Bruce and Repatriation Commission
[2000] AATA 877
•5 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 877
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/309
VETERANS' APPEALS DIVISION )
Re ROBERT BRUCE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member) Capt ET Keane, OAM RAN (Rtd) (Member) Dr KP Kennedy, OBE (Member)
Date5 October 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether reasonable hypothesis connecting veteran's service to the conditions of hypertension, lumbar spondylosis and cervical spondylosis was raised.
Veterans' Entitlements Act 1986 ss 9, 120
Statement of Principles – Instruments No 83 of 1995, No 161 of 1996 and No 165 of 1996
REASONS FOR DECISION
5 October 2000 Miss WJF Purcell (Senior Member) Capt ET Keane, OAM RAN (Rtd) (Member) Dr KP Kennedy, OBE (Member)
This is an application for review of a decision of the respondent (the Commission) of 14 April 1998, as varied by a decision of the Veterans' Review Board (the VRB) of 12 January 1999. The varied decision is that the applicant's conditions of lumbar spondylosis, cervical spondylosis, inguinal hernia on the left side, hypertension, and chronic sinusitis were not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 (the Act). At the commencement of the Hearing, the Tribunal was informed that the applicant wished to pursue acceptance of the conditions of hypertension, lumbar spondylosis and cervical spondylosis.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. Mr O'Gorman of Counsel, appeared for the applicant, who gave oral evidence and called Dr Goodwin, physician. Mr Morison, a Departmental Advocate, represented the Commission.
The applicant who is 60 years of age, served as a navigator in the Royal Australian Air Force (RAAF) from 29 January 1960 until 31 December 1970. His periods of operational service for the purposes of the Act, were in Malaya from 24 January 1963 to 27 May 1963, Ubon from 10 June 1963 to 30 April 1964, and in Vietnam on 10 August 1964, for one flight. As the applicant rendered operational service the standard of proof is that of reasonable hypothesis in accordance with section 120 of the Act, which as far as is relevant for the purposes of this review provides:
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
….
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
The applicant contends that in relation to:
(1) THE CONDITION OF LUMBAR SPONDYLOSIS, Factor 5(g) of the relevant Statement of Principles, Instrument No 165 of 1996 (the lumbar spondylosis SOP), is satisfied. Factor 5(g) reads:
"Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:
…
(g) suffering a trauma to the lumbar spine before the clinical onset of
lumbar spondylosis; or
…""trauma to the lumbar spine" means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;"
(2) THE CONDITION OF CERVICAL SPONDYLOSIS, Factor 5(g) of the relevant Statement of Principles, Instrument No 161 of 1996 (the cervical spondylosis SOP) is satisfied. Factor 5 (g) reads:
"Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of a person's relevant service are:
…
(g) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or;""trauma to the cervical spine" means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered:"
(3) THE CONDITION OF HYPERTENSION, Factor 1(c) of the relevant Statement of Principles, Instrument No 83 of 1995 (the hypertension SOP) is satisfied. Factor 1(c) reads:
"1 Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:
…
(c) ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension; or
…"
"hypertension" means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg;or
(b) where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405;
ICD code" means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;"lumbar spondylosis
The applicant relies on an incident which occurred in March 1963, in Malaya, and which he asserts, satisfies the definition of trauma to the lumbar spine. The applicant has given varying accounts, over a period of years, as to the circumstances surrounding this incident; but in his oral evidence he said that during a survival training course he undertook a parachute training exercise, which involved a free fall from a tower before an arrestor lanyard attached to the parachute harness stopped the descent. In the normal course the trainee would come to a halt suspended some 4 feet above the ground. The applicant said in evidence that tension on the lanyard cable was not correctly reset, and his jump was arrested closer to the ground than the intended 4 feet. As a consequence, the side of his feet struck the ground whilst he was still moving sideways to his right. He says that he saw stars, that he could not move, had to be assisted from the harness, and was asked if he wanted medical attention.
The applicant says the he declined medical attention because he wanted to see how he felt later. Immediately afterwards, the whole of his back was painful, and there was pain and swelling over both the hips, and down the legs. He said that later that day, he attended the scheduled lectures in the lecture room. He was in pain, and stood during the lectures - he could not sit. He said that he took a substantial dose of aspirin - 4 tablets every 4 hours, for 3 days. He says that he did not seek medical attention, as he wanted to keep his flying status and keep everything off the record.
The applicant said in evidence that he completed the survival training course. In the second week, the trainees camped in two remote sites in the jungle, limited to flying rations, as part of the survival course. He says that the pain continued during this second week, but that he did not take any aspirin with him into the jungle because of the limited supply of water. The applicant gave evidence that three weeks after the incident, he consulted a doctor in private practice, in Penang. The Doctor said that the applicant had suffered severe soft tissue damage, and prescribed anti-inflammatories. The applicant said that since that time, he can not recall one day when he was free of low back discomfort; and he continues to avoid activities that precipitate aggravation of symptoms.
The documentary evidence, including the applicant's Service Records, does not contain any reference to this 1963 parachute incident, nor to any lower back injury suffered by the applicant during his service. "Frequent back pain 1963-70" is referred to in his Discharge Medical, on 24 December 1970. In answer to the question as to "what effects the disability has now on general health and performance of service duties" the applicant is recorded as answering "prolonged periods (eg 2 hours sitting and eight hours lying) in one position gives back ache" [Exhibit R2].
In 1975 the applicant lodged a claim for workers' compensation with the Commissioner for Employees' Compensation in relation to lower back pain. In the course of the investigation of the claim Dr NG Anderson reported on 27 March 1975, in part as follows:
"(b) History given by patient: Onset of low back pain in Malaya in 1962 – gradual onset. Subsequent low back pain with bending, sitting and lifting, aggravated by his posture in a Canberra bomber as a navigator.
In 1974 a sore back if he is longer in bed than 10 hours. Otherwise the back feels weak. He plays squash and some social cricket and he gets some back symptoms but nothing much;"
(c) Condition found to be present: Examination reveals a back that moves normally with no abnormality to be found. Minor pain in the right on straight leg raising. [T4/13]
Cervical Sponydolosis
The applicant relies on the 1963 parachute incident in support of his assertion that it satisfies the definition of "trauma to the cervical spine" in the cervical spondylosis SOP. The applicant said in evidence that neck pain has been a long term problem. He could not say that neck pain had commenced with the parachute incident, but at about that time the neck pain, and difficulty of movement in the neck, had become worse, and he attributes the neck pain, now, to this incident. He says that it was aggravated by flying; as air crew experience "2G" forces as a frequent occurrence. He says that he never complained to a service doctor, nor did he receive any treatment during service, nor mention any neck problems at his Discharge Medical, on 24 December 1970.
Although the applicant maintains now, that the parachute incident was the most severe injury he suffered to his lower back, and that his neck pain is attributable also to the 1963 parachute incident; the evidence discloses that he did not seek medical attention, nor did he report the incident/injuries to any service personnel.
We are satisfied on the evidence, and find as a fact, that the 1963 parachute incident did not occasion trauma to the lower back, or to the neck, of sufficient severity to satisfy the definitions of either "trauma to the lumbar spine" or "trauma to the cervical spine" in the appropriate Statement of Principles. In our view Factor 5(g) of the lumbar spondylosis SOP is not satisfied; nor is Factor 5(g) of the cervical spondylosis SOP satisfied.
Hypertension
The applicant gave evidence that he resumed normal squadron duties in late March 1963, and that from then on, commenced a daily intake of salt tablets, in accordance with service person's accepted practice in the tropics. He says that he took a minimum of 6 tablets per day, and sometimes a total of 8 tablets. He said in evidence that he found the large tablets difficult to swallow; that he swallowed them whole, with cold coffee, usually. He said that he took as many tablets as was needed, and without supervision. He said that before deployment to the tropics he used two pinches of salt with meals, but after he had commenced taking salt tablets, he developed a "dire need for salt"; his body told him he needed salt; and he put large quantities on his food, in addition to taking salt tablets.
The applicant gave evidence that he had a craving for salt but that the amount consumed during service was less than 12 grams on food. He says that after he ceased taking salt tablets in about December 1964 (after serving in Malaya) the amount he put on his food was more than 12 grams; but that he felt that salt was a "nice taste to have on food". When he was diagnosed with hypertension, in 1992, he was told by his treating medical practitioner to minimise his salt intake, and he achieved this, over a few weeks, and he has maintained this minimal salt intake since this time.
The applicant called Dr Goodwin who gave evidence which accorded with his written reports. In the light of our findings of fact it is not necessary for us to comment upon Dr Goodwin's evidence.
On the applicant's evidence he took the salt tablets whole, but did not taste them. We are satisfied on the evidence, that the applicant took large quantities of salt on his food because he enjoyed the flavour of the salt; and we are satisfied on the evidence that the applicant's increased salt intake up to the time he was diagnosed with hypertension, in 1992, bears no relationship to the ingestion of salt tablets during his relevant service. Factor 1(c) of the hypertension SOP, is not satisfied therefore.
We are satisfied beyond reasonable doubt that there is not sufficient ground for determining that the applicant's conditions of lumbar spondylosis, cervical spondylosis and hypertension were war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting these conditions with the circumstances of the particular service rendered by the applicant.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WWJ Purcell (Senior Member) Capt ET Keane, OAM RAN (Rtd) (Member)
Dr KP Kennedy, OBE (Member)Signed: .....................................................................................
AssociateDate/s of Hearing 27 July 2000
Date of Decision 5 October 2000
Counsel for the Applicant Mr D O'Gorman
For the Respondent Mr R Morison, Departmental Advocate
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