Nicks and Repatriation Commission

[2007] AATA 1970

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1970

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600339

VETERANS' APPEALS DIVISION		)
Re		FRANCIS ROY NICKS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date19 November 2007

PlaceAdelaide

Decision

entitlement

The Tribunal sets aside that part of the decision relating to diabetes mellitus and in substitution for that part of the decision, determines that diabetes mellitus is war-caused with effect from 20 October 2005.  In all other respects the entitlement decision is affirmed.

assessment

Following acceptance of diabetes mellitus, the Tribunal went on to assess pension.  This process also answered the assessment appeal.  Having regard to all accepted disabilities and with effect from 20 October 2005, the Tribunal has determined to continue pension at 100 percent of the general rate.  The assessment decision is affirmed.

  …………………………………………
  J G SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that diabetes mellitus was war-caused – consideration of statement of principles – inability to undertake any physical activity greater than three METs for at least five years immediately before the clinical onset of diabetes mellitus – entitlement decision set aside – extreme disablement adjustment – s 22(4) – assessment decision affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 22(4), 120(1), 120(3), 120A and 196

Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Statement of Principles Instrument No 11 of 2004

REASONS FOR DECISION

19 November 2007   Mr J G Short (Member)         

1.      Francis Nicks served in the Australian Army from 29 September 1941 until 1 May 1946.  This constitutes eligible war service as defined in the Veterans’ Entitlements Act 1986 (“the VE Act”). Because Mr Nicks served in New Guinea the whole of his service constitutes operational service.

2.      On 20 January 2006 Mr Nicks lodged an application for acceptance of diabetes mellitus and lumbar spondylosis as war-caused conditions.  By decision dated 4 April 2006 the Repatriation Commission (“the Commission”) decided to accept lumbar spondylosis as war-caused with effect from 20 October 2005 but to reject the application as it related to diabetes mellitus.  Following the acceptance of lumbar spondylosis, the Commission decided to continue pension at 100 percent of the general rate.

3.      Mr Nicks sought review of both the entitlement and assessment decisions.  The Veterans’ Review Board made a decision on 12 September 2006 to affirm both the entitlement decision and the assessment decision.  On 20 October 2006 Mr Nicks lodged an appeal to this Tribunal seeking review of both the entitlement and assessment decisions.

4.      Mr Nicks asserts that his diabetes mellitus is war-caused.  He refers to factor 5(u) of Statement of Principles Instrument No 11 of 2004 which reads as follows:

“in relation to type 2 diabetes mellitus, an inability to undertake any physical activity greater than 3 METs for at least the five years immediately before the clinical onset of diabetes mellitus;”

5.      Mr Nicks asserts that his accepted disabilities, particularly ischaemic heart disease, atherosclerotic peripheral vascular disease affecting both legs and lumbar spondylosis, resulted in the circumstance described at factor 5(u) of the diabetes mellitus Statement of Principles (“SoP”).

6.      In relation to the assessment decision or to any assessment following acceptance of diabetes mellitus, Mr Nicks suggests that although an earnings-related rate of pension is inappropriate, he is entitled to the Extreme Disablement Adjustment (“EDA”).

evidence of francis nicks

7.      Mr Nicks was born on 23 May 1918 and on the application date (20 January 2006) was 87 years of age.  He has suffered from a back condition for at least 20 years.  He said that before his retirement he visited a physiotherapist once or twice a week.  Mr Nicks found it difficult to remember all relevant dates.

8.      Mr Nicks said that he had worked as a foreman at General Motors Holden.  In the early 1970s he found that by lunch time he was ready to go home.  His legs were aching.

9.      Mr Nicks said that he last attended a football match 20 years ago.  Before this he used to enjoy attending football matches every Saturday.  He ceased attending games because he had a heart attack, his friends stopped going and he had difficulty walking and would become tired.

10.     Mr Nicks said that he cannot walk very far and uses a walking stick.  He has to stop walking after about 50 yards due to aching and tiredness in his legs and buttocks.  He said that he needs to rest for a few minutes and then is able to continue.  He said that 12-18 months ago he undertook a course involving some physical activity at the Repatriation General Hospital.  This involved trying to use a stationary bike and a treadmill.  He attended for one hour a day on four occasions over a month.  Mr Nicks said that he did no more than about five minutes at a time on the exercise bike or the walker.  He still does some stretching exercises but his disabilities restrict even this.  There was a slight improvement with his walking following these sessions but no more than that.

11.     Mr Nicks said that he had nerve root injections for back pain in about 2001.  After each injection he would improve for about three months.  In total he had perhaps three injections.

12.     Mr Nicks said that three to five years ago he was able to walk his dogs around the block without the use of a walking stick, although he carried a walking stick to fend off other dogs.  At that time he was also able to do some gardening and, with his wife’s help, was able to mow a small patch of lawn and to do some limited digging.  He said that he cannot now do as much as he did three to five years ago.  Diabetes was diagnosed in April 2001 and Mr Nicks said that after this diagnosis he was still able to do some gardening and walk the dogs.  He said that since retirement he had experienced a gradual decline, worse since he experienced a heart attack a few years ago. 

13.     In relation to his personal relationships Mr Nicks said that he has a good relationship with his wife and sees a son once a month.  His son lives at Monarto but travels to Kilburn for dog shows approximately once a month.  Mr Nicks and his wife drive, (Mr Nicks drives), to the dog shows to see their son.  He also rings his son two to three times a week.

14.     Mr Nicks said that he has a good relationship with his grandchildren and is on good terms with one neighbour.  He used to perform odd jobs such as changing a light bulb for this neighbour until a couple of years ago.

15.     Mr Nicks said that he attends the Marion Sports Club for lunch most Wednesdays. He drives his wife to a shopping centre but usually waits on a seat while she does the shopping.  He said that he often strikes up a conversation with the person sitting next to him on the seat.

16.     In relation to mobility Mr Nicks said that he generally uses a walking stick outside the home.  He still drives, but not at night or for long distances.  He said that this year he has travelled to dog shows four or five times in order to visit his son.

17.     In relation to recreational and community activities Mr Nicks said that he generally sits in the sun during the day.  He used to read books but now finds it difficult to concentrate.  He has not read a book in the last six months.  He said that he does not know why he finds it difficult to concentrate.  He listens to the radio and describes his vision as satisfactory.  He said that he generally watches television in the evening.  He likes documentaries.

18.     When he attends dog shows Mr Nicks takes an interest in any section in which his son is showing.  He talks with other dog owners about their dogs.

19.     Mr Nicks repeated that he attends lunch at a social club with his wife every Wednesday and has done so for the last four to five years.  He said that he used to enjoy cabarets but has not attended a cabaret for years.

20.     Mr Nicks said that he used to enjoy fishing but has not been able to undertake that activity since experiencing a heart attack.

21.     In relation to his domestic activities Mr Nicks said that he still managed to be able to help the lady who lives next door to change a light bulb and that he uses a ladder for this purpose.  It must be a light ladder.

22.     Mr Nicks said that he is able to set a table, although he hastened to add that his wife has indicated that while she is able to do so, she will continue to do most of the household chores.

23.     Mr Nicks said that he can poison weeds and water a garden with a hose.  He is also able to use long secateurs.  He uses a chair to sit on while doing so.  He now has a man come in to mow the lawns.   Mr Nicks said that he used to do some vacuuming but his back pain now prevents this activity.  He said that between he and his wife they are able to wheel out the rubbish bins.

dr malcolm mackay

24.     Dr Mackay did not attend the hearing.  However, he provided a brief report dated 22 March 2007 (Exhibit A2).  Dr Mackay also provided copies of Mr Nicks’ clinical notes (Exhibit A3).  It appears that Dr Mackay took over as Mr Nicks’ General Practitioner from a Dr Risely in about October 2000.  Dr Mackay relevantly reports:

“I confirm that the date of diagnosis of diabetes mellitus was 6^th April 2001, and I enclose a copy of the glucose tolerance test.

I have reviewed the medical records and I consider that Mr Nicks was restricted to 3 METS or less of physical exertion for at least five years prior to the diagnosis of diabetes.  Grounds for this estimate include:

1. left L5  nerve root dysfunction (causing the sciatica pain in the left buttock) which was already long standing in 2001 when he had a nerve root injection,

2. peripheral vascular disease which by year 2000 was limiting his walking distance to 100m.

I was not aware of Mr Nicks’ symptoms of loss of interest and reduced concentration.  These symptoms suggest mild depression or early dementia.  Mr Nicks has chronic pain which often leads to depression and he has extensive vascular disease which may cause vascular dementia.”

consideration of entitlement matter

25. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“9 War-caused injuries or diseases

(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”

26. As Mr Nicks has performed operational service, as defined in s 6 of the VE Act, the determination of whether his diabetes mellitus is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:

“120 Standard of proof

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.”

27. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP.

28. The claimed condition of diabetes mellitus is the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:

“1  The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2  If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3  If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4  The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.”

29.     In considering whether there is an hypothesis connecting Mr Nicks’ condition with his war service, and in applying the relevant Deledio steps, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.

30.     An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

31.     As regards the first step in Deledio, I am satisfied that the material before me, which includes Mr Nicks’ evidence and the report of his treating doctor, points to an hypothesis connecting the claimed condition with Mr Nicks’ operational service.  That hypothesis is that Mr Nicks’ accepted disabilities, particularly lumbar spondylosis, atherosclerotic peripheral vascular disease affecting both legs and ischaemic heart disease, have reduced Mr Nicks’ level of activity over the five years prior to the clinical onset of diabetes mellitus (on 6 April 2001) to a point where he was unable to undertake physical activity of greater than three METs for at least five years immediately before that clinical onset and accordingly the condition is said to be war-caused.

32. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the condition in question. The SoP in respect of diabetes mellitus is Instrument No 11 of 2004 and is the SoP currently in force. Steps one and two of Deledio are satisfied in this case.

33.     I now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process.  The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose:  Lees v Repatriation Commission (2002) 125 FCR 331.

34.     Under clause 4 of the diabetes mellitus SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being in this case operational service) by the veteran.  It was submitted in this case that factor 5(u) is satisfied.   This factor reads as follows:

“5.       The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diabetes mellitus or death from diabetes mellitus with the circumstances of a person’s relevant service is:

…

(u)in relation to type 2 diabetes mellitus, an inability to undertake any physical activity greater than 3 METs for at least the five years immediately before the clinical onset of diabetes mellitus;”

35.     It is accepted by the parties and, on the evidence provided by Dr Mackay, the Tribunal is satisfied that the clinical onset of diabetes mellitus was 6 April 2001, that is, the date when a glucose tolerance test revealed the existence of the disease.

36.      The Commission’s advocate, Mr Crowe, suggested that there was no evidence contained in the material of an inability to undertake physical activity at a level greater than three METs and lasting for a period of five years immediately before the clinical onset of diabetes mellitus.  Mr Crowe said that Dr Mackay’s opinion was reliant upon the practice case notes and that these notes contained no specific reference to METs or to an inability to undertake a specific walking speed.  He also suggested that the notes did not confirm any limitation in upper body exercise.  He said that most of the notes related to a period which ended more than five years before the clinical onset of diabetes mellitus and that the notes related to acute episodes which were alleviated by treatment.  Mr Crowe also referred to Mr Nicks’ own evidence which he suggested Mr Nicks attempted to provide as accurately as possible given his self-confessed poor memory for dates.

37.     Mr Horan specifically referred to a number of entries in the clinical notes, most of which were to reports provided by physiotherapists in relation to treatment for lower back pain.  Mr Horan said that both lumbar spondylosis and peripheral vascular disease were degenerative diseases and suggested that the evidence of complaints of pain and restriction of movement, even prior to the commencement of the five year period immediately pre-dating the clinical onset of diabetes, could lead to an inference that Mr Nicks’ accepted disabilities did deteriorate, resulting in a worsening of symptoms.  Mr Nicks did say that his conditions had deteriorated over the years.

38.     In considering this third step, the Tribunal is not to make findings of fact.  The Tribunal’s task is simply to consider whether the hypothesis fits or matches one of the factors described in the relevant SoP.  Mr Nicks’ now-treating doctor’s opinion, provided after reviewing Mr Nicks’ medical records dating back over a period which included the five years immediately preceding the diagnosis of diabetes, supports the contention.  It states in part:  “Mr Nicks was restricted to 3 METs or less of physical exertion for at least five years prior to the diagnosis of diabetes”.  There is also Mr Nicks’ own evidence, including evidence of deteriorating health, and the inferences which flow from Mr Nicks' evidence. The Tribunal, although recognising the points made by Mr Crowe concerning the value of the clinical medical records, considers that those records do contain an indication of significant symptoms flowing from Mr Nicks’ accepted disabilities. After considering the material before it, the Tribunal considers that the hypothesis pointed to by the material is consistent with factor 5(u) of the diabetes mellitus SoP and consequently, by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Nicks’ condition with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act (which would mean that Mr Nicks’ claim would fail if the Tribunal had concluded that the relevant hypothesis was not reasonable) does not therefore apply.

39.     The fourth stage of the process explained in Deledio involves making findings of fact bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. If the Tribunal is not so satisfied, Mr Nicks’ claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, the Tribunal notes that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). The Tribunal also refers to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:

“If a reasonable hypothesis is established, subs.(1) of s.120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”

40.     While the Tribunal recognises Mr Crowe’s argument and considers it possible that Mr Nicks was able to undertake physical activities at greater than three METs during at least some stages of the five year period immediately preceding the clinical onset of diabetes, the Tribunal is not satisfied beyond reasonable doubt that this was the case.  The Tribunal finds that Mr Nicks’ evidence of a significant deterioration in his accepted disabilities, particularly ischaemic heart disease, bi-lateral peripheral vascular disease and lumbar spondylosis, and Dr Mackay’s evidence of an inability to undertake physical exertion for at least five years prior to the clinical diagnosis of diabetes at a level of no more than three METs has not been disproved beyond reasonable doubt.

41. For the above reasons, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition of diabetes mellitus was war-caused. The Tribunal accordingly determines, by virtue of s 120(1) of the VE Act, that Mr Nicks’ diabetes mellitus was war-caused.

42.     Having found diabetes mellitus to be war-caused with effect from 20 October 2005, that is three months prior to the date of lodgement of the claim for acceptance of that condition, the Tribunal will proceed to assess of Mr Nicks’ appropriate rate of Disability Pension.  This consideration will necessarily also involve resolution of Mr Nicks’ appeal against the assessment decision.

assessment

43.     Mr Nicks has now been found to suffer from accepted disabilities of ingrowing toenail (L big toe), dermatitis, hyperkeratosis, ischaemic heart disease, atherosclerotic peripheral vascular disease affecting both legs, lumbar spondylosis, and diabetes mellitus.

44.     The first step in an assessment is to consider an appropriate impairment rating.  In considering assessment issues, the Tribunal is required to make determinations to its reasonable satisfaction, that is, on the balance of probabilities.

45. An impairment rating is derived through ascribing appropriate impairment points for each accepted disability and then combining those impairment points, not arithmetically but through the use of a combined values chart found in Chapter 18 of the Guide to the Assessment of Rates of Veterans’ Pensions, 5^th Edition (“GARP”).  The parties were able to agree on a number of issues concerning assessment.  The agreed impairment ratings were as follows:

·ischaemic heart disease – Chapter 1: 51 points

·atherosclerotic peripheral vascular disease affecting both legs – Chapter 2: 30 points

·atherosclerotic peripheral vascular disease affecting both legs – Chapter 11: 10 points

·diabetes mellitus – Chapter 12: 5 points

·disfigurement and social impairment from accepted disabilities – Chapter 17: 2 points.

The Tribunal has considered all of the available evidence relating to the above-mentioned conditions and is satisfied that the impairment points agreed between the parties in relation to those conditions are appropriate.

46.     The Tribunal then considered whether Mr Nicks’ ingrowing toenail (L big toe) should be separately assessed under Chapter 15 of the Guide that is, assessed as an intermittent impairment.  Submissions were made by Mr Horan to the effect that Mr Nicks’ condition could be considered at a Level 1 in relation to severity under Table 15.1, that is “mild to moderately symptoms that are irritating or unpleasant but that rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in some areas”.  The Tribunal agrees with this submission.  The Tribunal is also satisfied that under Table 15.2, the duration of the intermittent attacks, is “prolonged”, that is, lasting for more than four hours.  Under Table 15.3 a prolonged description combined with a severity level of 1, prescribes an intermittent grading code of C which, under the Functional Loss Table 15.4, for a condition affecting the veteran on more than 100 days of the year, prescribes an impairment rating of 10 points.  The Tribunal considers this an appropriate reflection of Mr Nicks’ ingrowing toenail.

47.     The Tribunal was also satisfied, and this was not contested by the Commission, that Mr Nicks’ dermatitis and hyperkeratosis could appropriately be ascribed 2 impairment points.

48. In the light of the above-mentioned circumstances the Tribunal is satisfied that impairment ratings of 51-30-10-10-5-2-2 appropriately reflect Mr Nicks’ impairment flowing from his accepted disabilities. These conditions combine, in accordance with the combined values chart found at Chapter 18 of the Guide, to provide an impairment rating greater than 70 points. An impairment rating greater than 70 points predicts, at all lifestyle ratings, a degree of incapacity of 100 percent. Mr Nicks was over 85 at the date of claim and had long since ceased to engage in remunerative work. In these circumstances Mr Horan did not suggest that an earnings related rate of pension was applicable. The Tribunal determines that Mr Nicks is not entitled to an earnings related rate of pension.

49. Mr Horan submitted that Mr Nicks qualified for the E DA. This is a rate which is paid at approximately 150 percent of the general rate to a veteran aged over 65 years who is severely disabled and is already entitled to a Disability Pension at the 100 percent general rate. It is only payable if the veteran is ineligible for either of the earnings related rates of pension. In addition to satisfying these criteria, an applicant must have a medical impairment rating of at least 70 points and a lifestyle rating of at least 6. The EDA is described in s 22(4) of the VE Act. This sub-section reads as follows:

“22 General rate of pension and extreme disablement adjustment

…

(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 $433.65 per fortnight.”

50.     As the Tribunal has found that Mr Nicks is not entitled to an earnings related rate of pension, his degree of incapacity is 100 percent, he is at least 65 years of age and his impairment is appropriately assessed at at least 70 points under GARP, the Tribunal considered whether the remaining condition exists in this case, that is, whether Mr Nicks’ lifestyle rating could appropriately be assessed at at least 6 points.  The Tribunal carefully considered all of the evidence relating to Mr Nicks’ lifestyle.  The Tribunal accepts Mr Crowe’s submission, that in assessing lifestyle, Mr Nicks must be compared with a man of a similar age who does not have the accepted disabilities.

51.     In relation to Mr Nicks’ personal relationships, Mr Horan suggested that a rating of 5 was appropriate in reflection of “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”.  The Tribunal noted Mr Nicks’ description of his relationship with his wife, children and grandchildren.  Those descriptions were not of low quality relationships.  Mr Nicks presented as a man of good humour doing his best to cope in difficult circumstances.  Mr Nicks attends dog shows on a fairly regular basis.  He drives his wife shopping and while he waits outside, is able to strike up conversations with other people who might be waiting for their spouses.  Mr Crowe suggested that a rating of 2 was appropriate in reflection of “Mildly affected personal and social relationships”.  The Tribunal considers that not all of the examples listed under each rating must be met in each case.  The Tribunal is to look at the descriptions provided under each rating to see which most appropriately reflects Mr Nicks’ circumstances.  The Tribunal is satisfied that a rating of 4 is appropriate in reflection of “Markedly affected relationships”.

52.     In relation to mobility, Mr Horan suggested that a rating of 5 was appropriate, primarily on the basis that Mr Nicks is unable to use most forms of public transport.  The other descriptions given under the 5 rating are:

“dependent upon others, or mechanical devices such as wheel-chairs … able to drive a car only in a situation of emergency and then only for a short distance.”

53.     Mr Nicks confines his driving to daytime and does not drive for long distances.  Nevertheless, he is able to drive his wife shopping and himself and his wife to dog shows.  He generally uses a walking stick, although not so much inside the house.  The Tribunal considers that Mr Nicks’ mobility is appropriately reflected through a rating of 4.

54.     In considering Mr Nicks’ recreational and community activities, Mr Horan suggested that a rating of 6 was appropriate.  Such a rating is provided where one is “Able to engage in only a very few satisfying recreational activities.  Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors”.  Mr Crowe referred to Mr Nicks’ evidence of attending dog shows, shopping and regular attendance at a sports club for lunch on a Wednesday.  In the circumstances the Tribunal considers that a rating of 5 is appropriate.

55.     In relation to domestic activities Mr Horan again suggested that a rating of 6 was appropriate as Mr Nicks was only able to carry out very limited domestic activities which were usually restricted to a range of indoor activities.  The Tribunal considered that at least during part of the assessment period, such a rating is appropriate.

56.     The Tribunal therefore has considered ratings of 4-4-5-6 appropriate for Mr Nicks’ lifestyle.  These ratings average 4.75 and round to 5.

57.     At this stage of Mr Nicks’ life the Tribunal has been unable to find that Mr Nicks’ circumstances warrant a lifestyle rating of 6.  In these circumstances the Tribunal is reasonably satisfied that Mr Nicks does not qualify for a rate of pension beyond 100 percent of the general rate and so determines.  This assessment also answers the specific appeal in relation to the assessment decision under review.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Dates of Hearing  2 August 2007 & 5 October 2007
Date of Decision  19 November 2007
Advocatefor the Applicant        Mr J Horan

Advocate for the Respondent   Mr A Crowe

DVA