Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2088
ADMINISTRATIVE APPEALS TRIBUNAL ) N2004/1139
) N2006/654
VETERANS APPEALS DIVISION )
Re PETER HEWITT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate21 December 2007
PlaceSydney
DECISION
Decision Matter N2006/654 – The Tribunal varies the assessment decision of the VRB dated 16 May 2006, and awards pension at 70% of the general rate from 10 September 2001 to the date of this decision, 21 December 2007. As Mr Hewitt no longer has conditions accepted as war-caused from 21 December 2007, he is not entitled to disability pension. Mr Hewitt is not entitled to intermediate or special rate of pension.
Matter N2004/1139 - The Tribunal affirms that part of the decision of the VRB dated 27 July 2004 which found that Mr Hewitt does not suffer PTSD with Major Depression. In substitution the Tribunal finds that Mr Hewitt suffers Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes, but finds that these conditions are not war-caused.
....................(Sgd)..........................
Ms G Ettinger
Senior Member
CATCHWORDS
Veteran – operational service in Vietnam - PTSD diagnosed when Veteran first sought medical assistance in 1998 – long history of applications - generalised anxiety disorder and Alcohol Dependence and Abuse accepted – whether the Veteran suffers depressive illness - whether intermediate or special rate applicable – this Tribunal finds that the Veteran suffers GAD and Alcohol Abuse and depressive episodes – not war-caused – special rate not granted.
Veterans Entitlements Act 1986 ss 9, 23, 24, 120
Statements of Principles:
Alcohol Dependence or Abuse Instrument No 76 of 1998
Anxiety Disorder Instrument No 101 of 2007
Generalised Anxiety Disorder Instrument No 48 of 1994 Instrument No 275 of 1995
Depressive Disorder Instrument No 17 of 2007 & Instrument No 58 of 1998
Post Traumatic Stress Disorder Instrument No 3 of 1999Repatriation Commission v Cooke (1998) 90 FCR 307
Budworth v Repatriation Commission (2001) 63 ALD 422
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Youngnickel v Repatriation Commission[2004] FCA 1691
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
Gorton v Repatriation Commission (2001) 63 ALD 723
Woodward v Repatriation Commission (2003) 131 FCR 473
Stoddart v Repatriation Commission (2003) 197 ALR 283REASONS FOR DECISION
21 December 2007 Ms G Ettinger, Senior Member
Dr I Alexander, Member
1. Mr Peter Hewitt, the Applicant in this matter, has had a long and stressful history of making pension claims in relation to his war service which was from 23 April 1969 to 22 April 1971. His operational service was in the Australian Army in Vietnam from 9 September 1970 to 25 March 1971. Mr Hewitt also served in the Army Reserve.
2. He made several applications in regard to entitlement to, and assessment of pension, and on appeal, the Veterans Review Board (VRB), adjourned on several occasions while further information…
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- AGLC
- Hewitt and Repatriation Commission [2007] AATA 2088
- Case
- [2007] AATA 2088
- Decision Date
CaseChat Overview and Summary
The tribunal found that Mr. Hewitt suffered from Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes. However, these conditions were not accepted as war-caused. The tribunal applied the statutory framework, including sections 9, 23, 24, and 120 of the Veterans Entitlements Act 1986, and reviewed the applicable instruments. The tribunal concluded that Mr. Hewitt’s conditions, while acknowledged, were not related to his service, thus the special rate of pension was not granted. Instead, the tribunal determined that Mr. Hewitt was entitled to a pension at 70% of the general rate from 10 September 2001 to the date of the decision, 21 December 2007. Given that Mr. Hewitt no longer had conditions accepted as war-caused from 21 December 2007, he was not entitled to a disability pension. The tribunal also affirmed that Mr. Hewitt did not suffer from PTSD with Major Depression.
In its final orders, the tribunal varied the assessment decision of the VRB dated 16 May 2006 and awarded pension at 70% of the general rate from 10 September 2001 to the date of this decision, 21 December 2007. Mr. Hewitt was not entitled to an intermediate or special rate of pension. The tribunal also affirmed the part of the decision of the VRB dated 27 July 2004 that found Mr. Hewitt did not suffer from PTSD with Major Depression, instead finding that he suffered Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes, but these conditions were not war-caused.
Orders
Orders of the court
Matter N2006/654 – The Tribunal varies the assessment decision of the VRB dated 16 May 2006, and awards pension at 70% of the general rate from 10 September 2001 to the date of this decision, 21 December 2007. As Mr Hewitt no longer has conditions accepted as war-caused from 21 December 2007, he is not entitled to disability pension. Mr Hewitt is not entitled to intermediate or special rate of pension.
Matter N2004/1139 - The Tribunal affirms that part of the decision of the VRB dated 27 July 2004 which found that Mr Hewitt does not suffer PTSD with Major Depression. In substitution the Tribunal finds that Mr Hewitt suffers Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes, but finds that these conditions are not war-caused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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