Dickson and Repatriation Commission [2003] AATA 128 (7 February 2003)

Last Updated: 10 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/200

VETERANS' APPEALS DIVISION	)
	Re	BASSETT EDWARD DICKSON (Deceased)

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms A F Cunningham (Part-time Member)

Date 7 February 2003

Place Hobart

Decision

The decision under review as varied by the Veterans' Review Board on 5 November 2001 is affirmed.

..............................................

Part-Time Member

Veterans' Affairs - extreme disablement adjustment rate - effective date of payment - impairment rating - GARP - decision under review affirmed

Veterans' Entitlements Act 1986 - s22, s126(1)

REASONS FOR DECISION

7 February 2003

Ms A F Cunningham (Part-time Member)

1. This was the hearing of an appeal against a decision of a delegate of the Repatriation Commission dated 1 September 2000 subsequently varied by a decision of the Veterans' Review Board (VRB) on 5 November 2001 which set aside the decision under review and assessed the applicant's pension at 100% of the general rate with the addition of extreme disablement adjustment as from 19 July 2001.

2. The issue for determination by the Tribunal is the effective date from which the applicant was entitled to receive the extreme disablement adjustment.

3. The applicant died on 10 February 2002 and pursuant to the provisions of s126(1) of the Veterans' Entitlements Act 1986 ("the Act") Stewart MacGregor Dickson, Bassett Oliphant Dickson and Jaqueline Sinclair Dickson are the late veteran's personal representatives. They were represented at the hearing by Mr R M Webster. The respondent Commission was represented by Mr Castle.

4. No oral evidence was presented at the hearing and the T documents were submitted pursuant to s37 of the Administrative Appeals Tribunal Act 1975.

5. It was Mr Webster's contention that the appropriate date of payment for the extreme disablement adjustment rate was the date of lodgment of the applicant's pension claim, namely 6 June 2000 (T13). Mr Webster contended that the Tribunal could find from the material contained in the T documents that the effects of the applicant's cerebro vascular accident condition were present as from 6 June 2000. Mr Webster referred the Tribunal to a letter written by Dr Robert Walker to Mr Dilba dated 13 October 2000 (T207-208) in which Dr Walker stated:

"Confusional statement -Atherosclerotic Dementia

He has significant memory impairment and this has increased in the last twelve months. He is now unsafe to be home alone and I have advised the family that should they be unable to provide continuous supervision, he will need to enter into care in a nursing home.

I am of the view that his CVA is not the cause of his dementia.

His confusional state is such that he is quite unable to take his medication in a safe and reliable manner. He requires weekly visits from the district nurse to set up his medication box.

He is no longer fit to drive a car."

6. Mr Webster pointed out that the applicant's condition of CVA was subsequently accepted as a war-caused disability.

7. Mr Webster also referred the Tribunal to Mr Brigden's assessment of the effects of the applicant's cerebro vascular accident dated 12 September 2001 (T125-127).

8. When the claim was considered by the VRB on 3 July 2001, the matter was adjourned for further current expert medical opinion. The VRB subsequently concluded that there was insufficient medical evidence that would allow it to backdate the applicant's entitlement to 9 August 2000 as proposed on behalf of the applicant. It was noted that the assessment carried out in accordance with the provisions of Table 5.3 dated 9 August 2000 gave a nil value as at that date.

9. This Tribunal has been asked to consider whether there is sufficient evidence before it to find that the manifestations of the applicant's condition of cerebro vascular accident were present when his original claim was lodged in June 2000.

10. The rate of pension payable for accepted disabilities is assessed under the "Guide to the Assessment of Rates of Veterans' Pensions" (GARP). Under GARP an overall medical impairment rating is combined with a lifestyle rating to give a percentage of General Rate Pension.

11. On 9 August 2000 Dr Rashida Hassan completed an interim combined impairment report in which he assessed the applicant's functional loss under Table 5.1 at 25, comprehension under Table 5.2 at 10, neurological and other impairment under Table 5.6 at 5. Dr Hassan did not ascribe an impairment rating under Table 5.3 for expression.

12. Dr Brigden in his assessment report dated 17 September 2001 ascribed an impairment rating of 20 under Table 5.3 for expression. The question for the Tribunal is whether there is evidence before it which would enable it to ascribe an impairment rating of 20 points under Table 5.3 at an earlier date.

13. The criteria under Table 5.3 for an impairment rating of 20 are:

"FIVE - Speech is of sufficiently intensity and vocal quality for most everyday needs, eg:

- normal speech, but unable to shout; or

- needs to repeat self at times; or

- is unable to produce some phonetic units; or

- speech is sustained over a 10-minute period, but with difficulty that includes hesitation and word-retrieval problems; or

- is permanently hoarse.

TEN - Speech is of sufficient intensity and vocal quality for many of the needs of everyday speech, eg:

- is adequate with low background noise, but is heard with some difficulty in vehicles or public places; or

- has many inaccuracies, but is easily understood by strangers; or

- is slow or discontinuous, conveying the distinct impression of difficulty.

Converses in simple sentences on familiar topics, although word-finding problems are frequent, and has difficulty in explaining long or complex ideas.

Has mild dysgraphia: is unable to cope with more than short letters (about five lines) or postcards, which show both grammatical and spelling errors.

TWENTY - Speech is of sufficient intensity and vocal quality for some of the needs of everyday speech, eg:

- is adequate under quiet conditions, but is heard with great difficulty against any background noise; voice fades rapidly; or

- is understood by family and friends, but is difficult for strangers; or

- needs frequent repetition; or

- speech is sustained for short period only: fatigues rapidly."

14. The Tribunal has carefully perused the contents of the T documents to ascertain whether there is any relevant evidence of the applicant's cerebro vascular accident condition that would suggest that he had the symptoms listed in the criteria under Table 5.3 on a date prior to 19 July 2001.

15. In the medical report dated 20 June 1995 contained at T11, it was noted in relation to the applicant's cerebro vascular accident condition:

"Speech - finds it difficult to get words out - although he knows what he wants to say."

16. In Dr Hassan's report dated 20 June 1995 (T15D) he ascribed an impairment rating of 5 points under Table 5.3.

17. In the medical assessment report dated 9 August 2000 (T66) the applicant's speech was described as "normal or near speech" and that his main problem was his loss of memory.

18. The only other relevant assessment was that of Dr Walker dated 13 October 2000 in which he stated that the applicant had significant memory impairment which had increased in the last 12 months. Dr Walker however made no reference to the criteria for impairment ratings as listed in the GARP.

19. The Tribunal is unable to conclude from the information contained in this report that at this date the applicant met the criteria required for an impairment rating above nil. Even if the impairment rating of 5 as ascribed by Dr Hassan in his earlier assessment was accepted and combined with the other accepted impairment ratings, using the combined value chart the impairment ratings convert to an overall rating of 64 which is less than the 70 points required for entitlement to the extreme disablement adjustment rate under s22 of the Act.

20. The Tribunal having found that there is insufficient evidence before it to justify a variation of the decision that the applicant's entitlement to the extreme disablement adjustment rate of pension be effective as from 19 July 2001, affirms the decision under review as varied by the Veterans' Review Board.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .......................................................................................

Associate

Date/s of Hearing 7 November 2002

Date of Decision 7 February 2003

Solicitor for the Applicant Mr R M Webster

Solicitor for the Respondent Mr M Castle, Department of Veterans' Affairs