THSV and Military Rehabilitation and Compensation Commission (Veterans' entitlements) - [2018] AATA 3201

THSV and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2018] AATA 3201 (30 August 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/6455; 2017/6459
Re:THSV
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:30 August 2018
Place:Brisbane

The Tribunal:
(a)in Application 2017/6455, affirms the decision under review; and
(b)in Application 2017/6459 substitutes the decision under review and finds that the Applicant is entitled to payment of additional permanent impairment compensation under the Act on the basis of a combined 70 point impairment and a Lifestyle Rating of 5. The matter is remitted to the Respondent to make the appropriate calculation of compensation.

...........................[SGD]............................................
Deputy President J Sosso
Catchwords
VETERANS’ ENTITLEMENTS – peacetime service – statement of principles no 66 of 2013 – gastro-oesophageal reflux disease – decision affirmed – permanent impairment compensation – guide to determining impairment and compensation 2016 – chapter 4 emotional and behavioural – chapter 6 gastrointestinal impairment – chapter 10 sexual function, reproduction and breasts – chapter 15 intermittent impairment – chapter 16 activities of daily living – chapter 17 disfigurement and social impairment – combined values chart – chapter 22 lifestyle effects – calculating permanent impairment compensation – decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Anderson and Repatriation Commission [2017] AATA 2724
Kaluza v Repatriation Commission [2011] FCAFC 97
McDonald v Director-General of Social Security (1984) 6 ALD 6
Secondary Materials
Guide to Determining Impairment and Compensation 2016
Statement of Principles concerning gastro-oesophageal reflux disease No 66 of 2013
REASONS FOR DECISION
Deputy President J Sosso
30 August 2018
INTRODUCTION

THSV (“the Applicant”) seeks a review of two decisions of the Veterans’ Review Board (“the Board”).
The first decision of the Board (A17/0185) of 3 October 2017, denied liability to pay compensation to the Applicant pursuant to the Military Rehabilitation and Compensation Act 2004 (“the Act”) for gastro-oesophageal reflux disease (“GORD”) – Exhibit 1, T3 pp. 18 – 29; T163 pp. 929 – 940.
The second decision of the Board (A17/0312), of the same date, found that the Applicant was entitled to payment of additional permanent impairment compensation under the Act, on the basis of a combined 57 point impairment for compensable conditions, a lifestyle rating of 5 and a compensation factor of 0.448. In so doing, the Board set aside a determination of the Military Rehabilitation and Compensation Commission (“the Respondent”) of 23 March 2017, that the Applicant was entitled to payment of compensation on the basis of a combined 56 point impairment for compensable conditions and a lifestyle rating of 5 – Exhibit 1 T129 pp. 770 – 783; T3 pp. 18 – 29; T163 pp. 928 – 940.
The Applicant enlisted in the Royal Australian Army Medical Corps on 27 October 2008 and was medically discharged on 15 April 2013 – Exhibit 1 T7 p. 72; T5 p. 50. This constituted peacetime service as defined by ss 5 and 6(1)(c) of the Act.
The Applicant’s life and Army career changed dramatically when her close friend, and fellow service member Ms KS, committed suicide in January 2011. At the time of making her first compensation claim (9 March 2012), the Applicant made the following statement – Exhibit 1 T7 p. 77:
“I have been in the Australian army for 3.5 years now as a medic.
I was posted to Townsville in 2009 where I worked as a medic at 3CSSB. I loved my career, job, social life and would continue to strive and succeed in my career. I was bright, bubbly, very sociable, happy and loved everything about my career.
On the 26 Jan 12 (sic), I sadly found my best mate who had committed suicide in the live-in lines at Lavarack Barracks, Townsville.
Ever since the event, a lot of things changed in my feelings and as a person. I was/am seeing VVCS, Psychologists, and Medical Officers the next day after the event and I havn’t (sic) really stopped seeing anyone about what happened.
I was posted to Brisbane in Jan 12 (sic) where I was able to be home with my family and loved ones which was very exciting.
Everything about the event started coming back once I was posted to Brisbane and I really felt it was time to talk to someone again as my emotions didn’t feel normal.
I feel I have become depressed, sad, no motivation for my career in the army, constantly being reminded every single day about what happened due to a number of emotional issues and being in the Army as a medic, I’m not keen to see anymore trauma in my area as a medic. I feel extremely stressed out, depressed, anxious, anger, moody toward my mates and family and a lot more emotional issues with regard to having to live on base while on course again.
I will be seeing a Psychiatrist soon, along with continuous VVCS council ling (sic) and Medical Reviews.”
“VVCS” is an abbreviation of Veterans and Veterans Families Counselling Service, which is a service provided by the Commonwealth Government.
Prior to her medical discharge, the Applicant completed a Permanent Impairment Questionnaire – Exhibit 1 T55 pp. 380 – 389. In response to various questions set out in the questionnaire, the Applicant made the following statements:
“I witnessed my best friend who committed suicide on 26.1.2011. I have PTSD & Major Depressive disorder which is extremely difficult to overcome. I don’t sleep well due to PTSD, & I am socially withdrawn due to this event. I have many issues that I am struggling with at the moment…
I am not sociable & don’t find enjoyment out of activities I used to love…
My situation has become a lot worse, I find it hard to communicate & make connections/conversations…
I am not sexually active & I couldn’t be bothered, I am too run down trying to deal with my issues. I am single…
I am terrified in my own home mainly at night.
I have nightmares & afraid of the dark.
I am no longer social
I stress more than normal
I have hardly any motivation to do things
I don’t have motivation for sports, shopping centres & people.
I am now very shy
I don’t sleep well at night, therefor (sic) I get run down during the day.
I am on anti-depressants & sleeping tablets.
I am quiete (sic) since the event.
I have a guard up when talking to fam & friends as I don’t want to get to close incase it happens again (sic).”
The Applicant also completed a “Lifestyle Rating”, and gave the following responses – Exhibit 1 T56 p. 390:
Personal Relationships  5-6
Mobility  4-5
Recreational and Community Activities  6
Domestic and Employment Activities  5
Total     21
Divided by 4=  5.25
To date, the Respondent has accepted liability to pay compensation to the Applicant for the following conditions:
·Thoracolumbar strain with a date of onset of 2 December 2008 – Exhibit 1 T144 pp. 843 – 851;
·Bilateral shoulder strain with a date of onset of 19 January 2009 – Exhibit 1 T144 pp. 843 – 851;
·Post-traumatic stress disorder with a date of onset of 26 January 2011 – Exhibit 1 T51 pp. 356 – 358;
·Major depressive disorder with a date of onset of 26 January 2011 – Exhibit 1 T51 pp. 356 – 358;
·Bruxism with a date of onset of 1 February 2012 – Exhibit 1 T108 pp. 658 - 662;
·Haemorrhoids with a date of onset of 1 June 2012 – Exhibit 1 T138 pp. 822 – 824;
·Female sexual interest/arousal disorder with a date of onset of 18 September 2012 – Exhibit 1 T139 pp. 825 – 827; and
·Disturbance of salivary secretion with a date of onset of 15 April 2015 – Exhibit 1 T68 pp. 436 – 443.
The Respondent did not accept liability under the Act for the Applicant’s claimed dental caries – Exhibit 1 T68 pp. 436 – 443.
On 11 November 2016, the Applicant lodged a claim for compensation for “Reflux” with a claimed date of onset of 26 November 2011 and with a service related cause, contribution or aggravation stated as “PTSD, dry mouth and malnutrition” – Exhibit

1 T102 p. 630. The accompanying “Injury or disease details sheet” described the claimed disease as gastro-constipation/haemorrhoids, with the signs and symptoms being haemorrhoids and constipation. The claimed causal connection between the development of the condition and the Applicant’s military service was stated as follows – Exhibit 1 T100 p. 624:
“MY MEDS SEREQUEL 400MG NOLTE I BELIEVE CAUSES THE ABOVE/PTSD”.
In support of her claim the Applicant provided a medical report by her General Practitioner (“GP”), Dr Sean Pham, dated 7 November 2016. In this report Dr Pham made the following observations – Exhibit 1 T34 p. 294:
“Oral cavity and oesophagus:
Reflux with or without oesophagitis, frequent minor symptoms necessitating frequent use of Nexium.”
The Applicant also completed a Lifestyle Questionnaire, which is dated 8 February 2017 – Exhibit 1 T122 pp. 737 – 748.
In response to a Question that asked the Applicant how her disabilities affected her family life, the Applicant stated the following – Exhibit 1 T122 p. 740:
“I don’t talk to any family & have lost all connections. They push me to get on with my life & I just can’t do that having all accepted conditions. Dislike talking to any of them.”
The Applicant gave the following description of the impact her disabilities have had on her social life – Exhibit 1 T122 p. 740:
“I get panic attacks, embarrassed in public, signs and symptoms of PTSD, eg night time fear of the dark, lights on, withdrawn, tired & no motivation.”
The next question asked how the disabilities changed the way the Applicant got on with other people – Exhibit 1 T122 p. 740:
“I can’t socially & have disconnected with family & friends & all contacts.”
The Applicant described the impact on her sexual feelings and abilities as follows – Exhibit 1 T122 p. 740:
“Affected by medication but also lost sexual dysfunction at age onset less than 30, when the traumatic event happened, can’t climax or participate.”
In addition, the Applicant was asked about the frequency in which she does a number of things and she stated that she rarely if ever – Exhibit 1 T122 p. 743:
·visited or has visitors;
·went out to church, watched sport, entertainment, for meals or walks;
·played a sport;
·engaged in a hobby;
·relaxed (reading, watch TV, listening to music); and
·engaged in voluntary work.
In terms of domestic and employment activities, the Applicant answered that she could not engage in grocery shopping, minor house repairs, gardening of any type, lawn mowing, washing the car or cooking. She indicated that she could do house cleaning and washing up with difficulty and do some lifting, but with difficulty – Exhibit 1 T122 p. 744.
The Applicant summed up the impact that her disabilities have had on her daily living as follows – Exhibit1 T122 p. 747:
“my disabilities affect everyday living - hygiene, feeding, house cleaning, Dirty laundry, can’t go out in public places & can’t use public transport.
family members & social networks completely ceased…”
The Applicant also completed a Lifestyle Rating Form on 8 February 2017. The Applicant’s self-assessment was as follows – Exhibit 1 T123 p. 749:
Personal Relationships  7
Mobility  7
Recreational and Community Activities  7
Domestic and Employment Activities  7
Total     28
Divided by 4=  7
In a decision dated 27 February 2017, the Respondent determined the Applicant’s claim for liability under s 23 of the Act for GORD, and rejected liability – Exhibit 1 T125 pp. 751 – 761.
In reaching this decision, the Respondent referred specifically to Statement of Principles (SoP) No 66 of 2013 – Gastro-Oesophageal Reflux Disease.
Clause 3(b) of the SoP defines GORD to mean:
“…a chronic clinical condition involving the retrograde flow of gastro-duodenal contents into the oesophagus together with resultant chronic symptomatic or histological evidence of oesophageal inflammation. This definition excludes Barrett’s oesophagus.”
Clause 6 of the SoP lists a number of factors, at least one of which must exist before it can be said that, on the balance of probabilities, GORD or death from GORD, is connected with the circumstances of a person’s relevant service.
In this matter the relevant factor is 6(f), namely:
“being treated with a smooth muscle relaxant drug at the time of the clinical onset of gastro-oesophageal reflux disease”.
Clause 9 of the SoP defines, inter alia, “a smooth muscle relaxant drug” to mean:
“(a)      benzodiazepine;
(b)       calcium channel blocker drug;
(c)       beta-adrenergic receptor agonist;
(d)       nitrate drug;
(e)       tricyclic antidepressant;
(f)        anti-cholinergic drug;
(g)       aminophylline; or
(h)       theophylline;”.
When making the determination, the Delegate for the Respondent also dealt with factors 6(g) and 6(q) which are as follows:
“(g) having a disease from the specified list at the time of the clinical onset of gastro-oesophageal reflux disease;…
(q) having a specified psychiatric condition at the time of the clinical worsening of gastro-oesophageal reflux disease;”.
The Delegate for the Respondent provided the following reasons for rejecting liability – Exhibit 1 T125 p. 755:
“It is noted that you have contended in your email dated 7/2/2017 that being on 400mg per night of Seroquel ‘which should be a muscle relaxant’ is what caused or contributed to your gastro-oesophageal reflux disease, however a Contracted Medical Adviser on 19/12/2016 opined that Seroquel ‘is not a smooth muscle relaxant drug and also does not fall under the specified list of drugs for clinical worsening of the SoP.’
Accordingly, acting on medical advice, I am not reasonably satisfied that there is a history of being treated with a smooth muscle relaxant drug, as defined, at the time of clinical onset of gastro-oesophageal reflux disease. Factor 6(f) is therefore not met.
With respect of factor 6(g), for the purposes of the Statement of Principles, a disease from the specified list means: (a) dermatomyositis; (b) mixed connective tissue disease; (c) polymyositis; (d) Sjögren’s syndrome; (e) systemic lupus erythematosus; (f) systemic sclerosis (scleroderma); or (g) Zollinger-Ellison syndrome.
Having reviewed the circumstances in your claim and your service medical records, there is no history of suffering from a service caused disease as specified. Factor 6(g) is not met.
Turning now to Factor 6(q) as you contend that you ‘have a depressive disorder and PTSD as accepted conditions.’
The factor states having a specified psychiatric condition at the time of the clinical worsening of gastro-oesophageal reflux disease.
For the purposes of this Statement of Principles, a specified psychiatric condition means: (a) anxiety disorder; (b) depressive disorder; or (c) posttraumatic stress disorder.
It should also be noted that this factor applies only to material contribution or aggravation of gastro-oesophageal reflux disease where the person’s gastro-oesophageal reflux disease was suffered or contracted before or during (but not arising out of) the person’s relevant service.
Having examined the circumstances of your claim, it is a fact that the clinical onset of your gastro-oesophageal reflux disease postdates your ADF service and although there is a history of suffering from a service related major depressive and posttraumatic stress disorders, specified psychiatric conditions, your gastro-oesophageal reflux disease was not contracted before or during your ADF service, this factor is therefore not applicable.”
(Emphasis in original)
In a separate decision of 23 March 2017, the Delegate of the Respondent dealt with the Applicant’s claim for compensation for permanent impairment under the Act – Exhibit

1 T129 pp. 770 – 783.
The rate of permanent impairment periodic payments for accepted conditions are assessed by reference to the Guide to Determining Impairment and Compensation 2016 (“the Guide”). Under the Guide, an overall medical impairment rating is combined with a lifestyle rating to give a combined impairment rating.
The Guide is separated into Chapters for the different bodily systems that are used to assess the degree of medical impairment.
At the time the Delegate made the Determination, the Applicant had five accepted conditions, namely: PTSD, major depressive disorder, disturbance of salivary secretion, female sexual interest/arousal disorder and bruxism – Exhibit 1 T129 p. 770.
The Delegate made the following impairment ratings – Exhibit 1 T129 p. 772:
Condition and Bodily System  Tables                      Impairment Rating
Emotional and behavioural  4.1 – 4.8         49 points
Disfigurement and social impairment  17.1                2 points
Gastrointestinal – digestive  6.1 6.4            12 points (10, 2)
Female sexual interest/arousal disorder                  13.1                0 points
Total Impairment  56 points
Lifestyle effects are determined using Chapter 22 of the Guide. One option open is for a lifestyle rating to be assessed by reference to the completion of a Lifestyle Questionnaire, as occurred in this matter. The Delegate made the following determination – Exhibit

1 T129 p. 774:
“You have made a self rating of 7 for your Lifestyle however I am unable to support this rating with the contemporary medical evidence. Based on the medical evidence and in order to expedite the claim I have allocated you the highest expected level of Lifestyle given your level of medical impairment resulting in a Lifestyle Rating of 5.”
In summary, the Delegate of the Respondent determined that the Applicant was entitled to permanent impairment compensation based on degree of impairment for compensable conditions of 56 points, a lifestyle rating of 5 and a compensation factor of 0.448 – Exhibit 1 T129 p. 774.
The Applicant applied for a review of both of the Delegate’s determinations.
On 3 October 2017, the Board affirmed the Delegate’s decision to reject liability under

s 23 of the Act for GORD. In reaching this decision the Board provided the following reasons – Exhibit 1 T3 pp. 22 – 23:
“18. [The Applicant] was familiar with the SOP for GORD. She contended that she met two SOP factors, the factor referring to having a psychiatric condition and the factor referring to taking an antidepressant (in her case, Escitalopram).
19. The Board noted that in her claim form [the Applicant] had indicated that her GORD commenced in 2014. However, in correspondence dated 9 May 2017 [the Applicant’s] GP, Dr Pham, dated the condition to 2012 and in fact Dr Pham was very specific in identifying the date of onset as 1 March 2012. [The Applicant] explained that Dr Pham did not treat her in 2012 and she did not seek treatment for GORD until 2017. She said that the date identified by Dr Pham was the date [the Applicant] commenced taking Escitalopram. [The Applicant] said that she had taken that medication for about one year commencing on 1 March 2012. She could not recall whether her symptoms of GORD commenced in 2012 or 2014 or some other time…
22. The definition of ‘smooth muscle relaxant’ in the SOP includes tricyclic antidepressants. However, Escitalopram is an SSRI antidepressant, not a tricyclic anti-depressant (MIMS Australia). Accordingly, factor 6(f) is not met.
23. The Board is also not satisfied that factor 6(q) is met. Paragraph 7 of the SOP explains that factor 6(q) applies only to material contribution to, or aggravation of, GORD where the person’s GORD was suffered or contracted before or during (but not arising out of) the person’s relevant service. [The Applicant’s] service ended on 14 April 2013. The Board is not satisfied that she had GORD prior to that date. Although Dr Pham placed onset of [the Applicant’s] GORD at 1 March 2012, there appeared to be no basis for this opinion. In a medical examination completed just prior to discharge [the Applicant] indicated that she was not experiencing any persistent indigestion or heartburn (fol 8). [The Applicant] did not commence treatment for GORD until well after her discharge and could not recall when her symptoms commenced.
24. Further, even if the Board was satisfied that [the Applicant] had GORD during service, factor 6(q) is only met if there has been ‘clinical worsening’ of her GORD. At present there is no evidence of clinical worsening. That is, there is no medical evidence that the progression of [the Applicant’s] GORD was out of keeping with the usual progression of GORD….”

The Board then dealt with permanent impairment compensation.
Both the Applicant and the Board agreed that the 49 points allocated by the Delegate under Chapter 4 of the Guide for emotional and behavioural impairment was appropriate – Exhibit 1 T3 pp. 23 – 24.
On the balance, the Board agreed with the Delegate that 10 points should be allocated under Chapter 6 (Gastrointestinal Impairment) of the Guide with respect to the ingestion of food (Table 6.1.1) on the basis that the Applicant experiences difficulty chewing that limits her diet to soft or semi-solid foods. The Board was of the view that no other points could be allocated under this Chapter – Exhibit 1 T3 pp. 24 – 25.
While the Delegate allocated nil points under Chapter 10 (Sexual Function, Reproduction and Breasts) of the Guide, the Board, noting the Applicant’s accepted conditions, allocated 5 points under Table 10.1.3, on the basis that the Applicant is unable to achieve a climax – Exhibit 1 T3 pp. 25 - 27.
Finally, the Board agreed with the Delegate and allocated nil points under Chapter

15 (Intermittent Impairment) and Chapter 16 (Activities of Daily Living) and two points under Chapter 17 (Disfigurement and Social Impairment) of the Guide on the basis that the Applicant has a dry mouth as well as bruxism resulting in worn teeth – Exhibit 1 T3 pp. 27 - 28.
Accordingly, the Board determined that the combined impairment rating for the Applicant’s compensable conditions was 57 points – Exhibit 1 T3 p. 28.
The Board disagreed with the Applicant’s lifestyle ratings because it believed that they overstated her level of impairment. The Board made the following observations – Exhibit

1 T3 p. 28:
“58. [The Applicant] often overstates her level of impairment. For example, she has described her bruxism as causing major restrictions in many everyday activities

(fol 107). Similarly, in the hearing she described never leaving her home but on specific questioning it was clear that she regularly left her home to shop, including buying takeaway food in the local area. In her submission she has contended that her personal relationships warrant a rating of seven and her mobility warrants a rating of six. A rating of six for personal relationships applies where a person has extreme difficulty relating to anyone because they are psychotic, or where the person’s ability to communicate is affected by a stroke. [The Applicant] regards her impairment at a level greater than this.
59. In these circumstances the Board had difficulty determining the correct rating but considers it should not be higher than five in each category, resulting in an average of five.”
(Emphasis in original)
Lastly, the Board stated that the combined impairment rating for the Applicant’s accepted conditions attracted 57 points, a lifestyle rating of 5 and aa compensation factor of 0.471.
A hearing was convened in Brisbane on 14 May 2018. The Applicant was self-represented and participated by telephone. The Respondent was represented by Ms Rachel Blake of Moray & Agnew Lawyers. Dr L Sanjay Nandam, a psychiatrist, was the only witness called to give evidence. At the conclusion of the hearing the Tribunal asked the Applicant if she wanted the Tribunal to make an order pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975; that would remove her name and replace it with a cipher. The Applicant made such a request and Ms Blake did not object to the Tribunal making such an order. Accordingly, an order was made pursuant to s 35(3).
LEGAL PRINCIPLES
Pursuant to s 319(1) of the Act, a claim may be made for one or more of the following:
(a)acceptance of liability by the Respondent for a service injury sustained by a person or a service disease contracted by a person;
(b)acceptance of liability by the Respondent for the service death of a person;
(c)acceptance of liability by the Respondent for the loss of, or damage to, a member’s medical aid;
(d)compensation.
The Respondent, pursuant to s 23(1), must accept liability for services injuries and diseases when a claim under s 319 of the Act has been made and if:
(a)the person’s injury or disease is a service injury or disease under s 27; and
(b)the Respondent is not prevented from accepting liability for the injury or disease by Part 4.
An injury, disease or death is a service injury, disease or death, if, inter alia, it is related to defence service in the ways provided for in ss 27 or 28 – s 26 of the Act.
So far as is relevant to this matter, s 27 provides that a person’s condition is a service injury or disease if one or more of the following apply:
(a)it resulted from an occurrence while the person was rendering defence service;
(b)it arose out of, or was attributable to, any defence service rendered;
(c)it resulted from an accident that would not have occurred, or a disease that would not have been contracted, but for the person rendering defence service or changes in the person’s environment consequent upon rendering defence service;
(d)it was contributed to in a material degree, or was aggravated by, any defence service; or
(e)it resulted from an accident that occurred while the person was travelling, while rendering peacetime service.
“Defence service” is a defined to mean warlike service, non-warlike service or peacetime service – s 6(1)(d) of the Act.
There are five kinds of exclusions outlined in Part 4, namely, s 31 of the Act:
(a)serious defaults or wilful acts etc;
(b)reasonable counselling about a person’s performance as a member;
(c)false representations;
(d)travel during peacetime service; and
(e)the use of tobacco products.
None of these exclusions are relevant to the disposition of this matter.
In making any determination or decision in respect of this matter, the decision-maker must decide the matter to his or her “reasonable satisfaction” – s 335(3) of the Act. This is the relevant standard that applies to peacetime service and applies to both the issue of liability and the determination of compensation.
Section 339 of the Act applies to a claim made under s 319 for acceptance of liability under ss 23 and 24 for an injury, disease or death relating to peacetime service. In these circumstances, where the Repatriation Medical Authority has determined a SoP, then the decision-maker must determine the claim in accordance with the provisions of the relevant SoP.
The Act also provides that compensation is payable for permanent impairment that occurs as a result of one or more service injuries or disease if the degree of that impairment is above a prescribed level. The level of impairment is measured in impairment points according to the Guide – ss 66 – 69.
The Respondent is liable, pursuant to s 68, to pay compensation if a claim has been made under s 319 and:
(a)the Respondent has accepted liability for one or more service injuries or diseases; and
(b)the Respondent is satisfied that:
(i)as a result of the compensable condition(s), the person has suffered an impairment;
(ii)the impairment is likely to continue indefinitely; and
(iii)the person’s compensable condition has stabilised.
In deciding whether an impairment is likely to continue indefinitely, s 73 requires the Respondent to have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the one or more service injuries or diseases concerned;
(c)whether the person has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
In determining the degree of impairment as required by s 68(2)(a) regard must be had to the provisions contained in the Guide which set out – s 67(1) of the Act:
(a)criteria to be used in deciding the degree of impairment of a person resulting from a service injury or disease; and
(b)methods by which the degree of that impairment can be expressed in impairment points on a scale from 0 to 100; and
(c)criteria to be used in assessing the effect of a service injury or disease on a person’s lifestyle; and
(d)methods by which the effect of a service injury or disease on a person’s lifestyle can be expressed as numerical rating; and
(e)methods by which the impairment points of a person, and the effect on a person’s lifestyle, from a service injury or disease can be used to determine the compensation payable to the person.
Chapters 1 – 21 of the Guide deal with medical impairment and Chapter

22 deals with lifestyle effects.
Chapters 1 – 16 contain two principal types of tables: physical loss is rated against criteria in “Other Impairment” Tables while functional loss is rated against criteria in the “Functional Loss” Tables.
Greater emphasis is placed in the Guide on functional loss as a basis for assessment. This is measured by reference to an individual’s performance compared with an average, healthy person of the same age and gender in a set of defined vital functions.
Each Table contains benchmark values, usually at intervals of 5 points. Each benchmark has a threshold value, such that a rating only applies if the threshold is met or exceeded. Accordingly, ratings are not “rounded up” to the next benchmark.
The only way of determining the amount of compensation payable, is by reference to the maximum compensation payable. The maximum is specified in s 74 of the Act as an indexed weekly amount and only becomes payable when an impairment rating of

80 points is achieved.
Medical impairment is measured chiefly by loss of vital functions and is addressed in the twelve system specific Chapters of the Guide as follows:
(a)cardiorespiratory impairment – Chapter 1;
(b)hypertension and non-cardiac vascular conditions – Chapter 2 ;
(c)impairment of spine and limbs – Chapter 3;
(d)emotional and behavioural – Chapter 4;
(e)neurological impairment – Chapter 5;
(f)gastrointestinal impairment – Chapter 6;
(g)ear, nose, and throat impairment – Chapter 7;
(h)visual impairment – Chapter 8;
(i)renal and urinary tract function – Chapter 9;
(j)sexual function, reproduction, and breasts – Chapter 10;
(k)skin impairment – Chapter 11; and
(l)endocrine and haemopoietic impairment – Chapter 12.
Part B deals with non-system specific assessments, namely:
(a)negligible impairment – Chapter 13;
(b)malignant conditions – Chapter 14;
(c)intermittent impairment – Chapter 15;
(d)activities of daily living – Chapter 16; and
(e)disfigurement and social impairment – Chapter 17.
After the impairment ratings have been obtained for all accepted conditions, they must be combined into a single value known as the combined impairment rating. The act of combining is not done by simple addition, but, by the application of Table 18.1 of the Guide (“Combined Values Chart”).
As previously mentioned, s 74(2)(a) requires the Respondent to assess the effect of the accepted injuries or diseases on the person’s lifestyle. This is achieved by calculating a lifestyle rating by reference to Chapter 22 of the Guide.
There are three optional methods of assessing lifestyle effects. In this matter, reference need only be made to Option 1, which allows a veteran to self-assess the effects of the accepted conditions on his or her lifestyle. The veteran is required to complete a Lifestyle Rating Self-Assessment Form. The form covers four key components of lifestyle:
(i)personal relationships;
(ii)mobility;
(iii)recreational and community activities; and
(iv)employment and domestic activities.
The Guide provides the following guidance on how to approach a self-assessment –– pp. 214 – 215:
“The self-assessed rating should not usually be queried although further information may be requested if necessary. It is expected that the self-assessed lifestyle rating would be broadly consistent with the level of impairment. A determining authority may reject a self-assessment of lifestyle rating because it overestimates, or underestimates, the level of rating that is broadly consistent with the level of impairment from accepted conditions….
If a determining authority rejects a veteran’s self assessment on the ground that it is an overassessment, the veteran is to be given a second opportunity to complete a Lifestyle Questionnaire….”.
In Anderson and Repatriation Commission [2017] AATA 2724; 158 ALD 171 the following observations were made about the application of the Guide ([47]/179):
“[47] The admonition that a veteran’s self-assessment should not usually be queried, does not raise a presumption that such self-assessment is correct and should only be displaced in a rare or unusual circumstance. The Guide makes it clear that the Respondent is at liberty to reject a self-assessment where it believes it is incorrect. A sensible reading of the Guide, in the context of the administration of the Act, requires the Respondent to accept a self-assessment unless it is obviously in error. Clearly a beneficial gloss will be placed on the self-assessment, and it would not be in accord with the spirit of the Guide or the Act for the Respondent to adopt a pedantic, prescriptive or overly inquisitorial approach. Nonetheless, the Respondent is entitled to reject a self-assessment where it believes it is plainly wrong.”
Chapter 23 of the Guide specifies the way in which permanent impairment compensation is calculated. Different factors apply for any combination of impairment and lifestyle effect, however once a rating of 80 impairment points is achieved, no lifestyle effects need be calculated, as this rating pays the maximum weekly payment under the Act. Table 23.2 of the Guide outlines the compensation factors for calculating permanent impairment compensation for a veteran who has rendered peacetime service.
CONSIDERATION
Application 2017/6455 – gastro-oesophageal reflux disease
It was not disputed by the Respondent that the evidence supports a finding the Applicant suffers from GORD.
It was also not disputed that the relevant SoP is No 66 of 2013 – gastro-oesophageal reflux disease.
The first area of disagreement arose regarding the date of clinical onset of GORD. This date is critical as a number of the factors outlined in Clause 6 of SoP 66 of 2013 are predicated on events or actions occurring at times in relation to the clinical onset of GORD.
Factor 6(f) requires that the veteran be treated with a smooth muscle relaxant drug “at the time of the clinical onset of GORD”. The Applicant contends that the date of clinical onset should be 1 March 2012, and this is supported by her treating GP, Dr Pham. Dr Pham’s support, however, is of limited utility. In his report of 9 May 2017, he simply makes the following statement – Exhibit 1 T48 p. 350:
“I am writing to confirm that [the Applicant] suffers from Gastro-oesophageal reflux disease. The onset date was 01/03/2012.”
The Respondent contends in its Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) that not only is this not supported in the extensive contemporaneous medical evidence, but, importantly, must have been based on the Applicant’s self-reporting, as the Applicant was not a patient of Dr Pham in March 2012

– RSFIC para 13 p. 17.
The Respondent highlights (RSFIC para 14(a) pp. 17 – 18), that in the voluminous service medical records (contained in Exhibit 2, which comprises 358 pages) there is no documentation of the Applicant reporting that she was suffering from any gastrointestinal symptoms, namely GORD.
Of particular importance are the documents that were prepared at the time of the Applicant’s invalidity retirement from the Defence Force. In the document headed “Comprehensive Preventive Health Examination”, which was completed on 1 February 2013 and overseen by Dr Andrea Hersam-Tynan, the Applicant was required to answer a number of questions pertaining to her general health. The Applicant answered in the negative to the following questions – Exhibit 1 T13 p. 154:
(a)Have you had any persistent abdominal pains or cramps?;
(b)Have you suffered any persistent indigestion or heartburn?;
(c)Have you experienced any change of your bowel habits?
This absence of self-reporting the symptoms of GORD is consistent with an earlier self-assessment. In a document entitled “Comprehensive Preventive Health Examination” dated 11 November 2011, the Applicant answered in the negative to the same questions posed – Exhibit 2 p. 27. The examining doctor, made an assessment on the Applicant’s diet, ticked the diet box “yes” and made the following notation: “Eats ‘great’ – balanced diet” – Exhibit 2 p. 32.
The Tribunal notes that the first reported instance of the Applicant suffering from GORD is the report of Dr Pham of 7 November 2016 – Exhibit 1 T34 p. 294.
In reaching a sound conclusion about the date of clinical onset, reference can be made to the observations of the Full Federal Court in Kaluza v Repatriation Commission [2011] FCAFC 97 at [66] and [70]:
“66. The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion…’…
70. From this it follows, without being over-zealous to identify error, that the Tribunal did apply the version of the Lees test which it described (at [38]) by identifying not only the first limb of the test but also the second. In other words, the Tribunal construed the test as one in which the date for clinical onset was to be the date of the formal finding on investigation even though that may be well after the date at which all the required symptoms were displayed. The usage of the subjunctive criteria in the Tribunal’s statement of the test has been applied in its actual approach reflected in its findings. Taken together, these features and analysis show that it took an erroneous approach.”
In this matter there is no record of the Applicant disclosing any symptoms of GORD before Dr Pham wrote his report of 7 November 2016. The only conclusion available to the Tribunal, on the basis of the documentary evidence, is that the date of clinical onset is pursuant to the second limb as explained by the Full Federal Court. In this instance, the date of clinical onset is when the Applicant attended upon Dr Pham and disclosed her conditions and he made a formal diagnosis that she was suffering from GORD. Accordingly, the date of clinical onset is 7 November 2016.
The next issue, is whether the Applicant was being treated with a smooth muscle relaxant drug as defined in SoP 66 of 2013.
The Respondent contends that there is no evidence that the Applicant’s prescription medication at the time of clinical onset included any smooth muscle relaxant drugs – RSFIC para 20 p.19.
A perusal of the Applicant’s service medical records discloses that from the time of her enlistment, to the date of her medical discharge, she was being treated with the following medication – Exhibit 2 pp. 1, 2, 67, 72, 123, 141, 144, 173, 174, 216, 228, 234, 296, 307, 321, 352, 353 and 354:
(a)Escitalopram/Lexapro;
(b)Quetiapine/Seroquel; and
(c)the contraceptive pill.
Immediately following the Applicant’s medical discharge from the Defence Force, she was assessed by Dr Bradley Ng, consultant psychiatrist. In his report of 29 April 2013,

Dr Ng outlined the Applicant’s then current medications as Escitalopram (30 mg daily), Seroquel (300-400 mg), the contraceptive pill and iron tablets – Exhibit 1 T14 p. 170.

Dr Ng assessed the Applicant again on 25 February 2014. In his report of 5 March 2014, Dr Ng observed that the Applicant’s current medications were Escitalopram (40 mg daily), Seroquel (600mg) and the combined oral contraceptive pill - Exhibit 1 T15 p. 191.
The Applicant was also assessed by Dr Johan Scheepers, consultant psychiatrist on

20 January 2016. In his report of 28 January 2016, Dr Scheepers noted that the Applicant used Seroquel (400mg) at night, but had ceased using SSRI antidepressant medication – Exhibit 1 T27 p. 248.
Finally, the Applicant was assessed by Dr Stephen Rodrigo, consultant psychiatrist, who noted in his report of 20 May 2016, that the Applicant had been treated with Escitalopram and was currently being treated with Quetiapine (Seroquel) (400mg) at night – Exhibit

1 T29 p. 265.
Seroquel is an anti-depressant drug and the Respondent provided a short minute from

Dr Ethel Ooi, MRCA Medical Adviser, dated 19 December 2016, in which Dr Ooi opined that Seroquel is not a muscle relaxant drug for the purposes of SoP 66 of 2013 – Ex 1 T35 p. 295.
Likewise Escitalopram/Lexapro is referred to in the medical reports as an SSRI

anti-depressant medication, as opposed to a tricyclic anti-depressant medication. A perusal of medical literature confirms that Lexapro is of the selective serotonin reuptake inhibitor class (“SSRI”) as distinct from the tricyclic class. It therefore falls outside the definition of smooth muscle relaxant drugs in the SoP.
Consequently, the evidence fails to disclose that the Applicant was being treated with smooth muscle relaxant drugs at any time from her enlistment with the Defence Force, until her diagnosis of GORD by Dr Pham in November 2016. In these circumstances Factor 6(f) of the SoP cannot be met.
It also flows from this finding that the Applicant cannot satisfy Factor 6(n) of the SoP, namely being treated with a smooth muscle relaxant drug at the time of the clinical worsening of GORD.
Finally, Factor 6(q) of the SoP refers to having a specified psychiatric condition at the time of the clinical worsening of GORD.
The Respondent points out that there is no evidence documenting the clinical presence of the Applicant’s GORD condition during her military service. - RSIFC p. 20 para 28
The Tribunal adopts the Board’s reasoning with respect to Factor 6(q) and finds that the evidence is unable to support the existence of Factor 6(q) of the SoP.
Application 2017/6459 – permanent impairment compensation
Introduction
As discussed earlier, the Board allocated the Respondent 57 impairment points, and, in so doing, considered Chapters 4, 6, 10, 15, 16 and 17 of the Guide.
The Applicant has received permanent impairment compensation for the past five years, having been allocated 10 impairment points in May 2013.
The reviewable decision of the Board found that the Applicant was entitled to additional compensation pursuant to s 71 of the Act.
The issue before the Tribunal is whether the Board underestimated the degree of the Applicant’s permanent impairment.
As the resolution of this question entails a detailed consideration of each of the relevant Chapters of the Guide, this part of the Determination will be divided into separate consideration of each of the relevant Chapters.
Chapter 4 – Emotional and Behavioural
The Board allocated 49 points under this Chapter:
Chapter  Impairment Points
4.1  15
4.2  10
4.3   8
4.4                     8
4.5                     8
4.5                     8
4.6                     8
4.7                     8
4.8                     8
Total  49 points
At the Hearing neither the Applicant nor the Respondent disputed this allocation.
The Tribunal also finds that the allocation of 49 points under Chapter 4 is the preferable assessment.
Chapter 6 – Gastrointestinal Impairment
The Respondent submitted, and the Tribunal agrees, that the Applicant’s accepted diseases of the digestive system accessible by reference to the Tables contained in Chapter 6 of the Guide are her: haemorrhoids, bruxism and disturbance of salivary secretion conditions - RSFIC para 9 p. 22.
The Board allocated the Applicant 10 points under Table 6.1.1 of the Guide. – “Loss of gastrointestinal function: ingestion of food”. This assessment was not contested at the Hearing by either the Applicant or the Respondent. Accordingly, the Tribunal rates the Applicant 10 impairment points under this Table.
Table 6.1.2 of the Guide focuses on maintenance of nutrition. The Applicant contended that she should be allocated 20 impairment points, which requires involuntary weight loss of 10% or more with evidence of active disease and minor symptoms only.
The Guide prescribes a number of substeps which must be followed in calculating the percentage of weight loss for the purposes of using Table 6.1.2. First, the Tribunal must determine a veteran’s weight before the beginning of the gastro-intestinal condition, which is referred to as the “premorbid weight”. Then, a veteran’s weight at the relevant time in the assessment period must be determined. If the premorbid weight is greater than a veteran’s weight in the assessment period, then the difference is calculated and expressed as a “percentage loss of weight”. In the event that the premorbid weight is equal to or less than the veteran’s weight in the assessment period, then the weight loss cannot be rated under Table 6.1.2. Finally, the Tribunal must ascertain if the percentage loss of weight is due to the accepted gastrointestinal condition. If non-accepted conditions contribute to the loss of weight, Chapter 19 (Partially Contributing Impairment) is to be applied.
The first issue to be decided is to ascertain the Applicant’s premorbid weight and determine if she has suffered an involuntary weight loss of 10% or more.
The Tribunal has, fortunately, extensive service medical records, which provide numerous recordings of the Applicant’s weight during the period 2008 – 2012.
The Applicant’s recorded weight at her entry level medical examination of

16 September 2008 was 51.5 kg – Exhibit 2 p. 116. By 13 January 2010, the Applicant’s weight was 53 kg (Exhibit 2 pp. 72 - 73), and this was consistently recorded in the following medical examinations that took place on 12 July 2010 (Exhibit 2 pp. 67 - 68) and 11 November 2011 (Exhibit 2 p. 31). However, when the Applicant was finally examined on 1 February 2013, before leaving the Defence Force, her recorded weight was 56 kg – Exhibit 1 T13 p. 157.
The Applicant’s accepted bruxism condition has a date of onset of 1 February 2012 and constipation with haemorrhoids has a date of onset of 1 June 2012. The disturbance of salivary secretion has a date of onset of 15 April 2015.
I accept, for the purposes of making a Table 6.1.2 calculation under the Guide, that the Applicant’s premorbid weight was at or about 56 kg. I further accept that the Applicant weighed 49 kg when she was examined by Dr Nandam on 8 February 2017, and that she has not gained any significant weight since that time – Exhibit 1 T39 p. 316. Dr Nandam’s estimate of the Applicant’s post-service weight is consistent with that given by Dr Ng in his report of 5 March 2014, that being of or about 50 kg (Exhibit 1 T15 p. 191) and

Dr Scheepers in his report of 28 January 2016, of “her weight currently being about 50 kg.” – Exhibit 1 T27 p. 248. Accordingly, the Tribunal finds that the Applicant has experienced involuntary weight loss of 10% or more.
The next issue for the Tribunal to decide is whether the involuntary weight loss was brought about by the accepted conditions of bruxism, haemorrhoids and disturbance of salivary secretion, or, as contended by the Respondent, the Applicant’s accepted psychiatric conditions.
The Respondent drew the Tribunal’s attention to the following observations of

Dr Nandam in his report of 9 February 2017 – Exhibit 1 T39 p. 316:
“There was marked loss of appetite and she had lost weight since our last meeting. [The Applicant] said she would sometimes go for days without eating and was currently only 49kg. She estimated that a healthy weight for her was 54kg although she had not been at this for years.”
Dr Nandam also gave evidence and the following exchange occurred – Transcript (“Tr.”) 14.05.2018 p. 57:
“DEPUTY PRESIDENT: Doctor, I have got one final question for you. One of the issues before me is the fact that the applicant has suffered, over a period of time, a significant loss of weight which you have commented on in your reports. The issue before me is the extent to which that loss of weight is due to either (a) psychiatric conditions, (b) physical conditions, ie problems with her teeth and related matters, dry mouth et cetera, et cetera, or (c) a combination of the two and if it is (c), which would be the predominant cause of the loss of weight. Are you able to opine anything in that regard to assist me?--- [DR NANDAM:] I remember into my report [THSV]complaining about bruxism which is the grinding and clenching of teeth and I thought that was – she told me that either that was an accepted condition and that is fine. It was difficult for me to know whether that bruxism was – or what the origin of that was but it certainly could be psychiatric. Now something like that could affect her dentition, affect her ability to eat but I felt that the overwhelming reason was psychiatric, that predominantly to do with depression and anxiety…”
This conclusion is mostly consistent with the evidence of the Applicant. The following exchange during the Hearing illustrates this point – Tr. 14.05.2018 p. 33:
“DEPUTY PRESIDENT: Let me just ask you a question? If you’ve lost all this weight, tell me, why have you lost this weight? Because you don’t want to eat food, or you can’t eat food, or what is it?
WITNESS: I think it’s because I’ve got a lot of dry mouth due to my salivary secretions. Bruxism also causes that and along with my psychiatric conditions, this whole thing has caused havoc on eating food and let alone, even going out to get food. It’s a combined of all of my conditions accepted.
DEPUTY PRESIDENT: Let’s accept that. What would be the main cause of you not going out and not wanting to eat? Dry mouth or psychiatric?
WITNESS: I think, I’m just going to have to be honest and say it’s a bit of both.”
The Tribunal was also presented with a report from the Applicant’s current treating GP,

Dr Pham, of 7 November 2016. In a part of his report headed “Maintenance of nutrition”, Dr Pham made the following observation – Exhibit 1 T34 p. 294:
“Involuntary weight loss. Loss of 10% or more with evidence of active disease and minor symptoms only – eg iron low and malnutrition/weight loss”.
All the evidence suggests that the Applicant’s involuntary weight loss is due to a combination of her accepted gastrointestinal and psychiatric conditions. While

Dr Nandam opined that the psychiatric conditions were the main factors, he was unable to provide conclusive evidence on this point. Likewise, the Applicant accepted that her weight loss was due to a combination of factors, all involving her accepted conditions.
In these circumstances it would not be appropriate to utilise Chapter 19 of the Guide, as the application of that Chapter is predicated on the contribution of non-accepted conditions to involuntary weight loss.
The question before the Tribunal is whether the Applicant’s accepted conditions of bruxism, haemorrhoids and disturbance of salivary secretion, are the main or predominant cause for the Applicant’s involuntary weight loss. Having considered all of the written and oral evidence, and applying a beneficial approach, the preferable conclusion is that the non-psychiatric accepted conditions are the predominant cause of the Applicant’s weight loss.
The Tribunal therefore finds that the Applicant should be allocated

20 impairment points under Table 6.1.2 of the Guide.
The next Table, 6.1.3 deals with faecal excretion. The Applicant contends that she should be rated 2 impairment points, as she suffers from persistent constipation.
In support of her contention, the Applicant relies on the report of Dr Pham of

7 November 2016, wherein he opined that the Applicant suffered from – Exhibit 1 T34 p. 294:
“Persistent constipation. [The Applicant] requires to take Coloxyl.”
The Respondent contends there is no specific evidence supporting a correlation between the “persistent constipation” contended by the Applicant, and one or more of her accepted conditions - RSFIC para 20 p. 23.
A reading of the Determination of the Respondent, which accepted liability for constipation and haemorrhoids, contradicts this submission. The Delegate for the Respondent when accepting liability for haemorrhoids made the following observations – Exhibit 1 T138 pp. 822 – 823:
“By way of background, I note you submitted a claim for ‘constipation and haemorrhoids’ on 04 November 2016 that you attributed to ‘taking medication Seroquel 400mg every night”.
I note a letter from Dr Ann Chen (dentist) dated 22 April 2015 that states as a result of taking Seroquel you also suffered dry mouth as a side effect. I note that constipation is another common side effect of Seroquel.
A letter from Dr Peter Wheatley (psychiatrist) dated 14 June 2015 stated you take quetiapine for your accepted psychiatric conditions. I note that constipation is a common side effect of quetiapine.
Dr Sean Pham (GP) on the inquiry disease sheet dated 20 December 2016 stated you suffer from frequent constipation from escitalopram and Seroquel. I note that constipation is a common side effect of both these medications.,,,
I am satisfied on the balance of probabilities that you would have been taking medication for your accepted psychiatric conditions that cause constipation, within the two weeks before the clinical onset of haemorrhoids. Constipation is a common side effect for most medication used to treat psychiatric conditions.”
The Tribunal is satisfied that the Applicant meets the requirements of persistent constipation and is allocated 2 impairment points under Table 6.1.3 of the Guide.
The Applicant accepted at the Hearing that if the Tribunal found against her for her claimed GORD condition, that she would be unable to be allocated impairment points under either Tables 6.1.4, 6.1.8 or 6.1.9 of the Guide. Nonetheless, for the sake of completeness, the Tribunal agrees with the submissions of the Respondent with respect to Tables 6.1.8 and 6.1.9, as set out in the RSFIC - RSFIC paras 21 – 23 p. 23.
The Tribunal therefore rates the Applicant the following impairment points under Chapter 6 of the Guide:
Chapter  Impairment Points
6.1.1  10 points
6.1.2  20 points
6.1.3   2 points
Total  32 points
Chapter 10 – Sexual Function, Reproduction, and Breasts
Table 10.1.2 of the Guide provides that a female veteran is to be allocated 25 impairment points if there is evidence that she has a persistent inability to participate in vaginal intercourse with an onset age of less than 30 years.
The Guide defines “persistent inability” to mean - the Guide p. 150:
“…the woman is unable to participate in vaginal intercourse on most occasions because of physical obstruction of the vagina or its entrance or because of vaginismus or because of dyspareunia.”
It can be seen from this definition that persistent inability is focused primarily on physical impediments to vaginal intercourse. Dyspareunia is a condition where vaginal intercourse is painful, but the cause of the pain can be physical or psychological.
The Tribunal was assisted by the oral testimony of Dr Nandam. Reference need only be made to the following exchange – Tr. 14.05.2018 p. 53:
“DEPUTY PRESIDENT: Sorry to just interject there. Doctor, is it the tribunal here. One of the tables which I have to consider in relation to sexual function has a definition of persistent inability to engage in sexual function which is interpreted to include physical obstruction of the vagina or because of vaginismus---?---Vaginismus, yes.
Yes, or because of dyspareunia. In your clinical opinion, from the interviews you had with the applicant, did she describe any of those physical conditions or neurological conditions, ie the experience of pain, that would fit within those definitions?--- [DR NANDAM:] No, she spoke to me about difficulty climaxing and loss of libido and we did not speak specifically about anything more mechanical than that.”
There is no evidence before the Tribunal that would support a finding that the Applicant meets the definition of “persistent inability” and accordingly, the Tribunal cannot award any impairment points pursuant to Table 10.1.2 of the Guide.
Table 10.1.3 of the Guide has a broader focus. The relevant ratings are those from nil to 10 and are as follows:
NIL                  No impairment of sexual sensation.
TWO              Diminished sexual sensation.
FIVE               Inability to achieve a climax at age less than 40.
TEN                Inability to achieve a climax at age less than 30.
The Respondent contends that the evidence supports a finding of 5 points, reflecting the Applicant’s present inability to achieve climax at age less than 40; being

33 years of age on account of her accepted condition – RSFIC para 34 p. 25.
The Applicant contends that she should be award ten points, and in support of that contention, referred the Tribunal to the report of Ms Jennifer Fitzgerald, Clinical Psychologist, who prepared a report on 24 March 2017 and made the following observations – Exhibit 1 T47 p. 349:
“[The Applicant] reported that in the six months prior to the traumatic event, she engaged in a romantic relationship and enjoyed casual sex with her partner. She indicated that she had no problems with sexual desire, intercourse or orgasm during those months. The last time she engaged in sexual intercourse was on the 25.01.2011, the day before her friend’s death. In the years following the traumatic event, aged under 30 years, [the Applicant] has developed sexual dysfunction in the form of low desire and lack of any interest in a romantic relationship. This problem has remained stable over time. [The Applicant] indicated she feels quite averse to any romantic relationship in the future.”
It is clear that this account of the Applicant’s sexual dysfunction is based on information given by the Applicant, as distinct from Dr Fitzgerald’s assessment based on years of treatment and observation. Further, there is one account post 25 January 2011, where it is suggested that the Applicant remained sexually active. In an Outpatient Clinical Record of 3 May 2011, the treating Doctor made the following notation – Exhibit

2 p. 164:
“Sexually active, casual. No stable relationship.”
Not too much reliance can be placed on this “one off” note. It is not clear what “sexually active” means in this context. Certainly, it suggests that the Applicant may have tried to engage in sexual relations post 25 January 2011, at least for a short time. Certainly, this is consistent with the Applicant’s evidence at the Hearing, that after the traumatic event, she “…tried to go there…I did try and I freaked out and I couldn’t do that”. The following exchange then occurred – Tr. 14.05.2018 p. 39:
“DEPUTY PRESIDENT: When it says you were sexually active, you’re telling me that that’s not accurate?
WITNESS: No, I tried, but it – I just freaked out and it didn’t happen and since then, I just couldn’t do that, under my conditions and what was going on at that time.”
A fair reading of the medical records suggests that from the time the Applicant’s friend committed suicide her life fundamentally changed. As part of that negative transformation, her personal relationships with non-family members deteriorated. One aspect of that deterioration was a cessation of romantic involvement with other persons. When Dr Julie Salter examined the Applicant in 2012, she noted that the Applicant reported “…a poor appetite, reduced libido and reduced concentration” – Exhibit 1 T10 p. 128. Further, as previously noted, when the Applicant completed her Lifestyle Questionnaire on 20 March 2013, she reported that she was not sexually active and “couldn’t be bothered” – Ex1 T55 p. 381. By the time she was assessed by Dr Scheepers on 20 January 2016, the Applicant reported “…an almost complete loss of libido” – Exhibit 1 T27 p. 248.

At the Hearing, the following exchange occurred between the Tribunal and the Applicant – Tr. 14.05.2018 p. 46:
“When Dr Wheatley says in his report ‘reduced libido’, the table before me has a specific criterion and that is inability to achieve a climax?---Yes
Are you telling me that by 2012 (a) you were no longer having sexual relations and (b) were no longer able to achieve a climax? ---Yes.”
The evidence supports a finding that the Applicant suffered from an inability to achieve a climax at an age less than 30, and accordingly, should be allocated 10 impairment points.
However, at the Hearing Ms Blake raised a very important point which must be addressed. She submitted that compensation payable pursuant to s 68 of the Act is for permanent impairment. The Applicant’s entitlement to permanent compensation requires consideration of s 68(1)(b) of the Act which provides that the relevant decision-maker must be satisfied that:
(i)as a result of the compensable condition, the person has suffered an impairment; and
(ii)the impairment is likely to continue indefinitely; and
(iii)the person’s compensable condition has stabilised.
It is clear that the concept of permanence in s 68 of the Act is modelled on the comparable provisions in the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).Subsection 4(1) of the SRC Act defines “permanent” as “likely to consider indefinitely”. Section 24 of the SRC Act deals with compensation for injuries resulting in permanent impairment and s 24(2) of the SRC Act specifies various criteria that are used in making a determination. Those criteria are not duplicated in s 68 of the Act.
Subsection 68(2)(b) of the Act requires the Respondent to determine the date on which the person became entitled to compensation under s 68 by satisfying s 68(1)(b) and ss

69 and 70, if applicable. In this matter neither ss 69 or 70 are applicable.
In giving effect to this requirement, assistance is provided by the following explanation given by Woodward J in McDonald v Director-General of Social Security (1984) 6 ALD

6 at 13:
“The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvement in the pensioner’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.
In my view the true test of permanent, as distinct from temporary, incapacity is whether in light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.”
The Respondent contends that the Applicant’s sexual dysfunction is inextricably intertwined with her psychiatric conditions, and accordingly, cannot predate the time that the weight of medical evidence had accepted that the psychiatric conditions were permanent, namely January 2016. In that regard, the Respondent contends that the Tribunal should accept the reports of Drs Scheepers and Nandam.
The Tribunal accepts that this is an approach that is open, but does not accept that it is the preferable approach.
The date of clinical onset of female sexual dysfunction was accepted as being

18 September 2012. It is clear from reading all of the medical reports that by that time the Applicant’s female sexual dysfunction was chronic and had stabilised. Further, it has not improved since September 2012, and indeed, if anything, has deteriorated somewhat further.
The test of permanency, as explained by Woodward J above, involves the decision-maker evaluating the evidence and reaching a conclusion as to whether the incapacity is more likely than not to be considered permanent. As the Tribunal read that decision, and other Tribunal determinations on this topic, the Tribunal is not placed in the straightjacket of mechanistically applying the terms of an SoP. Rather, the focus of the Tribunal’s assessment must be directed to the requirements of s 68 of the Act.
Here, the evidence leads to the conclusion that following the traumatic event, the Applicant became sexually dysfunctional, and the extent of that dysfunction worsened with the passage of time. By 2012 – 2013, the female sexual dysfunction had become chronic and had stabilised. By this time, and before the Applicant reached 30 years of age, her condition had become permanent.
The Tribunal, therefore, does not, respectfully, accept the Respondent’s submissions on this point.
Chapter 15 – Intermittent Impairment
Chapter 15 deals with intermittent disorders, which are defined in the Guide as conditions:
(a)That remain at a low level of impairment between discrete episodes of increased impairment; or
(b)Where there is one basic type of impairment on which is superimposed episodes of significantly greater impairments of another type.
The Guide then provides the following examples of such disorders – p. 172:
“A sufferer from epilepsy who remains well between ‘fits’ exemplifies the first type of intermittent disorder. A sufferer from Meniere’s disease whose condition is characterised by deafness and occasional episodes of vertigo exemplifies the second type of intermittent disorder. The deafness may be regarded as the basic type of impairment and the episodes of vertigo may be regarded as the superimposed intermittent impairment. Both elements of the condition are to be assessed.”
(Emphasis in original)
At the Hearing the Applicant clarified that, in respect to her bruxism condition, she was seeking to rely on a form completed by Dr Lan which is headed “Intermittent Condition”– Exhibit 1 T36 p. 307 – Tr. 14.05.2018 p. 47.
Ms Blake submitted at the Hearing (Tr. 14.05.2018 p. 47) that bruxism is not an intermittent disorder of the type contemplated by Chapter 15 of the Guide. It is not a condition that gives rise to episodes or attacks. Ms Blake submitted that Chapter 15 was designed for conditions that have “flare ups” and provided the Tribunal with the example of asthma.
The Tribunal agrees with Ms Blake’s submissions. Chapter 15 is aimed at conditions where the person is subject to “attacks”, namely episodes where the person may increase or superimpose the impairment. Bruxism is not a condition where a person is subject to the type of “attacks” as explained in Chapter 15.
Even if that were not the case, Ms Blake also submitted that the Applicant has already been allocated 10 points for this condition under Chapter 6 of the Guide, and the awarding of more points pursuant to Chapter 15 would result in impermissible double counting.
The Tribunal, accordingly, awards nil points under Chapter 15.
Chapter 16 - Activities of Daily Living
Chapter 16 of the Guide explains that activities of daily living (“ADL”) are a defined set of activities necessary for normal self-care. The Chapter refers to six activities, namely: movement in bed, transfers, locomotion, dressing, personal hygiene and feeding.
The Chapter is to be used to assess conditions for which criteria do not exist in the system specific Tables (Chapters 1 – 12), or are inadequate, or for which the application of Tables 14 or 15 is inappropriate.
The following statement in Chapter 16 is of particular importance – p. 180:
“This chapter is to be applied in the assessment of conditions that result in the veteran being bedfast, chairfast, housebound or nearly housebound. Such conditions include the effects of severe strokes, severe Parkinson’s disease, severe heart failure, severe respiratory disease, severe liver failure, severe kidney failure and some dementias.”
It will be seen that the central focus of Chapter 16 is directed, almost entirely, towards bodily ailments in the nature of diseases or attacks (stroke and heart attack). Psychiatric conditions are generally excluded, with the exception of some types of dementia.
Further, Chapter 16 is aimed at assisting those veterans whose ailment is not compensable pursuant to Chapters 1 – 12 or is inadequately provided for.
It would be an error, when assessing the applicability of Chapter 16 to a particular veteran, to focus first on the particular types of ADL’s, and, having reached a conclusion, proceed to find an impairment that causes that ADL or series of ADLs. The threshold question is whether the ailment or disorder which causes the ADL, is one which falls outside Chapters 1 – 12, or, if it does not, why the impairment level from those Chapters is inadequate.
The Applicant’s psychiatric conditions, which are the primary cause of her difficulties with ADL’s, fall within the relevant Chapters in 1 – 12 and provide an adequate basis for the awarding of impairment points.
The conditions for which Chapter 16 is drafted, are conditions that are not suffered by the Applicant. A common-sense reading of Chapter 16, is that the conditions highlighted are those conditions brought about by advancing years, and Chapter 16 is focused on the problems faced by aged veterans’. It has certainly not been drafted to accommodate a veteran who is less than 40 years of age and whose conditions are adequately provided for elsewhere in the Guide.
The Tribunal, accordingly, awards nil points under Chapter 16.
Chapter 17 – Disfigurement and Social Impairment
Chapter 17 is to be applied when assessing conditions that cause disfigurement and embarrassment.
A “disfiguring condition” is defined as follows – p. 184:
“…means any noticeable condition that causes the sufferer embarrassment in ordinary public places and may include, but is not limited to, the following:
ofacial scarring;
oexfoliative skin disorders;
odisorders of gait or posture;
oinvoluntary facial expressions, or unusual or grotesque involuntary bodily movements;
odisorders of speech;
ovile odours which cannot be overcome by the use of deodorants or the application of normal oral hygiene;
odeficits of the visual field which may cause the veteran to lurch into people through not seeing them;
opainful conditions which cause the veteran to cry out involuntarily (for example, in response to a sudden pain in a joint); and
osevere pruritic conditions which cause the veteran to scratch even though normal behaviour in a public place would recommend restraint.
“Avoidance” is defined to mean “the veteran feeling obliged as a result of embarrassment to restrict his or her use of public places to hours when few people are about, or to avoid totally use of public places at certain times, for example, when school children are likely to be about” – the Guide p. 185.
The Board allocated two points to the Applicant on the basis that she had a dry mouth as well as bruxism resulting in worn teeth – Exhibit 1 T3 p. 28.
The criteria for allocating two points under Table 17.1 are as follows:
·A noticeable condition. For example, severe acne scars, a unilateral squint, an intermittent stutter or stammer.
·A noticeable condition which causes significant embarrassment and may cause avoidance of some normal activities. For example, an ungainly gait, a gross stoop, a persistent stutter or stammer, or an unsightly skin disorder.
The criteria for allocating five points are as follows:
·A very noticeable condition which causes marked embarrassment to some people in ordinary social contacts and causes avoidance of some normal activities. For example, a severe skin disorder of the face and/or hands, or a gross and persistent stammer.
During his evidence, Dr Nandam was questioned on the correct allocation of impairment points under Table 17.1. The following evidence was given by Dr Nandam – Tr. 14.05.2018 p. 54:
“Having a look at the criteria there under table 17.1, are you able to offer an opinion about which impairment rating you would consider based on your observation and assessment?---Yes, look I felt that she, using these criteria, that should would be between – she would be a two, between two and five and I tended towards two. I was particularly influenced by the wording of significant embarrassment that may cause avoidance of some normal activity and obviously a lot of these pertain to physical condition, such as gait and stoop, but the ones that seemed relevant to her were things like a persistent stutter or stammer. Not that she had problems with that but she did strike me as markedly shy and at times she had difficulty with concentrating during my interviewing with her and she was a little dishevelled and so that could cause some embarrassment and avoidance of some normal activity on her part. I know she has limited normal activity. She said the only thing she went to would be to see her doctor or occasionally get fast food, that kind of thing.”
It will be noticed that the Board focused on the disfigurement aspect of Chapter

17 of the Guide to allocate points, whereas Dr Nandam focused on the embarrassment aspect of the Chapter.
In order to assess disfigurement and social impairment, the Applicant referred the Tribunal to the report of Dr Lan. Dr Lan referred to the Applicant’s disturbance of salivary secretion and bruxism and answered in the affirmative to the question about whether the condition caused her embarrassment in public places and made the following observation – Exhibit 1 T36 p. 308:
“marked embarrassment and results in avoidance of many everyday activities eg: dislike and feel embarrassed about worn teeth & avoid smiling. Halitosis from dry mouth.”
The main focus of Chapter 17 is physical conditions that cause disfigurement and/or embarrassment. The physical condition relied upon by the Applicant is bruxism and disturbance of the salivary secretion.
Upon perusal of the disfiguring conditions outlined in Chapter 17, the Tribunal notes these are conditions which are usually immediately obvious and which cause the sufferer either physical discomfort or physical disturbance. The Applicant does have physical conditions that are disfiguring and which cause her embarrassment. They are not, however, at the higher end of the scale. Indeed, worn teeth and halitosis would be, with respect, at the lower end of the scale of disfigurement based on the examples quoted above.
It is the case that sometimes a person with a major disfigurement will, because of their personality and strength of character, feel less embarrassment than would an average person. Conversely, a person with a relatively minor disfigurement may feel extreme embarrassment. Both reactions, and indeed any reaction in-between, can be entirely understandable and genuine. The focus of the Tribunal, though, is not to apply a subjective standard when allocating points under Table 17.1, but to form an objective view of the nature of the disfigurement and the level of embarrassment that would normally flow from that condition.
Unfortunately the Tribunal did not have the benefit of either observing the Applicant or being presented with any photographic evidence. In these circumstances, the Tribunal must be guided by the written and oral evidence presented, therefore, in these circumstances, prima facie, the allocation of two points is appropriate. The allocation of any higher amount of points is not supported by the evidence.
Chapter 18 - Combined Values Chart
The Applicant’s conditions attract the following impairment points:
Chapter  Impairment Points
4  49
6  32
10  10
15   0
16   0
17   2
Chapter 18 requires the combination of all the impairment ratings into a single value known as the combined impairment rating. The combination is not achieved by simple addition but by applying Table 18.1, the Combined Values Chart.
The first step is to ascertain the highest impairment rating. In this instance it is

49 points under Table 4. Accordingly, the Applicant obtains a rating of 49, which implies at this stage that she is 49% impaired. This then leaves 51% to be apportioned amongst the other conditions. The second condition, under Chapter 6, attracted 32 impairment points. Applying Table 18.1, the adjusted addition of 32 impairment points results in an impairment rating of 65. The next step is to factor in the 10 impairment points allocated under Table 10. Using Table 18.1 results in a combined impairment rating of 69. Finally, the addition of the last two impairment points under Table 17 results in a final combined impairment rating of 70.
Chapter 22 - Lifestyle Effects
Chapter 22 defines a “Lifestyle Effect” as a disadvantage 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.
As previously mentioned, veterans are given the option of self-assessing the effects of their accepted conditions in the form of a Lifestyle Rating Self-Assessment Form. The Guide specifically states that a self-assessed rating should not normally be queried, however, as previously explained, this does not mean that the Respondent is required to accept it. If the Respondent believes that the self-assessment is patently wrong and not supported by the evidence, then the Respondent is at liberty to query or to reject the self-assessment.
The effects of impairment on lifestyle are determined by reference to four components of a veteran’s life, which are set out in Chapter 22 of the Guide:
(a)Personal relationships;
(b)Mobility;
(c)Recreational and community activities; and
(d)Employment and domestic activities.
Personal Relationships
The Applicant contended she should be allocated a rating of 7:
“unable to relate to anyone. All relationships are prevented”.
This self-assessment is clearly incorrect. The Applicant does have dealings with people, and insofar as the Tribunal was able to ascertain from her participation in the Hearing, her interpersonal skills are not negligible. Whilst her relationship with her family has unfortunately broken down, she has had other friendships over the years. Further, she has interacted with her health professionals. Clearly her psychiatric and other conditions have resulted in a severe deterioration in her interpersonal contacts.
A careful analysis of the various ratings leads the Tribunal to the conclusion that a rating of five is apposite. To meet this rating the veteran must have severely affected relationships and be able to relate to only particular, or few, people. Even then, the remaining relationships are strained and of low quality. This scenario comports almost exactly to the evidence before the Tribunal.
Mobility
The Applicant self-assessed a rating of six, namely:
Severe impediments to mobility:
·restricted to home and immediate vicinity, unless door to door transport and assistance from others are provided;
·unable to drive a car in any circumstances whatsoever.
The Board rejected this self-assessment and said – Exhibit 1 T3 p. 28:
“Similarly, in the hearing she described never leaving home but on specific questioning it was clear she regularly left her home to shop, including buying takeaway food in the local area”.
(Emphasis in original)
The evidence presented does not support a rating of six, it does, however, fit more readily into a rating of five which is predicated on major impediments to mobility,
It is tolerably clear that the Applicant’s conditions have had a deleterious impact on her mobility, and that she is largely housebound. In these circumstances the Tribunal will allocate a rating of five.
Recreational and Community Activities
At the Hearing the Applicant testified that “I do nothing with my life” – Tr. 14.05.2018 p. 70.
The Applicant claimed that she did not watch television, did not do crosswords and basically engaged in no recreational activities.
The Applicant made the same claim to Dr Nandam when he assessed her on

8 February 2017. Dr Nandam made the following observations – Exhibit 1 T40 p. 330:
“She said she had no recreational activities and had stopped video games, which was her only previous activity.”

The Tribunal does not accept this to be an accurate reflection of the Applicant’s life. There is evidence before the Tribunal that the Applicant played computer games and engaged in various activities. Her preparation for the hearing, and her participation, dispelled any notion that she was, in effect, unable to motivate herself.
The Board noted that the Applicant tended to exaggerate her conditions, or, to put it another way, awfulize her situation. There is no doubt, that there is a significant void in the Applicant’s social life, and she is in distress. However, the Tribunal does not accept that she does nothing with her life and that, in effect, her entire existence is devoid of any social stimuli. If that be the case, then more objective evidence is required.
The Tribunal accepts that a rating of five is apposite.
Domestic Activities
“Domestic activity” refers to a veteran’s ability to sustain effective routines in a domestic environment.
The Applicant self-assessed herself with a rating of six. The relevant criteria for this rating is as follows:
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;
oable to do very light tidying, dusting but unable to cook or prepare meals;
ohas difficulty standing to set table or wash dishes.
According to Dr Nandam, the Applicant has no difficulty standing, moving or feeding herself. In terms of self-care, Dr Nandam observed that the Applicant had poor personal hygiene – Exhibit 1 T44 p. 343.
Unfortunately the examples of domestic activities in Table 22.4 are not particularly apposite to the Applicant’s circumstances.
The Tribunal accepts that a rating of five is the appropriate rating.
Employment Activities
“Employment activities” refers to a veteran’s ability to work.
Tt is not contested by the Respondent that the Applicant’s self-assessment of 5 (“unable to work”) is appropriate, and the Tribunal finds accordingly.
In making this finding, reference can be made to the report of Dr Nandam of

9 February 2017. In response to a question as to what type of work the Applicant would be able to perform, Dr Nandam opined – Exhibit 1 T39 p. 322:
“[The Applicant] is unlikely to ever be able to return to work or training.”
Conclusion - Chapter 23 Calculating Permanent Impairment Compensation
As previously noted, the Applicant rendered peacetime service. In these circumstances, the Tribunal is required to apply Table 23.2 of the Guide which outlines the compensation factors for calculating permanent impairment compensation.
Combining an impairment rating of 70 points with a lifestyle rating of five results in a compensation factor of 0.770.
DECISION
The Tribunal:
(a)in Application 2017/6455, affirms the decision under review; and
(b)in Application 2017/6459 substitutes the decision under review and finds that the Applicant is entitled to payment of additional permanent impairment compensation under the Act on the basis of a combined 70 point impairment and a Lifestyle Rating of 5. The matter is remitted to the Respondent to make the appropriate calculation of compensation.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

........................[SGD]................................................
Associate
Dated: 30 August 2018

Date of hearing: 14 May 2018

Date final submissions received: 29 May 2018

Applicant: By telephone

Advocate for the Respondent: Rachel Blake

Solicitors for the Respondent: Moray & Agnew Lawyers

Date of hearing:	14 May 2018
Date final submissions received:	29 May 2018
Applicant:	By telephone
Advocate for the Respondent:	Rachel Blake
Solicitors for the Respondent:	Moray & Agnew Lawyers