Case and Repatriation Commission - [2001] AATA 334

DECISION AND REASONS FOR DECISION [2001] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/697

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE JOHN CASE
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date24 April 2001
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and substitutes the following decision: (a) the condition lumbar spondylosis is not a war caused disease within the terms of the Act; (b) the condition thoracic spondylosis is not a war caused disease within the terms of the Act: and (c) the applicant qualified for payment of pension in accordance with section 24 of the Veterans' Entitlements Act 1986 with effect from 6 September 1999.
  .      (Sgd) K L Beddoe
  Senior Member

Decision No: 334/2001

CATCHWORDS
Veteran's Affairs – disability pension - war caused disability - Lumbar Spondylosis - Thoracic Spondylosis – Post Traumatic Stress Disorder
Veterans' Entitlements Act 1986 s 9, 24, 120
Statements of Principle Instrument No 27 of 1999 and No 29 of 1999

REASONS FOR DECISION

24 April 2001 Mr K L Beddoe (Senior Member)

The applicant seeks review of decisions of the respondent as follows:

(a)Refusal to accept Lumbar Spondylosis as a war caused disease;
(b)Refusal to accept Thoracic Spondylosis as a war caused disease; and
(c)Refusal to assess the applicant's pension on the basis that he qualifies under section 24 of the Veterans' Entitlements Act 1986 ("the Act").

The Veterans' Review Board subsequently affirmed those decisions.
In deciding these matters I am required to consider sections 9 and 24 of the Act taking into account the respective standards of proof in section 120 and following of the Act. The applicable statements of principle are instruments numbered 27 of 1999 and 29 of 1999.
At the hearing Mr Honchin appeared for the applicant and Mr Stoner appeared of the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant.
I make the following findings of fact. The applicant served in the Army from 3 December 1958 to 16 December 1967 during which time he had operational service in South Vietnam from 8 May 1966 to 12 May 1967 (T4).
The applicant's Army service prior to his operational service included parachute training and rock climbing. In both of these activities he suffered injuries including injuries to his back. Those injuries resulted in back pain from time to time which the applicant was reluctant to admit to, at the time, and which he controlled by using codeine.
By the time of departure for South Vietnam in May 1967 the applicant held the rank of sergeant, was the sergeant in an infantry platoon and from time to time was required to act as platoon commander. I am satisfied that he went to South Vietnam as a regular soldier keen to do his duty and that he perceived that he had increased responsibility due to there being national servicemen in his platoon. I also note that the platoon had three platoon commanders during its 12 months in South Vietnam with the result that the applicant was the constant leader in the platoon for the tour of duty.
Shortly after arriving in South Vietnam the applicant's platoon (being part of 5RAR) took part in operation Handihood, a combined Australian/United States operation. US helicopters were used to take the Australian troops to the landing zone. Unbeknown to the applicant the US helicopters adopted a practice of hovering rather than landing when disembarking troops into a landing zone. The applicant, being first to jump, on disembarking found, without warning, that he was jumping several feet more than he had expected with the result that he toppled on landing severely winding himself and injuring his back. He says he was unable to get up and was helped up by Private Hexter. Hexter says nothing about that in his statement (Exhibit E).
At the time the Australian troops in general and the applicant, in particular, were heavily loaded with equipment, ammunition, water and rations for several days. World War II issue back packs were being used. The applicant estimates he was carrying over 40 kg in supplies. In particular each soldier was required to carry one mortar bomb for resupply to the US forces in the vicinity of the landing zone.
I am satisfied that the applicant's jump from the hovering helicopter resulted in a trauma to the applicant's back and that was immediately symptomatic by increased back pain in excess of what he had previously experienced. That the applicant required assistance is made plain by his own evidence but not by the statement of Noel Bruce Hexter (Exhibit E), which although not supportive of the applicant's evidence about the helicopter incident, satisfies me that I should accept the applicant's evidence about the helicopter incident on the basis that Hexter refers to a hovering helicopter .
There being no RAP facility available the applicant relied on codeine supplied by the company medic. The applicant used codeine as required and apparently had no difficulty in obtaining supplies as required. He completed the tour of duty in South Vietnam returning to Australia in May 1967 and was discharged from the Army on non-medical grounds in December 1967.
In August 1968 the applicant enlisted in the Citizen Military Force ("CMF") with the rank of sergeant. He was discharged from that Force on 2 December 1971.
There is a detailed report of a medical examination prior to discharge from the regular Army (T4/10) and a further medical examination on entry to the CMF (T4/11-13). Neither medical report makes any mention of a back condition resulting from service in Vietnam. There are references to other conditions in both reports including a reference to a shoulder injury. Each report showed spine as normal.
Document T4/16 is a copy of a "Statement of Member" completed at or about the time of the medical examination prior to discharge from the regular Army. It refers to two medical conditions not presently relevant, it refers to the service in South Vietnam, it records time in hospital but it says nothing about a back injury in South Vietnam. The applicant agreed that he signed this form in November 1967.
The applicant's formal claim lodged with the Department of Veterans' Affairs in September 1999 includes the claim for Lumbar Spondylosis. In response to the question "why do you believe your service caused, contributed to or aggravated this disability?" the applicant wrote:
"1963 – Fell whilst cliff climbing at Nelson Bay, injured back, light duties for some weeks, stayed in parachute unit until 1966, had treatment to my back both off and on base. Back problem was further aggravated in South Vietnam on active service. Heavy loads on back and around my waist caused continuous pain and numbness. Has worsened since. I can no longer work."

Attached to the claim was a statutory declaration by a Michael Carroll which declared the cliff climb accident and the applicant's jump from a hovering helicopter in South Vietnam (T4/40-1).
In a Claimant Report signed by the applicant on 30 October 1999 he gave a detailed description of the helicopter incident as follows:
"In May 1966 I was taking part in a helicopter insertion on Operation "Hardihood" in South Vietnam.
On exiting the helicopter the weight on my back of equipment and munitions caused me to nose dive into the ground.
Immediately felt a severe sharp pain in my back.
As the tactical situation was unstable I had to take some codeine tablets to keep going. Although the severeness of the pain eased, I was plagued by reoccurance of this pain during my service." (T4/46)

The Claimant Report also included a description of a parachute accident in April 1964 said to result in "injury to right shoulder and back". In his statement the applicant said he had to convalesce for three months after the accident (Exhibit A). There is also evidence of a further parachuting accident prior to 1967 when the applicant landed on his back (T4/45). The applicant commenced working for Bowen Coke Pty Ltd in August 1978 and ceased in July 1998. While there he suffered injury, in a fall, to his cocyx, buttocks and elbows. The details of the accident are described at T4/47. Hospitalisation resulted for nine days. The accident occurred in November 1997.
The Medical Evidence
There is no contemporaneous medical evidence about trauma to the applicant's back upon jumping from a hovering helicopter in May 1966. So far as I can see the Army Medical records before the Tribunal make no mention of such an incident. Nor do those records make any mention of a spinal problem. (There is a note by a delegate of the respondent to a medical record dated 29 July 1963 referring to the Lumbo-Sacral Spine with no relevance for present purposes (T5/80)).
Document T4/49-50 is a copy of a report dated 2 November 1999 by Dr Lewis, orthopaedic surgeon, addressed to the Department of Veterans' Affairs. Dr Lewis took a history and examined the applicant on 29 October 1999. He records the climbing accident and two parachute accidents. Dr Lewis then continued:
"He stated that later he had aggravation during Infantry activities in South Vietnam during 1966 and 1967, when he was a Platoon Sergeant with 5RAR."

Dr Lewis noted the workplace accident in 1998 and also noted a reported deterioration "over the last two or three years".
On examination he found reduced range of movement of the thoraco-lumbar spine. There was virtually no flexion or lateral flexion of the lower thoracic spine. The applicant was tender over the T6 to T8 region, and in the low back. Normal power sensation and reflexes in lower limbs was found.
Dr Lewis diagnosed spondylitic change to the thoracic and lumbar spines. He considered the applicant not capable of working more than 20 hours a week in any occupation and unlikely to be able to work more than eight hours per week.
I have considered the report dated 25 March 2000 by Mr Shiels, Chiropractor, and concluded that it is not an objective assessment and should not be given any weight (T5/70). I have formed the same view of the two line statement by Dr King dated 3 April 2000 (T5/69).
Document T5/65-6 is a copy of a report by Dr Rogers, Consultant Psychiatrist dated 11 April 2000, addressed to the Vietnam Veterans' Association. That report refers to an earlier report by Dr Rogers to the Department of Veterans' Affairs. The earlier report is not before this Tribunal. As will become apparent the earlier report apparently dealt with matters superficially distant from this case. As to whether it was relevant to this case I am unable to say. The parties made nothing of the absence of the report. I have assumed it was of little or no relevance.
Dr Rogers said he first saw the applicant as an outpatient on 12 April 1995 on referral from Dr King, general practitioner. Subsequently Dr Rogers provided the Department of Veterans' Affairs the report dated 14 December 1998 apparently dealing with a number of physical symptoms including headaches, left sided abdominal pain together with fears of Cancer. No clear physical cause was established for these symptoms, hence, I infer, Dr King's referral to Dr Rogers.
Since 1995 Dr Rogers has seen the applicant twice in 2000 on referral from Dr King. Dr Rogers found deterioration in 2000 with development of a major depressive illness arising out of the war related post traumatic stress disorder. He prescribed an anti-depressant and noted improvement at a follow-up examination. Dr Rogers sets out a summary of the applicant's ruminations about events in Vietnam. Nothing appears in that summary about disembarkation from helicopters. Helicopters are part of the applicant's ruminations. In my experience on this Tribunal the sound of helicopters overhead is one of the most common triggers for flashbacks by Vietnam Veterans suffering Post Traumatic Stress Disorder/Generalised Anxiety because of their experiences in South Vietnam.
Dr Rogers also discusses the applicant's dismissal with a redundancy package by Bowen Coke Pty Ltd. That discussion makes no mention of physical problems with the applicant's back but draws attention to relationship problems between the applicant and other workers at Bowen Coke.
Dr Rogers diagnosed acute major depressive disorder which exacerbates long standing symptoms as well as having its own characteristic impairments, particularly mood instability, ruminations about the past and a sense of guilt with continuing treatment necessary. Dr Rogers said the applicant should be regarded as totally and permanently incapacitated. He also said that even before the depressive decline it was clear the applicant was unable to work on account of his war-caused psychiatric disability including part-time work up to eight hours per week.
Consideration
In relation to the back conditions while I accept that the applicant suffers degenerative spinal conditions, I am not satisfied that those conditions can be attributed to the helicopter incident in South Vietnam. That incident almost certainly aggravated the pre-existing condition but it did so on a short-term basis.
I have come to that conclusion because the applicant continued his tour of duty in Vietnam without reporting a worsening of the pre-existing back condition and he failed to bring the back condition to notice on discharge from the Regular Army. He brought other problems to notice but said nothing about the back. I am satisfied that the helicopter incident did not make a material contribution (Treloar v Australian Telecommunications Commission (1990) 97 ALR 321) and any effect of the helicopter incident on the pre-existing condition was of no consequence and was not a material contribution. An hypothesis suggesting otherwise is both fanciful and tenuous.
I am satisfied, beyond reasonable doubt, that the applicant's service in South Vietnam, being operational service, did not make a material contribution to the applicant's back conditions and I so find.
Based on the evidence of the applicant and the report of Dr Rogers I am satisfied that the overwhelming factor in the applicant being made redundant by Bowen Coke Pty Ltd and his subsequent unsuccessful attempts to obtain employment is the accepted disability Post Traumatic Stress Disorder.
The material before me satisfies me that it was the PTSD which prevented the applicant from maintaining his employment at Bowen Coke. Nothing else was relevant. In particular the back conditions had not prevented the applicant from working until the time of redundancy and I am satisfied that the applicant could have continued working with the assistance of analgesics as needed.
The redundancy was in effect dismissal and I am satisfied that the applicant was so dismissed because of personality factors and not physical limitations.
Having come to that view I am satisfied that it was the PTSD alone which caused the loss of the applicant's remunerative work, which prevented him from obtaining other remunerative work and that the applicant did genuinely seek to engage in remunerative work but was unsuccessful because of his PTSD.
I am satisfied that section 24 of the Act was satisfied at the date of the application. The decision of the Tribunal will be to set aside the decision under review and substitute the following decision:
(a)the condition lumbar spondylosis is not a war caused disease within the terms of the Act;
(b)the condition thoracic spondylosis is not a war caused disease within the terms of the Act: and
(c)the applicant qualified for payment of pension in accordance with section 24 of the Veterans' Entitlements Act 1986 with effect from 6 September 1999.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 March 2001
Date of Decision  24 April 2001
For the Applicant  Mr D Honchin, Counsel
For the Respondent                 Mr J Stoner, Advocate