Rowe and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 541

Rowe and Repatriation Commission (Veterans’ entitlements) [2015] AATA 541 (23 July 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/5776
Re	David Rowe
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr Egon Fice, Senior Member Dr Damien Cremean, Senior Member
Date	23 July 2015
Place	Melbourne

The decision under review is set aside and in substitution it is decided that the applicant is entitled to the Disability Pension at the Extreme Disablement Adjustment rate from the beginning of the assessment period, being the application date, of 17 February 2014.

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

Mr Egon Fice, Senior Member

Catchwords

DEFENCE AND WAR – Veterans – Entitlements – Disability Pension – Entitlement to Extreme Disablement Adjustment rate – Lifestyle rating – Decision under review set aside and substituted

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 19, 21A, 22

Secondary Materials

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

REASONS FOR DECISION

Mr Egon Fice, Senior Member
Dr Damien Cremean, Senior Member

23 July 2015

1. Mr Rowe served in the Australian Army between 1 June 1964 and 15 November 1985.  On discharge, he had reached the rank of Lieutenant Colonel.  According to Mr Rowe, he went on to serve with the Army Reserve for a period of time at the rank of Brigadier.

2. Mr Rowe had operational service in South Vietnam, the first tour being between              10 May 1966 and 13 February 1967 and his second tour between 14 May 1969 and       14 May 1970.  He was wounded in action on 27 June 1969 but remained on duty.  Prior to 17 November 2013, Mr Rowe had the following accepted disabilities:

   ·Sensori-neural hearing loss right ear – 26 December 1973

   ·Musculo-ligamentous strain on low back – 26 December 1973

   ·Post cerebral malaria fatiguability syndrome – 22 May 1985

   ·Bilateral tinnitus – 25 June 1996

   ·Post-traumatic stress disorder – 25 June 1996

   ·Sick sinus syndrome – 4 January 2011

   ·Heart block – 4 January 2011

   ·Hypertension – 4 January 2011

   ·Thoracic aortic aneurysm – 4 January 2011

   ·Actinic keratosis – 26 July 2012

   ·Osteoarthritis both knees – 24 February 2013

3. On 17 February 2014 Mr Rowe lodged a claim for disability pension and for an increase in the disability pension.  The new disabilities for which he made the claim were irritable bowel syndrome and what he described as shoulder pain and limitations on use.  The application included an increase in the Disability Pension for previously accepted disabilities.

4. In a decision dated 24 March 2014, the Repatriation Commission accepted Mr Rowe’s claim that his irritable bowel syndrome was service related.  The Repatriation Commission also determined that Mr Rowe’s osteoarthritis in both acromioclavicular joints was not related to either his operational service or his eligible service.  It disallowed that claim.  The Repatriation Commission noted that prior to making its decision, Mr Rowe was being paid the Disability Pension at 100% of the General Rate. 

5. The Repatriation Commission then considered whether payment could be made at the Special or Intermediate rates or whether Mr Rowe qualified for payment of the Extreme Disablement Adjustment.  Because Mr Rowe had reached 65 years of age at the time of his application, the Repatriation Commission examined whether he had undertaken his last paid work for a continuous period of at least 10 years commencing prior to him turning 65 and continuing past the age of 65.  It found that he was not eligible for the pension at either the Special or Intermediate Rate.  In examining whether Mr Rowe was entitled to the Extreme Disablement Adjustment, the Repatriation Commission considered the Lifestyle Effects of his disabilities using Chapter 22 of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) (5^th ed).  It determined that Mr Rowe had an overall lifestyle rating of 5.  Given that his lifestyle rating was less than the required rating of 6 to be eligible, it determined that he was not eligible for the Extreme Disablement Adjustment.  The Repatriation Commission determined that Mr Rowe’s disability pension should be continued at 100% of the General Rate.

6. Mr Rowe sought review of the Repatriation Commission’s decision by the Veterans’ Review Board (VRB).  On 13 October 2014 the VRB decided to set aside the decision denying Mr Rowe’s claim for osteoarthritis of the acromioclavicular joints and determined that condition to be war-caused.  However it affirmed the decision regarding the Extreme Disablement Adjustment.

7. On 6 November 2014 Mr Rowe lodged an application with this Tribunal seeking review of the VRB decision regarding his claim for the Extreme Disablement Adjustment.  That is the only issue before us in this matter and in addition to his previously accepted disabilities, we must take into account his irritable bowel syndrome and osteoarthritis of both acromioclavicular joints.

   RATES OF PENSIONS PAYABLE TO VETERANS

8. Division 4 of Part II of the Veterans’ Entitlements Act 1986 (the VE Act) deals with the Extreme Disablement Adjustment. Relevantly, s. 21A of the VE Act provides:

   (1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.

9. Section 22 deals with the Extreme Disablement Adjustment. Relevantly, it provides:

   (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)   …

   (3)   …

   (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)    …;

   (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 $510.40 per fortnight.

10. There was no dispute about the fact that Mr Rowe had an impairment rating of at least 70 points.  The only question which we need answer is whether Mr Rowe has a lifestyle rating of at least 6 points.

11. It is also of some significance to determine the period of time to which an assessment relates. Section 19 of the VE Act deals with the determination of claims and applications. Relevantly, it provides:

    (5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.

    (5C)     The matters that the Commission must assess are:

    (a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and

    (b)subject to subsection (6), the rate at which the pension is payable.

    (5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.

    …

    (9)       In this section:

    …

    assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.

    claim means a claim made in accordance with section 14.

    APPLICATION OF THE GARP TABLES

12. The introduction to the GARP tables refers to the duration of the assessment period in the following way:

    While the Act requires the assessment of a rate or rates of pension over an “assessment period” (see section 19 of the Act), that assessment can in practice only be made by reference to the available medical and other material that, of necessity, relates to a particular point or period in time.  Therefore, the assessment of the impairment and lifestyle ratings during the “assessment period” must be based on the assessor’s reasonable satisfaction as to those ratings throughout the assessment period, based on the available material.  If there is a significant change in impairment or lifestyle during an assessment period, the assessment period must be divided into appropriate periods to reflect those changes, and separate assessments made of the degree of incapacity.

13. Mr Rowe’s claim, which included an application for an increase in his Disability Pension, was lodged with the Tasmanian office of the Department of Veterans’ Affairs on              17 February 2014.  That is the date when his assessment period commences.  It will end on the date that the Tribunal hands down its decision.

14. Chapter 22 of the GARP is concerned with Lifestyle Effects.  In the introduction to   Chapter 22, the expression lifestyle effect is explained as follows:

    A lifestyle effect is a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition.

15. In addition, the introduction explains that there are three optional methods of assessing Lifestyle effects.  The veteran may choose which of the methods is to be used for his or her assessment.  Except where otherwise indicated, the determining authority must make its assessment on the basis of the last choice made by the veteran and notified to the determining authority.  When no option has been or can be chosen, the determining authority must determine a lifestyle rating by following the procedure under Option 2.

16. On 27 February 2014 Mr Rowe lodged with the Department of Veterans’ Affairs a completed Lifestyle Questionnaire.  That is to be distinguished from a Lifestyle Rating Self-Assessment Form.  Having completed a Lifestyle Questionnaire, option 3 must be used by the determining authority when determining a lifestyle rating.  Option 3 is described as follows:

    The determining authority is to use the information in the completed Lifestyle Questionnaire, together with all other relevant information available to it, to allocate ratings in accordance with Tables 22.1 to 22.5.  The ratings are to reflect the impact of the impairment from accepted conditions on the four key components of a person’s lifestyle (personal relationships, mobility, recreational and community activities, and employment and domestic activities).

17. The introduction to Chapter 22 states that the four components of the veteran’s lifestyle effects assessed carry equal weight.  It also states:

    Pain, suffering, impaired memory or concentration, or interference with sleep or sleeping arrangements, that result from the accepted conditions must be taken into account.  The rating that best accommodates the veteran’s circumstances is to be selected from the descriptions in Tables 22.1 to 22.5.

    Personal relationships

18. This element of the assessment, found at Table 22.1, is said to refer to the veteran’s ability to take part in and maintain customary social, sexual and interpersonal relationships.  In the Lifestyle Questionnaire completed by Mr Rowe, he said the following statements applied to him:

    ·he didn’t sleep well;

    ·he often became cranky with pain;

    ·he found it difficult to discuss his problems;

    ·he was moody and irritable most of the time and usually found it difficult to get on with people;

    ·he was withdrawn and found it difficult to get on with other people;

    ·he had to depend on other people a lot; and

    ·his life was completely ruined.

19. In answer to the question about how he believed his disabilities caused the above problems, Mr Rowe responded:

    I have simply lost the ability to control my life.  I am very anxious and suffer panic attacks with attendant hypertension and stomach upsets.  I am intolerant of others and find it difficult to control my temper.  I find it difficult to relax and am often prevented from sleep by an inability to stop worrying.  Lack of sleep is then compounded by post malaria fatigue symptom.  Pain and physical inability exacerbate the problem.  I am overwhelmed by the degree to which PTSD and its attendant complications have accelerated and now dominate and control my life.

20. In his oral evidence given to the VRB Mr Rowe said that he had a number of local acquaintances in Sarajevo.  He said that he did not have a lot of contact with those persons and he tended to avoid the contact because it was a complication.  He said he would go downstairs to the local coffee house and sit quietly and read the local paper or read a book.  He said he was not very keen on the complications of people.

21. In a statement Mr Rowe provided attached to his application to the Tribunal he said that he did have plenty of friends as he was a somewhat outgoing and colourful person.  However, he said he now avoided contact with them because his social behaviour could not be guaranteed.  He said he may become over-dominant and attempt to control situations, becoming anxious about all manner of things and in the process get stomach upsets or blood pressure spikes.  He said he liked those people but avoided them as he would rather leave things as they were in the good days.  He said the situation was a significant limitation on his lifestyle.  As to the acquaintances in the coffee shop, he said he had no personal relationship with them at all.  He described them as fleeting acquaintances of no account.

22. In our opinion, a significant matter which has not been paid much attention and which Mr Rowe mentioned was why he left Australia some 20 years ago and stayed in Bosnia-Herzegovina.  He described himself as being a refugee from his past.  He said he felt almost safer and more protected in that country because he could avoid his longer standing personal relationships.  He was concerned he was losing control of his emotions.  He said he had based his life on personal relationships in the past and his current inability to maintain or establish personal relationships was an extreme frustration to him which has had a dramatic negative effect on his well-being at a time when he believed he should be able to enjoy the benefit of past associations and shared experiences.  Mr Rowe also said his PTSD initiated irrational behaviour related to control, anxiety, panic, frustration, and aggression and anger along with his diagnosed irritable bowel syndrome and hypertension completing the impediment to personal relationships.  He said that apart from his current wife, he had no real personal relationships.  He described this as a critical element affecting his lifestyle as it is the element over which he had no control at all.

23. We had in evidence psychiatric reports dating back to 1996.  While some of these reports plainly pre-date Mr Rowe’s assessment period, later reports simply repeat the earlier assessments and also indicate an increase in the severity of his symptoms.  For example, in a 12 November 1996 report Dr Michelle Atchison, a psychiatrist, recorded Mr Rowe as describing difficulty in controlling his emotional state.  Over the years, Mr Rowe recognised that he had been over-controlling and emotionally distant in relationships.  Dr Atchison said Mr Rowe explained he felt concerned about his inability to care for people and realised this had been the cause of his marriage breakdown.

24. In her second report dated 18 March 1997 Dr Atchison said Mr Rowe had great difficulty expressing his emotions and showing emotional distress.  She also said it was obvious to her, as a trained observer, that he was keeping his emotions in very tight check with only a great deal of effort.  She did not believe it would take very much stress for this facade to crumble.  She referred to Mr Rowe’s emotional detachment leading to estrangement from his wife and marital breakdown.  She said the same problem stopped him from forming enduring relationships since.  Dr Atchison also said Mr Rowe told her he found it hard to tolerate pettiness in others and therefore vertically distanced himself from most people or social gatherings.  His leisure pursuits were solitary, such as reading.  He told Dr Atchison that he worried about this aspect of his personality saying he did not know why he didn’t care about people but he found his emotional detachment personally distressing.

25. A more recent psychiatric report from Dr M Smitran dated 8 March 2006 recorded Mr Rowe as experiencing continuous stress over many years with no apparent psychological complaints until the previous two years, when he gradually developed feelings of inadequacy and losing control over things and tasks which normally caused no difficulties previously.  A subsequent report by Dr Smitran made on 29 January 2013 records Mr Rowe’s inability to control anxiety having significantly worsened leading to increased cardiac complications.  Dr Smitran reported he was confident that Mr Rowe’s deterioration was connected with his history of PTSD.

26. A more recent report from Dr Smitran, dated 4 December 2014, which is within the assessment period, dealt with Mr Rowe’s personal relationships.  Dr Smitran reported that since Mr Rowe’s second tour in Vietnam, he has been markedly constrained in his relationships in that he has not allowed relationships of any kind to become close.  He has kept his former friends and even his family at a distance.  While this approach enabled Mr Rowe to view matters from a distance, he consequently had never been really involved in a human sense and had missed out on the benefits that come from complete personal relationships.  Dr Smitran concluded:

    His situation today is simply a continuation of a process of degradation which was first formally documented in Australia in 1996.  My opinion is that his capacity for personal relationships ended long ago and is now further complicated by reactive health issues over which he has no control.  That is to say it is no longer just a matter of being distant, it is a matter of being subject to uncontrollable, and perhaps dangerous reactions when unable to avoid being distant.  He has classic PTSD symptoms of irritability, intrusive memories, insomnia, emotional numbness, to name the most prominent, which result in extreme difficulty in personally relating to anyone.

27. Returning to the Lifestyle Questionnaire completed by Mr Rowe on 26 February 2014, he said that his disabilities affected his life with his family in that he had little contact with his children and that his wife was exhausted by the demands placed on her.  He said he was unable to take part in any activity where he sensed a lack of freedom of movement as he may be subjected to anxiety manifesting itself in hypertension and faecal urgency.  He added he was easily annoyed and frustrated by the opinion of others and generally was not interested in other people because he felt they were not interested in him.  He said he actively avoided contact with others, at times even with very old friends.

28. Despite what has been written about Mr Rowe by various psychiatrists, Mr G Purcell, an advocate with the Department of Veterans’ Affairs, questioned Mr Rowe about a visit he made to Australia in February 2015.  Mr Rowe said that the purpose of that visit was to seek medical treatment in Adelaide.  He came to Australia for that treatment because he was entitled to a Gold Card.  Mr Rowe said that he arrived in Australia on or around        15 February 2015, leaving on 8 March 2015.  Mr Rowe said that he also went to Brisbane for the purpose of seeing his daughter.  Mr Rowe agreed his relationship with his children was difficult.  He agreed that when visiting Adelaide, he did contact a small group of former friends.  He said while he was in Adelaide he stayed with his former wife and her boyfriend.  According to Mr Rowe, they still had a degree of understanding and mutual respect.

1. In our opinion, the evidence discloses that Mr Rowe has a serious problem with personal relationships.  The very fact of him leaving his former wife and children in Australia to go and live in Sarajevo is strong evidence of emotional detachment.  While he is able to relate to his former wife and his children, he plainly has had almost no contact with them over approximately 20 years.  He also said that the relationship with his children remained strained.  There was no evidence of Mr Rowe spending any time with any persons including his family for the purpose of socialising.  In fact, even those persons well known to him in Sarajevo are treated merely as acquaintances.  In our opinion, the evidence discloses that his relationship with other persons is severely affected.  He is able to relate only to particular or few people, his present wife and former wife as well as his children, but even those relationships are properly described as somewhat strained and of low quality.  We find that for the purposes of Table 22.1, the correct rating is 5.

   Mobility

2. Mobility refers to the veteran’s ability to move about effectively in carrying out the ordinary activities of life. When asked how he managed the long travel time to Australia in  February 2015, Mr Rowe said it took about 22 hours during which he eased his pain using opiates.  When Mr Purcell suggested he flew business or first class, Mr Rowe said that was incorrect and that he had booked economy class but had paid an extra $3000 for a seat with greater legroom.

3. In answer to questions about mobility in the Lifestyle questionnaire, Mr Rowe said that pain in his knee and instability appeared to be affecting his left hip area.  He said this occurred all the time.  He also had lower back pain moving through his right hip and upper thigh, often involving spasmodic collapses of function.  This was described as occurring most of the time.  He also referred to having shortness of breath during periods of bradycardia (brachycardia) when his natural function failed to respond to his pacemaker backup.  He said this occurred some of the time.  He had a walking frame but usually used crutches/walking stick all the time.  He needed fittings in his house for the purposes of toileting and shower.  Mr Rowe said he often needed help to move around when his joints were painful or appeared to be unstable.  He said he did use his car for short distances when absolutely necessary.  He said his wife did not drive a car.  He generally avoided public transport.  He had difficulty with public transport and in particular mounting and dismounting, standing in line and managing baggage.  He experienced pain, discomfort and cramping after short periods (significantly so with air travel).  He mentioned that he was currently in Australia and that his travel and movement had been uncomfortable, painful and very restricted.  He said he would not contemplate such a trip again.  He said that his mobility difficulties occurred all of the time.

4. In the course of his cross-examination by Mr Purcell, Mr Rowe said that while he lived in Sarajevo, he had a house on the Adriatic coast.  Due to his mobility difficulties, he found it difficult to get up and down stairs (he lived on the third floor) and hence he would like to sell that house.  He had a boat but he had sold that.  The house is some 296 km from Sarajevo.  He would go there during the summer, but he had difficulty driving.  On occasions he would take the chance and drive or find someone who was travelling to the coast and get a lift.  He had also used the bus service.  When on the coast, he said he would swim daily because that exercise was good for his hips and knees.  He said the water was about 30 m from the house at ground level and he would walk down to the ocean.  In Sarajevo, he and his wife lived on the seventh floor in the city area.  He said he used to drive his car regularly but in the last couple of years, his knees had gone and he only drove the car irregularly, when absolutely essential. 

5. The evidence regarding Mr Rowe’s mobility discloses that he depends on others and mechanical devices to move around.  He has difficulty using public transport and when he drives the car, except in the case of an emergency such as on a recent occasion when there were sewage problems at the house on the Adriatic coast, it is irregularly and for only a short distance.  He finds all movement seriously difficult given that his knees, lower back and now his hips also cause him pain.  We find that a rating of 5 on Table 22.2 is appropriate.

   Recreational and community activities

6. This component refers to the ability to take part in any activities of the veteran’s choosing. In his Lifestyle Questionnaire, Mr Rowe recorded that he rarely or never visited friends or had visitors; went out to church, watched sport or other entertainment, meals or walks; played sport; participated in a hobby or did voluntary work.  He noted that two or three times weekly, he would relax by reading, watching TV or listening to music.  He explained that he had difficulty doing anything which involved lifting, flexibility, travel, use of a car or social interaction.  He explained that his mental attitude combined with his physical limitations made him isolated and bound to his accommodation.

7. In his evidence to the VRB, Mr Rowe said he did a lot of reading.  He tried and learnt to play the guitar and he studied French.  He said a French teacher came three times a week.  He tried to keep his brain active and read the news from various sources.  He liked to keep up with what was happening in the world.

8. The evidence discloses that Mr Rowe has very few recreational activities and those which he has are generally passive.  He is not involved in any community activities and rarely receives visitors.  We find that the correct rating is 6 on Table 22.3.

   Domestic activities

9. Domestic activity refers to the veteran’s ability to sustain effective routines in a domestic environment. In his Lifestyle Questionnaire, Mr Rowe said he could not do grocery shopping, housecleaning, minor house repairs, light gardening (such as weeding and watering), heavy gardening, lawn mowing, washing the car or lifting.  He could do washing up if he took his time and cooking with assistance.  Mr Rowe explained that in all domestic activities, he relied on his wife, a domestic cleaner and tradesmen.  He said he could not do anything which involved lifting, stretching or flexibility of his body and limbs. While he was once very active, he now regarded himself as hopelessly inactive.  He employed a domestic cleaner and used tradesmen for other than simple tasks.  He said he even required his wife to change light bulbs where a small ladder or chair was needed.

10. In his evidence before the VRB he described himself as basically not able to do anything.  He said that was because all activities were high risk because he was unable to maintain his balance and that might cause him to fall.  For that reason, even simple tasks were simply out of the question.

11. The evidence discloses that Mr Rowe was only able to carry out very limited domestic activities.  All of those activities were indoor activities.  Even those activities generally required assistance from his wife because movements for him were generally painful and could easily result in him becoming unbalanced and falling.  He could prepare meals with assistance.  Accordingly, we find that the appropriate rating on Table 23.4 is 6.

    OVERALL LIFESTYLE RATING

12. In giving the ratings we have allocated to each of the relevant components identified above, we have taken into account Mr Rowe’s pain, suffering and interference with his sleep. 

13. The introduction to Chapter 22 sets out a four step process in order to calculate the Lifestyle rating which should be allocated to a veteran.  They include determining the Lifestyle rating from each of the Tables 22.1 – 22.5; comparing the Lifestyle ratings obtained from Tables 22.4 and 22.5 and taking the higher rating; adding together the Lifestyle ratings from Tables 22.1 – 22.3 and the Lifestyle rating obtained in the second step; then dividing the number obtained in step three by 4.  The result of the division must be rounded to the nearest integer.  The fraction of 0.5 is to be rounded up.  That becomes the final rating to be used in the assessment.

14. Because Mr Rowe was not engaged in employment activities, Table 22.5 is not applicable to him.  Even if it were, the maximum rating under Table 22.5 is 5.  Therefore, only the rating under Table 22.4 is applicable.  Adding the ratings together results in a figure of 22 which, divided by 4, results in an overall rating of 5.5.  The fraction of 0.5 must be rounded up resulting in an overall Lifestyle rating of 6.

    CONCLUSION

15. The evidence before us on hearing this matter results in Mr Rowe receiving a Lifestyle Effects rating of 6. That means he satisfies the eligibility criteria for the Disability Pension at the Extreme Disablement Adjustment rate set out in s. 22 (4) of the VE Act.

16. Therefore, we find that the decision of the VRB made on 13 October 2014 regarding the rate of pension which should be paid to Mr Rowe was not the correct decision. We set aside that decision and in substitution determine that Mr Rowe is entitled to the Disability Pension at the Extreme Disablement Adjustment rate from the beginning of the assessment period which is the application date. Mr Rowe’s application was received by the Department of Veterans’ Affairs in Tasmania on 17 February 2014. That is the application day for the purposes of s. 19 (9) of the VE Act.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Senior Member, and Dr Damien Cremean, Senior Member

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

Associate

Dated 23 July 2015

Date of hearing	15 June 2015
Applicant	In person
Advocate for the Respondent	Mr G Purcell
Solicitors for the Respondent	Department of Veterans' Affairs