Kennett and Repatriation Commission

[2005] AATA 1307

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/86

VETERANS’ APPEALS DIVISION		)
Re		ROBERT JOHN KENNETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member R W Dunne
Dr E T Eriksen (Member)

Date23 December 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – entitlement to special rate – applicant’s war-caused injuries alone did not, during the assessment period, prevent him from continuing to undertake remunerative work – decision under review affirmed

Veterans’ Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberlin J, No NG521 of 1996, 30 June 1997, BC9702806)
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Graham 39 AAR 426
Sheehy v Repatriation Commission (1996) 66 FCR 569
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Buckingham (unreported, Federal Court of Australia, Ryan J, 7 February 1996)
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

23 December 2005 Senior Member R W Dunne
Dr E T Eriksen (Member)   

1.      The applicant, Robert John Kennett, is a Vietnam veteran.  He currently has accepted disabilities of sensorineural deafness with tinnitus, lumbo-sacral spondylosis with disc degeneration, anxiety disorder, tension headaches and post-traumatic stress disorder (“PTSD”).  He also suffers from migraine, perivascular dermatitis, hypermetropia, lipoma left thigh and sleep apnoea, which are non-war-caused disabilities.

2.      On 16 March 2004, Mr Kennett lodged a claim with the respondent (“Commission”) for an increase in pension to the special rate payable in respect of his accepted disabilities.  Prior to this claim, the pension of the applicant was assessed at 100 percent of the general rate.  A delegate of the Commission decided that the applicant’s disability pension would continue at 100 percent of the general rate.  This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 7 April 2004.  The applicant has applied to this Tribunal for review of the Commission’s decision.

3. At the hearing before the Tribunal, the applicant was represented by Mr Christopher Swan, and the Commission was represented by Mr Adrian Crowe, an advocate employed by the Commission. Evidence was given by Mr Kennett. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”) were tendered on behalf of the Commission. No other documents were tendered by the parties.

4. The applicant’s entitlement to the special rate of pension…