DAMIEN JOSEPH VELLA and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2694

VETERANS'       APPEALS        DIVISION		)
Re		DAMIEN JOSEPH VELLA

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss EA Shanahan, Member
Brigadier C Ermert (Retd), Member

Date26 June 2009

PlaceMelbourne

Decision

The Tribunal:

·              sets aside part of the decision under review and substitutes the decision that Mr Vella’s generalised anxiety disorder is war-caused;

·              affirms part of the decision under review that Mr Vella’s sleep apnoea is not war-caused; and

·              sets aside part of the decision under review and decides that Mr Vella is entitled to be paid a pension at the Special Rate from 4 January 2007.

(sgd) EA Shanahan
  Member

VETERANS’ AFFAIRS ‑ operational service – accepted impairment rating of 100 per cent - accepted war-caused disability of ischaemic heart disease – respondent concedes war-caused generalised anxiety disease – veteran ceased work because of heart problems – whether qualified for special rate - four Flentjar questions – type of remunerative work – prevented from continuing work by war-caused conditions – no other factors affect the continuation of remunerative work – s.24 of the Act satisfied – qualified for disability pension at Special Rate – decision altered

Veterans’ Entitlements Act 1986 ss 23, 24

Flentjar v Repatriation Commission (1997) 48

Chambers v Repatriation Commission [1995] FCA 1144

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Alexander (2002) 75 ALD 329

REASONS FOR DECISION

26 June 2009

Miss EA Shanahan, Member

Brigadier C. Ermert (Retd), Member

INTRODUCTION

2.      Mr Vella, the applicant, joined the Royal Australian Navy in 1964 and was discharged in 1975.  He had operational service in Vietnam in 1967 and 1968.  Mr Vella’s work history after his discharge included positions as a wire rope splicer, postman, labourer, press operator, milk bar proprietor, dairy depot manager, labourer and production supervisor. 

3.      Mr Vella suffered a heart attack in May1993.  Although he returned to work, he was retrenched in July 1993.  In 1994 Mr Vella commenced employment with Auspine Pty Ltd as Area Manager Supervisor.  In April 1995 he suffered severe chest pains and was admitted to hospital with an anterolateral myocardial infarction.  He was discharged on 16 April 1995 having made an uneventful recovery. However, on 2 June 1995 Mr Vella resigned from Auspine.  In 1997 Mr Vella and his wife attempted to do some fruit picking to earn money to help with expenses for his daughter’s wedding.  After ten days he had to stop as a result of his increasing chest pains.  In 2004 Mr Vella was offered and accepted part-time work as a handyman.  The job was generally for three days a week and Mr Vella could work in his own time and at his own pace.  He worked in this position for four months.  Mr Vella resigned the position after an occasion when he had to call on his wife to assist him at work.  He has not worked since. 

4.      On…