Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL N° 2008/3960
VETERANS’ APPEALS DIVISION
Re:JOHN SHARLEY
Applicant
And:REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal: Miss E A Shanahan, Member
Date: 11 August 2010
Place:Melbourne
Member Shanahan made a Decision under ss 43 and 42D of the Administrative Appeals Tribunal Act1975 (the Act) on 28 June 2010.
The Respondent’s solicitor advised the Tribunal on 19 July 2010 that there is an error in the decision.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar delete the words and Osteoarthrosis of both knees from the first sentence of the decision.
…………[signed]………
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3960
VETERANS' AFFAIRS DIVISION ) Re JOHN SHARLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date28 June 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review, relating to Post Traumatic Stress Disorder (PTSD) and Osteoarthrosis of both knees. The Tribunal determines that the applicant suffers from war-caused Alcohol Dependence in partial remission. The claim for osteoarthrosis of both knees is remitted to the Repatriation Commission for reconsideration on different grounds as outlined in this decision.
................[signed]...............
Member
VETERANS’ AFFAIRS – disability pension – disability pension already set at 100 per cent of the general rate – post traumatic stress disorder – or generalised anxiety disorder – alcohol dependence – no actual threat experience – anticipatory fear – osteoarthrosis of knees – no claim for special or intermediate rate.
Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994
Veterans’ Entitlement Act 1986 (the Act)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gerzina v Repatriation Commission [2004] FCAFC 96
Kattenberg v Repatriation Commission (2003) 73 ALD 365
Re Raymond Charles Dove and Repatriation Commission [2004] AATA 646
Re Brown and Repatriation Commission [2004] AATA 1262
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Cooke (1998) 90 FCR 307
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
28 June 2010 Miss EA Shanahan, Member 1. Mr Sharley lodged an application for a disability pension on 1 June 2007 claiming that his, then diagnosed conditions of Post Traumatic Stress Disorder (PTSD), bilateral sensorineural hearing loss, tinnitus, diabetes mellitus, osteoarthrosis of the knees, lumbar spondylosis and gout were war-caused.
2. Mr Sharley had enlisted in the Royal Australian Air Force (RAAF) in 1965 and served from 8 June 1965 to 7 June 1971. This included an 11 month period (25 February 1970 to 28 January 1971) in South Vietnam. The claim for hearing loss, diabetes mellitus and tinnitus were accepted by a delegate of the Repatriation Commission (the Commission) on 1 August 2007 and a pension at the rate of 30 per cent of the general rate was paid from 1…
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- AGLC
- Sharley and Repatriation Commission [2010] AATA 474
- Case
- [2010] AATA 474
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether Sharley's PTSD and osteoarthrosis of both knees were war-caused and thus eligible for additional pension consideration, and whether her alcohol dependence qualified as a war-related condition. The tribunal had to determine the validity of her claims and the appropriate level of pension compensation. Additionally, the tribunal had to assess if Sharley's anticipatory fear, without a direct threat experience, qualified as a war-related condition for pension purposes.
The tribunal found that Sharley's PTSD was war-caused, but her generalised anxiety disorder was not. Regarding osteoarthrosis of both knees, the tribunal determined that the condition was not war-caused and remitted the claim back to the Repatriation Commission for reconsideration on different grounds. The tribunal also acknowledged that Sharley suffered from war-caused alcohol dependence in partial remission, which contributed to her overall disability. The tribunal affirmed the existing pension rate for PTSD but recognised the need for a reassessment of the alcohol dependence claim.
The tribunal upheld the decision concerning PTSD but remanded the claim for osteoarthrosis of both knees for further review. It also confirmed that Sharley suffered from war-caused alcohol dependence in partial remission. The tribunal did not alter the pension rate but directed the Repatriation Commission to reconsider the osteoarthrosis claim on new grounds.
Orders
Orders of the court
The Tribunal affirms the decision under review, relating to Post Traumatic Stress Disorder (PTSD) and Osteoarthrosis of both knees. The Tribunal determines that the applicant suffers from war-caused Alcohol Dependence in partial remission. The claim for osteoarthrosis of both knees is remitted to the Repatriation Commission for reconsideration on different grounds as outlined in this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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