Peacock and Repatriation Commission

[2004] AATA 523

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 523

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/939

VETERANS' APPEALS DIVISION		)
Re		GEOFFREY PEACOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date25 May 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................(Sgd)......................

RG Kenny
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements - special rate of pension – veteran unable to undertake remunerative work - veteran not prevented by reason of incapacity from war-caused conditions alone from continuing to undertake remunerative work that he was undertaking – veteran not genuinely seeking to engage in remunerative work - pension payable at 100% of the general rate – decision affirmed

Veterans’ Entitlements Act 1986 ss 14, 19(5C), 19(9), 23, 24(1), (2)

Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83

REASONS FOR DECISION

25 May 2004   Mr RG Kenny, Member      

Background

1. In response to a claim lodged on 31 January 2003, in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), by Geoffrey Peacock (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 3 April 2003, that the applicant suffered from alcohol dependence and hypertension and that these were causally related to the period of operational service he rendered in South Vietnam from 24 May 1966 to 6 May 1967.  The delegate then determined that the applicant was entitled to be paid pension at 100% of the general rate, in accordance with section 22 of the Act, in relation to the incapacity associated with all of the disabilities that had been accepted as being related to his eligible war service. In addition to the alcohol dependence and hypertension, these were chronic simple bronchitis, post traumatic stress disorder, haemorrhoids, gastro-oesophageal reflux disease, irritable bowel syndrome, bilateral sensori-neural hearing loss with tinnitus and impotence.

2.      The delegate determined that this rate of pension was payable to the applicant with effect from 31 October 2002 and also that neither the intermediate nor the special rates of pension, as provided for in sections 23 and 24, respectively of the Act, were payable to him.

3.      On 8 October 2003, that decision of the respondent was affirmed by the Veterans’ Review Board and, on 7 November 2003, the applicant sought review of the decision in relation to the rate of pension payable to him by the Administrative Appeals Tribunal (the Tribunal).

4.      The applicant attended the hearing and was represented by Mr R Clutterbuck of Counsel.  The respondent was represented by Mr J Kelly.

5.      At the hearing, the following were taken into evidence:

Exhibit 1the “T” Documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6);

Exhibit 2a statement, dated 4 April 2004, by Paulette Peacock;

Exhibit 3 a medical report, dated 29 July 2002, by Dr Helen Bothwell;

Exhibit 4a medical report, dated 4 February 2004, by Dr Maxwell Katz; and

Exhibit 5a medical report, dated 28 January…