Ashenden and Repatriation Commission - [2006] AATA 1102

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISIONS [2006] AATA 1102
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/253 & S2005/254

VETERANS' APPEALS DIVISION )

Re OLIVER KEITH ASHENDEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)
Date20 December 2006
PlaceAdelaide

Decision
The Tribunal:
(a) affirms the decision made by the respondent on 2 September 2004 (S2005/253) to assess pension at no greater than 100 percent of the general rate;
(b) sets aside the decision under review in respect of gastro-oesophageal reflux disease (GORD) (S2005/254) and substitutes a new decision that GORD be accepted as war-caused with effect from 28 July 2004; and

(c) assesses the rate of pension payable to Mr Ashenden as a result of its acceptance of GORD at 100 percent of the general rate.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – gastro-oesophageal reflux disease – caused by a pathological rate of alcohol consumption – assessment – extreme disablement adjustment – lifestyle rating less than 6 – assessment decision affirmed – entitlement decision set aside
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 23, 24,120(1), 120(3), 120A
REASONS FOR DECISIONS

20 December 2006
  Mr J G Short (Member)

  Professor P Reilly AO (Member)

background
1.      The entitlement application (S2005/254) sought review of a decision made by the Repatriation Commission (the Commission) on 28 April 2005 to reject as not war-caused, conditions of gastro-oesophageal reflux disease (GORD), asthma and pleural plaques. Prior to or during the hearing, Mr Ashenden (through his counsel Mr Churches) withdrew the application as it related to asthma and pleural plaques. The Commission said that it would agree acceptance of GORD on the basis of alcohol consumption, with effect from 28 July 2004. The submission in respect of GORD was that Mr Ashenden had a service related pathological consumption rate of alcohol at the time of the clinical onset of GORD.
2.      Application S2005/253 is an appeal against a decision of the Commission made on 2 September 2004 to assess Mr Ashenden’s rate of pension at no more than 100 percent of the general rate. This assessment followed acceptance of post-traumatic stress disorder (PTSD) as being war-caused. It is common ground that the veteran has accepted disabilities of:
·sensorineural deafness with tinnitus
·PTSD
·ischaemic heart disease
·atrial fibrillation
·hyperidrosis
·flat feet with plantar warts
·athersosclearotic peripheral vascular disease both legs

and now, following the Tribunal’s decision in application number S2005/254, the veteran’s accepted disabilities also include GORD.
issues
3. The issues before the Tribunal are:
·whether Mr Ashenden’s experience of GORD is war-caused; and
·what is the appropriate rate of pension payable to Mr Ashenden following acceptance of PSTD and now GORD.

background
4. Mr Ashenden was born on 25 August 1923. He served in the Australian Army from 5 February 1942 until 27 August 1945. All of his service constituted operational service which is also eligible service for the purposes of the Veterans’ Entitlements Act 1986 (the VE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashenden and Repatriation Commission

Details

AGLC: Ashenden and Repatriation Commission [2006] AATA 1102
Case: [2006] AATA 1102
Decision Date: 20 December 2006

CaseChat Overview and Summary

The case involved Mr Ashenden, who was challenging decisions made by the Repatriation Commission regarding his pension entitlements. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary concern was the assessment of Mr Ashenden's pension and the recognition of his gastro-oesophageal reflux disease (GORD) as war-caused.

The legal issues before the AAT included whether the Repatriation Commission's decision to assess Mr Ashenden's pension at no greater than 100 percent of the general rate was correct and whether GORD should be recognised as war-caused. The AAT had to consider the evidence provided regarding Mr Ashenden's medical condition and its relation to his service, as well as the statutory criteria for pension assessments.

In its decision, the AAT affirmed the Commission's assessment of the pension rate but found that the Commission's decision regarding GORD was flawed. The AAT substituted its own decision, recognising GORD as war-caused with effect from 28 July 2004. This recognition led to the reassessment of Mr Ashenden's pension rate at 100 percent of the general rate, taking into account the new condition.

Ultimately, the AAT's orders were to affirm the pension assessment but set aside the decision concerning GORD, substituting it with a new decision that recognises the condition as war-caused. The rate of pension payable was reassessed accordingly.

Orders

Orders of the court

The Tribunal:

(a) affirms the decision made by the respondent on 2 September 2004 (S2005/253) to assess pension at no greater than 100 percent of the general rate;

(b) sets aside the decision under review in respect of gastro-oesophageal reflux disease (GORD) (S2005/254) and substitutes a new decision that GORD be accepted as war-caused with effect from 28 July 2004; and

(c) assesses the rate of pension payable to Mr Ashenden as a result of its acceptance of GORD at 100 percent of the general rate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		OLIVER KEITH ASHENDEN