McNeany and Repatriation Commission - [2001] AATA 661

DECISION AND REASONS FOR DECISION [2001] AATA 661

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/904

VETERANS' APPEALS DIVISION       )
           Re      VINCENT McNEANY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date19 July 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – increase in rate of disability pension – coronary artery disease – ischaemic heart disease – extreme disablement adjustment - intermediate rate of pension – special rate of pension – ability to undertake remunerative work – whether unable to work solely due to accepted disabilities – lifestyle rating
Veterans' Entitlements Act, ss 22 23, 24, 28, 120(4)

REASONS FOR DECISION

19 July 2001 M J Sassella, Senior Member

History of the Application

Mr Vincent James McNeany ("the Applicant") lodged a claim with the Department of Veteran's Affairs ("DVA") on 18 November 1998 seeking an increase in his Disability Pension, and claiming payment at the special rate, in relation to "Coronary Artery Disease", ie "Ischaemic Heart Disease" ("IHD") (T8).
A decision was made on 17 February 1999 by the Repatriation Commission ("the Respondent") to accept the Applicant's claim for IHD and continue the Applicant's pension at 100% of the general rate, with effect from 18 August 1998 (T2 and T12). IHD was accepted on the basis of his history of cigarette smoking.
The Applicant already had accepted as war-caused disabilities the conditions of duodenal ulcer with partial gastrectomy and post gastrectomy steatorrhoea, haemorrhoids, anxiety state and chronic airflow limitation.
The Applicant lodged an application for review with the Veteran's Review Board ("the VRB") on 4 March 1999 stating that he felt he was entitled to the special rate pension (T13).
On 31 March 2000 the VRB affirmed the decision of the Respondent that was dated 17 February 1999 (T20).
On 17 February 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the Respondent's (T1). The Applicant indicated that he thought the review should deal with "the rate of special pension and not the rate EDA". The Tribunal takes this to mean that the Applicant is questioning the rejection in respect of special rate and is not raising the question of qualification for extreme disablement adjustment.
Relevant Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986, ss 22, 23, 24, 28, 120(4):
"22 General rate of pension and extreme disablement adjustment
(1)       This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)       Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)       For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4)       Where:
          (a)       either:
(i)        the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)       a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
          (b)       the veteran has attained the age of 65;
          (c)       the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
          (d)       the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
(5)       For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
          (a)       the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
          (b)       amounts are being deducted from the pension under section 79, 30P or 205; or
          (c)       the pension has been suspended under subsection 31 (6).
"23 Intermediate rate of pension
(1)       This section applies to a veteran if:
          (aa)     the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
          (aab)    the veteran had not yet turned 65 when the claim or application was made; and
          (a)       either:
(i)        the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
          (b)       the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
          (c)       the veteran is, by reason of incapacity from 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 from that incapacity; and
          (d)       section 24 or 25 does not apply to the veteran.
(2)       Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
          (a)       if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
           (b)     in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3)       For the purpose of paragraph (1) (c):
          (a)       a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) 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:
(i)        if 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;
(ii)       if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)      if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
          (3A)     This section applies to a veteran if:
          (a)       the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
          (b)       the veteran had turned 65 before the claim or application was made; and
          (c)       paragraphs (1) (a) and (1) (b) (as affected by subsection (2)) apply to the veteran; and
          (d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
          (e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
          (f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
          (g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
  for a continuous period of at least 10 years that began before the veteran turned 65; and
          (h)       section 24 or 25 does not apply to the veteran.
          (3B)     For the purposes of paragraph (3A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1) (b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
          (a)       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
          (b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
          (c)       the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
(4)       Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $394.50 per fortnight.
(5)       If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section.
"24 Special rate of pension
(1)       This section applies to a veteran if:
          (aa)     the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
           (aab) the veteran had not yet turned 65 when the claim or application was made; and
          (a)       either:
(i)        the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
          (b)       the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
          (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; and
          (d)       section 25 does not apply to the veteran.
(2)       For the purpose 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.
          (2A)     This section applies to a veteran if:
          (a)       the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
          (b)       the veteran had turned 65 before the claim or application was made; and
          (c)       paragraphs (1) (a) and (1) (b) apply to the veteran; and
          (d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
          (e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
          (f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
          (g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
  for a continuous period of at least 10 years that began before the veteran turned 65; and
          (h)       section 25 does not apply to the veteran.
          (2B)     For the purposes of paragraph (2A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
          (a)       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
          (b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)       This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4)       Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5)       If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section."
"28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
          (a)       the vocational, trade and professional skills, qualifications and experience of the veteran;
          (b)       the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
          (c)       the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
"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.
…"

Hearing and Appearances

The Tribunal convened a hearing on 10 October 2000. The Applicant represented himself. Ms G Pacey of DVA represented the Respondent.
Background/chronology
The Applicant was born on 27 December 1993 and was therefore 64 years of age when he lodged his initial claim (T8) for an increase in his service pension.
Service, Work and Medical histories
The Applicant carried out operational service in the Royal Australian Navy from 17 July 1954 to 16 March 1955, in Korea (T5).
The Applicant's service history is taken from a report dated 31 March 1998 by Dr Maclean, consultant psychiatrist (T6):
·he was a naval seaman and worked as a gunner, whilst serving in the Navy between 1952 and 1958
·his active service was in Korea between 1954 and 1955 for 9 months, and in Malaya in 1966 for 6 months

The Applicant's work history is also taken from T6:
·after his naval service he worked as a Sheriff's Officer with the NSW Supreme Court from 1959 to 1965
·he joined the PMG as a technical assistant from 1966 to 1972
·he worked as a "short order" cook for 12 months and then as a cook in a nursing home for 8 months
·he became catering manager for many hospitals in Cooma, Griffith and Tamworth between 1984 and 1994. He was regional catering manager with New England Health Service until 1994 when he was made redundant. (also detailed in T8)

The Applicant accepted a voluntary redundancy package on 26 July 1994. However, he was re-employed on a temporary contract between 27 July 1994 and 16 December 1994 (letter dated 5 July 1998 from New England Health Services (T6)).

The Applicant's medical and other information is also taken from the report of Dr Maclean:
·whilst serving in the Navy in 1956 he developed a duodenal ulcer requiring his hospitalisation in Hong Kong for 4 months
·he stated that when working as a Sheriff's Officer he "found himself becoming flustered when he had to drive and deliver reports or provide them" and he "had significant sleep disturbance and loss of appetite."
·he had a gastrectomy in 1964
·he was admitted to Rozelle Psychiatric Hospital in 1962 for 4 days, following an overdose. In 1973 he took another overdose and was admitted to Liverpool Hospital overnight.
·he stated that alcohol has never been a problem and that he gave it up completely in 1994

Medical/Other Evidence – Current Application

In a report dated 31 March 1998 (T6), Dr Neil Maclean assessed the Applicant's impairment rating and the extent to which anxiety affected his capacity for employment. The doctor found there was no evidence of depression and that, although the Applicant was highly anxious during the interview, he displayed no psychotic features. He concluded:
"…using the more modern classification (DSM 4) Mr McNeany warrants a diagnosis of generalised anxiety disorder with significant avoidance behaviour …I would assess Mr McNeany's 'impairment rating for emotional and behavioural damage' at approximately 30. I believe that Mr McNeany's anxiety has significantly impaired his occupational functioning over many years…
…his anxiety (not to mention his age and physical illnesses) would prohibit him from obtaining any sort of useful or gainful employment in the future – despite his best intentions."

On 22 October 1998 the Applicant underwent surgery - "coronary artery by-pass grafts x 2 with LIMA to LAD-diagonal" - at Royal North Shore Hospital, after presenting with unstable angina at Gosford District Hospital (noted in an operation report by Dr Ross (T14)).
In a form dated 18 November 1998, the Applicant applied for an increase in Disability Pension for what he noted as "coronary artery disease", "due to after affects of surgery on duodenal ulcers and partial gastrectomy, due to cigarette smoking also due to war earned stress" (T8). He also listed "asbestos lung disease", "due to exposure of asbestos fibres and dust, whilst serving on RAN ships". The Applicant stated his previously accepted war-caused disabilities of "anxiety state" and "chronic airflow limitation" had become worse (T8).
In a medical assessment dated 10 December 1998, Dr McCarthy found the following:
·in relation to "duodenal ulcer with partial gastrectomy and post gastrectomy steatorrhoea (a)" (T10, folios 50-51), that the Applicant's symptoms were due solely to upper GIT disorders and bowel disorder;
·the Applicant did not experience symptoms of haemorrhoids;
·the Applicant did not experience symptoms of IHD (T10, folio 53), although he has a long history of unstable angina;
·in relation to "chronic airflow limitation, and asbestosis" (T10, folio 54), that the Applicant experienced symptoms of respiratory conditions, but that the spirometry results were attributable to restriction 'by post-stemotomy pain';
·in relation to "chronic airflow limitation, ischaemic heart disease and asbestosis" (T10, folio 55), that the Applicant experienced breathlessness after engaging in activities such as golf and walking at an average pace of 5km/h;
·in relation to "anxiety state" (T10, folio 57), that the Applicant's symptoms include irritability, outbursts of anger, sleep disturbance and that his wife reports verbal abuse. The doctor stated that the Applicant is "unable to mix with others" and that the described symptoms are due solely to Anxiety State. He also stated that the odour associated with the steatorrhoea causes the Applicant "embarrassment in public places" (folio 59).

In a report dated 2 February 1999 (T14), Dr Wilkes, a cardiologist, found that since his by-pass surgery, the Applicant had been aware of intermittent shortness of breath but had not experienced any recurrent anginal symptoms. The doctor also noted that the Applicant had stopped smoking cigarettes just before the surgery. He encouraged the Applicant to begin a regular exercise program.
In a DVA combined impairment report dated 17 February 1999, but assessed at 18 November 1998, it was found that the Applicant had a total impairment rating of 75 points (T11).
On 17 February 1999, the Respondent accepted the Applicant's claim for IHD and decided that the Applicant's Disability Pension at 100% of the general rate should continue, with effect from 18 August 1998 (T2 and T12).
On 19 March 1999, Dr Wilkes reviewed the Applicant's condition, finding "obstructive airways disease" as contributing to his shortness of breath (T14). The doctor noted that the Applicant's chest discomfort was probably musculoskeletal and encouraged him to continue regular exercise.
In a report dated 12 April 1999, Dr M Baz, occupational physician, reported that she assessed the Applicant on 8 April 1999 (T19). She stated:
"In my opinion Mr McNeany experiences significant disability as a consequence of his generalised anxiety disorder, cardiorespiratory disease and gastrointestinal symptoms." (T19, folio103)

Dr Baz recommended a combined impairment rating, for the Applicant's disabilities (T19, folio 105):
"currently accepted disabilities: impairment rating 76, lifestyle rating 6: 100%. Up to August 1998: impairment rating 73, lifestyle rating 6: 100%.
…
In my opinion Mr McNeany satisfies the impairment rating criteria and the lifestyle rating criteria for the Extreme Disablement Adjustment from the beginning of the assessment period."

Dr Baz concluded that, although his accepted disabilities on their own cause him to be currently unfit for any work, "organisational and managerial changes probably made a substantial contribution to the retrenchment from his last job" (T19, folio 106). Further she stated:
"I do not consider the accepted disabilities, with or without inclusion of ischaemic heart disease, constitute the substantial cause of the inability to obtain remunerative work. I consider the availability of the particular type of work he undertook and his back condition together with his age to have precluded him from wither continuing with his previous work or returning to other work for which he is suited…" (folio 106)

In a medical impairment assessment dated 4 May 1999 (T14) Dr McCarthy found that the Applicant did experience symptoms of IHD and that "angina has persisted post-operatively". The doctor found that the Applicant experienced symptoms of chronic airflow limitation such as "breathlessness on exertion" and that the spirometry results are solely due to the chronic airflow limitation. He also said that the Applicant experienced breathlessness and chest pain when walking at an average walking pace and that his restricted activity was due solely to IHD and chronic airflow limitation (T14, folio 76). Dr McCarthy noted that the Applicant's "shortness of breath is multifactoral associated with poor fitness and probably obstructive airways disease."
In another report dated 4 May 1999 (Exhibit A1), Dr McCarthy stated:
"There is no evidence of any significant reversible ischaemia, but Mr Mcneany experienced some mild left sided chest tightness during the test which appeared anginal…
He has evidence of obstructive airways disease but there was no improvement on spirometry after using Pulmicort inhaler and I have suggested he stop using this."

On 14 May 1999, a review officer in DVA wrote to the Applicant (T16) in relation to his application for the voluntary redundancy. It was noted that the current impairment rating, based on the available medical reports received shortly after his by-pass surgery (ie not including those of Dr Baz and Dr Burns), was still 70 points. The review officer confirmed the Applicant's lifestyle rating of 5 points "at this stage", further stating that "the requirements for grant of Extreme Disablement Adjustment are therefore not satisfied".
Dr M Burns, occupational physician, in a report dated 19 July 1999 (T19, folios 107-113), found that the Applicant had a combined impairment rating of 71 (rounded to 70) and a lifestyle rating of 5, giving him an incapacity of 100% (folio 112). However, Dr Burns could not find the necessary average lifestyle rating of 6 for the EDA. He concluded:
"I believe that Mr McNeany was forced to take voluntary redundancy in 1994 due to a reorganisation of the local Area Health Service… I believe that Mr McNeany would have been capable of working if he had been able to obtain work. I thus do not believe that his accepted disabilities alone have made him unemployable."

The VRB, on 7 September 1999, decided to adjourn the hearing (T17), pending receipt of the medical reports from the DVA from Dr Baz (T19) and Dr Burns (T19) discussed above.
On 31 March 2000, the VRB decided to affirm the decision of the Respondent dated 17 February, which continued the Applicant's Disability Pension at 100% of the general rate (T20).
Applicant's Evidence
Mr McNeany made the following points in his presentation to the Tribunal.
His ulcer is a war-caused disability. It causes him to vomit. It causes an offensive odour. He has blood spots when he coughs up. He has worked in the past despite this condition but it is worse now.
His IHD is a war-caused disability. He considers he has recovered well from his bypass surgery. The condition does cause shortness of breath.
His anxiety state is another war-caused disability. He considers that Dr McCarthy's assessment of the severity of this condition in T10 shows that the condition is severe. Mr McNeany told the Tribunal that he had risen as a cook to "grade 10" in 10 years. He had been a loner. He had stepped on the toes of nursing staff by introducing economies. He had stopped thefts. He had had kitchen staff charged. He had tried to solve the problems of his staff. He took his work home and ruminated about the problems his staff were having. His work in the health service exacerbated his condition.
His chronic airflow limitation has deteriorated. It was reported as 3-4 METS in T14, meaning he could walk at 5 km an hour, play golf, clean a car, tidy the house, make a bed, clean windows, vacuum, etc. He would place it now at 2-3 METS, meaning he can do light household duties, walk at 3.5km an hour, type, cook, prepare meals, play billiards, set a table, wash dishes, play golf with a power buggy, dress and shower, etc.
In cross-examination Mr McNeany said that in Griffith he had played golf, swam, read and watched television. He last swam in Cooma in about 1984.He gave up golf in about 1989 because of shortness of breath. He taught in a commercial cookery course on Tuesdays in about 1989 for somewhere between six and 18 months. He gave that up when professional teachers came in from the TAFE system.
Respondent's argument
Ms Pacey put the following arguments for the Respondent. She addressed the fact that the Applicant ceased work under a voluntary redundancy arrangement. In T6 at folio 24 the New England Area Health Service wrote on 5 July 1998 that the Applicant applied for a redundancy package and was successful in receiving one. He was made redundant on 26 July 1994. He was re-employed on 27 June 1994 as a project officer on a temporary casual contract. That contract was to end on 30 September 1994 but it was extended to 16 December 1994.
Ms Pacey suggested that this history meant that the Applicant could not meet the "alone" test for special rate in s 24 of the Act. The Applicant is now aged 66 years. He has relocated. These are other factors that would militate against the Applicant being able to benefit from s 24 of the Act. There is considerable evidence that the Applicant was capable of continuing to undertake remunerative work. This is discussed by the VRB in T17 and T20 where the VRB relied heavily on the views of Drs Baz and Burns.
Ms Pacey suggested that Mr McNeany did not qualify for EDA. She addressed the lifestyle criteria in chapter 22 of GARP. The Tribunal will address these arguments below in tabular form. The Applicant has also provided lifestyle information to the Respondent (T15). This will be considered below.
Findings on material questions of fact with reference to documentary and other evidence in support of those findings
The Tribunal finds that the Applicant's date of birth was 27 December 1933 (T8). He was 64 years of age when he lodged the claim currently before the Tribunal.
The Tribunal finds that the Applicant rendered operational service from 17 July 1954 to 16 March 1955 in the Navy (T5).
The Tribunal finds that the Applicant ceased work as a result of his redundancy, which was a voluntary redundancy, on or about 16 December 1994 (T6, folio 21).
The Tribunal finds that the Applicant lodged with the DVA a valid application for an increase in his Disability Pension on 18 November 1998 (T8).
The Tribunal notes that the Applicant is paid Disability Pension at 100% of the general rate. He is seeking payment of his pension at the special rate or payment of the EDA.
The Tribunal finds that the Applicant does not qualify for payment at the special rate or the intermediate rate. The Tribunal notes and endorses the decision of the VRB on this point where it relies on the reports of Drs Baz and Burns to find that special rate is not payable. The VRB wrote:
"One of the essential criteria for either of these rates [intermediate rate under s 23 or special rate under s 24] is that a person must not have ceased remunerative work for some reason other than his [or her] war-caused or defence-caused disabilities. In the present case, the issue is whether the veteran's accepted disabilities alone of ischaemic heart disease, chronic airflow limitation and anxiety disorder were the reason he ceased remunerative employment or whether his back condition and other factors such as the offer of redundancy and his age also contributed.
"In the Board's view the compelling evidence on this issue, the so called 'alone' test is set out conclusively in the reports of Dr Burns and Dr Baz who as mentioned above gave detailed opinions in relation to the applicant.
"Dr Burns concludes in the final paragraph of his report as follows:
'With respect to employment, I believe that Mr McNeany was forced to take voluntary redundancy in 1994 due to a reorganisation of the local area Health Service. He has continued to apply for positions from 1994 to 1998 but has been unsuccessful. I questioned Mr McNeany and his wife about whether he would have been capable of performing these jobs if he had obtained one. Both of them believe that he would have been able to work and that in fact he was a good worker. I tend to agree with them. From my history and examination today, I believe that Mr McNeany would have been capable of working if he had been able to obtain work. I thus do not believe that his accepted disabilities alone have made him unemployable.'
"Dr Baz agrees with this conclusion in essence stating in the penultimate paragraph of her report:
'I do not consider the accepted disabilities with or without inclusion of ischaemic heart disease, constitute the substantial cause of inability to obtain remunerative work. I consider the availability of the particular type of work he undertook and his back condition together with his age have precluded him from either continuing with his previous work or returning to other work for which he is suited by virtue of his skills and experience.'
"There is no other evidence which would permit the Board to conclude otherwise and therefore the Board is reasonably satisfied that the applicant does not meet the 'alone' test and consequently does not satisfy the criteria of Section 24 of the Act." (T20, folio 136)
The criteria for payment of the EDA are in s 22 of the Act. The issues for consideration are as follows:
The Applicant is to be in receipt of a Disability Pension (s 22(1) of the Act).

The Applicant is not to be receiving any benefit under ss 23, 24 or 25 of the Act (s 22(1) of the Act).

The Applicant's degree of incapacity as determined under s 21A of the Act is to be 100% (s 22(4)(a)(i)).

The Applicant must have attained the age of 65 years (s 22(4)(b) of the Act).

The veteran must have an impairment rating of at least 70 points and a lifestyle rating of at least 6 point, each determined in accordance with the Guide to the Assessment of Rates of Veterans' Pensions (5th edition) authorised under s29 of the Act ("GARP") (s 22(4)(c) of the Act).

In relation to these statutory requirements it can be said that the Applicant satisfies the first four. He has been in receipt of a Disability Pension for a number of years. He is not receiving his pension at a rate affected by any of ss 23, 24 or 25 of the Act. His degree of incapacity has been assessed at 100%. The Applicant turned 65 years of age on 27 December 1998. He has an impairment rating of 75 points (T12) or 70 points (T16 and a decision of the Tribunal on 10 February 2000). The only issue in dispute is the lifestyle rating. This was set at 5 points by the Respondent (T12, T16), the Tribunal (T19, folios 117-133) and the VRB (T20).
It is necessary for the Tribunal to review the lifestyle rating and ascertain what rating it considers appropriate. The following table indicates the Tribunal's views.
GARP Table No and Title Rating           GARP Descriptor and Tribunal's Finding      Summary of Evidence
22.1 – Personal Relationships    5         "Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality." To attract a rating of "6" the Applicant would have to experience "extreme difficulty in relating to anyone" because of such things as psychosis, confinement or physical inability to communicate because of a stroke or something similar. The Tribunal is reasonably satisfied that the Applicant's situation cannot meet the requirements for a rating of "6" and that "5" is the most appropriate rating.   Dr Baz (T19, folio 98) awarded 6 points. Dr Burns (T19, folio 107) awarded 5 points. The AAT (N1998/1407) awarded 5 points. The Responded awarded 5 points. The Applicant agreed that 5 points would be appropriate. In T15 the Applicant completed a lifestyle questionnaire. Responses pertinent to 22.1 show that Mr McNeany does not sleep well, that he often gets "cranky" from pain, that he has difficulty discussing his problems, that he is moody and irritable most of the time, that he is withdrawn and that he has to depend on other a lot. He has family arguments and avoids emotional contacts. He experiences shortness of temper, headaches and tiredness. Ms Pacey referred to evidence that the Applicant spends time with his wife, that she accompanies him customarily and that they have a reasonably strong relationship. He also is in contact with his children
22.2 - Mobility         4         "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." To attract a rating of "5" the Applicant would have be dependent on mechanical devices such as a wheelchair. He would have to be unable to use most forms of public transport and he would be able to drive only in an emergency. The Tribunal is reasonably satisfied that the Applicant's situation is best described as attracting a rating of 4, not 5.     Dr Baz opted for a rating of 5. Dr Burns, the Tribunal and the Respondent opted for a rating of 4. The Applicant in T15 refereed to problems walking because of angina, shortness of breath, headaches and reflux nausea. He noted that his wife accompanies him on all trips outside the immediate area. The Applicant avoids driving because of the stress and anxiety accompanying it. The Applicant uses trains and buses but noted difficulties negotiating crowds and stairs. Ms Pacey note the Applicant's evidence that he could drive on a daily basis, not simply in an emergency.
22.3 – Recreational and Community Activities         5         "Greater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example: can only visit or go out if taken to and from destination; finds doing a hobby or relaxing (for example, stamp collecting, art & crafts, playing or listening to music, playing cards, etc.) difficult to enjoy due to pain, suffering, or loss of dexterity." The Tribunal finds it difficult to accommodate the Applicant within the given descriptors. The Tribunal in the earlier decision refrained from making a finding under this heading. Part of the difficulty is that the Applicant seems do little of a sedentary nature and he has discarded his more active pursuits. The Tribunal considers that Ms Pacey has summarised the situation appropriately. The Applicant can physically get out and do things. He is not entirely isolated.    Rating 6 would require a finding that the Applicant can engage in only a very few satisfying recreational activities and a few pastimes such as watching television, listening to radio, reading or receiving visitors. The Tribunal is reasonably satisfied that a rating of 5 is appropriate.           Dr Baz awarded a rating of 6. Dr Burns opted for a rating of 5. The Respondent awarded a 5 rating. The Applicant argued for a rating of 7. He said that his emphysema and heart disease have rendered him "a walnut". He just lives at home and does not go out at all. He used to play golf, swim and look after apprentices as the TAFE college. He cut this out in 1997 or 1998 because of his breathing difficulties. In T15 the Applicant said he avoids physical activities because of fear of an angina attack. He said he had given up golf, swimming and jogging. Ms Pacey observed that the Applicant is passive and not doing much. He can, however, take care of himself while his wife is at work. He can get out and drive, even if he drives only locally in order to avoid anxiety. There is no suggestion that he cannot undertake activities because of pain or lack of dexterity.
22.4 – Domestic Activities          5         "Limitation of household activity to a small range of light tasks, for example: watering the garden but has difficulty in weeding or pruning; able to do some light household activities but has difficulty in bending to make beds, or in putting out rubbish bin; requires assistance with grocery shopping." For "6" he would be able to do only very light tidying and dusting but could not prepare or cook meals. He would have to find it difficult to set the table or was dishes. The Tribunal is reasonably satisfied that a "6" rating is not warranted on the Applicant's self-assessment in T15. The Tribunal is also satisfied that the Applicant's situation is worse than a "4" would warrant. If rated as "4" the Applicant could still mow lawns, do repairs and maintenance. The Tribunal is therefore reasonably satisfied that a rating of "5" is appropriate. All of those providing assessments have suggested a rating of 5. The Applicant in T15 said that he could not do house cleaning, minor house repairs, digging or pruning, mowing, washing the car or lifting. Activities such as weeding and food preparation now take the Applicant longer to do. He can do shopping and washing up. Ms Pacey summarised by saying that the Applicant cannot carry out normal household activities without assistance. He can do moderately taxing activities but that is all. This would attract a rating of 4.

The overall lifestyle rating emerges as 5, the average of the four ratings recorded in the table.
The Applicant's situation does not therefore attract a lifestyle rating of six or more points and so the requirements for EDA have not been satisfied.
Conclusion
The Applicant continues to qualify for payment of his Disability Pension at 100% of the general rate. He does not qualify for payment at the special or intermediate rate, and he does not qualify for EDA.
Decision
The Tribunal affirms the decision under review.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10 October 2000
Date of Decision  19 July 2001
Self-represented Applicant
Representative for the Respondent        Ms G Pacey