 2 and 3).

1. It is apparent from the nursing notes that the deterioration in the veteran’s health, especially in the last few months of his life – and after 10 July 2013 – were in large part due to the effects of the MM.

2. The notes made by an  Assessment Clinician on 4 June 2013, a few days prior to his admission to the Alan David Lodge record that the veteran had been admitted to the Grace McKellar palliative care unit after Dr Harley had ceased his medications and no benefit had been achieved from a recent blood transfusion. It was noted that the veteran had no independent mobility, was confined to bed or a fallout chair and needed assistance from two staff for all transfers. He was dependent on others for hygiene care, changing his bedclothes, provision of fluids and nourishment (Exhibit A4, pages 5 and 6).

3. This application requires an assessment of the degree of the veteran’s impairment and the effects on his lifestyle from his war-caused injuries, during the assessment period which, in this application, commenced after the veteran was admitted into palliative care. That admission occurred in very large part by the deterioration in his health due to the MM.

4. The introductory notes to the GARP (at page 10) direct that an assessment of impairment and lifestyle ratings shall be made by reference to medical and other material during the assessment period. Chapter 19 of GARP directs that an assessment of impairment shall only have regard to the effects of accepted war-caused injuries. If there is a partial contribution to impairment other than by war-caused injuries, the assessed impairment shall be reduced in accordance with Scale 19.1 found within Chapter 19. I will return to this later.

   Assessment of incapacity

5. An assessment of the incapacity of the veteran by his accepted war-caused injuries is calculated by regard to a number of chapters within the GARP.

6. In this application Chapter 3 applies in relation to an assessment of lower limb function and resting joint pain. Chapter 7 applies to the bilateral sensorineural hearing loss and tinnitus. Chapter 17 entitles an impairment rating for disfigurement which, in the case of the veteran, recognises the potential of embarrassment in public places by disorders of his gait or posture and his hearing loss and tinnitus.

7. An issue emerged between the parties concerning the applicable Table to be adopted under Chapter 3.

8. Dr Markov assessed the veteran under Table 3.2.4 which applies to impairment consequent on joint replacements. He assessed the veteran at 10 impairment points for each replaced hip which gave a total impairment rating of 20 points. He reported (Exhibit R2, page 3) that if Table 3.2.2 applied, he would have assessed the impairment at 10 points because the principal cause of Mr McKinnon’s lower limb incapacity was the myeloma and his advanced age.

9. Counsel for the applicant submitted that Table 3.2.4 was not applicable because the GARP directs (at page 70) that Table 3.2.2 is to be used to measure the loss of function relating to lower limbs together. Additionally, (at page 75), Table 3.2.4 is only to be used if the predominant cause of loss of lower limb function is due to a vascular condition (and another condition which is not relevant). The veteran did not suffer loss of lower limb function due to a vascular condition. Table 3.2.4 is inapplicable. The veteran should be assessed under Table 3.2.2.

10. Counsel for the respondent submitted that either Table 3.2.1 or 3.2.2 could apply.

11. Table 3.2.1 would have resulted in an impairment rating of 20 points – loss of about one-half normal range of movement. The maximum rating under this Table is 50 points. The GARP at page 67 confirms that if multiple tables could be used, the table giving the highest rating is to be adopted.

12. Counsel for the applicant submitted an impairment rating of 70 points under Table 3.2.2 should be found because it satisfies the criteria of Unable to walk or stand. Mobile only in a wheelchair. I agree that it is the appropriate rating. However, that assessment must be adjusted pursuant to Chapter 19 by the degree of contribution, to the assessed impairment, by any condition which was not war-caused. Relevantly such a condition was the MM.

13. Chapter 19 explains the methodology for calculating a Partially Contributing Impairment which involves the use of Scale 19.1 at Chapter 19. A determination of the contribution to the assessed impairment by the accepted condition requires a finding of the degree of contribution by gradations of complete, about three quarters, about two thirds, about half, about one third, about one quarter and not at all.

14. Therefore, if the contribution by an accepted condition to an impairment is about half, the Scale determines the partially contributing impairment. It is not a calculation achieved by arithmetic.

15. The respondent’s delegate, who relied on an assessment by a DVA medical officer assessed the impairment rating under Table 3.2.2 at 70 points and apportioned the contribution to that impairment by the war-caused injuries at about half. Applying Scale 19.1, the resulting contribution to the impairment by the accepted condition was 45. This was the impairment rating ultimately assessed by the delegate with respect to the contribution by the veteran’s war-caused osteoarthrosis affecting both of his hips to the loss of lower limb function (T8, pages 32 and 37).

16. Counsel for the applicant during the hearing submitted that the contribution to the impairment should be found to be either about three quarters or about two thirds. The respondent submitted, the assessment should be either about one third or about one quarter.

17. Having regard to the evidence heard in this review, especially the medical and clinical material, the incapacity of the veteran, during the assessment period, was in very large part due to the MM. He was unable to walk or stand, and was mobile only by wheelchair, during that period. His limited mobility was in large part due to the MM. The incapacitating effects of the MM were greater than the incapacitating effects of the osteoarthrosis. In those circumstances, I am satisfied that the contribution to the incapacity by the war-caused condition was less than about half, as the delegate decided. The respondent submitted a contribution of about one third and I will make that finding.

18. Applying Scale 19.1, a contribution of about one third to an assessed impairment rating of 70 points results in a partially contributing impairment of 29 points.

19. The applicant submitted that an impairment rating of 15 points should be assessed under Table 3.4.1 for resting joint pain. The respondent, who did not consider an assessment under this Table prior to the hearing, conceded that it was appropriate to do so and submitted an impairment rating of 10 points.

20. The criteria against an impairment rating of 10 points is severe pain in any joint, or combination of joints, that is often present at rest but which does not respond adequately to medication or to therapeutic measures.

21. Between 11 June 2013 (day after admission to the Alan David Lodge) and 10 September 2013, Dr Harley recorded in her clinical file that the information given to her by the nursing staff was that the veteran was not in pain on 9 and 17 July and 27 August 2013. On 25 July 2013 Dr Harley recorded that the veteran had been taking Endone and his medication regime was reviewed to include Morphine sulphate and Panamax. On 5 September 2013 she recorded that she had been informed by the staff that the veteran had not been using much analgesia in past week.

22. An impairment rating of 15 points would need to satisfy the criteria of severe pain… That is always present at rest but which does not respond adequately to medication or to therapeutic measures….

23. Dr Harley said an impairment rating of 15 points would apply, however the clinical information does not point to that criteria being satisfied. The pain suffered by the veteran was often present. It was not always present. An impairment rating of 10 points is appropriate and I will make that finding.

24. I would assess the contribution to the resting joint pain between the osteoarthrosis and the MM equally. Applying Scale 19.1, a contribution of about half to an impairment rating of 10 points results in a partially contributing impairment of five points.

25. An audiogram to determine the extent of the veteran’s hearing loss was undertaken on 20 August 2013, about three weeks before he died (T6, page 25-26). An attachment to a Combined Impairment Report, dated 27 August 2013 and completed by a DVA Medical Advisor, records a calculation of the hearing impairment in accordance with the procedures found within Chapter 7 of the GARP (T7, pages 27-32). The hearing impairment rating was determined at 32 points. Both parties accepted that finding.

26. The audiologist reported that the veteran had told him that he did not suffer tinnitus. The evidence from the veteran’s son indicates that the veteran did suffer from it. The respondent had not previously made an allowance for it. The respondent conceded during the hearing that an assessment should be made. The respondent conceded an impairment rating of 10 points under Table 7.1.11. The criteria against such a finding is severe tinnitus, e.g. of similar severity to that requiring a masking device, present every day. The applicant submitted a finding of 15 points should be made. The criteria against it is very severe tinnitus, present every day, causing distraction, loss of concentration and extreme discomfort, and regularly interfering with sleep.

27. Mr McKinnon said that his father had persistent ringing in his ears which caused him to have difficulty communicating with persons, especially in the presence of background noise. The impairment of his ability to communicate caused his father to become confused. He also kept a radio on beside his bed at night to mask the tinnitus and its irritating effect on his ability to sleep.

28. The evidence points to the tinnitus suffered by the veteran to be more consistent with the criteria against an impairment rating of 15 points rather than 10. I will make that finding.

29. Both parties conceded, and I agree, that an impairment rating of two points should be found under Disfigurement at Table 17.1.

30. Calculating the impairment rating of the veteran, in circumstances where there are multiple impairments requires application of the Combined Values Chart within Chapter 18. This process converts multiple impairment assessments into a single impairment rating. It is also not an exercise based on arithmetic. The process is devised upon a formula reproduced within the introductory commentary to Chapter 18. For the purposes of a determination of the impairment rating of the veteran by regard to the Combined Values Chart, a summary of the above individual impairment assessments, as found above, is as follows:

    ·Bilateral sensorineural hearing loss        32

    ·Osteoarthrosis of the hips  29

    ·Tinnitus  15

    ·Resting joint pain  5

    ·Disfigurement  2

31. Applying the methodology to be undertaken within Chapter 18, the process of calculating the impairment of the veteran is as follows:

    ·32+29 = 52

    ·52+15 = 59

    ·59+5 = 61

    ·61+2 = 62

32. The resulting impairment rating of 62 points rounded down to the nearest multiple of five – 60 – is less than the statutory minimum of at least 70. The application therefore does not succeed in the first of the two mandatory qualifying criteria, the remaining being a lifestyle rating of at least six points.

33. The respondent adopted the veteran’s self-assessment of his lifestyle rating of seven points in its decision of 29 August 2013. Although the applicant cannot succeed in this application because of the finding made immediately above, I will complete that exercise.

34. A lifestyle rating is calculated using the Tables appended to Chapter 22 of the GARP. In this application there are four relevant Tables being Personal Relationships (Table 22.1), Mobility (Table 22.2), Recreational and Community Activities (Table 22.3) and Domestic Activities (Table 22.4).

35. The applicant contended during the hearing that ratings should respectively be assessed against each of the four Tables above at 4, 6, 6 and 6, which would result in a lifestyle assessment of 6. The process requires division and if appropriate, rounded up or down to the next whole number, as follows:

    ·4+6+6+6 = 22 divided by 4 = 5.5 rounded up = 6

36. The respondent contended that the ratings should be respectively found as follows:

    ·3+6+5+5 = 19 divided by 4 = 4.75 rounded up = 5

37. I am satisfied that the submissions of the applicant concerning the ratings to be applied against the criteria within the lifestyle tables are sound and I would find a lifestyle rating of six points.

38. However, s 22(4)(c) of the Act relevantly requires a finding of both an impairment rating of at least 70 points and a lifestyle rating of at least six points. For the reasons given above I am unable to make a finding which satisfies this subsection.

    Decision

39. The decision under review is affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member

....[sgd]....................................................................

Associate

Dated 4 June 2015

Date(s) of hearing	15 April 2015
Counsel for the Applicant	Fiona Spencer
Solicitors for the Applicant	Jeremy Hunter, Williams Winter Solicitors
Solicitors for the Respondent	Ken Rudge, Department of Veterans' Affairs