Thomson and Repatriation Commission - [2001] AATA 601

DECISION AND REASONS FOR DECISION [2001] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/690

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM PATRICK THOMSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date28 June 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – ischaemic heart disease –– constipation – irritable bowel syndrome – anxiety state – extreme disablement adjustment – Guide to the Assessment of Rates of Veterans' Pensions – lifestyle rating – impairment rating – eligible service – operational service
Veterans' Entitlements Act 1986, ss 6A Item 1, 7(1)(c), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 15(1), (3), (4), 20(1), 21(1), 21A, 22, 120(1), (3), (4), 120A(1), (3), 120B(1), (3)

REASONS FOR DECISION

28 June 2001 M J Sassella, Senior Member

History of the application

On 18 September 1996 William Patrick Thomson ("the Applicant") lodged an application with the Department of Veterans' Affairs ("the DVA") for an increase in his disability pension in respect of the deterioration of his anxiety state, an accepted condition (T3). On the same day the Applicant lodged an application for disability pension in respect of ischaemic heart disease ("IHD") and "osteoarthritis both knees" (T4). The Applicant stated that his heart condition was caused by cigarette smoking which began during his service and that his osteoarthritis was caused by infantry service in the tropics.
On 28 October 1996 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for IHD with the date of effect being 18 June 1996 (T7). The claim for osteoarthritis both knees was refused, however the Applicant's rate of pension was increased to 100% of the general rate, with the date of effect being 20 June 1996. The Respondent found that this condition developed after service and therefore aggravation could not be considered.
On 25 February 1997 the Applicant lodged an application for review with the Veterans' Review Board ("the VRB") (T8). He attached a brief letter with his application, stating his belief that his disabilities warranted the Extreme Disablement Adjustment ("EDA"). The Applicant did not specifically dispute the non-acceptance of his osteoarthritis.
On 3 June 1997 the Respondent notified the Applicant that it did not intend conducting a review of his case under s 31 of the Act (T11).
On 30 October 1997 the Applicant lodged an application for Disability Pension and Medical Treatment with the Respondent (T15). He claimed as war caused the conditions of chronic constipation due to irritable bowel syndrome ("IBS") and osteoarthritis both knees.
On 25 March 1998 the Respondent decided to accept the Applicant's claim in respect of IBS, but continued disability pension at 100% of the general rate (T22). IBS was "accepted on the basis of a psychiatric condition".
On 20 October 1998 the VRB adjourned its review of the Repatriation Commission decision of 28 November 1996 so that it could be supplied with further medical information and clarification of the Applicant's accepted disabilities (T27).
The decision under review
On 24 March 1999 the VRB resumed its hearing and affirmed the decision under review (T29). The assessment period was divided into two parts because the Respondent had accepted irritable bowel syndrome as service related with date of effect being 30 July 1997. The VRB found the following impairment ratings for the accepted conditions in the two relevant assessment periods:
18 June 1996 to 29 July 1997

Ischaemic heart disease 28 points based on the assessment of Dr Smith on 6 November 1996 (folio 24).
Anxiety state 32 points based on the assessments of Dr Smith on 6 November 1996 (folios 25-26) and 25 November 1997 (folios 57-58) and the Applicant's own application (T3).

In total the VRB found an overall impairment rating of 50 which, combined with a lifestyle rating of 4, equated to pension at 90% of the general rate. Because the Applicant was already receiving a pension at 100% of the general rate, the VRB continued this latter rate of pension.

30 July 1997 to the present

Ischaemic heart disease 28 points based on the assessment of Dr Smith of 20 November 1997 (folios 61-62)

Anxiety state 41 points based on Dr Baz of 31 July 1997, 13 July 1998 and 20 August 1998 (T14, T25, T26) and Dr Dinnen of 31 July 1997 and 22 May 1998 (T13, T24) as well as Dr Smith's assessment of 25 November 1997.
Irritable bowel syndrome 2 points based largely on the assessment of Dr Smith at T16.

In total, taking into account both of these assessment periods, this equates to 60 impairment points which, combined with a lifestyle rating of 5, produces a pension entitlement assessment of 100% of the general rate. The Applicant was not entitled to special or intermediate rate of pension because he ceased working at the age of 60. Further, he was not entitled to the EDA rate because his lifestyle rating was not 6 points and his impairment rating fell below 70 points.
The Applicant lodged an application for a review of the VRB decision with the Tribunal on 11 May 1999 (T1).
Relevant legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") ss 6A Item 1, 7(1)(c), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 15(1), (3), (4), 20(1), 21(1), 21A, 22, 120(1), (3), (4), 120A(1), (3), 120B(1), (3):
"6A Operational service - world wars
(1)       Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
1(a) A member of the defence force on continuous full-time service outside Australia during a war to which this Act applies.
…"
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
          (c)       a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1~ July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…"
"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;
…"
"13 Eligibility for pension
(1)       Where:
…
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
(2)       Where a determination under this Act is in force determining that any incapacity from which a veteran is suffering resulted from war-caused injury or war-caused disease, or both, but a pension was not granted to the veteran on the ground that the extent of the incapacity was insufficient to justify the grant of a pension, subsection (1) does not apply to a claim for a pension in respect of that incapacity.
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"15 Application for increase in pension
(1)       A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
          …
(3)       An application under subsection (1) or (2):
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"21A Determination of degree of incapacity
(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.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"22 General rate of pension and extreme disablement adjustment
(1)       This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)       Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)       For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4)       Where:
          (a)       either:
(i)        the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)       a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
          (b)       the veteran has attained the age of 65;
          (c)       the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
          (d)       the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
(5)       For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
          (a)       the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
          (b)       amounts are being deducted from the pension under section 79, 30P or 205; or
          (c)       the pension has been suspended under subsection 31 (6)."
"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.
…
(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.
(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.
…"
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
          (a)       a Statement of Principles determined under subsection 196B (2) or (11); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
"120B   Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
          (b)       a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
…
(3)       In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
          (a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
          (b)       there is in force:
(i)        a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…"

Background

The Applicant is currently 81 years of age, his date of birth being 2 June 1920.
The Applicant has the accepted disabilities of anxiety and IHD, with the date of effect of 18 June 1996, and IBS, with the date of effect of 30 July 1997.
He lived in Bexley and Connell's Point during his childhood. The Applicant was one of eight children. He was married in 1942 and had five children. The Applicant and Mrs Thomson have been living in their home in Panania for 45 years (T13). The Applicant attends church nearly every day.
The Applicant served in World War II from 1 September 1940 to 10 November 1940 (T7). This constitutes eligible service as defined in the Act. The Applicant completed operational service in World War II from 1 October 1941 to 19 November 1945.
In 1942, whilst in the Northern Territory at Mataranka, the Applicant suffered a nervous breakdown (T13). He was subsequently court martialled and served three months detention (Exhibit A2). The Applicant started smoking during his service and eventually gave up in 1980 after suffering a heart attack (Exhibit R2).
After his discharge from the Army he took 10 years to finish a five-year apprenticeship as a hand engraver, troubled as he was by his nervous condition. In 1953 the jewellery firm let him go because of his inability to concentrate and cope with pressure. The Applicant continued working for himself as well as for Woolworths for five or six years. He also worked for McCathies and Warne's Trophies at various times, but his memory was unclear about the exact dates (Exhibit A2). He finished work in 1980 after he suffered his first heart attack.
On 12 December 1997 the Applicant lodged a lifestyle questionnaire with the DVA (T20). On the questionnaire he stated that he does not sleep well, that he gets cranky from pain, that he finds it difficult to discuss his problems and that he is withdrawn. He has no social life and has no interest in socialising. The Applicant stated that he used crutches to move around and that he needs assistance getting in and out of vehicles. He has further difficulties using buses and trains. The Applicant can no longer play snooker because he cannot bend his knees properly. He is incapable of activities such as minor house repairs, gardening or lifting. The Applicant attached a statement with the questionnaire where he described his nervous breakdown during the war and how it has affected his life ever since, leaving him fearful and living "day to day."

On 25 March 1998 a DVA file note stated that a reassessment of the Applicant's pension entitlement would actually reduce his pension to 70% of the general rate (T21).
On 3 April 1998 the Applicant wrote a statement in support of his pension claim (T23). He stated that he was court martialled during the war because he was having a nervous breakdown. He received no medical assistance at this time. The Applicant eventually lost all interest in social occasions and became irritable with his wife, often arguing with her even though she is his only social contact. He has trouble sleeping and has found himself sleepwalking in the early morning. The Applicant has no hobbies and he feels that since his consultation with Dr Dinnen his condition has deteriorated because he was forced to recall his army experiences.
On 23 August 2000 the Applicant wrote a statement in support of his application (Exhibit A5). He stated that his personal relationships were deteriorating and that he was withdrawn from people other than his wife. The Applicant further stated that he could walk 400-500 yards on a flat surface "before getting out of puff." He cannot use public transport without difficulty and never goes out without his wife. The Applicant can no longer do outside domestic activities. He does little else except listen to the radio or read the paper or say the rosary. He has lost interest in leisure activities like snooker and billiards. The Applicant's interest in church activities has also waned and now he keeps to himself when he visits the church.
On 23 August 2000 the Applicant's wife, Mrs Moira Thomson, also wrote a statement in support of his application (Exhibit A6). She stated that her husband shouts at her after "he's been in a world of his own" and further that he cannot at times cope when his grandchildren come to visit. Interpersonal relationships are very strained. She further stated that her husband has stopped playing snooker and has ceased his voluntary work. He will not go anywhere without Mrs Thomson. She concluded, "my husband does very little from day to day, but he says the Rosary up to 26 times a day."
Issue
The issue in this matter is whether the Applicant is entitled to pension with the EDA.
Medical evidence
On 1 and 6 November 1996 Dr Smith completed a series of medical impairment assessment forms in respect of the Applicant's osteoarthritis, angina and anxiety (T7). Dr Smith listed the following symptoms of osteoarthritis:

Pain in right and left knees
Pain whilst lying down
Difficulty in standing from a sitting position
Cannot stand for longer than ten minutes without pain
Pain on descending stairs, getting into a car or bus
The Applicant can only walk very slowly
Loss of one quarter of normal range of movement in both knees

In relation to angina with six coronary bypasses, Dr Smith listed the Applicant's myocardial infarction in 1980 and persistent musculoskeletal chest discomfort as a result of the surgery. The Applicant's angina makes him develop limiting symptoms in all activities with a METS level of 3-4 and above.
Dr Smith noted, in relation to the Applicant's anxiety, that the Applicant has concern over his health, poor sleeping habits and a "fearful feeling." The Applicant gave up work at the age of 60 because of a heart attack and anxiety. He has difficulty maintaining friendships and avoids recreational activities. He takes Serepax 30 mg and undergoes counselling for his anxiety.
On 30 July 1997 Dr Dinnen, consultant psychiatrist, completed a report on the Applicant (T13). He noted that the Applicant sleeps for only about five hours per night and worries a great deal. The Applicant also has a bad memory and his concentration is poor. Dr Dinnen found that "the patient does not demonstrate psychotic illness, but gives a limited and disjointed account, consistent with chronic severe anxiety which according to his information has been present for many years." He noted the lack of psychiatric reports but "it is not unreasonable to conclude that his chronic severe anxiety state has limited his life many years as he states." Dr Dinnen recommended a minimum impairment rating of 20 points in accordance with the Guide to the Assessment of Rates of Veterans' Pensions (5th edition) ("the GARP").
On 31 July 1997 Dr Baz, occupational physician, reported on the Applicant (T14). She took a history from the Applicant of poor sleep, intrusive memories of service on a daily basis and problems of irritability and being argumentative. She further noted that he has a history of drinking four to five schooners of beer each day, but also that he has decreased this habit in recent years. He had a total knee replacement in 1996. Dr Baz recorded the domestic abilities of the Applicant; that he could mow the lawn, walk to the shops with his wife and carry out rubbish bins. In her assessment Dr Baz gave the Applicant a rating of 20 points for his anxiety condition, noting moderate and persistent symptoms and his inability to distract himself from them. In relation to IHD she recommended an impairment rating of 45 points. In coming to this assessment Dr Baz noted that the Applicant no longer had angina and he had mild systolic function impairment, coronary artery disease and musculoskeletal chest discomfort. Further he has difficulty with balance and reduced lower limb function. She assessed the Applicant as having a combined impairment rating of 51 points and a lifestyle rating of 5. She concluded that the Applicant does not meet the impairment rating criteria or the lifestyle rating for the EDA.
On 20 and 25 November 1997 Dr Smith completed another series of forms assessing the medical impairment in relation to the Applicant's psychiatric, bowel, lower limb and cardiac conditions, in addition to an effort tolerance assessment (T16). Dr Smith noted that the Applicant was addicted to Serepax and that he experiences constant anxiety in day to day living. The Applicant finds it difficult to cope in social situations and avoids them to decrease his anxiety. Dr Smith further noted marital stresses and the fact that the Applicant avoids conversations about the past and planning for the future. He also avoids recreational activities that he previously enjoyed. In regard to irritable bowel syndrome Dr Smith noted that the Applicant had suffered for years from this condition and had undergone a colonoscopy in 1989. In regard to the assessment of osteoarthritis the report largely mirrored his earlier assessment report (T7). Dr Smith again addressed the assessment of IHD and his report again was fundamentally the same as that of November 1996 concerning angina (T7).
On 22 May 1998 Dr Dinnen wrote a supplementary report on the Applicant (T24). He confirmed his opinion that the Applicant had suffered from a chronic severe anxiety state for many years. He assessed the Applicant as having a GARP rating of 42 points.
On 13 July 1998 Dr Baz also provided a supplementary report (T25). She found that a combined impairment rating of 66 points and a lifestyle rating of 6 was appropriate. This converts to a 100% of the general rate pension. She concluded, "in my opinion Mr Thomson satisfies the lifestyle rating for the EDA."
On 23 July 1998 the Applicant wrote a statement detailing the symptoms of his bowel condition (Exhibit A1). He stated that it began about the same time as his nervous breakdown in 1942 and he often been constipated for five days. The Applicant often had to manually relieve his constipation. Because of his medication he suffered frequent attacks of diarrhoea with the result that he soiled his underwear.
On 20 August 1998 Dr Baz again assessed the Applicant, this time taking into account his accepted condition of IBS (T26). She gave this condition a rating of 10 points which, when added to the combined impairment rating, gives the Applicant a total assessment of 70 points. Again it was her opinion that the Applicant satisfied both the impairment and lifestyle criteria for the EDA.
On 14 December 1998 Dr Dinnen again reported on the Applicant (Exhibit A2). The VRB hearing had been adjourned specifically so that more information could be gathered about the Applicant's conditions. Dr Dinnen interviewed the Applicant and took additional details relating to his employment history and the problems he encounters in relation to his chest and knee pain. Under GARP he found an impairment rating of 28 points in relation to the Applicant's anxiety condition.
On 11 January Dr Baz also provided another report on the Applicant for the purposes of a GARP assessment (Exhibit A3). She noted residual chest wall discomfort, shortness of breath on exertion and significant restriction to lower limb function due to bilateral knee replacements. The Applicant also gave a history of hearing loss. Dr Baz found the following impairment ratings were appropriate:

Anxiety state 41 points
Ischaemic heart disease 34 points
Ischaemic heart disease – chest wall pain 2 points
Ischaemic heart disease – lower limb function 8 points
Irritable bowel syndrome 10 points
Total impairment rating 69 points

Dr Baz further found a lifestyle rating of 6 points. She restated her earlier opinions that the Applicant was entitled under the EDA criteria, and had been so since July 1997.
On 11 January 2000 Dr Lewin, consultant psychiatrist, reported on the Applicant at the request of the Respondent (Exhibit R1). He noted the history that the Applicant gave him in relation to his family being evicted from the family home and his then joining the army. The Applicant reported that he had been subjected to two court martials. While in the army the Applicant found it hard to sleep and often walked around the compound at night. Dr Lewin was of the opinion that the Applicant suffered a panic attack, which the Applicant himself thought was a nervous breakdown. His current diagnosis was of a chronic generalised anxiety condition which he assessed at 30 points under GARP.
On 19 January 2000 Dr Burns, occupational physician, provided a report on the Applicant (Exhibit R2). He took a history that was consistent with those in the other medical evidence, although he did report that the Applicant got on well with his wife, despite some minor disagreements. Dr Burns found a lifestyle rating of 5 points and an impairment rating of 60, broken down as follows:

Anxiety state 41 points
Ischaemic heart disease 28 points
Irritable bowel syndrome 5 points
Total 60 points

Dr Burns concluded, "I do not believe that he has reached the necessary 70 impairment points or lifestyle rating of 6 to be eligible for the extreme disablement adjustment."

On 5 May 2000 Dr Baz reviewed her ratings (Exhibit A4) based on the reports of Drs Burns and Lewin. She altered her assessment of his anxiety state to 39 points, but included a rating of 2 points for IHD – light-headedness. Ultimately her overall assessment of the Applicant's impairment was unchanged, remaining at 69 points. Her lifestyle assessment also remained unchanged at 6 points.
On 20 April 2000 Dr Burns reviewed his assessment of 19 April 2000 at the request of the Respondent and taking into account the opinion of Dr Lewin (Exhibit R3). He reassessed the total impairment rating at 54 points, leaving the lifestyle rating unchanged at 5 points.
Appearances
The Tribunal convened a hearing in this matter on 8 September 2000. Mr Adam Halstead from the NSW Legal Aid Commission represented the Applicant. Ms Melinda Doggett from the DVA represented the Respondent.
Documentary evidence
At the hearing the Tribunal had access to documentary evidence identified as follows:

Exhibit TD1 – Section 37 Statement and associated T documents from the DVA, 13 July 1999.

Exhibit A1 – Statement by Applicant, undated.

Exhibit A2 – Report by Dr Anthony Dinnen, psychiatrist, 14 December 1998.

Exhibit A3 – Report by Dr Martha Baz, occupational physician, 11 January 1999.

Exhibit A4 – Report by Dr Baz, 5 May 2000.

Exhibit A5 – Statement by Applicant, 23 August 2000.

Exhibit A6 – Statement by Mrs Moira Thomson, 23 August 2000.

Exhibit A7 – Applicant's statement of facts and contentions, 28 August 2000.

Exhibit R1 – Report by Dr Robert D Lewin, psychiatrist, 11 January 2000.

Exhibit R2 – Report by Dr Mark Burns, occupational physician, 19 January 2000.

Exhibit R3 – Report by Dr Burns, 20 April 2000.

Exhibit R4 – Extract from Sydway Greater Sydney Street Directory.

Exhibit R5 – Extract from MIMS Issue No 3 1997.

Exhibit R6 – Respondent's statement of facts and contentions, 25 April 2000.

Applicant's evidence

In oral evidence before the Tribunal the Applicant said that he was 19 when World War II erupted. He joined the Army in 1941 and was married at the time. He was sent to Matarenka in the Northern Territory where he worked as an "unpaid sergeant". He controlled the men who built the Matarenka staging camp. He was leader in relation to gunmanship and taught the other men. He won a citation. Later he experienced a mental breakdown. He could manage the allotted work. He said that it took 20 years before he could have a reasonable conversation with anyone. He was court martialled after going absent without leave. He was detained as an aftermath but was given no treatment. He was discharged from the Army without medals. He later was awarded medals with some assistance from the DVA.
He spoke about his nervous breakdown. He had a nervous problem as an aftermath for 20 years. He feared a recurrence. As at the year 2000 he had lost all interest in everything he used to do. He has lost lots of friends because he is irritable and testy as a result of his condition. He is an avid churchgoer. When he saw Dr Dinnen he was upset by the doctor looking into his past and asking about his condition. He had to address memories of his nervous breakdown. He did not want to think about it at all.
He has had recent problems in his church. He had a good relationship with the former priest whom he described to the Tribunal as a "saint" and who has now died. The replacement priest has caused the Applicant problems. He has started attending Sunday mass at the neighbouring church. He has lost friends as a result because they have sided with the new priest. He is developing friendships at his new church. His wife attends church but less frequently than the Applicant.
On the question of personal relationships, the Applicant relates on a regular basis with only his wife. He has four daughters who live a long way away. One in Appin, just outside Sydney, sees the Applicant about once a month. His son, William, aged 46, is in the vicinity and the Applicant sees him. While he is always glad to see his grandchildren he is always pleased to hand them back to their parents. He has known one set of adjacent neighbours for 27 years and they are friendly. However, he has few conversations with them. The other adjacent neighbours are new arrivals.
Mr Thomson is not keen on watching television.
Mr Thomson described an average day. He goes to 9.00 am mass. He comes home. He helps his wife around the house by washing up. There are only a few dishes and his wife's pots unless his son calls with his family. He contrasts this with his attitude in his youth when he got on with everyone. He does not now talk with many people at all. He vacuums around the house. He does some cleaning. He has tried pruning but stopped when he developed chest pains. He used to enjoy work in the garden but cannot mow lawns. He pays a person to prune and mow the lawns. He wants a higher pension to provide for his funeral which will cost about $12,000. He says about five rosaries a day.
Mr Thomson travelled to the Tribunal from Panania by train. He does not use the train much. He "just doesn't like them". He went by rail to see his daughter in Eden. This was "a terrible ordeal". He has no car although he did drive in the past. He would not confidently return to driving. He has "tottery turns" as a result of his bypass operations. He walks to a shop about 70 metres from home and walks about 200-300 metres to church.
He used to enjoy playing snooker. It helped him after his nervous breakdown. He has lost interest in it and he cannot assume the correct stance to play. His old playing partners have been reduced in number as some have died.
He was a keen fisherman. He tried rock fishing but gave it up because of fear of falling.
He addressed a number of general lifestyle issues: he has difficulty rising from a lying down position; he was a keen supporter of the Canterbury Bulldogs Rugby League team but has lost interest; he needs Serepax to sleep at night; he is now interested in "virtually nothing" except that he does some crossword puzzles.
Ms Doggett in cross-examination asked the Applicant about a number of matters going to his assessment under the GARP.
In relation to IBS the following emerged. He has chronic constipation for which he takes medication. It can become diarrhoea. e can pass blood. He is not incontinent. He gets intense stomach pains from time to time. He self-administers a medication, Senekot, choosing his dosage in consultation with his doctor. The IBS condition has been stable for 30-40 years.
In relation to his IHD he had his first heart attack in 1980 and bypasses were done at short notice in 1996. His worst current IHD symptom is the tottering effect which occurs all the time. He does not use a stick although he did so in the past. He assists with making beds and can get giddy doing that. He can vacuum by manipulating the handle without going out of breath. He has no physical problems from vacuuming. The vacuum cleaner is a barrel type and the Applicant holds the hose. He does nothing in relation to the lawn. Mrs Thomson works in the garden. The Applicant used to do this but cannot any more. He helps hang out washing. He experiences short breath using the pedestrian bridge over the train line near his house. He can walk around the block, about 400 metres, on odd occasions. There was considerable discussion of the Applicant's use of shops in the vicinity which he can visit without becoming exhausted. He has no angina pains since the bypass operation. He shops with his wife. He uses the steps and ramp at the railway station and can handle trains "reasonably well". He does not get out of breath on stairs. He cannot handle buses. He avoids risks to his heart and was told he could exercise by walking. He has no advice on how far he should walk.
As regards his anxiety attacks the main current symptom is the fear of a recurrence. He finds that prayer assists him. They do not happen much. He is apt to get depressed about such things as family troubles. He has depressive episodes about every four days. He deals with depression by walking and praying.
Ms Doggett put some matters from the GARP to the Applicant. The Applicant responded by saying he had not sought psychiatric help. He relies on his general practitioner whom he sees about every three months. The Applicant suggested that his psychiatric condition had changed between January and September 2000 in that he had become less talkative and would say "hello" to fewer people. Asked if his symptoms were worsening the Applicant said that it had taken him 20 years to get into conversation mode with others. Since the 1960s his condition had not much altered until recently when he has become more of a hermit. He has a "wonderful relationship" with his wife. They address issues and argue them out if any arise. He has a "fantastic relationship" with his son who is a "wonderful" husband and father. The son has two boys aged 11 and 13. The Applicant gets on well with the boys but is ready to farewell them when they leave. He can be a "grouch". He sees his son and grandchildren once a week and is sometimes left to look after the grandchildren alone for up to about an hour and a half. He speaks by phone with his daughters with whom he has a good relationship. He speaks by phone with a daughter in the USA every two or three months. He contacts his daughter in Eden less often because of her husband's attitudes.

The Applicant uses the train twice a week to attend Riverwood Church. He takes taxis very occasionally – the last time was in 1996. He takes a bus with his wife to Bankstown sometimes but he finds access difficult and he does not like riding in them. They travel too fast.
The Applicant reads newspapers close to daily. He reads news, sport and does crosswords.
The Applicant had last played snooker 12 months before. He could not say why he lost interest. It happened after the bypass operation. He had been a competition player and the loss of interest could be because he cannot play as well as he did. There had been some deterioration in his playing earlier when he had his knee problems.
The Applicant's pastimes include listening to radio station 2CH and watching videos such as "The Wizard of Oz".
The Applicant and his wife generally put out the garbage bin together although the Applicant can do this alone. This involves relatively little garbage being wheeled in a "wheelie-bin" about 30 metres.
Mr Halstead re-examined the Applicant with several fresh points emerging. The Applicant has at times used a walking stick or crutches because of his knee complaint. On the day of the hearing the Applicant had found it necessary to make several trips to the toilet before noon. This was indicative. The Applicant said it can be a problem during train travel. He tends to plan trips to avoid problems. The Applicant's is a three bedroom house. The Applicant vacuums all three bedrooms when he does that work.
The Applicant's wife, Mrs Moira Thomson, then gave oral evidence. She spoke of how the Applicant's lifestyle had deteriorated in the past ten years. He had been happy-go-lucky had mowed the lawn and worked on the garden. He had eschewed these activities in the past five or six years. He had had "lots of operations". He had not been able to do things. Mrs Thomson did not wish her husband to exert himself.
She spoke of work the Applicant does around the house. He does the evening washing up. It takes him a long time. He polishes the pots. She sits in the lounge room while he does this. She has to check the gas and the electric jug to make sure the Applicant has turned them off properly. When he vacuums she moves the furniture. The Applicant does not. He helps in making the bed but the witness does most of the work. He can no longer prune bushes. It stresses his heart. Mr and Mrs Thomson are effectively giving up on the garden. The witness cannot do it any more because of arthritis and neck problems.
The witness said she finds the Applicant slow during shopping trips.
The Applicant reads the paper and makes morning tea independently.
The witness finds that the Applicant gets "cranky" with her over nothing.
The witness sometimes helps Mr Thomson to dress. He can overbalance and fall on the bed.
The Applicant was said to like going for walks. He says the rosary during his walks. He walks extremely slowly because he loses breath. He "lives for his faith". He does scripture readings in the new church he attends.
The witness said that the Applicant's average day involves morning mass, coffee break, reading the paper, watching the news, going for a walk, visiting the church and having dinner. He did enjoy fishing and snooker but cannot now fish or play games with the grandchildren because of problems with his legs. He gave these activities up "a good while ago".
The witness described herself as a "virtual carer" of the Applicant. She said that she cannot visit her daughter in Eden because the Applicant will not go. They last went by using the train to Canberra and transferring to a bus to Eden. The witness must watch the Applicant as he gets on and off trains. They are taunted by schoolchildren who call them "Nanna and Poppa" when they use the train. Train trips are planned around the location and availability of toilet facilities. The witness cannot see another daughter in Coffs Harbour for similar reasons. The Applicant's only "good" relationships are with Mrs Thomson and their son. The son, his wife and children, are the only visitors the Applicant has. The son and grandchildren are busy people. The odd other person may drop in but there are really no other social interactions.
The Applicant had a lot of friends in the church he used to attend. There are fewer in the new church. The Applicant and Mrs Thomson cannot wait around after mass as they need to rush for the train.
Ms Doggett cross-examined the witness. The witness agreed that the electric jug does switch off automatically, however the Applicant tends to overfill it. She agreed that the Applicant knows well what he can and cannot do. She explained that when vacuuming the Applicant stops periodically, rests and then restarts.
The witness said that she spends her time sewing, mending, cleaning and cooking. She was active in the church but is not now. The couple has few friends of their own age. The witness has two sisters, one of whom has Parkinson's disease. She has a brother with whom she communicates on the telephone.
The Applicant can travel places by car. He sits in the front.
The witness described her relationship with Mr Thomson as good.
Findings on material questions of fact with reference to the evidence and other material in support of the findings.
The Tribunal finds that the Applicant was born on 2 June 1920. He was aged 76 at the date of his claim for EDA (T3).
The Tribunal finds that the Applicant has lodged a claim for an increase in Disability Pension (ss 13-15 of the Act). This occurred on 18 September 1996 (T3).
The Tribunal finds that the Applicant engaged in operational service from 1 October 1941 until 19 November 1945, and completed eligible service from 1 September 1940 until 10 November 1940 (T7).
The Tribunal notes that issues as to the applicable rate of payment of pension are to be resolved at the level of the Tribunal's reasonable satisfaction (s 120(4) of the Act).
The Tribunal notes that the Applicant's disabilities accepted as war caused are anxiety state, IHD and IBS (Exhibit R4). Osteoarthritis of both knees has not been accepted as war caused (Exhibit R4). There is no appeal in relation to the non-accepted conditions (Exhibit A7). The sole issue is the Applicant's entitlement to EDA (Exhibit A7).
If the Applicant is successful in this application the date of effect of the decision would be 18 June 1996, unless the EDA can be paid only if the condition of IBS is necessarily taken into account. The date of effect would then be 30 July 1998.
The Tribunal finds that the Applicant, who is seeking payment of EDA under s 22 of the Act, satisfies the following elements of s 22 of the Act:

He is being paid a Disability Pension under Part II of the Act (s 22(1)).

None of ss 23-25 of the Act apply to the Applicant (s 22(1), (4)(d)).

The veteran has attained the age of 65 – he was 76 when he claimed for an increased pension (Exhibit TD1 T4) (s 22(4)(b)).

At present Mr Thomson does not satisfy s 22(4)(a) or (c) of the Act in that he has not been assessed with a impairment rating of at least 70 points (his rating is 50 points to 30 July 1997 and 60 points from that date– T29)), and a lifestyle rating of at least 6 points (his lifestyle rating is 5 points – T29).
The Tribunal will first consider whether it can find that the Applicant's lifestyle rating can be reasonably raised to 6 points. If it cannot then there is no need to consider whether the impairment ratings for the accepted disabilities can be raised to 70 points.
There is considerable material before the Tribunal on the lifestyle effects of Mr Thomson's disabilities. Drs Burns and Baz have provided assessments. The Respondent and the VRB have also provided ratings. The Respondent and the VRB agree that a lifestyle rating of 5 would be appropriate. The Tribunal has considerable evidence on the lifestyle effects from Mr and Mrs Thomson. The Tribunal is charged with making its own decision on these matters of fact and considers that it should prefer wherever possible the direct evidence, given under oath, of Mr and Mrs Thomson as to the lifestyle effects of his conditions. The Tribunal was satisfied that Mr and Mrs Thomson did not exaggerate their evidence. The Tribunal is also impressed by Mr Thomson's religious fervour which would make it most unlikely that he would disregard an oath he had sworn.
The Tribunal has decided to address GARP chapter 22, Lifestyle Effects, using a tabular layout. This will indicate the rating decided by the Tribunal, the description in GARP for that rating, and reference to the evidence for that rating.
Table Title and Number    Rating           GARP descriptor    Evidence
22.1 – Personal Relationships    3         Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.    The Applicant says he has lost a lot of friends. He talks to very few people. He is less talkative than he used to be and would say "hello" to fewer people. He relates to his wife on a regular basis and describes their relationship as "wonderful", yet she says he can get "cranky" over nothing but describes the relationship as "good". He relates regularly to his son ("a fantastic relationship") and the son's family. He speaks by phone to his daughters who live at a distance. He relates appropriately to one set of neighbours. He had many friends in his former church and has fewer in the new church.
22.2 - Mobility         3         Moderately reduced mobility: Mobility curtailed or diminished because of frailty, lack of confidence, agoraphobia Travel as a passenger, in private and public transport, possible in most circumstances without need for break in travel or special seating arrangements Dependent on a walking stick or similar device. Independent in leaving home and reaching destination, but has some difficulty         Mr Thomson uses the train but does not like trains. He uses the bus but needs assistance entering and leaving. He walks regularly for reasonably short distances taking a long time. He walks to shops. He uses a pedestrian footbridge but it causes short breath. He can use stairs without losing breath. He uses taxis and happily travels by car. He has used a walking stick at times. His IBS means he has to plan travel around toilet opportunities.
22.3 – Recreational and Community Activities         4         Unable 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) Unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels)          Has lost interest in "everything he used to do". He attends church daily and reads from the scripture during mass. He is developing friendships in his new church. He watches television, videos, does crosswords, reads the paper. He has had to stop playing snooker but this seems because of the non-war caused condition of osteoarthritis. He has had to stop fishing. He has lost interest in his rugby league team. He sees himself as interested in virtually nothing.
22.4 – Domestic Activities          6         Able to carry out only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example: Able to do very light tidying, dusting but unable to cook or prepare meals Has difficulty standing to set table or wash dishes    Mr Thomson washes up, vacuums (with assistance to move furniture), does some cleaning, cannot mow lawns or prune, cannot do gardening, helps make the beds and hang out washing. He helps put out garbage. He makes morning tea. He needs assistance with dressing.

The final score for lifestyle effects is 4, well short of the 6 points required for an EDA under s 22(4)(c) of the Act. There being no way that the Applicant can qualify for the EDA there is no need to see whether the impairment rating of 60 can be raised to the required 70 points or above.
Conclusion
The Tribunal has found that the Applicant cannot qualify for the EDA under the Act. The Tribunal has arrived at a lifestyle rating lower than that decided by the Respondent and the VRB. However, that is not a matter of concern. That rating, together with the 60 points impairment rating, leads to payment of Disability Pension at 100% of the general rate.
Decision
The Tribunal affirms the decision under review.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  8 September 2000
Date of Decision  28 June 2001
Representative for the Applicant              Mr A Halstead
Representative for the Respondent        Ms M Doggett