Tribunal Success for Armed Forces Veteran with Noise Induced Hearing Loss

This case study arises out of the Noise Induced Hearing Loss (NIHL) suffered by an armed forces veteran during 37 years of military service in the Royal Artillery.

Introduction

This case study arises out of the Noise Induced Hearing Loss (NIHL) suffered by an armed forces veteran during 37 years of military service in the Royal Artillery.  

JB enlisted as a Junior Gunner aged 16 and rose through the ranks to retire over 3 decades later as a Commissioned Officer.  He deployed on several combat operations and suffered significant hearing damage. As of right, he lodged claims for a War Pension and/or an Armed Forces Compensation Scheme (AFCS) tariff award for Noise Induced Hearing Loss (NIHL) and tinnitus caused by his military service.

It was his evidence that at all material times during his service, that in addition to the noise from small arms fire, whilst operating and/or being in close proximity to the live firing of the 105mm L118 Light Gun (artillery weapon system) during peacetime and combat operations, he was regularly exposed to dangerously high levels of acute impulse noise above 140db (the legal limit for peak sound pressure).  Those career long repeated exposures caused him to develop NIHL and Tinnitus.   

Veterans UK rejected both claims and in response made the following assessments:

1. The War Pension – ‘the condition we have diagnosed as bilateral noise-induced hearing sensorineural loss (1979-2005) has been caused by service. We call this attributable to service. The amount of hearing loss caused by service is less than 1%.  The assessment of your disablement has therefore been certified as nil.’ 
2. AFCS – ‘After looking at all of the appropriate evidence we accept that your injury/illness was caused by service. However, it is not  serious enough to attract compensation under the scheme.’  The ‘medical advice’ from their (unnamed) Medical Advisor was that ‘although the audiograms show a loss of hearing during AFCS service, the level of hearing does not reach a level of 50-75dB averaged over 1, 2 and 3kHz. (a). The award therefore falls below tariff.’

Alma Law were instructed to appeal to the First Tier Tribunal (War Pensions and Armed Forces Compensation Chamber). 

Background - The War Pension Scheme Claim

A claim under the War Pension scheme can only be made after an applicant has left military service and their ongoing disablement must have been caused by service before 6 April 2005. There are no time limits on claiming and an applicant does not have to prove a breach of duty.   The decision on whether to award a war pension depends upon how serious the disablement is assessed to be.  That assessment is made as a percentage. If the doctors, unilaterally instructed by Veterans UK, assess the hearing disablement at 20% or more, then they will pay a regular pension, usually monthly, for life. Payments are backdated to the date the application was made, not the date of injury.  

If the disablement is assessed at less than 20%, then the applicant is paid a lump sum, called a gratuity. The amount depends on the extent of the disablement and how long the doctors instructed by Veterans UK assess the applicant is likely to be disabled.

However, the current rules of the scheme prevent any award for NIHL if an applicant’s disablement is assessed to be less than 20% by doctors instructed by Veterans UK. That is precisely what happened in this case. When contested, Veterans UK reiterated the following:

‘The 1998 Independent Review of Hearing Loss Assessment has confirmed that once an individual is removed from the harmful effects of noise then there is no further hearing loss resulting from that particular exposure to noise. Service noise therefore cannot cause deterioration of hearing if this occurs during the period following service. The assessment is therefore final’.

Our client appealed this assessment on the following grounds:

1. An MOD document entitled ‘Leaflet to be given to all personnel undergoing health surveillance for Noise Induced Hearing Loss’ expressly stated that: Hearing ability deteriorates with age. However, exposure to high levels of noise at work or through hobbies and leisure activities over time will cause irreparable damage to hearing.  Therefore, high noise exposures are likely to cause deafness at an earlier age than would be expected naturally.

The fact of the matter was that Major JB was not removed from the harmful effects of acute acoustic trauma until he left service in 2016 and service noise therefore continued to aggravate and cause a deterioration of his service caused NIHL and tinnitus, and that this persisted.   

2. The continual use by Veterans UK of an NIHL average over only 1, 2 and 3 kHz is based on an implicit assumption that haring loss for frequencies above 3 kHz has no material adverse consequences on an individual (veteran).  We asserted that this assumption, and thus current law, was unsound. For one example, guidelines from the National Institute for Clinical Excellence (NICE) suggest that hearing aids should be provided for all those that experienced communication difficulties, where 'their ability to communicate and hear is affected as a result of their hearing loss'. The Appellant was, after all, under the care and supervision of Consultant’s and prescribed hearing aids.

3. The NIHL and tinnitus suffered by the Appellant had a material effect upon his quality of life.  An assessment of nil% cannot by any stretch of the imagination be a just and fair assessment.   

Background - The Armed Forces Compensation Scheme – AFCS

The scheme covers all service-related injuries with effect from 6th April 2005.  The injury or illness must have been caused by service or service is the predominant cause.  The burden of proof is on the Applicant.  The standard of proof is on the balance probabilities.   

Veterans UK accepted that our client suffered NIHL during his AFCS service but stated that it was ‘not serious enough to attract compensation under the scheme’ They also accepted the cause as ‘Exposure to Artillery Noise’ but maintained that the loss of hearing ‘falls below tariff’. 

We had asked Veterans UK to explain why our client was not assessed for the minimum award under Table 7, namely an Item 36 Level 13 award of £6,180.  In response, they asked us for details ‘of any exposure or blast or acute acoustic trauma while in AFCS service’.  We even asked if their medical advisor had ever set foot on an artillery gunline? They replied to say that this wasn’t relevant.  

We disagreed and it soon became clear to us that there was a distinct lack of understanding on the part of Veterans UK of the reality of service in the Royal Artillery.  

We gave them copies of reports and MOD noise surveys about the 105mm Light Gun.  We also provided several images of a Gun Battery in action, so to speak.  One such report dated October 2011 revealed that: ‘…the detachment and other personnel within a minimum of 158m from this weapons system when fired are at risk of high peak sound pressure levels.’  Furthermore, the report described that even when using issued hearing defence, gun crews were still exposed to acute noise in excess of safe levels.  

Upon the following grounds, we were instructed to appeal the decision of Veterans UK not to award our client even the pitiful Level 13 award of £6180.00:

1. On the basis that they accepted that the Appellant suffered (further) hearing loss during AFCS service, it cannot possibly be expected that he must precisely prove where or when he was exposed to acoustic trauma. To create such a high burden would be unreasonable and, in any event, it is unnecessary because it is a known fact that working in close proximity to the Light Gun is undeniably hazardous.

2. Each time the Appellant was on a gun position, during his entire 37 years of service, he was regularly exposed to dangerously high levels of acute impulse noise above 140db, regardless of whether or not hearing protection was, or could be, worn.  Incidentally, the injury descriptor in issue does not specify any average hearing loss levels nor permanence of loss in the same way that higher tariff descriptors do under AFCS.   

The Outcome of the Appeals 

The appeal hearing was held remotely on the 6^th of September 2021 and Grant Evatt of Alma Law represented the Appellant Major JB. 

Judgment was handed down on the 9^th September.  

War Pension

The Tribunal found that the law had been applied correctly and upheld the decision not to award a War Pension.  

AFCS

In a unanimous decision, the Tribunal allowed the appeal.  After hearing submissions from both sides, the Tribunal accepted that the Appellant had been subjected to acute acoustic trauma due to impulse noise during his (AFCS) military service and consequently, Veterans UK were ordered to pay the award claimed.  

After judgment had been handed down, Veterans UK applied to the Tribunal for full written reasons. We anticipated that they might apply for permission to appeal the Tribunal’s decision.  We are pleased to report that they subsequently decided not to challenge the judgment and Major JB has now received his tariff award.

Alma Law agreed to act pro bono in this test case.  We are thrilled with the outcome, as is Major JB: 

“I am delighted with the outcome of the AFCS appeal, particularly as both applications were rejected, unfairly in my view. However, it was Grant who gave me the confidence to carry on with the process and appeal both the War Pension and AFCS decisions. Grant, being a Veteran himself, identified that the original decisions were unjustified. 

He secured considerable technical evidence of the weapons and ammunition systems used during my service and put his extensive legal experience to the task when pleading my case to the appeal panel.  It is of my personal knowledge that Alma Law has substantial expertise in pursuing compensation claims on behalf of military veterans. This was a considerable and lengthy process, regardless I always felt that Grant and his team had my best interests at heart.

I wholeheartedly recommend Grant and Alma Law and will always be grateful that they fought my case.” 

If you have suffered Noise Induced Hearing Loss because of your military service and are unsure of your legal rights and the remedies open to you, please contact Alma Law today.  We are led by Grant Evatt, a former Army Commando and authority in military claims.  

© Grant J. Evatt

24^th November 2021