Penfold and Repatriation Commission - [2001] AATA 632

DECISION AND REASONS FOR DECISION [2001] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/830

VETERANS APPEALS DIVISION           )
           Re      KEITH HYDER PENFOLD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr I. Campbell, Member Dr P. Fricker, Member

Date22 June 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED the applicant is entitled to disability pension at 60% of the general rate.
  .....…Sgd. Mr J. Handley.......
  Senior Member
CATCHWORDS
Veteran's Entitlements – applicant presently receiving 40% of general rate – applies for Intermediate Rate – whether 70% threshold achieved.

REASONS FOR DECISION

22 June 2001 Mr J. Handley, Senior Member Mr I. Campbell, Member Dr P. Fricker, Member

The applicant applies to review a decision of the Veterans Review Board ("VRB") made on 24 May 1999. The VRB then decided to affirm a decision previously made by the respondent, which increased the rate of disability pension to 40% of the general rate with effect from 6 January 1998.
Mr Penfold is presently 75 years of age, having been born on 11 July 1925. He is self-employed as a boat builder and is the director of Williamstown Slipway Pty Ltd. Ultimately, it is his intention to recover intermediate rate pension having regard to his reduced hours of work. It was acknowledged however, at the commencement of the hearing, that until such time as Mr Penfold is assessed as having an entitlement to disability pension of at least 70% of the general rate, any issue of entitlement to intermediate rate pension cannot be considered (s.24(1)(a) of the Veterans Entitlements Act 1986).
Mr Penfold has accepted disabilities of duodenal ulcer, bi-lateral sensori-neural hearing loss and chronic solar skin damage. Assessment of general rate pension entitlement, having regard to those accepted disabilities, is to be conducted under the provisions of the Guide to the Assessment of Rates of Veteran's Pensions (GARP).
Mr DeMarchi appeared on behalf of the applicant and Ms Chant appeared on behalf of the respondent. The parties agreed at the commencement of the hearing that the assessment for hearing loss under GARP should be 21 impairment points. Having regard to the extent of the applicant's loss of hearing we regard that assessment as appropriate.
There was no agreement between the parties with respect to an assessment under GARP for the conditions of duodenal ulcer (Table 6.1.6), bilateral tinnitus (Table 7.1.11) or solar skin damage (Table 11.1). The parties agreed that it was appropriate to assess the impairment for solar skin damage under Table 11.1 and under Table 17.1 for "disfigurement". During the hearing, Mr DeMarchi submitted that the impairment for the applicant's duodenal ulcer should be assessed under Chapter 15 in lieu of Table 6.1.6. This had not been recorded in his Statement of Facts and Contentions. Despite the respondent's objections to assessment under this table and in the absence of a medical report specifically on the issue, we decided that assessment – if at all under this table - could be achieved by us because it largely involved an analysis of the applicant's evidence with respect to the component parts of Chapter 15. We will refer to this later in these reasons.
Having regard to the broad nature of the dispute and the time that would be occupied in hearing evidence with respect to the general rate pension issue, we decided that we would only hear the applicant with respect to assessment of general rate pension, and then give a decision with respect to entitlement to that pension. We indicated to the parties that the time that would be occupied with respect to the applicant's capacity for work, hours of work and an analysis of the voluminous taxation returns filed might be wasted if the applicant could not recover at least 70% of general rate pension. Accordingly, the parties were advised that the matter would be listed for a resumed hearing in the event that the applicant – by this decision – achieved a general rate pension of at least 70%.
Keith Hyder Penfold
Mr Penfold served as a member of the Royal Australian Air Force in New Guinea and Milne Bay during the Second World War. He was engaged in air and sea rescue. He remained a full-time employee of the RAAF after WWII until 1965 when he was discharged. He then commenced self-employment as a boat builder and continues that employment.
Hearing Loss & Tinnitus
The parties have agreed that the appropriate impairment rating for hearing loss is 21 points. We agree with that assessment. Mr Penfold told us that his hearing loss is his most embarrassing injury. He says he has difficulty communicating with, and understanding people.
He said that the tinnitus sometimes wakes him at night and he has a radio beside his bed, which he turns on before he goes to sleep. Mr Penfold said that the tinnitus is not present all the time and "comes and goes" during each day for a total of about 2 ½ hours. He estimated that he has 3-4 "bursts" of tinnitus each day, lasting for between 30 minutes to 1 hour. He said it is worse at night when there is little background noise and described the tinnitus as a "light tingle" and as being "mild". When he has "bursts" of tinnitus he said he does not "do anything special". He said he would usually go for a walk. He said the tinnitus in combination with the hearing loss was embarrassing and has distracted him at work. The applicable GARP table is 7.1.11. Mr DeMarchi submitted that we should assess an impairment rating of between 5 and 10 under this table. Ms Chant submitted that we should find an impairment rating of 2.
The applicable part of this table is reproduced as follows-
"TWO Very mild tinnitus: not present every day.
FIVE Tinnitus every day, but tolerable for much of the time.
TENSevere tinnitus, eg of similar severity to that requiring a masking device, present every day."
An impairment rating of TWO is not in the circumstances applicable because on the applicant's evidence it is present everyday. However we do not regard an impairment rating of TEN as being applicable because on the applicant's description the tinnitus was mild, it is not present throughout the day and when it is present the applicant says he would "go for a walk". We do not regard that evidence, as amounting to "severe tinnitus" but rather it is more applicable as against an impairment rating of FIVE because it is present every day and it is "tolerable for much of the time". We do not regard the applicant turning on his radio when he goes to bed at night as amounting to a "masking device" as required for a rating of TEN.
Duodenal Ulcer
Mr Penfold said that he has suffered from a duodenal ulcer since World War II. He said he suffers a burning sensation when he has attacks and drinks Mylanta because it is soothing. Mr Penfold said that he has consumed copious quantities of Mylanta and told us that since service he has drunk "44 Gallon drums of it". Apparently he has a bottle of Mylanta at home, at work and in his car. When he has attacks of pain, he says he consumes Mylanta by a "swig" every 3 or 4 hours, night and day and on occasions attacks of pain last for up to two weeks. He said his general practitioner has not suggested any other forms of medication or treatment. The Mylanta is prescribed for him by his Doctor because he is able then to obtain it at a reduced cost because of his status as a DVA pensioner. He has not ever had a gastroscopy but has had an x-ray and barium meal.
Mr DeMarchi called Doctor Marshall a general physician and gastro enterologist to give evidence. Doctor Marshall examined Mr Penfold on 4 November 1999 (18 months prior to the hearing) and provided a report of the same date. The report was received into evidence as Exhibit A.
In his report Doctor Marshall concluded-
"There is nothing relevant to find on examination but his symptoms clearly are absolutely classical of chronic duodenal ulceration without stenosis. There is no element of gastro-oesophageal reflux and nothing to suggest the presence of gall-blader disease".

He then referred to part of table 6.1.6 which referred to 'regular' H² receptor antagonist or proton pump inhibitor medication" which evidence largely has become an irrelevance because of the applicant's reliance on Table 15 (refer later). Doctor Marshall also gave us evidence, which we regarded as being confusing and contradictory in the manner in which he assessed the applicant under Table 6.1.6. He regarded the applicant as having 'active' disease and pain for which he needed Mylanta antacid, yet whilst in his opinion, the applicant achieved an impairment rating of greater than FIVE he said it approached a rating of eight which should be rounded up to a rating of TEN. This method of assessment contravenes GARP. When he was advised that his approach to assessing impairment was not permissible, he said that an impairment rating of FIVE was appropriate but he regarded the impairment as "certainly no less than eight".
With respect to this injury Mr DeMarchi submitted that the applicant should be assessed as having an impairment rating of TEN under Table 6.1.6 and the respondent submitted that an appropriate rating was FIVE.
For illustrative purposes, the relevant parts of Table 6.1.6 are reproduced as follows-
"FIVEPeptic ulcer: with intermittent symptoms necessitating ongoing maintenance treatment.
TENPeptic ulcer: active disease with moderate symptoms on most days, despite regular H2 receptor antagonist or proton pump inhibitor medication."
When Mr DeMarchi notified us that he intended to rely on Chapter 15 as an alternative to Table 6.1.6 he then asked Doctor Marshall to comment on the criteria under Table 15.1. Doctor Marshall said that he regarded the applicant as suffering from a loss of efficiency because he suffered epigastric pain. He regarded the attack duration as being "prolonged" under scale 15.2, and on the symptoms as described to him he said that the frequency of the intermittent impairment by this condition was 100 + days per year.
We indicated to Mr DeMarchi that we were unable to contemplate this chapter, or properly consider the submission made by Ms Chant to adjourn the hearing until there was an opportunity to assess the applicant clinically under this chapter without hearing further evidence from Mr Penfold. He accordingly was recalled.
Mr Penfold told us, that when he suffers from duodenal ulcer, he has pain below his sternum and he will take a "swig" of Mylanta and drink milk. He said the symptoms are distressing, it takes away his appetite and he becomes lethargic. He is not bedridden but can maintain self care and remains independent. He sometimes does have bed rest.
Mr Penfold described having two differing types of attack from the ulcer as being both 'severe' and 'normal'. He said he would suffer approximately five severe attacks per year, which would each last for up to a fortnight. He said that he suffers normal attacks each being of about three day's duration between each severe attack. That is, within each two-week period he would suffer a normal attack of three days. On this estimate he would suffer an intermittent impairment of 100 + days per annum under Table 15.4.
However Mr Penfold said that he has lost approximately 100 days in work since the Second World War which on average would be two days per annum. Whilst he attends his general practitioner for prescriptions of Mylanta he has not ever asked for any other form of medication or treatment and said that he "puts up with it". He could not recall ever leaving work early because of ulcer pain.
We thought that the criteria under Chapter 6 and the evidence of Doctor Marshall did not adequately deal with the applicant's circumstances. We thought on balance that Chapter 15 was more appropriate. We note a four-stage process is involved in calculating the impairment.
The relevant part of Table 15.1 is reproduced as follows-
"I Mild to moderate symptoms that are irritating or unpleasant but that rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities.
IIMore severe symptoms, that are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained."
On the applicant's evidence, we are satisfied that he achieves a rating of Level 1. That the applicant has only lost an average of two days work – and we note that he is self-employed – in the last 40-50 years suggests that he is only "rarely prevented from completion of any activity". We did not think that he achieved Level II under this Table. We were unable to discern that the symptoms complained by Mr Penfold were "distressing".
We agree with the submissions of Mr DeMarchi with respect to the balance of this chapter, that an appropriate description of attack duration under scale 15.2 is "prolonged", and applying the findings that we have made under Table 15.1 and 15.2 to the Table at 15.3, an intermittent grading code of "C" would be achieved. When that code is then applied to Table 15.4 under the column of '100+' (days), impairment for this injury under Chapter 15 is achieved at 10. We note in passing that if we were required to assess the applicant's duodenal ulcer under Table 6.1.6, we would have, in any event, found an impairment rating under that table of FIVE. The applicant does not have regular H² receptor antagonist or proton pump inhibitor medication. We reject Doctor Marshall's assertion that regular consumption of Mylanta is the equivalent of this type of treatment.
Solar Skin Damage
Mr Penfold said that he wore shorts and boots only when in New Guinea and associates his skin cancers with his exposure to ultraviolet light during service.
Whilst he said he had skin cancers, Doctor Connors who examined him on 1 December 1999 and provided a report dated 23 December 1999 said that Mr Penfold suffers from solar keratosis.
In any event Mr Penfold has had treatment extensively in recent years to remove these lesions. We were asked to observe the presence of the skin lesions during the hearing, however – frankly – we could not observe them. We were asked to notice the applicant having pigmentation over his face and forehead but again we could not observe it. Doctor Connors said that solar keratosis are often difficult to observe and he uses a magnifying glass to satisfy himself that they do exist. He said they are also found by palpation as opposed to observation.
In any event we are satisfied on the evidence of Dr Connors that the applicant does suffer from solar skin damage. We are also satisfied that the lesions have been frequently removed in recent years often by cryotherapy (liquid nitrogen). We are also satisfied, upon the evidence of Mr Penfold alone, that the presence of these lesions does cause him embarrassment. Mr DeMarchi submitted that an impairment rating of FIVE should be allowed under Table 11.1, although during the hearing he submitted that a more appropriate rating was TEN. Ms Chant submitted that the appropriate rating was TWO.
The appropriate part of Table 11.1 is reproduced as follows-
"TWO. Skin disorder than (sic) is symptomatic for less than four months of the year.
. Asymptomatic skin disorder but with need for medication.
. Solar skin lesions necessitating surgical removal (including cryotherapy and/or cautery) at least once in the year but less than four times a year.
FIVE. Any skin disorder, or combination of disorders, causing symptoms that are not easily tolerated, and that are present for a significant part of the day for at least four months a year, eg psoriasis; eczema; tinea with persistent pruritus, despite treatment.
.Noticeable skin disorder, or combination of disorders, on face or hands, of such degree as would cause embarrassment to most people in unfamiliar social contexts.
. Visible skin disorder, or combination of disorders, on a part of the body other than face and hands, of such degree as would cause embarrassment or considerable inconvenience to most people in domestic or intimate situations or as would cause them to curtail sporting or recreational activities.
. Solar skin lesions necessitating surgical removal (including cryotherapy and/or cautery) three times a year or more, or the removal of at least ten lesions over the year.
. Alopecia (other than male pattern baldness).
TEN. Skin disorders, or combination of disorders, resulting in significant loss of structural integrity of face, eg total loss of pinna, skin graft, scar following trauma or burns.
. Severe and persistent pruritus causing difficulty in concentrating and loss of sleep.
. Persistent skin disorder, or combination of disorders, resulting in continuous signs and significant symptoms of moderate degree, present for most of the time."
We are not satisfied that a rating of TEN is appropriate. There is no "significant loss of structural integrity of the applicant's face", Mr Penfold does not suffer from pruritus and whilst his solar skin damage may be described as a "persistent skin disorder" it does not result in "continuous signs and significant symptoms ….".
Insofar as an impairment rating of TWO is concerned, Doctor Connors said that the applicant would require treatment on up to 2 occasions per year and then for the potential removal of multiple skin lesions. However the criteria as against an impairment rating of TWO, does not adequately deal with the effects of this condition as described to us by Mr Penfold and we are satisfied that an impairment rating of FIVE is more appropriate. This is because of the evidence we heard from Mr Penfold of the embarrassment that he endures, which is part of the criteria as against an impairment rating of FIVE. The multiple removal of skin lesions per year is also a criteria found against an impairment rating of FIVE as opposed to an impairment rating of TWO. We are satisfied therefore that the applicant should be assessed with an impairment rating of FIVE under this table.
In addition to Table 11.1 the applicant is also entitled to be assessed under chapter 17 (Table 17.1) for "disfigurement". Ms Chant submitted that a NIL rating was appropriate whereas Mr DeMarchi submitted that a rating of TWO was appropriate. The relevant parts of Table 17.1 are reproduced as follows-
"NIL. A visible condition that the veteran does not consider to be disfiguring.
. A noticeable condition that is not significantly disfiguring and which causes negligible or slight embarrassment such as some acne scars on face, or minor limps, or a slight stoop.
TWO. A noticeable condition. For example, severe acne scars, a unilateral squint, an intermittent stutter or stammer.
. A noticeable condition which causes significant embarrassment and may cause avoidance of some normal activities. For example, an ungainly gait, a gross stoop, a persistent stutter or stammer, or an unsightly skin disorder.
FIVE . A very noticeable condition which causes marked embarrassment to some people in ordinary social contacts and causes avoidance of some normal activities. For example, a severe skin disorder of the face and/or hands, or a gross and persistent stutter or stammer."
Again the applicant may at first sight appear to fall within an impairment rating of NIL, however the embarrassment that he suffers – and which we accept as a fact – entitles Mr Penfold to be rated as TWO under this Table.
It follows that we accept the submissions of Mr DeMarchi with respect to the impairment assessment under Table 11.1 and 17.1 at FIVE & TWO respectively.
Lifestyle Effects
Mr Penfold said that his immediate family understands his difficulty and embarrassment associated with his hearing loss and his solar skin damage. Outside his family he said that he is embarrassed because of the conditions. He said that he socialises less than he previously did because of his hearing loss.

The most likely criteria applicable under Table 22.1 concerning personal relationships are reproduced as follows-
"ONEPersonal and social relationships are fairly satisfying. Intermittent disadvantages may inhibit, but not prevent participation in accustomed range of social and personal activities.
TWOMildly affected personal and social relationships. Social contacts and activities are reduced, veteran's participation in the accustomed range of activities is restricted.
THREEModerately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOURMarkedly affected relationships. Most relations are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult. Much less time is spent socialising than was the case formerly."
Mr DeMarchi submitted that an impairment rating of FOUR was appropriate. We disagree. There is nothing from the evidence of Mr Penfold, which would suggest that any of the criteria as against that rating applies. Similarly, we hold similar views with respect to an impairment rating of THREE. Mr Penfold probably fits within an impairment rating of ONE, but more likely an impairment rating of TWO is appropriate, because of the reduction in social activity by reason of the hearing loss and skin damage.
We are satisfied that a rating of TWO is applicable under this table.
Table 22.2 concerns a veteran's mobility. The only restriction or impediment upon mobility according to Mr Penfold was that he "doesn't go out if I get an ulcer attack". His hearing loss, tinnitus, solar skin damage and ulcer on most occasions does not affect his travel.
The relevant parts of Table 22.2 are reproduced as follows-
"ONE Intermittent or periodic effects on mobility:
·mobility affected only when impairment eg migraine, angina, sciatica, or panic attack, is present. Between attacks there are no restrictions;
·if there is permanent impairment, eg night blindness, the effect is only sporadically limiting.
TWOMild effects on mobility, eg slowing of pace in some circumstances, or need for a walking stick."
Mr DeMarchi submitted that a rating of TWO should be found.
We are satisfied that an impairment rating of ONE does adequately reflect the evidence of Mr Penfold. That is, his mobility is affected only when he suffers from an attack of duodenal ulcer. Additionally, "between attacks there are no restrictions". We would acknowledge that when Mr Penfold does suffer an ulcer attack there may be a "mild effect" upon his mobility, for example he may walk at a slower pace. Therefore for the purposes of this assessment we would prefer a rating of ONE but would not dismiss – by reason of the beneficial nature of this scheme of compensation – a rating of TWO.
A veteran's 'recreational and community activities' are assessed under Table 22.3. We heard from Mr Penfold that he does have a small boat, which he used previously for fishing. He told us however that he has not taken his boat out for some years but now engages in golf. That is to say, he has given up his previously held recreation of boating and fishing, to pursue the recreation of golf. We heard little else about the applicant's recreational and community activity. The relevant part of Table 22.3 is reproduced as follows-
"NILAble to undertake the full range of usual recreational pursuits and community activities.
ONEIntermittent interference with recreational pursuits and community activities. Between episodes is able to continue with the range of accustomed recreational pursuits and community activities.
TWOMild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them – even if less frequently – or to enjoy alternatives.
THREEUnable to continue some accustomed recreational pursuits and community activities, for example:
-competition sporting activities (golf, tennis, bowls, etc) but is still able to enjoy most other activities (camping out, hobbies, going visiting, watching sport, etc);
-unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc.
FOURUnable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:
-restricted to generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc); and
-unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels)."
Mr DeMarchi submitted an impairment rating of FOUR.
On the evidence heard a rating of FOUR is inconceivable. There was nothing to indicate that Mr Penfold gave up boating or fishing because of any of his war-caused injuries. Indeed there is nothing to indicate that Mr Penfold is unable to take his boat out or to fish. We understood his evidence to be that he now prefers golf in the time available to him for recreation.
On balance, it is difficult to comprehend what impact at all any of the war-caused disabilities has upon the applicant's recreational and community activity. We acknowledge that there may be some interference with playing golf when he has an ulcer attack, although we heard no evidence of this. An impairment rating of NIL is appropriate but is probably harsh. More than likely the applicant attracts a rating of ONE or at its highest, TWO.
With respect to 'domestic and employment activities', the GARP provides that only one of these two activities are to be considered and the higher of the two applies.
Mr DeMarchi relied on Table 22.5 with respect to employment activities. It was submitted that the applicant should attract a rating of FOUR, on the basis that the applicant was unable to work full-time and had significantly reduced his hours because of his war-caused disabilities.
Whilst it would appear that the applicant has reduced his hours, the reasons for doing so were not the subject of evidence. This was because the entitlement to intermediate rate pension and evidence associated with that application were not considered at the hearing (refer earlier).
The criteria as against a rating of FOUR in Table 22.5 is as follows-
"FOUREither unable to work full time in normal occupation, or has had to change occupation or number of hours worked, or both, because of the accepted conditions."
With an abundance of caution, we would, for the purposes only of this exercise, allow a rating of FOUR.
A rating at this level would appear to be greater than more applicable ratings if Table 22.4 were applied. Accordingly, the rating under Table 22.5 shall be applied.
In reaching these findings, we have been mindful of what we have read from the documents filed and what we heard and observed at the hearing. We found the applicant to be an able and intelligent individual who gave his evidence honestly and did not embellish.
We thought the suggested impairment and lifestyle ratings as submitted by his counsel to be inappropriate. It is one thing to advocate maximum pension entitlement. It is another to suggest ratings that have no resemblance to the evidence and by their criteria can be insulting and demeaning.
Conclusion & Reasons For Decision
The procedure dictated by GARP in determining the lifestyle rating is to add the four applicable Tables under Chapter 22, divide that total by four and then round up to the next whole number if there is a fraction involving ·5.
On the most conservative of the four assessments that we have recorded above, the calculation would be the addition of ratings of two + one + one + four, which would give a total of eight and a lifestyle rating then of two. On the greater of the assessments as referred to above, the calculation would be ratings of two + two + two + four giving a total of ten, equating to a lifestyle rating of two point five rounded up to a rating of three.
With respect to calculating the applicant's impairment, and applying the peculiar mathematics under the Combined Values chart in Chapter 18, we have concluded as follows-
           Table Impairment Rating
Hearing loss 7.1      21
Ulcer   15.1    10
Bilateral Tinnitus     7.1.11 5
Solar Skin Damage 11.1    5
Disfigurement          19.1    2
21+10=29
29+5=33
33+5=36
36+2=37<35 (refer Ch 18, Step 8 P233 GARP Ed. 5)
Having regard to the above conclusions and by applying the impairment rating of 35, to a lifestyle rating of either two or three, the converted degree of incapacity is 60.
It follows therefore that the decision under review should be set aside and it is decided that the applicant is entitled to disability pension at 60% of the general rate.
By reason of these findings the applicant has not satisfied the threshold under s.24(1)(a).
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Mr I. Campbell & Dr P. Fricker, Members.
Signed:         .Carolyn Irons ...........................................
  Secretary
Date/s of Hearing  15 May 2001
Date of Decision  22 June 2001
Counsel for the Applicant
Solicitor for the Applicant         Mr D. DeMarchi
Counsel for the Respondent
Solicitor for the Respondent    Ms. T. Chant, Departmental Representative