UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CAF_2797_2006 (11 December 2007)

CAF/2797/2006

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the tribunal's decision and refer the case for rehearing before a differently constituted tribunal.
2. This is an appeal against the decision of the tribunal given on 27 April 2006, dismissing the appellant's appeal against the rejection of the condition "thrombophlebitis right thigh" as attributable to service. I gave leave to appeal on 14 November 2006 and the appeal has been supported by the Secretary of State in a submission dated 18 December 2006.
3. The claimant served in the Army from 1944 to 1946, and in 1949 he made a claim for war pension in respect of mental health problems and varicose veins. The latter condition was eventually accepted as aggravated by but not attributable to service, and disablement was assessed as 6-14%. In January 1952 a Pensions Appeal Tribunal dismissed the appellant's appeal against the rejection of that condition as attributable to service, although they do not appear to have found, as asserted in the Statement of Case in these proceedings, that the condition was aggravated by service.
4. By 2004 the appellant's varicose veins had deteriorated and there were indications of phlebitis, and on 22 December 2004 he made a new entitlement claim in respect of "phlebitis right leg". The appellant appealed against the rejection of the claim, and at a medical examination carried out at a domiciliary visit on 10 March 2006 the examining doctor reported as follows:

"There is an area of discoloured and atropic skin affecting the inner, lower right thigh and an indurated feel to the underlying vein in this region. This is the location which (the appellant) indicates is the site of his phlebitis and he complained of tenderness in the region. The area was not hot nor actively inflamed today."

The Medical Services opinion in the Statement of Case expressed the view that phlebitis which had developed so long after service could not be attributable to service factors. However, the opinion recognised that varicose veins could be a factor in the development of phlebitis, although it also noted that the 1952 Pensions Appeal Tribunal had rejected varicose veins as attributable to service.

5. The appellant was present and represented at the hearing of the appeal and was questioned in detail about the onset of phlebitis, but the tribunal dismissed the appeal because they agreed with the opinion of Medical Services that phlebitis which had developed so many years after the appellant left the Army could not be attributable to service. On the basis that it had been accepted that varicose veins had been aggravated by service, the tribunal considered that any deterioration in that condition after the date of the assessment in 1952 could not be taken into account.
6. In R(AF 1/07 Mr Commissioner Mesher gave guidance on the approach to be applied in cases where a new condition is said to have resulted from aggravation of another condition by service. In Owen v Minister of Pensions and National Insurance (1966) 5 WPAR 699 the condition "osteoarthritis right hip" had been accepted as aggravated by service, on the basis that that the appellant's Perthes' disease had been made worse by service. The appellant developed osteoarthritis in his left knee, which was accepted as having being caused by the impairment of his right knee. Edmund Davies J. held that the Pensions Appeal Tribunal had not erred in law in deciding that the osteoarthritis of the left knee was not attributable to or aggravated by service, having accepted the opinion of the Medical Department that the development of the osteoarthritis in the left knee was due to the natural progress of the Perthes' disease and not to the service aggravation. However, the Commissioner observed (para. 46) that if the Pensions Appeal Tribunal had accepted that there was at least a reasonable doubt in the appellant's favour that the left knee condition resulted from the service aggravation, it would have been attributable to service.
7. The tribunal in this case was dealing with an entitlement appeal in respect of the condition "thrombophlebitis right knee", governed by Article 5 of the 1983 Service Pensions Order, and identified that condition as being separate from the condition "varicose veins". If they were satisfied that the appellant was suffering from a new condition, the tribunal ought to have decided whether the appellant had raised a reasonable doubt in his favour that the new condition resulted from service aggravation of his varicose veins, and should have upheld the rejection of entitlement in respect of that condition only if they were satisfied beyond reasonable doubt that the appellant would have suffered from the condition even if his varicose veins had not been aggravated by service. In failing to consider that issue, the tribunal erred in law and their decision must therefore be set aside.
8. The issue which I have identified in paragraph 7 requires medical expertise for its determination and I therefore refer the case for rehearing before a differently constituted tribunal. The appellant can be reassured that my decision will be included in the case papers.
9. I apologise for the length of time it has taken to deal with this case.

(signed on the original) E A L Bano

Commissioner

11 December 2007