Agius and Repatriation Commission (Veterans' entitlements) [2017] AATA 41 (19 January 2017)
Division
Veterans' Appeals Division
File Number
2015/3004
Re
Norman Agius
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 19 January 2017 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – disability pension – claim for special rate – disabling condition PTSD – ceased work of financial advising at age 54 – farming pursuits – considerable income from investments and company directorships – whether prevented from continuing to undertake remunerative work – non war-caused preventative factors of sleep apnoea and nocturia - alone test not satisfied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 42CVeterans’ Entitlement Act 1986 ss 19, 24, 119
Cases
Chambers v Repatriation Commission (1995) 55 FCR 9
Fahey v Repatriation Commission (1986) 10 ALD 338
Counsel v Repatriation Commission (2002) 122 FCR 476
Flentjar v Repatriation Commission (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625
Hill v Repatriation Commission [2000] FCA 929
Summers v Repatriation Commission (2015) 230 FCR 179
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Watkins (2015) 228 FCR 573Re Reddin and Repatriation Commission [2015] AATA 273
REASONS FOR DECISION
Miss E A Shanahan, Member
19 January 2017
Mr Agius lodged a claim for an increase in his Department of Veterans’ Affairs (DVA) disability pension on 25 August 2011. He had claimed multiple medical conditions contributing to his disability previously estimated at 30 per cent. The claim of 25 August 2011 was for the condition of Post-Traumatic Stress Disorder (PTSD), gastro‑oesophageal reflux disease (GORD), sensorineural hearing loss, and later in an application for an increase in pension receipted 23 March 2012, Diabetes Mellitus. These claims had been denied by a delegate of the Repatriation Commission and subsequently by the Veterans’ Review Board (VRB).
On appeal to the Tribunal a Consent Agreement was reached on 18 August 2014, accepting all of the conditions with the date of effect being 25 May 2011 and that of the diabetes 23 December 2011. The claim for payment at Special Rate was denied.
Mr Agius appealed this aspect of the decision to the Tribunal, the VRB having affirmed the decision that Mr Agius’ Veterans’ Disability Pension be continued at the 100 per cent of the general rate as he did not satisfy s 24(1)(c) of the Act on the basis that he had not met the requirements of the alone test, having been out of the workforce for approximately 15 years and at the time of the hearing was 66 years of age.
Mr Agius lodged his application with the Tribunal for review of the VRB decision on 19 June 2015. The application was initially heard by a differently constituted Tribunal Member commencing on 7 April 2016. At this hearing set down for several days, Mr Agius gave evidence. At the recommencement of the hearing on 8 April 2016, counsel for…
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- Case
- [2017] AATA 41
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was to determine if Mr Agius's claimed conditions, particularly those impacting his cognitive function and anxiety levels, were attributable to his service in Vietnam between June 1967 and July 1968, or to other factors. This involved assessing the timing of the onset of his symptoms, their nature, and their potential connection to his military service, as opposed to his highly successful career as a financial advisor and subsequent personal circumstances.
The Tribunal considered evidence that Mr Agius began experiencing difficulties with concentration and understanding new rules in the late 1990s, coinciding with changes in financial advisory regulations. His wife noted a deterioration in his anxiety and increased agitation in the late 1990s, leading to a diagnosis of PTSD in 2011. The Tribunal also noted Mr Agius's demanding work schedule prior to the late 1990s and his subsequent withdrawal from direct financial advising due to his perceived inability to cope. The Tribunal's reasoning would have involved weighing the evidence of symptom onset against the established medical diagnosis and the nature of his military service.
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