EARLE MEMBREY and REPATRIATION COMMISSION

[2009] AATA 942

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/3622

VETERANS'      APPEALS        DIVISION		)
Re		EARLE MEMBREY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Dr Kerry Breen, Member

Date9 December 2009

PlaceMelbourne

Decision The decision of the Veterans' Review Board made on 11 April 2008 is affirmed.

(Sgd)  John Handley
  Senior Member

VETERANS' ENTITLEMENTS – Applicant fell onto his outstretched left arm during service in South Vietnam – severe dislocation of left elbow and ulnar nerve lesion resulting – osteoarthrosis of left shoulder later diagnosed and claimed – SOP 31 of 2005 and factor 6(g) considered – whether applicant suffered a trauma to his left shoulder – virtual impossibility in satisfying definition at paragraph 9 of the SOP – decision affirmed – recommendation to consider review of the definition

Veterans’ Entitlements Act 1986 (Cth) s 196B(2) and s 196W

Legislative Instruments Act 2003 (Cth) s 5

Arnott v Repatriation Commission [2001] FCA 262

Connors v Repatriation Commission [2000] FCA 783

Harris v Repatriation Commission (2000) 31 AAR 270

Harris v Repatriation Commission [2000] FCA 1687

Knight v Repatriation Commission [2002] FCA 103

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Deledio (1998) 83 FCR 82

Statements of Principles Instrument No 31 of 2005

REASONS FOR DECISION

9 December 2009

Mr John Handley, Senior Member

Dr Kerry Breen, Member

1.      Mr Membrey, the applicant in these proceedings, applies to review a decision made by the Veterans' Review Board (VRB) on 11 April 2008 which affirmed a decision previously made by the respondent on 6 August 2007 to refuse his claim for acceptance of osteoarthrosis of the left shoulder and left rotator cuff syndrome.

2.      The applicant is presently 62 years of age and was a member of the Royal Australian Air Force (RAAF) between 1967 and 1979.  He served as a telecommunications technician in the No 2 Squadron in South Vietnam between 15 April 1970 and 14 April 1971.  He presently receives disability pension at 60 percent of the general rate by reason of the accepted conditions of osteoarthrosis of the left elbow, dislocation of the left elbow and left ulnar nerve lesion.

3.      The applicant asserts, by this review, that he suffered injury to his left shoulder at the same time as he injured his left elbow.  The shoulder injury progressively deteriorated and has been diagnosed as osteoarthrosis.

4.      On 22 February 1971 the applicant was sitting on a railing on the edge of a balcony in the mess area at Phan Rang Air Base.  The balcony was located approximately six feet above ground level.  The applicant overbalanced and fell to the ground.  His left arm was outstretched to protect his fall however he struck a metal spike fixed to the ground.  He did not lose consciousness but there was a large open wound on the inside of his left elbow.  The elbow was also dislocated.  The applicant described his pain, then, as…