Hannebery and Repatriation Commission

[2011] AATA 120

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 120

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4742

VETERANS'       APPEALS      DIVISION		)
Re		BERNARD HANNEBERY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date23 February 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

John Handley

Senior Member

VETERANS’ AFFAIRS ‑ claim for increase in rate of pension to the special rate – applicant under 65 years when claim made –accepted and non-accepted injuries and diseases – earthmoving contractor ‑  whether war-caused injuries or diseases alone prevent applicant from undertaking remunerative work of more than 8 hours per week

Veterans’ Entitlements Act 1986 s 24(1)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 15 FCR 327

Cavell v Repatriation Commission (1989) 9 AAR 534

REASONS FOR DECISION

23 February 2011   Mr John Handley, Senior Member

1. On 22 September 2003 Mr Hannebery, the applicant in these proceedings, made a claim upon the respondent for acceptance of the conditions of alcohol abuse, generalised anxiety disorder and hypertension. The claim was rejected on 8 January 2004. The decision to reject the applicant’s claim was affirmed by the Veterans' Review Board (VRB) on 10 July 2007. The applicant challenged the VRB’s decision in this Tribunal (Nº 2007/3681) and a decision was made pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 on 13 June 2008.  The parties agreed that the conditions claimed by the applicant were war-caused with effect from 22 June 2003.  It was also agreed that the application be remitted to the respondent for calculation of the rate of disability pension that would consequently be paid to the applicant.

2.      On 11 September 2008 the respondent assessed pension at 80 per cent of the general rate with effect from 22 June 2003.  The applicant sought review by the VRB.  On 11 September 2009 the VRB decided that the applicant was entitled to pension at 80 per cent of the general rate from 22 June 2003 and at 90 per cent of the general rate from 28 November 2007.  On that date, Dr Epstein, a consultant psychiatrist assessed the applicant under Table 4 of the Guide to the Assessment of Repatriation Pensions and delivered a report dated 3 December 2007.  The VRB adopted his assessment and increased the rate of pension to 90 per cent.  

3. By these proceedings the applicant applies to review the decision made by the VRB made on 11 September 2009. He seeks pension at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986 (the Act).

BACKGROUND

4.      The applicant was born on 15 June 1945.  On 22 September 2003 he was aged 58.  He was then self-employed and working.  In addition to the accepted disabilities of generalised anxiety disorder, alcohol abuse and hypertension, the applicant has a number of other accepted disabilities which were not referred to in any detail in…