Bourke and Repatriation Commission (Veterans' entitlements)

This matter came before the Tribunal concerning the Repatriation Commission and the applicant, Bourke. The dispute centred on whether vestibular migraine was a condition covered by the relevant Statements of Principles (SoPs) for the purposes of determining an entitlement under veterans' entitlements legislation. The Tribunal was required to consider which SoP was applicable and whether vestibular migraine fell within the scope of either the current or former SoP concerning Migraine.

The primary legal issue before the Tribunal was to determine whether vestibular migraine was encompassed by the definition of "migraine" within the applicable Statement of Principles. This involved an assessment of the medical evidence presented, including expert testimony and published literature, to ascertain the recognised status and characteristics of vestibular migraine. The Tribunal also had to consider the potential for an "accrued right" to have applied under a former SoP, and whether the transition to a new SoP had materially altered the scope of conditions covered.

The Tribunal reasoned that while vestibular migraine is a recognised medical condition, its understanding and classification are relatively recent and still evolving. It noted that the International Headache Society's classification lists vestibular migraine in an appendix for research criteria, indicating it has not yet been formally accepted into the main classification. After considering the definitions in both the current and former SoPs, and the expert evidence, the Tribunal concluded that there was no material difference in the scope of the definition of migraine between the two. The slight wording changes in the current SoP were seen as reflecting template updates and minor advancements in understanding pathophysiology, rather than an intention to broaden the covered conditions. The Tribunal found that uncertainty regarding the specific consideration of vestibular migraine by the Repatriation Medical Authority was even more pronounced for the former SoP, and such uncertainty should be resolved negatively.

Consequently, the Tribunal decided that vestibular migraine was not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or the Statement of Principles concerning Migraine (No. 57 of 2009).