McCallum and Repatriation Commission

[2014] AATA 50

[2014] AATA 50

Division	VETERANS' APPEALS DIVISION
File Number	2011/3353
Re	David Robert McCallum
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	31 January 2014
Place	Melbourne

The Tribunal affirms the decision under review.

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Regina Perton, Member

VETERANS’ AFFAIRS - pension at special rate – whether war caused conditions alone cause of inability to work – reason why applicant stopped working for more than 8 hours per week – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 24(1)(a), (b) and (c), 24(2)(a)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2002) 75 ALD 329

Repatriation Commission v Hendy [2002] 76 ALD 47

REASONS FOR DECISION

Regina Perton, Member

31 January 2014

1. David McCallum, who is now 68 years old, served in the Australian Army for two years from 1 February 1967 to 31 January 1969.  This included operational service in Vietnam from 11 December 1967 to 17 December 1968.  Mr McCallum currently receives a service disability pension at 100 per cent of the general rate.   He suffers from multiple medical conditions, of which bilateral sensorineural hearing loss, post traumatic stress syndrome (PTSD), chronic obstructive airways disease, type II diabetes mellitus, alcohol dependence, solar keratosis of both arms and atherosclerotic peripheral vascular disease affecting both legs have been accepted by the Repatriation Commission (the Commission) as having been war caused.  

2. On 16 September 2010 Mr McCallum lodged a claim for increase in pension.  He was successful in having atherosclerotic peripheral vascular disease affecting both legs accepted as an additional war caused condition but continued with 100 per cent pension which he was already receiving.   

3. On 25 November 2010 Mr McCallum applied for review to the Veterans Review Board (VRB).  Mr McCallum, who was under 65 years of age when he lodged the claim in 2010, believes he is entitled to a special rate pension, which is a higher rate of pension paid to a disability pension recipient who is unable to work due to his accepted war caused disabilities alone. 

4. On 23 June 2011 the VRB affirmed the Commission's decision that Mr McCallum was not eligible for a pension at a special rate.  On 18 August 2011 Mr McCallum lodged the application currently under consideration by the Tribunal. 

5. In deciding whether Mr McCallum is eligible for pension at the special rate, the Tribunal needs to consider:

   ·Is Mr McCallum unable to undertake remunerative work for more than 8 hours per week?

   ·When and why did Mr McCallum stop working for more than 8 hours per week?

   ·Do Mr McCallum's accepted war-caused conditions alone prevent him from working?

   IS MR MCCALLUM UNABLE TO WORK FOR MORE THAN 8 HOURS PER WEEK?

6. Based on the medical evidence and that of Mr McCallum and his family members, the Commission has indicated that it accepts that Mr McCallum is unable to undertake remunerative work for more than eight hours per week.  The Tribunal heard evidence from several witnesses…