Lennon and Repatriation Commission [2003] AATA 42 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 42

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/93

VETERANS' APPEALS DIVISION )

Re MERVYN LENNON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date 17 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) IR Way

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - disability pension - General Rate (Extreme Disablement Adjustment) - whether applicant is entitled to pension at 150% of the General Rate - whether applicant's lifestyle rating correctly assessed - whether applicant's entitlement to pension correctly assessed

Veterans' Entitlements Act 1986 ss 22(4)(c), 29

REASONS FOR DECISION

17 January 2003 Mr IR Way, Member

1. This is an application by Mervyn Lennon ("the applicant") for review of that part of the decision of the Veterans' Review Board ("VRB") dated 28 September 2001, which assessed the applicant's disability pension at 100% of the General Rate from and including 14 December 2000.

2. On 25 May 2001, the Repatriation Commission refused the applicant's claim that acquired cataract in the left eye, gastro-oesophageal reflux disease, anxiety disorder, chronic solar skin damage and impotence were due to service. In its decision of 28 September 2001, the VRB, on review of the Repatriation Commission's decision, set aside that part in relation to anxiety disorder and impotence and substituted its decision as follows:

"(i) that those conditions are defence-caused as defined in section 70 of the Veterans' Entitlements Act 1986 (the Act);

(ii) that the Commonwealth of Australia is liable pursuant to section 70 of the Act to pay pension for any incapacity arising from those conditions from and including 14 December 2000; and

(iii) to assess disability pension for the veteran's incapacity from all defence-caused conditions at 100% of the General rate from and including 14 December 2000."

3. In its reasons for the above decision, the VRB expressed the view that a lifestyle rating of 5 was appropriate for the applicant and that therefore the applicant's pension could not be assessed at 150% of the General Rate (Extreme Disablement Adjustment), such adjustment requiring a lifestyle rating of 6 pursuant to subsection 22(4)(c) of the Veterans' Entitlements Act 1986 ("the Act").

4. This matter is contested solely on the basis of what is the correct assessment of the applicant's lifestyle rating. In this respect, the standard of proof is that of reasonable satisfaction. The Tribunal had before it the documents lodged pursuant to section 37 of Administrative Appeals Tribunal Act 1975 and other documentary evidence as follows:

* Exhibit A1 Lifestyle Questionnaire completed by the applicant and dated May 2002

* Exhibit R1 Report of Dr Rowlands dated 19 April 1993

* Exhibit R2 Report of Dr M Pearcy dated 6 April 2001

* Exhibit R3 Letter from Ms L Shearer, Department of Veterans' Affairs to Mr Muir dated 20 June 2002

5. The applicant and Mrs Lennon gave oral evidence.

Legislation

6. Pursuant to section 29 of the Act the Repatriation Commission has prepared the Guide to the Assessment of Rates of Veterans' Pension, 5^th Edition (GARP 5). This Guide is to be applied to assess the extent of incapacity from war-caused or defence-caused injury or disease. Its provisions are binding on the Repatriation Commission, the VRB and the Administrative Appeals Tribunal.

7. Chapter 22, Lifestyle Effects, is relevant in the assessment of the effects of the applicant's accepted conditions on his lifestyle. Chapter 22 provides for the methods of assessments; the assessment of the effects of impairment by reference to the four components of the veteran's personal relationships, his mobility, his recreational and community activities, and his employment and domestic activities; and, finally, how a lifestyle rating is to be calculated.

8. The method of assessment to be used in this matter is Option 3 as described in Chapter 22 of GARP 5, namely:

"Option 3 is to be used if the veteran completes a Lifestyle Questionnaire. The determining authority is to use the information in the completed Lifestyle Questionnaire, together with all other relevant information available to it, to allocate ratings in accordance with Tables 22.1 to 22.5. The ratings are to reflect the impact of the impairment from accepted conditions on the four key components of a person's lifestyle (personal relationships, mobility, recreational and community activities, and employment and domestic activities)."

9. The applicant contends that his health has deteriorated, that he no longer drives his motor vehicle and has very little contact with others. Furthermore, he contended that his anxiety disorder has made going out unpleasant and he also suffers from giddiness. The applicant further contends that as a result of his accepted disabilities his lifestyle rating should be:

* Personal relationships 6

* Mobility 6

* Recreational and community activities 5

* Domestic activities 5

giving an average of 5.5 which rounds up to 6, thereby leading to an assessment of 150% of the General Rate (Extreme Disablement Adjustment) pursuant to subsection 22(4)(c) of the Act.

10. There is no disagreement between the parties that the correct lifestyle rating of the applicant with respect to recreational and community activities and domestic activities is 5 in both cases. In view of this, and on the evidence before it, the Tribunal is reasonably satisfied that a rating of 5 for each of these parts of lifestyle assessment is correct and finds accordingly.

11. The central issues then are what are the correct lifestyle ratings of the applicant with respect to personal relationships and mobility.

12. The applicant was born on 21 February 1933.

13. The applicant's accepted disabilities are:

* Sensori-neural deafness and tinnitus

* Anxiety Disorder

* Impotence

14. His non-accepted disabilities are:

* Endogenous depression

* Solar skin damage with malignant change

* Refractive error

* Bipolar disorder

* Peripheral neuropathy

* Pain in or around eye

* Non-melanotic malignant neoplasm of the skin

* Acquired cataract left eye

* Gastro-oesophageal reflux disease

* Chronic solar skin damage

* Breathlessness

* Peripheral vascular disease.

Applicant's Evidence

15. The applicant told the Tribunal that he was first diagnosed as suffering from bipolar disorder in 1986 and that at that time he was having trouble at work because of depression. His condition of anxiety disorder is now accepted as service-related because of his service-related tinnitus.

16. He said he suffered tinnitus all the time but during the day he could generally cope because of background noise. However, at night when there was no background noise he found he had difficulty in sleeping and would often have to get up and watch television or play Patience to get through the night. He said he found he could catch up on his sleep during the day when there was background noise. It was the applicant's evidence that he did not use hearing aids because they caused him to feel that his head would blow up. Likewise he found that a tinnitus masker was of no help. He said he was on Arapax (three tablets per day) for his anxiety condition but these tablets did not help him get to sleep. He said he took a sleeping tablet when he needed it but could not remember the name of the tablets. Insofar as other medication is concerned, he told the Tribunal he was taking six Panadeine Forte (two tables, three times a day) for his neuropathy, Somac for his reflux conditions and Lipitor to control his cholesterol. He said the neuropathy in his feet caused pain but this was eased by the Panadeine Forte. He said he drank alcohol daily, either beer, wine or scotch and would average about three drinks per day.

17. It was the applicant's evidence that he was moody, cranky and irritable most of the time and was always very tired. He said that little things would cause him to "go off pretty well daily". He said he lived at home with his wife and could talk to her about his problems; that she looked after him well; and that while he got irritated by her on occasions she was always very tolerant of his behaviour. He told the Tribunal that he depended on his wife for his daily needs and that there was not much to his life, mainly watching television and trying to get some sleep in the afternoons.

18. With respect to activities outside the home, he said he went shopping with his wife about once a fortnight but he had no social life at all, people not liking him because of his tendency to argue. He said that he did "not really" have any close friends.

19. In answer to questions from the Tribunal, the applicant said that apart from his wife he saw his grandson, aged five (with whom he had a good relationship), generally every Thursday and Friday; that he saw his son, who lived at Broadbeach Waters, every two weeks or so and with whom his relationship was "all right"; that he occasionally saw his brother who lived in Southport; that he saw an old friend (whom he had been associated with in the South East Asia and Korea Forces Association) once a week and a friend whom he served with in the Army in Malaysia about once a month. In cross-examination the applicant stated that he was still visiting the Southport RSL, usually taken by his wife but on occasions by one of his friends.

20. With respect to mobility the applicant said he needed walking crutches because of the problems in his feet. He told the Tribunal that he still had a driver's licence, which he kept for identification purposes, but that he did not drive, not having the confidence to do so because of his nerves and difficulty in hearing other vehicles. He said his foot problems were not the cause of his not driving. In answer to a question from the Tribunal the applicant said that even in an emergency he could not drive at all and that he would generally rely on an ambulance in any such situation. He said he had no problems in being taken by car with his wife driving, particularly while he was on medication. He told the Tribunal he did not use public transport, finding it hard to get on and off because of the problems with his feet.

21. In answer to questions in cross-examination, the applicant said he had gone to Cairns by train early in 2002; that he could get around in Cairns with difficulty but coped with the trip "all right".

22. Mrs Lennon said she had been married to the applicant for 45 to 46 years. She said that her husband was terrible if not on medication, being unable to cope and being very cranky and argumentative. She said she prepared all of her husband's meals but he could cope with his own dressing.

23. With respect to friends of her husband, Mrs Lennon said that (in addition to those already mentioned) her husband saw his sister on occasions and that when he went to the Southport RSL he would say hello to a few friends, possibly half a dozen or so. She said that in her opinion her husband does not cope well with people at all, becoming quickly aggressive with others and that she could not trust him to drive a car. With respect to travel by car she said her husband had trouble getting in and out because of his feet. With respect to the trip to Cairns early in 2002 she said she and her husband found the trip "quite good", that they got on all right with other people and that once in Cairns they "did a few bus trips".

24. The Tribunal notes that the applicant, in completing a Lifestyle Questionnaire in May 2002, stated, with respect to personal relationships, that he did not sleep well, often got cranky from pain, finds his problems difficult to discuss, is moody and irritable most of the time and usually finds it difficult to get on with people, that he had to depend on other people a lot and was withdrawn and finding it difficult to get on with other people. In answer to the question as to how he believed his disabilities caused these problems, he said:

"Frustrated, constant pain - feet tennitis [sic] very bad - this causes depression, worse at night nerve impotence - causes tension ect [sic]."

25. With respect to mobility, the applicant said in the same questionnaire that he had problems walking because of nerves in his feet, cramps mostly at night, shortness of breath and difficulty in climbing stairs. He stated he "cant drive with confidence - cant find pedals - wife does driving" and that he had difficulty using buses needing "to walk to bus and climb stairs".

Medical Evidence

26. With respect to the applicant's psychiatric condition, the Tribunal notes that Dr McIlrath, on 9 July 1987, diagnosed the applicant as suffering from a uni polar affective disorder (an endogenous depressive illness) [T7/27]; that Dr Ziukelis, Psychiatrist, after examining the applicant on 22 October 1997 diagnosed cyclothymic disorder of lifelong duration (T16/57); and that Dr Boulnois, Specialist Psychiatrist, after examining the applicant on 20 April 2001concluded (T22/79):

"Mr Lennon has a long-standing history of psycho-neurotic disturbance, mostly of an anxiety-related nature, and it would appear appropriate to perceive that his anxiety-related symptoms could be perceived as being primarily secondary to a physical condition, notably his tinnitus, classified under D.S.M.-IV as Anxiety State due to Medical Condition - Section 293.89."

27. With respect to the applicant's lower limbs and feet problems, the Tribunal notes that Dr Rowlands, Orthopaedic Surgeon, in April 1993, diagnosed the applicant as having peripheral neuropathy (Exhibit R1) and that Dr Pearcy, in assessing the medical impairment in the applicant's lower limbs and feet, concluded that the applicant's painful feet and restrictions in walking and ascending or descending stairs were due to his peripheral neuropathy and vascular disease.

Submissions and Considerations

28. With respect to personal relationships it was submitted for the applicant that he had extreme difficulty in relating to anyone and was not pro-active in taking steps to engage in personal relationships. It was submitted that this was so even if the applicant were on medication and that a lifestyle rating of 6 was appropriate.

29. The respondent contended that the assessment of the applicant's lifestyle rating for personal relationships should be considered in the light of his limited association with family and friends, his ability to take a holiday in Cairns in March 2002 for one week, the applicant's monthly visits to a mate, and his regular shopping visits. It was submitted that the correct assessment of the applicant's lifestyle rating was 5.

30. GARP 5 states that:

"PERSONAL RELATIONSHIPS

'personal relationships' refers to the veteran's ability to take part in and maintain customary social, sexual and interpersonal relationships.

To determine the effect on personal relationships, it is necessary to establish how the physical and psychological effects of accepted conditions affect the veteran's ability to interact socially with others."

GARP lists criteria for a rating of 5 and 6 as follows:

"FIVE Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality.

SIX Extreme difficulty in relating to anyone, for example:

* difficulties in relating because of psychosis; or

* social interaction limited to carer(s) due to confinement; or

* ability to communicate is restricted due to stroke or other effect of accepted conditions."

31. On the material before it, the Tribunal is satisfied that the applicant has considerable difficulty in establishing and maintaining interpersonal relationships, in taking part in and maintaining customary social relationships. Furthermore, the Tribunal is satisfied that the applicant's impotence severely affects the applicant's sexual feelings and abilities. However, the applicant, on his own evidence, constantly maintains a good relationships with his wife (albeit he at times finds her irritating) and with his five year old grandson whom he sees on Thursdays and Fridays of most weeks. He continues to visit the Southport RSL, either being taken by his wife or a friend and while at the RSL says "hello" to a number of friends. Furthermore, he has maintained a continuing relationship with an old friend with whom he served in Malaysia (seeing him once a month); another old friend whom he got to know through the South East Asian and Korean Forces Association (seeing him once a week); his son (every two weeks or so) and his brother on occasions.

32. Within the context of this pattern of personal relationships, the Tribunal is reasonably satisfied that the applicant does not have extreme difficulty in relating to anyone, as required for an assessment of a lifestyle rating of 6. The Tribunal is satisfied that the applicant meets the criteria for a lifestyle assessment of personal relationships of 5 and so finds.

33. Turning then to the question of mobility, it was submitted for the applicant that he can no longer drive a car in any circumstances whatsoever and that he needs assistance from others to move outside of his home or its immediate vicinity. As such, it was submitted that the applicant's lifestyle rating for mobility should be 6.

34. The respondent submitted that the applicant's mobility is affected in the use of public transport by non-accepted conditions, namely his foot condition of peripheral neuropathy (which necessitates the applicant using walking crutches, having assist bars in his bathroom and having to take six Panadeine Forte per day). As such, the respondent submitted that a rating of 5 for mobility was appropriate.

35. GARP 5 states that:

"MOBILITY

The mobility rating measures the effects of the accepted conditions on the veteran's mobility. 'Mobility' refers to the veteran's ability to move about effectively in carrying out the ordinary activities of life. It allows for the veteran's ability to use available forms of transport. Lack of public transport is not to be taken into account.

Both physical and psychological impediments to mobility are to be taken into account when applying Table 22.2. Restrictions on mobility due to mental health factors (e.g. agoraphobia, claustrophobia, dementia, anxiety, confusion, etc), or sensory deficit (e.g. hearing loss, or reduced vision) should be rated in the same way as the more obvious restrictions due to physical impairment."

GARP lists criteria for a rating of 5 and 6 as follows:

"FIVE Major impediments to mobility:

* dependent upon others, or mechanical devices such as wheelchairs;

* unable to use most forms of public transport;

* able to drive a car only in a situation of emergency and then only for a short distance.

SIX 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 whatever."

36. After careful consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied that while the applicant has severe impediments to his mobility, a significant cause for such impediments to the applicant's ability to move about effectively in carrying out the ordinary activities of life is his non-accepted lower limbs and feet neuropathy and vascular disease.

37. As such, the Tribunal accepts the respondent's submission that when the applicant's mobility is assessed on his accepted conditions alone, the correct lifestyle rating for mobility is 5 and the Tribunal so finds.

38. It follows that adding together the lifestyle ratings, as determined above, produces an aggregate figure of 20, resulting in a final lifestyle rating to be used in assessment of 5.

39. The Tribunal is therefore satisfied that the applicant's disability pension is correctly assessed at 100% of the General Rate.

40. For the reasons given above, the Tribunal affirms the decision under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Sarah Oliver

Associate

Date of Hearing 6 December 2002 at Southport

Date of Decision 17 January 2003

Solicitor for the Applicant Mr E Muir

Solicitor for the Respondent Mr D McAninly