Rigby and Repatriation Commission

[2006] AATA 770

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 770

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1583

VETERANS' APPEALS   DIVISION		)
Re		NORMAN RIGBY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member

Date8 September 2006

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr I R Way  Member

CATCHWORDS

VETERANS’ AFFAIRS – eligibility for the Extreme disablement Adjustment rate of disability pension – consideration of the evidence – consideration of the applicable legislation - the decision under review is affirmed.

Veterans’ Entitlements Act 1986 – sections 22(4), 29(2) and 120(4).

REASONS FOR DECISION

8 September 2006 Mr I R Way, Member          

THE DECISION UNDER REVIEW

1.      On 24 March 2005 Norman Rigby lodged with the Repatriation Commission a disability pension claim for impotence, hearing loss and ringing tinnitus.

2.      On 7 July 2005 a Delegate of the Repatriation Commission accepted the Applicant’s conditions of erectile dysfunction, bilateral sensorineural hearing loss and bilateral tinnitus. Prior to this Mr Rigby was paid a pension at 100 per cent of the General rate based on the following accepted disabilities:  

·Oxaluria

·Anxiety state

·Haemorrhoids

·Hypertension

·Diabetes mellitus

·Non-melanotic malignant neoplasm of the skin of various sites

3.      In assessing the rate of pension to be paid, the Delegate assessed the Applicant at an impairment rating of 65, and lifestyle rating of 5 and determined that Mr Rigby was not eligible for the Special or Intermediate Rate of pension or for the Extreme Disablement Adjustment. The Delegate determined that Mr Rigby’s pension should be continued at 100 per cent of the General Rate.

4.      On 21 November 2005, the Veterans' Review Board (“VRB”) affirmed the Commission’s decision and in doing so assessed the Applicant’s impairment rating of 65 and lifestyle rating at 5.

5.      On 15 December 2005, the Applicant lodged with the Tribunal an application for review of the VRB's decision.

issues and legislative framework

6.      The Applicant was represented by Mr B Winship and at the opening of the Applicant’s case, Mr Winship said that the Applicant accepted, that at this stage, his lifestyle rating of 5 was correct. Mr Winship highlighted that the Veteran had served his country during World War 2, having spent four years or so in the Army in the Pacific Islands and with advancing age, being now 86 years old, would probably achieve a lifestyle rating of 6 in the not too distant future.

7.      Mr Winship said that the Applicant, however, did not accept that an impairment rating of 65 was correct and that the correct assessment should be 70. Mr Winship said that the rating of 70 was important to the Applicant at this stage and that the question as to what his correct impairment rating should be was the sole issue before the Tribunal.

8.      This matter is to be determined under the provisions of the Veterans’ Entitlement Act 1986 (“the Act”).

9.      The relevant sections of the Act provide as follows:

SECT 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.

…

SECT 29
Guide to the assessment of rates of veterans' pensions

(2) The Commission may, from time to time, by instrument in writing, vary or revoke the approved Guide to the Assessment of Rates of Veterans' Pensions prepared by it.

…

SECT 120(4)

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.”

consideration

10.     There is no dispute between the parties that the Applicant currently has a lifestyle rating of 5. In view of this, and on the material before it, the Tribunal so finds. Also there is no dispute between the parties that the Applicant’s conditions of erectile dysfunction, bilateral sensorial hearing loss and bilateral tinnitus are war-caused. The Tribunal therefore is satisfied that the Applicant does not qualify for Extreme Disablement Adjustment (or an earnings related pension) and the Tribunal is satisfied that the decision under review should be affirmed.

11.     However, the Tribunal being mindful of Mr Winship’s submission in respect of the Applicant’s impairment rating, has considered what impairment rating should be accorded to Mr Rigby.

12. In assessing the Applicant’s impairment rating, the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentary evidence marked as Exhibit A1 for the Applicant and Exhibits R1 and R2 for the Respondent. Mr Rigby was not called to give evidence. Ms Jane Warmoll represented the Respondent.

13.     The assessments of the Applicant’s impairment rating by the various medical practitioners, Veterans' Review Board  and the Department are set out below:

Condition	Dept 24.3.05	Dr Koller 9.6.05	VRB 21.11.05	Dr Burns 27.4.06	Dr Morris 24.3.06	Dr Harvey-Sutton 16.3.06
Hypertension	2	2	2	2
Anxiety state	45	43(1)	45(1)	38	25	45(2)
Haemorrhoids	0	0	0	0
Bilateral tinnitus	5	5	5	5
Bilateral sensorineural hearing loss	12	13	5	12
Erectile dysfunction	15	15	15	15
Skin disorder – Non melanotic malignant neoplasm of the skin of various sites	5	5	5	5
Skin: Disfigurement v Social Impairment	2	2	2	5(3)
Diabetes mellitus	5	5	5	5
Oxaluria	0	0	0	0
Total rounded rating	65	65	60	70

Notes:

(1) Dr Koller revised this to 45 on 21 November 2005 at VRB hearing.

(2) Dr Harvey-Sutton assessed the Applicant’s anxiety state at 34 points, however she adopted the Department’s assessment of 45 in her final summary.

(3) In arriving at an assessment of 5 points, Dr Harvey-Sutton stated “I am of the opinion that for his Non Melanotic Malignant Neoplasm of the Skin of Various Sites warrants a 5 Point Rating under Table 17.1, page 227 and is more appropriate than a 2 Point Rating and that he qualifies for:

‘This is a very noticeable condition which causes marked embarrassment to some people in ordinary social contact and causes avoidance of some normal activities. For example, severe skin disorders of the face and/or hands with gross and persistent starter or stamina.’

In other words, I am of the opinion, that his lip deformity could be considered a minor stroke and also his actinic changes on the skin were very noticeable thus, I am of the opinion that a 5 Point Rating is more appropriate.

14.     Clearly there is consistency in rating many of the Applicant’s impairments and, in view of this, and after consideration of the relevant Tables and the Guide to Assessment of Rates of Veterans’ Pensions (“Guide”) and the evidence before it, the Tribunal finds that the Applicant has the following impairment ratings:

·     Hypertension:   2

·     Haemorrhoids:   0

·     Bilateral tinnitus:   5

·     Erectile dysfunction:  15

·     Non-melanotic malignant neoplasm of the skin:                  5

·     Diabetes mellitus:   5

·     Oxaluria:    0    

15.     The contentions ratings relate to anxiety state, bilateral sensorineural loss and disfigurement and social impairment from non-melanotic malignant neoplasm of the skin of various sites.

16.     Dealing first with loss of hearing, the Tribunal is satisfied that the Department correctly assessed the Applicant’s impairment rating under GARP Table 7.1 at 12 and so finds.

17.     In respect of disfigurement, the Tribunal accepts the Applicant’s submission that Dr Harvey-Sutton is a very experienced practitioner in such matters. However the Tribunal has difficulty in accepting any assessment by her for a lip deformity, which she opines could be considered a minor stroke. Such a condition is not one of the Applicant’s accepting conditions and cannot contribute to an impairment assessment.   The Tribunal is mindful of Mr Winship’s submission that Dr Harvey-Sutton opines that actinic changes are now very noticeable, however, taking all of the assessment ratings for disfigurement and social impairment into account, the Tribunal is reasonably satisfied that a rating of 2 under GARP Table 17.1 is correct and so finds.

18.     The remaining condition to be assessed is the Applicant’s anxiety state. The Applicant has no treating specialist for this condition. Dr Koller, following psychiatric examination in June 2005 and further discussion with the VRB in November 2005 assessed the Applicant’s impairment rating of 45 points, as did the Department in March 2005. Dr Morris, a Consultant Psychiatrist, assessed the Applicant a year later and rated the Applicant at 25 points. At the same time, Dr Harvey-Sutton, Consultant Occupational Physician, assessed the Applicant at 34 points. Despite this assessment, she saw fit to use the Department’s assessment of 45 points in her final overall assessment. Dr Harvey-Sutton did not explain why she did this and she was not made available at the hearing to clarify her opinion.

19.     The Tribunal is mindful that neither the VRB nor the Department had before them the opinions of Dr Morris, Dr Burns or Dr Harvey-Sutton when they arrived at their assessments in 2005. Dr Harvey-Sutton clearly was inclined to accept the rating of 45 points and in view of this and taking into account the opinion of Dr Koller and the department, the Tribunal, on balance, finds the Applicant’s anxiety state should be rated at 45 points in accordance with GARP Tables 4.1 to 4.8. In so doing the Tribunal has not applied section 119 of the Act, as suggested by Mr Winship. The Tribunal is of a view that section 119, while of a beneficial nature, should not be used to resolve disparities in the medical evidence in favour of Mr Rigby.  

20.     Accepting the impairment ratings for Mr Rigby, as set above, the Tribunal finds that Mr Rigby’s correct impairment rating at the present time is 65.

21.     In so finding, the Tribunal is mindful that any subsequent claim for Extreme Disablement Adjustment by Mr Rigby would need to be considered on its merits at that time.

22.     The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I Way, Member

Signed:         Associate

Date of Hearing  18 August 2006 
Date of Decision  8 September 2006
Solicitor for the Applicant                Mr Winship
Counsel for the Respondent          Ms Warmoll
Solicitor for the Respondent           Ms Firth