DUNSTALL and REPATRIATION COMMISSION

[2010] AATA 806

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1412

VETERANS' APPEALS DIVISION		)
Re		PETER DUNSTALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date20 October 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – Veteran in receipt of 100% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of war-caused conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable - Decision under review affirmed.

Safety, Compensation and Rehabilitation Act 1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 14, 19, 22, 23, 24, 119, 120

Birtles v Repatriation Commission (1991) 105 ALR 359
Flentjar v Repatriation Commission (1997) 26 AAR 93, (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jebb v Repatriation Commission (1988) 80 ALR 329
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703 
Van Ewijk v Repatriation Commission [2004] FCA 17

REASONS FOR DECISION

20 October 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1. On 23 April 2009, Peter Dunstall lodged a claim, under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for a pension. On 21 September 2009, a delegate of the respondent determined that Mr Dunstall suffered from post traumatic stress disorder, lumbar spondylosis and osteoarthritis of the knees and that these were war-caused, in accordance with s 120 of the Act. The delegate increased the rate of disability pension, under s 22 of the Act, to 100% of the general rate with effect from 23 January 2009. On 22 March 2010, the Veterans’ Review Board (“the Board”) affirmed that decision. In so determining, the delegate and the Board were satisfied that Mr Dunstall did not qualify for the intermediate or the special rate of pension under s 23 or s 24 of the Act, respectively.

ISSUES AND LEGISLATION

2.      Assessment matters in issue are determined to the Tribunal’s reasonable satisfaction in accordance with substantial justice and the substantial merits of the case[1].  In that process, neither party bears an onus of proof[2]. The procedure, set out in s 19 of the Act, requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4].  It is not disputed that the application day in this case was 23 April 2009 or that the assessment period runs from that day until the matter is determined.

[1]…