Peter Prendergast and Repatriation Commission

[2012] AATA 698

[2012] AATA 698

Division	VETERANS' APPEALS DIVISION
File Numbers	2011/1846
Re	Peter Prendergast
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	10 October 2012
Place	Melbourne

Decision The decision of the Veterans’ Review Board made on 30 March 2011 is set aside and in substitution IT IS DECIDED that:

1.the applicant’s bilateral rotator cuff syndrome is war-caused; and

2.he is entitled to pension at the special rate from the commencement of the assessment period.

(sgd) John Handley

Senior Member

VETERANS' AFFAIRS – operational service – severe foot injury accepted as war-caused –whether instability in foot caused him to fall resulting in injuries to shoulders – whether injury was bilateral rotator cuff syndrome – whether that injury is war-caused – assessment – special rate – farmer – under 65 at date of claim – whether war-caused injuries alone prevent applicant from undertaking remunerative work – VRB decision set aside

LEGISLATION

Veterans' Entitlements Act 1986 ss 120, 120A, 24, 28

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Lees v Repatriation Commission (2002) 125 FCR 331

Kaluza v Repatriation Commission (2011) 280 ALR 621

REASONS FOR DECISION

Mr John Handley, Senior Member

1.The applicant is a Vietnam veteran who made a claim for acceptance of bilateral rotator cuff syndrome and an increase in his disability service pension.  On 11 December 2009 the Repatriation Commission (the respondent) refused his claim and continued his pension at the intermediate rate.  On 30 March 2011 the Veterans’ Review Board (VRB) affirmed the respondent’s decision.  On 13 May 2011 the applicant applied to this Tribunal for review of the VRB’s decision.

2.The applicant has a number of injuries that have been accepted as war-caused, namely:

·a crush injury and fractures of his right foot;

·depressive disorder;

·anxiety disorder;

·bilateral sensorineural hearing loss;

·bilateral tinnitus;

·irritable bowel syndrome;

·lumbar spondylosis; and

·oesteoarthrosis of both knees. 

The applicant also suffers from sleep apnoea and rotator cuff syndrome of both shoulders which have not been accepted as war-caused.

1. The focus of this review was principally whether a connection exists between the right foot injury (accepted as war-caused) and the shoulder injuries.  The circumstances of that connection as submitted on behalf of the applicant are briefly summarised in the following paragraphs.

2. The applicant suffered a crushed right foot on 8 July 1969, in Nui Dat, in South Vietnam when he was a member of a road construction squadron.  A large roller, estimated by the applicant to weigh between six and eight tons, ran over his right foot and crushed it.  The applicant described the pain from the injury as intense and he thereafter suffered a prolonged period of extensive treatment involving:

   ·surgery;

   ·skin grafting; and

   ·treatment of a severe recurring infection.

3. Later, he was evacuated to the Repatriation Hospital in Melbourne.  At times the applicant faced the risk of amputation.

4. When he was eventually discharged from hospital, the applicant was assigned to lighter duties, principally clerical, at Watsonia and Puckapunyal.  He was discharged from the…