JOHN TAYLOR and REPATRIATION COMMISSION

[2006] AATA 464

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006]AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/485

VETERANS' APPEALS  DIVISION		)
Re		JOHN TAYLOR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell

Date26 May 2006

PlaceSydney

Decision The decision under review is set aside and in substitution the decision is made that Mr Taylor is entitled to the special rate of pension.

[sgd] Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

VETERANS’ APPEALS – increase in pension rate – Applicant seeking to be paid the special rate of pension – seven accepted disabilities including Post Traumatic Stress Disorder with secondary alcohol abuse and depression – medical evidence supports that due to Applicant’s psychiatric conditions he is unable to work for 8 hours a week – Applicant’s remunerative work was manual labouring – Applicant’s war caused psychiatric conditions alone prevent him from undertaking and continue to prevent him undertaking remunerative work – decision set aside

LEGISLATION
Veterans’ Entitlements Act 1986 ss 24, 120(4)

CASELAW

Flentjar v Repatriation Commission (1997) 48 ALD 1
Starcevich v Repatriation Commission (1987) 76 AAR 449
Fry v Repatriation Commission (1997) 47 ALD 776
Magill v Repatriation Commission [2002] FCA 744

REASONS FOR DECISION

26 May 2006   Senior Member, Mrs Josephine Kelly and 
  Member, Dr John Campbell         

Introduction

1.      Mr Taylor is a Vietnam veteran. He is seeking a review of the assessment of his pension. It is currently assessed at 100% of the general rate. He wishes to be paid the special rate of pension. Mr Taylor was born on 20 July 1946 and is currently 59 years of age.

2.      The decision under review is the decision of the Repatriation Commission (“the Commission”) dated 20 November 2003 that assessed disability pension at 100% of the General Rate, and which was affirmed by the Veterans’ Review Board on 22 February 2005. 

3.      The “assessment period” commenced on 24 October 2003, the date Mr Taylor made a claim for pension, which is the ‘application day’.

Mr Taylor’s Accepted Disabilities

4.      Following is a list of Mr Taylor’s accepted disabilities and the dates of acceptance according to the Commission’s records:

·     Gun shot wound right shoulder (date unknown)

·     Perceptive deafness (date unknown)

·     Anxiety state (dated unknown)

·     Osteoarthrosis of the right shoulder (13 September 2000)

·     Post traumatic stress disorder with secondary alcohol abuse and depression (24 July 2003)

·     Diabetes mellitus (6 August 2003)

·     Hypertension (6 August 2003)

5.      It is not contested that the “gun shot wound” was in fact a mortar injury which Mr Taylor suffered during the Tet offensive while asleep in a shellscape when he was guarding American artillery. One of his mates was killed. He was taken by helicopter to an American base hospital where some of the shrapnel was removed.  Following convalescence he went back into the field for about three weeks but had difficulty carrying his pack, and was returned to hospital. Further shrapnel was removed…