Miller and Repatriation Commission

[2005] AATA 972

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 972

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/420

VETERANS’ APPEALS DIVISION		)
Re		DAVID MICHAEL BROOKS MILLER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal JG Short (Member)
Dr E.Eriksen (Member)

Date4 October 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review

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

JG Short
  (Member)

CATCHWORDS

VETERANS’ ENTITLEMENTS - disability pension - rate of pension payable - special rate – applicant not suffering a loss of wages or earnings due to war-caused incapacity alone - applicant not prevented from continuing to undertake remunerative work by war-caused incapacity alone - applicant not entitled to special rate

Veterans’ Entitlements Act 1986 s 24(1)(c) and s 24(2)(b)

Flentjar v Repatriation Commission (1987) 48 ALD 1

Repatriation Commission v Smith (1987) 15 FCR 327

Cavell v Repatriation Commission (1988) 9 AAR 534

Repatriation Commission v Hendy [2002] 76 ALD 47

Forbes v Repatriation Commission (2000) 101 FCA 50

REASONS FOR DECISION

4 October 2005	JG Short (Member) Dr E. Eriksen (Member)
Introduction

1.      Mr Miller is a Vietnam Veteran and his accepted disabilities are Post Traumatic Stress Disorder (PTSD); contact dermatitis; impotence and bilateral sensory neural hearing loss.  His rejected disabilities are cervical spondylosis; anal fissure; spina bifida; lumbar spondylosis and chronic bronchitis (nif).

2.      On 27 February 2003 Mr Miller lodged an informal claim for an increase in his rate of pension.  A formal claim was lodged on 16 March 2004.  By decision dated 25 March 2004 the Repatriation Commission (the Commission) refused to increase Mr Miller’s rate of pension beyond 100 percent of the general rate.  On 22 November 2004 the Veterans’ Review Board (VRB) affirmed the Commission’s decision.  On 9 December 2004 Mr Miller lodged an appeal to the Administrative Appeals Tribunal (AAT).

3. Mr Miller was represented by Mr C Swan, Solicitor. The Commission was represented by Mr A Crowe, an advocate. At the outset of the hearing Mr Swan and Mr Crowe were able to agree that in respect of his application for an earnings related rate of pension, Mr Miller satisfied ss24(1)(a) and (b) of the Veterans’ Entitlements Act 1986 (the VE Act). It was also conceded by Mr Swan that during the assessment period, Mr Miller had not sought employment.

Issue For Determination

4. Mr Miller’s entitlement to an earnings related rate of pension is to be considered under s24 of the VE Act. I have noted the matters agreed by the parties and find that Mr Miller satisfies the first criterion under s24 (a determination of entitlement to a pension at a rate higher than 70 percent of the general rate), and the second criterion (an incapacity from war caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). The remaining issue for the Tribunal to determine is whether Mr Miller satisfies s24(1)(c) of the VE Act. That is:

·Whether he is, by reason of incapacity…