CHRISTOPHER NICHOLLS and REPATRIATION COMMISSION

[2009] AATA 925

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 925

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5008

VETERANS' APPEALS  DIVISION		)
Re		CHRISTOPHER NICHOLLS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date30 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd].................................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – whether lumbar spondylosis was from injury sustained during service – application of Statement of Principles – clinical onset occurred within 25 years of incident – applicant developed required signs and symptoms – no evidence of altered mobility or range of movement – no medical interventions – lumbar spondylosis was not attributable to service – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 68, 70, 120B

Kitson and Repatriation Commission [2009] AATA 656

Harris v Repatriation Commission [2000] FCA 873

REASONS FOR DECISION

30 November 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr Christopher Nicholls (the applicant) served with the Australian Army. He claims that his lumbar spondylosis condition is caused by an injury that he sustained during his service.  I have to decide whether the applicant sustained a trauma to the lumbar spine during an incident in his defence service.  I give my reasons below why I am not reasonably satisfied that the applicant sustained such a trauma.

SERVICE

2. The applicant served with the Australian Army from 16 February 1976 until 16 February 1982. I am satisfied that this service is defence service under s 68 of the Veterans’ Entitlements Act 1986 (“the Act”). This is because the applicant meets the definition in the Act of “defence service” as he has rendered continuous full-time service as a member of the defence force on or after 7 December 1972.

PRIOR DECISIONS

3.      On 25 July 2007, the Repatriation Commission decided that the applicant’s lumbar spondylosis is not related to his defence service. The Veterans’ Review Board affirmed that decision on 9 July 2008.

BACKGROUND

4.      The applicant has given evidence that he had no history of back pain before he served with the Australian Army.  His testimony in this regard has been corroborated by Channon Malt, Corina Malt and Dean Nicholls.[1]

[1] All three witnesses have provided statements dated 5 December 2008.

5.      The applicant states there are two incidents relevant to his claim.

First incident

6.      The first incident occurred on 28 July 1976 when the applicant was injured whilst on exercises on the High Range Training Area in North Queensland.  The applicant had attempted to jump over a dry ravine and he slipped on the ash of burnt grass.  He fully abducted both his legs at 180 degrees.  The applicant in his evidence remarked:

I landed on the rocks and all I remember was going down both legs just split.  The left and the right, and I went down and the pain was phenomenal.  It felt like – excuse the expression – it felt like my guts had come out.  That’s what…