Herd and Repatriation Commission

[2005] AATA 155

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 155

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/410

VETERANS' APPEALS DIVISION		)
Re		BRUCE HERD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date21 February 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

R G Kenny
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – incapacity from war-caused conditions sufficient to prevent veteran from undertaking remunerative work for more than 8 hours per week - veteran not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work that he was undertaking – pension payable at 90% of the general rate – decision affirmed

Veterans’ Entitlements Act 1986 ss 5Q, 6C, 7, 15, 19, 22, 23, 24

Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83
Rendell v Repatriation Commission [2001] FCA 1881
Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

21 February 2005   Mr R G Kenny, Member     

Background

1. In response to a claim for an increase in pension lodged on 11 October 2002 in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act) by Bruce Herd (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 7 January 2003, that the degree of Mr Herd’s incapacity from his war-caused conditions of generalised anxiety disorder, peptic ulcer disease, sensori-neural hearing loss in the left ear and tinnitus was ninety percent.  The respondent then determined that, in accordance with section 22 of the Act, pension was payable to him at ninety percent of the general rate.

2.      On 4 April 2003, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 9 May 2003, Mr Herd sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

3.      Mr Herd attended the hearing and was represented by Mr R Clutterbuck of counsel.  The respondent was represented by Mr D McAninly.  The following material was taken into evidence:

exhibit 1:the “T” Documents (T1-T6) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975;

exhibits 2, 3 and 4:   medical reports, dated 13 March 2001, 25 October 2001 and 12 February 2004, by Dr Bruce Lawford, consultant psychiatrist;

exhibit 5: a statement (with 2 annexures), dated 26 July 2004, by the applicant;

exhibit 6a further statement, dated 27 January 2004, by the applicant;

exhibit 7a statement, dated 8 August 2004 (with attachment), by Georgina Murray;

exhibit 8a medical report, dated 11 July 2003, by Dr Keith Adam, specialist in occupational medicine;

exhibit 9a medical report, dated 29 September 2003, by Dr Greg Knight, consultant occupational physician;

exhibit 10an Employment Questionnaire, dated 29 July 1999;

exhibit 11the applicant’s taxation records for the years 1998 to 2003;

exhibit 12payment advice sheets from the  Queensland University of Technology;

exhibit 13a list of employment positions investigated by the applicant;

exhibit 14a medical…