Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/199
VETERANS' APPEALS DIVISION
Re: GARY WILLIAMSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 14 October 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefor the decision that:
1.the applicant suffers from post traumatic stress disorder with alcohol abuse (the condition);
2.the condition is war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) which entitles the applicant to a disability pension; and
3.at the date of application (24 October 2001) the applicant satisfied the requirements of s 24(1) and s 24(2) of the Act and qualified for the special rate of pension.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – special rate of pension – alone test – interposed motor vehicle accident – worsening of psychiatric condition – incapacity for work
Veterans’ Entitlements Act 1986 ss 9, 24, 120(4)
Banovich v Repatriation Commission (1986) 69 ALR 395
Byrne v Repatriation Commission (2001) 33 AAR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Van Ewjk v Repatriation Commission [2004] FCA 19
REASONS FOR DECISION
14 October 2004 Miss E.A. Shanahan, Member
1. This is an application by Gary Williamson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 10 December 2002. The primary decision by a delegate of the Repatriation Commission dated 2 November 2001 had refused the applicant’s application to increase his disability pension from the existing 100 per cent of the general rate to the special rate. The applicant applied to the VRB for review of this decision.
2. At the VRB hearing on 22 May 2002 the applicant requested an adjournment in order to obtain current specialist assessments of his accepted psychological and respiratory disabilities.
3. At the initial hearing the VRB determined the applicant’s degree of incapacity to be at least 70 per cent, as lung function testing on 19 September 2000 had not revealed any abnormality. (The applicant’s respiratory symptoms had previously been assessed at 36 points by a delegate of the respondent.) The VRB found the applicant satisfied the criterion in s 24(1)(b) of the Veterans’ Entitlements Act 1986 (the Act), at the time of the hearing, but his cessation of full‑time employment had followed a motor vehicle accident in December 1994. The applicant had not worked since that date except for short terms of employment. Thus, the alone test was not satisfied and the applicant was not entitled to pension at the special or intermediate rate. The VRB assessed the pension payable to the applicant at 80 per cent of the general rate.
4. On 19 February 2003 a delegate of the respondent increased the applicant’s pension rate to 90 per cent of the…
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