Shiboo Yadav vs Union Of India And Others

Aggrieved by the order of the respondents (Directorate of Air Veterans, Air Headquarters) dated 06.09.2017 rejecting his claim for raising his

disability pension from the existing rate 50% to increased rate of 75% on account of the fact that his third disability 'Primary Hypertension' was

assessed as neither attributable to nor aggravated by (NANA) military service by the Release Medical Board proceedings dated 12.12.2010 and

subsequently by the AOC AFRO vide order dated 11.05.2011, the applicant, who retired from the Air Force in the rank of Master Warrant Officer

(MWO), has filed this 0.A with a prayer that the impugned letter dated 06.09.2017 be quashed and the applicant be granted disability element of

pension @ 70% broad banded to 75% instead of the current rate of 50% (after broad banding/rounding off from 40%).

Heard the learned counsel appearing for both the parties and perused the pleadings and the documents on record.

Learned counsel for the applicant submits that the RMB conducted on 12.12.2010 prior to the applicant's retirement from service on 31.10.2011 had

found that the applicant was suffering from three disabilities viz. (i) Primary Hypertension assessed 30% for life; (ii) Coronary Artery Disease â€

Double Vessel Disease Post PCILAD RI (Old) assessed © 40% for life; and (iii) Intermittent Arterial Fibrillation assessed © 20% for life. The

composite disability worked out to 70% for life, but as the first disability (Primary Hypertension) was assessed as NANA by the medical authorities,

disability element was awarded only @ 40% for the remaining two disabilities and broad banded accordingly to 50%.

Learned counsel for the applicant submits that the medical authorities had unfairly denied disability element for Primary Hypertension by declaring it

NANA on account of the fact that the onset of the disease was during service in a peace area (Nagpur), there was no delay in diagnosis and the

disease/disability is not liable for grant of attributability as per Para 43, Chapter VI of the Medical Officers (Military Pensions) 2002. Learned counsel

contends that there are a catena of judgments of the Hontle Supreme Court and various Benches of this Tribunal, whereby military personnel

suffering from Primary Hypertension have been granted disability pension after establishing/declaring that this disease occurs due to the stress and

strain of military service, irrespective of the fact whether the service is in peace area or field area and thus, it has been held as attributable

to/aggravated by service. In this regard, learned counsel placed reliance on the decision in Union of India and another v. Raibir Singh (2015) 12 SCC

264, wherein the Honible Supreme Court had ruled in favc J r of granting disability pension to the respondent therein after applying the principles laid

down in Dharamvir Singh v. Union of India and others (2013) 7 SCC 316. Thus, if attributability/aggravation is granted after holding that the disease

Primary Hypertension was caused by the stress and strain of the Air Force service, the composite disability would go up to 70% and thus the applicant

would correctly be entitled to 75% disability element of pension after broad banding/rounding off.

Learned counsel for the respondents has, on the other hand, controverted the arguments made on behalf of the applicant. Learned counsel has

referred to Para 43 of Chapter VI of the Guide to Medical Officers (GMO) 2002 on the subject of hypertension, which is reproduced as under:

Hypertension

The first consideration should be to determine whether the hypertension is primary (essential) or secondary. If secondary, entitlement

consideration should be directed to the underlying disease process (e.g. Nephritis), and it is unnecessary to notify hypertension separately.

It is better to clearly indicate whether it is a case of essential hypertension, giving the evidence in support.

As in the case of artherosclerosis, entitlement of attributability is never appropriate, but where disablement for essential hypertension

appears to have arisen or become worse in service, the question whether service compulsions have caused aggravation must be considered,

Each case should be judged on its merits taking into account particularly the physical condition on entry into service, the age, the amount

and duration of any stress and whether any other service compulsion has operated.

Hypertension generally arising ii7 close time relationship to service in field area, active operational area, war like situation both in peace

and field area, counter-insurgency areas and high altitude areas are acceptable as aggravated when exceptional stress and strain of

service is in evidence. However, in certain cases the disease has been reported after long and frequent spells of service in field/HAA/active

operational area. Such cases can be explained by variable response exhibited by different individuals to stressful situations. Aggravation

can be considered taking into account the duration of service in active operational areas and sector profile.

Learned counsel also contends that whereas the aforesaid paragraph of GMO, 2002 clearly states that entitlement of attributability in cases of

hypertension are never appropriate, but aggravation can be granted in cases where there is a close time relationship between onset of the disease and

service in field area, active operational area, warlike situations, both in peace and field area, counter insurgency areas and high altitude area, however,

as indicated in the RMB proceedings, the applicant contracted 'Primary Hypertension' after being involved in routine duties associated to his trade as a

Mechanical Transport (MT) Fitter in a peace area. Thus, the medical authorities correctly and fairly rejected attributability/aggravation for Primary

Hypertension, while granting 'aggravation' for the other two diseases viz. 'CAD-DVD' and 'Intermittent Arterial Fibrillation', which entitled the

applicant to be entitled to disability element of pension © 50% for life from the date of his discharge from service. Moreover, the disease 'Primary

Hypertension cannot be seen independently in isolation from the other two diseases viz. CAD-DVD and Intermittent Arterial Fibrillation as they are

closely connected. Hypertension is a causative factor/symptom of the other two diseases and that is the reason that the medical authorities, while

granting disability pension after holding two medical conditions as aggravated, did not grant attributability/ aggravation for Primary Hypertension.

Hence, the 0.A should be rejected being devoid of merit.

Consideration:

We have given careful consideration to the arguments from both sides and perused the records made available to us.

We find that, whereas the medical authorities, during the RMB conducted in December 2010, granted aggravation at the composite rate of 400/0

for two medical conditions viz. CAD-DVD and Intermittent Arterial Fibrillation, they held the third medical condition viz, Primary Hypertension as

NANA, quoting the contents of Para 43 of the GMO, 2002, which describes the grant of attributability to this disease as 'never appropriate'. Even for

granting aggravation, it needs to be established that the service conditions or compulsions of the applicant caused excessive stress, which is not

apparent in this case. Moreover, we find that Primary Hypertension has causative/ symptomatic links to occurrence of heart/ arterial disease, as

apparent from the onset of the applicant's other two medical conditions. In our opinion, the respondents have very fairly already granted 50% disability

element of pension (after broad banding from 40%) for two medical conditions viz. CAD-DVD and Intermittent Arterial Fibrillation based on

recommendations of the RMB and thus the prayer for interference by this Tribunal to modify the RMB recommendations and increase the disability

element of pension to cover the related condition of Primary Hypertension is not justified.

In the result, the 0.A lacks merit and is dismissed.

No order as to costs.

Pronounced in open Court on this the 5th day of December

2019.