DECISION AND REASONS FOR DECISION [2002] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1475
VETERANS' APPEALS DIVISION )
Re BARRY ALDCROFT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member
Date6 June 2002
PlaceSydney
Decision The applicant's spondylolisthesis condition is a war-caused injury or disease and this is so with effect from 24 July 1996. The applicant's cervical intervertebral disc prolapse is a war-caused injury disease and this is so with effect from 9 August 1998. The applicant is entitled to special rate Disability Pension with effect from 9 August 1998.
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Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension - lumbar spondylolisthesis – cervical intervertebral disc prolapse – whether war-caused injuries or diseases – spondylolisthesis as an aggravation of congenital condition caused by war service – inabilitry to obtain appropriate clinical management - special rate Disability Pension – whether war-caused injuries or diseases alone prevent veteran from continuing to engage in suitable remunerative employment – held that spondylolisthesis and cervical intervertebral disc prolapse were war-caused injuries or diseases – held that special rate payable
Veterans' Entitlements Act 1986: ss 6C(1), 7(1)(a), 9(1)(e)(ii), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), 24A(1), 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D.
Statement of Principles 15/97 concerning spondylolisthesis.
Statement of Principles 130/96 as amended by 92/97 concerning intervertebral disc prolapse.
Arnott v Repatriation Commission (2001) 32 AAR 445.
Banovich v Repatriation Commission (1986) 69 ALR 395.
Bull v Repatriation Commission [2001] FCA 1832.
Bushell v Repatriation Commission (1992) 175 CLR 408.
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Re Ferres and Repatriation Commission [2002] AATA 410.
Harris v Repatriation Commission (2000) 31 AAR 270.
Kattenberg v Repatriation Commission [2002] FCA 412.
Re Millen and Repatriation Commission [2000] AATA 508.
Repatriation Commission v Deledio (1998) 49 ALD 193.
Repatriation Commission v Gorton (2001) 33 AAR 370.
Repatriation Commission v Smith (1987) 74 ALR 537.
Repatriation Commission v Thompson (2001) 63 ALD 1.
Repatriation Commission v Williams [2001] FCA 1195.
REASONS FOR DECISION
6 June 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member
HISTORY OF APPLICATION
On 19 August 1996 Barry Aldcroft ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") an application for Disability Pension in respect of back and neck problems caused by a fall on an oil rig and aggravated by activities in his army service (T10).
On 16 October 1996 a delegate of the Repatriation Commission ("the respondent") refused the applicant's claim for conditions the respondent described as spondylolisthesis and facet joint osteoarthritis (T13). The respondent found that because the condition was congenital in nature, and because the lifting and carrying duties in Vietnam were not in themselves severe enough to cause spondylolisthesis and facet joint osteoarthritis, no reasonable hypothesis could be raised connecting the conditions to the applicant's war…
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CaseChat Overview and Summary
The court carefully examined the evidence and the relevant statements of principles (SoP) concerning spondylolisthesis and intervertebral disc prolapse. The veteran's medical history, including the findings from various medical examinations and surgeries, were considered. The court found that the veteran's spondylolisthesis and cervical intervertebral disc prolapse were indeed war-caused injuries. It was determined that the veteran's congenital condition of spondylolisthesis was aggravated during his recruit training in 1964, which was within the eligible service period, and that the cervical intervertebral disc prolapse was caused by his war service. The court further held that the veteran was unable to obtain appropriate clinical management, which contributed to his inability to work.
In light of these findings, the court concluded that the veteran's war-caused injuries or diseases alone prevented him from continuing to engage in suitable remunerative employment. Consequently, the court ruled that the special rate disability pension was payable to the veteran. This decision was based on the veteran's inability to work due to his war-caused conditions, as required by the relevant sections of the Veterans' Entitlements Act 1986.
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