Jenner and Repatriation Commission

[2011] AATA 179

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 179

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2009/3984

VETERANS' APPEALS  DIVISION		)
Re		JOHN JENNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date21 March 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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Member

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlement – disability pension – no war related service – claim for Special Rate Pension – anxiety disorder with panic attack – alcohol abuse- marriage break-up – decision under review affirmed

Veterans Entitlement Act 1986 (Cth) ss 70, 120

Administrative Appeals Tribunal Act 1974 (Cth) s 37

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) FCR 307

Repatriation Commission v Hill (2002) 69 ALD 581

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

REASONS FOR DECISION

21 March 2011 Mr P Wulf, Member

1.       The applicant, Mr John Joseph Jenner appeals against both a decision of the Delegate for the Repatriation Commission dated 10 August 2007[1] and an appeal to the Veterans’ Review Board (“VRB”) dated 29 July 2009.[2] The original pension claim was lodged on 9 February 2007.[3] The appeal relates to the applicant’s service in the Defence Force between 10 June 1974 and 9 June 1980 (“eligible period”).

[1] Exhibit 1, T2/D-J

[2] Exhibit 1, T1/C, T5/224-233 and T6/234

[3] Exhibit 1, T4/116-125

2.       The Delegate’s decision was that the alcohol dependence and panic disorder was not defence caused and that the applicant had a continued disability of 40% of the General Rate for ischaemic heart disease, bilateral sensorineural hearing loss and tinnitus and carotid arterial disease.

3.          The VRB varied the original decision by amending the diagnosis of panic disorder with agoraphobia to anxiety disorder with panic attacks and depressive disorder. However, the VRB affirmed the decision with respect to the 40% continued disability. On 25 August 2009, the applicant appealed to this Tribunal for review.[4]

[4] Exhibit 1, T1/B

4.       This Tribunal affirms the decision of the VRB for the reasons contained within.

ISSUES

5.       The Tribunal must determine whether the applicant suffered from anxiety disorder and panic attacks, depressive disorder and alcohol abuse that were defence-caused consistent with s 70 of the Act.

LEGISLATIVE SCHEME

6.       Section 70 of the Act provides as follows:

70       Eligibility for pension

(1)       Where:

(a)the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or

(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or

(d)in the case of the incapacity of the member—pension by way of compensation to the member;

in accordance with this Act.

(2)       Where:

(a)a member of the Forces or a member of a Peacekeeping Force has died;