Armstrong and Repatriation Commission

[2003] AATA 992

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 992

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/847

VETERANS' APPEALS DIVISION		)
Re		BARRY JOHN ARMSTRONG

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date3 October 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) O Rinaudo
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – lumbar spondylosis and intervertebral disc prolapse - whether conditions were caused by veteran’s war service – whether reasonable hypothesis established

Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3)

Hill v Repatriation Commission [2001] FCA 1775

REASONS FOR DECISION

3 October 2003  Mr O Rinaudo, Member    

Background

1.      Mr Armstrong seeks review of the decision of the Repatriation Commission and of the Veterans’ Review Board to reject claims for lumbar spondylosis and intervertebral disc prolapse as war-caused.  The Veterans’ Review Board did amend the decision to include the diagnosis of intervertebral disc prolapse but affirmed the decision of the Commission.

2.      It is accepted that Mr Armstrong had a number of periods of eligible service (including operational service) while serving in the Royal Australian Navy between 1963 and his discharge in 1968.  The applicant has accepted conditions of sensori-neural hearing loss of the left ear and bilateral tinnitus for which he receives a pension at 20% of the General Rate.

3.      Mr Armstrong gave evidence and was cross-examined.  Documentary evidence tendered as exhibits were as follows.

§Exhibit 1             “T” Documents

§Exhibit 2             Applicant’s statement dated 14 January 2003

§Exhibit 3             Report of Dr Roger Parkington dated 10 February 2003

§Exhibit 4             Smoking Questionnaire dated 28 November 1996

§Exhibit 5             Report of Dr David McEvoy dated 15 September 1998

4.      In essence, Mr Armstrong stated, in respect of his back condition, that he suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis firstly on 8 March 1965 and, secondly, in June 1965. 

5.      In evidence it became clear that the reported injury occurred on 8 March 1965.  This injury was sustained whilst the applicant and two other sailors were carrying a box.  The full weight of the box shifted to the applicant because of the pitch and roll of the ship. 

6.      The applicant stated he was strapped and relieved of duties for ten days although the evidence does not support this.  It appears from the evidence in the “T” Documents (at Folios 17, 18 and 19) that the applicant was passed fit for duties with no restrictions after three days.  The applicant gave evidence that it was his best recollection that he was off work for ten days.  However, he has had two tumours removed which cause him memory loss so he could not be sure.

7.      The other occurrence was when Mr Armstrong fell down a ladder and landed on his bottom.  This incident was unreported.  Mr Armstrong stated that he “had a job to do” and the sailors had been lectured about “what had to be done” so he…