Heard and Repatriation Commission

[2003] AATA 309

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 309

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/711

VETERANS' APPEALS DIVISION		)
Re		KENNETH HEARD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date4 April 2003 

PlaceBrisbane

Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Heard is entitled to pension payable at the Special Rate.

(Sgd) Dr E K Christie
  Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – whether accepted service-related conditions ‘substantial cause’ of inability to engage in remunerative work

Veterans’ Entitlements Act 1986 ss 19, 24, 120

Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1

Re Starcevich and Repatriation Commission (1986) 10 ALN 202

Re Doyle and Repatriation Commission (1986) 47 ALD 187

Jackman v Repatriation Commission [1997] FCA 564

Cavell v Repatriation Commission (1988) 9 AAR 534

Re Hornery and Repatriation Commission [1998] AATA 602

Rendell v Repatriation Commission [2001] FCA 1881

Re Bonner and Repatriation Commission (1989) 17 ALD 680

Byrne v Repatriation Commission [2001] FCA 1134

Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

4 April 2003  Dr E K Christie, Member   

1.      This is an application by Kenneth Heard for a review of the following decisions:

(a)A decision by a Delegate of the Repatriation Commission dated 30 June 2000 which accepted the condition of post traumatic stress disorder as being service related and increased disability pension to 100% to the general rate;

(b)A further decision by a Delegate of the Repatriation Commission dated 26 October 2000 which determined that the conditions of localised osteoarthrosis of the left hip and localised osteoarthrosis of the left ankle were not service related; and

(c)On 19 July 2001 the Veteran’s Review Board affirmed the decisions.

2.      At the hearing, Mr A Harding of Counsel represented Mr Heard.  The respondent was represented by Mr J Kelly, a Departmental Advocate.

3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents) and the various documents tendered by the parties.

4.      Oral evidence on behalf of the applicant was given by Mr Kenneth Heard himself and Dr P Kar, a psychiatrist.  The respondent called no witnesses.

Facts

5.      Kenneth Heard was born in 1938 and served with the Australian Army from 26 April 1955 until discharge on 26 April 1980, having reached the prescribed retiring age.

6.      During his service Mr Heard rendered operational service in the Malaysia region from 21 September 1965 until 14 September 1966 and in South Vietnam from 1 October 1969 until 25 January 1970.

7.      Mr Heard also rendered eligible defence from 7 December 1972 until 26 April 1980.

8.      Mr Heard had the following conditions accepted as “service…