Cormack and Repatriation Commission

[2005] AATA 351

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 351

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/4

VETERANS' APPEALS DIVISION		)
Re		NEIL JOHN CORMACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date20 April 2005

PlaceHobart

Decision

(a)   The decision under review is affirmed with respect to diabetes           mellitus and claimed disabilities of strain or sprain of the lumbar spine and/or lumbar spondylosis.

(b)      The decision under review is varied to accept haemorrhoids and acute tonsillitis as service related, with pension to be paid from 19 September 1997.

(c)    The matter is remitted to the Repatriation Commission for assessment and payment of pension.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - general rate - strain or sprain of the lumbar spine - haemorrhoids - acute tonsilitis - diabetes mellitus - operational service - Vietnam - appeal - Veterans' Review Board.

Legislation

Veterans' Entitlements Act 1986 - s120

Statements of Principles for medical conditions issued by the Repatriation Medical Authority

Guide to the Assessment of Rates of Veterans' Pension (GARP)

Authorities

Re Easton and Repatriation Commission (1985) 12 ALD 777

Repatriation Commission v Deledio (1998) 391 FCA

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 117 CLR 564  

REASONS FOR DECISION

20 April 2005 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by a delegate of the Repatriation Commission on 25 November 1997 that rejected the applicant’s claim to have sprain or strain of the lumbar spine, haemorrhoids and acute tonsillitis accepted as due to war service; but which granted pension at 10 percent of the General Rate with effect from 2 January 1997, following acceptance of diabetes mellitus as war-caused.    This decision was affirmed by the Veterans’ Review Board (VRB) on 23 October 2000.

Issue

2.      The issue is whether claimed disabilities of sprain or strain of the lumbar spine, haemorrhoids and acute tonsillitis should have been accepted as war-caused.

Decision on the Papers

3.      Both parties have agreed that give the efflux of time since initial application and failure to gain additional medical evidence, a decision should be made on the papers.

Legislation

4.      The relevant legislation is the Veterans’ Entitlements Act 1986 (“the Act”) and amendments.    In respect of operational service, subsections 120(1) and (3) apply.   As the claim was lodged after 1 June 1994, s12A also applies.    In all other matters the standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

5.      The Tribunal is required to take into account any relevant Statements of Principles issued by the Repatriation Medical Authority, also the Guide to the Assessment of Rates of Veterans’ Pensions (GARP).

Background

6.      The applicant Neil John Cormack was enlisted in the Australian Army as a national serviceman on 24 April 1969 and discharged on 23 April 1971.   He served in South Vietnam from 18 March 1970 to 18 March 1971 and this period constitutes operational service.

7.      Mr Cormack currently resides in the United States; which has sometimes resulted in gaps in communication.

8.      The veteran first submitted an application for disability pension on 8 April 1997 and the decision of a delegate of the Repatriation Commission was made on 25 November 1997.   A claim for diabetes mellitus was accepted on the basis of service-related smoking habit.    With respect to claims for strain or sprain of the lumbar spine, the delegate of the Repatriation Commission noted that the applicant stated he had experienced back pain “all his life”, but there had been an incident of chronic back pain during service in Vietnam, noted in a letter to his mother.   The delegate could not find any evidence confirming back pains claimed in 1977 were service-related; indeed at the time of army discharge his back was stated to be normal.

9.      With respect of the claim for haemorrhoids, the applicant had stated he experienced them for “years”, but there was no evidence directly linking them to service, nor could a reasonable hypothesis be identified within the Statement of Principles (SoP).    After combining impairment and lifestyle ratings, a pension of 10 percent of the General Rate was awarded on the claim of diabetes mellitus, backdated to 2 January 1997.

10.     The veteran was not satisfied with this assessment and lodged a notice of appeal to the VRB on 19 March 1998.

11.     The Board conducted a hearing in Hobart on 23 October 2000 and reported its decision on that date.    After considering all available evidence, with Mr A Dilba of the Returned and Services League, Australia, in attendance and providing some supplementary documentation on behalf of the veteran, the VRB affirmed the decision under review, but with some variation in expression.

12.     The decision was as follows:

·     Vary the decisions under review to include a diagnosis of lumbar spondylosis and tonsillitis;

· Affirm the decision under review as varied in relation to lumbar spondylosis, strain or sprain at the lumbar spine and tonsillitis on the ground the conditions were not war-caused so that term is defined by s9 of the Veterans’ Entitlements Act 1986;

·     Set aside the decision under review in relation to haemorrhoids and in its place substitute a decision:

(i)that the veteran’s condition of haemorrhoids was war-caused as that term is defined by s of the Act;

(ii)that the Commonwealth of Australia is liable pursuant to s13 of the Act to pay pension for any incapacity arising therefrom with effect from 19 September 1997;

(iii)to remit the matter to the Repatriation Commission for assessment of the rate of (if any) at which pension is payable.

13. The VRB had conducted a very detailed investigation and sought additional information prior to making these determinations. The matter initially came before the VRB on 2 September 1998, when it was adjourned pursuant to s152 of the Act, for the purpose of obtaining reports from medical specialists as to the veteran’s conditions. As the applicant resides in the United States it proved difficult to obtain specialist medical information, given that reports were obtained from “walk-in” medical centres, rather than identified and appropriately qualified medical officers. However some supplementary information was obtained from three doctors, specialists in their fields, concerning the veteran’s back condition, haemorrhoids and tonsillitis claims.

14.     Having  considered all available evidence the Board accepted that like many servicemen in South Vietnam, the veteran had suffered diarrhoea during service there and that the condition of haemorrhoids had developed following that service.   It therefore found that a reasonable hypothesis had been raised to connect the condition with the circumstances of operational service and it was satisfied beyond reasonable doubt that no factual basis existed for determining that the veteran’s haemorrhoids were not war-caused.

15.     In relation to tonsillitis, there was medical evidence the applicant had suffered recurrent attacks of the disability, but although there was a temporal association between the condition and operational service, there was no evidence before the Board to confirm a causal connection existed between them.

16.     In respect of strain or sprain of the lumbar spine, the veteran claimed he suffered low back pain in the “army and ever since”.    The Board also noted discharge comment by Falmouth Hospital, Massachusetts, dated 2 October 1997, in which a low back sprain was diagnosed and the veteran was instructed to avoid lifting or straining and to apply heat to the low back four times daily.

17.     Having noted the Statement of Principles (SoP) No 54 of 1994, dealing with acute sprains and strains, the VRB next considered Instrument No 165 of 1996 concerning lumbar spondylosis and determined that the decision under review should be varied to include a diagnosis of that condition.   In the absence of comprehensive medical reports the Board found difficulty in determining whether the veteran suffered acute or chronic back pain or less stressful circumstances and could not find sufficient evidence as to how and when the injury had occurred, its long term effect on him, and the duration of symptomology.

18.     In the absence of such information the Board was unable to reach a reasonable hypothesis connecting the disability to operational service and therefore decided to affirm the decision under review, as varied in relation to both sprain or strain of the lumbar spine and lumbar spondylosis.    Following  application of GARP (the Guide to Assessment of Rates of Veterans’ Pensions), pension at 10 percent of the General Rate was affirmed.

19.     An application for review by the AAT was lodged on 8 January 2001, but despite a number of reminders, little was heard from the veteran until late 2002, when it became clear there were difficulties in obtaining medical reports from the USA.    Eventually in late November 2004 the applicant indicated he would accept the AAT making a decision on the papers.   The respondent agreed to this action.

AAT Review

20.     The Tribunal is required to conduct a de novo review of all available evidence, taking into account statutory provisions, current principles and guidelines and any relevant prior case determinations.

21. As previously indicated the relevant sections of the Act are ss120(1) and (3) dealing with claimed disabilities arising from operational service and s12A of the Act concerning the application of Statements of Principles issued by the Repatriation Medical Authority. In all other respects the standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal. The process to be used in considering whether or not a hypothesis exists linking claimed disabilities to operational service is that following in Repatriation Commission and Deledio (1998) 391 FCA.

22.     The requisite process is as follows:

“(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

(iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

(iv)The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

Analysis

23.     With respect to the claimed disability of haemorrhoids the VRB accepted that the veteran had suffered diarrhoea during service in Vietnam and undergone haemorrhoids hospital treatment in March 1999.   Applying Statement of Principles (SoP) Instrument No 73 of 1994, it led the Board to decide that the claimed disability was war-caused, with pension payable from 19 September 1997, six months prior to the date of application for review.  The matter was then to be remitted to the Repatriation Commission for assessment.

24.     The Tribunal has now reviewed all available evidence in this matter and concurs with the VRB decision.  The Tribunal is therefore satisfied beyond reasonable doubt that no factual basis exists for determining that the veteran’s haemorrhoids were not war-caused, thus his appeal succeeds and he is to be paid pension from 19 September 1997, after the matter is remitted to the Repatriation Commission for assessment.    

25.     With respect to claims of tonsillitis disability, no relevant SoP appears to exist, thus the matter must be decided on the balance of probabilities, using principles and procedures of the kind enunciated in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 167 CLR 564.

26.     The veteran claims to have suffered acute tonsillitis during service in Vietnam and there are letters to his mother recording instances of this, but his discharge records merely state “…tonsillitis – no recurrence”.   However a medical record dated 26 June 1998 by an American Dr Geagan states: “…Neil Cormack is a patient of mine who I have seen for recurrent tonsillitis.”   The VRB accepted that the onset of tonsillitis occurred in Vietnam and the veteran has suffered from the condition on occasions since.    While the Board accepted a temporal connection existed between the condition and the veteran’s operational service, it did not consider proof existed to confirm that there was a causal connection between them.

27.     There is no evidence before the Tribunal to indicate whether Mr Cormack suffered tonsillitis prior to operational service.    What is clear is that the veteran suffered the disability during operational service and since.    The applicant’s mother (Mrs Cormack) indicated she believed the tonsillitis problem arose following influenza injections, but there is no medical evidence to support or reject such an assertion.   The malady was severe enough for the applicant to be informed that if he suffered one more attack, he would be sent back to Australia.    Weighing these factors and all other available evidence the Tribunal is of the view that on the balance of probabilities, the applicant’s tonsillitis disability is war-caused.    Accordingly, he is entitled to pension payment from 19 September 1997, with remittal to the Repatriation Commission for assessment.

28.     With respect to the claimed disabilities of sprain or strain of the lumbar spine, subsequently varied by the VRB as lumbar spondylosis, more complex medical evidence is involved.

29.     The VRB found it difficult to decide whether the applicant’s disability arose from claimed acute or chronic back pain or was more correctly attributable to lumbar spondylosis.    The Board was therefore unable to identify a reasonable hypothesis linking the claimed disability to circumstances of operational service and so affirmed the decision under review.    The Tribunal is now required to conduct its own de novo review and determine the matter.

30.     The veteran’s claim form states he suffered “low back pain in the army and ever since”.   However his discharge documents include a questionnaire response that he suffered “strained back OS – none recently”, while a letter to his parents dated 8 June 1970 indicates he did have chronic back strain at the time and was not allowed to lift anything heavy.    The cause, duration and severity of his injury were not identified.

31.     There is further evidence in the form of discharge comment from the Emergency Department of Falmouth Hospital, Massachusetts USA, dated 2 October 1997, indicating that low back pain had been diagnosed and the veteran was instructed to avoid lifting or straining, with heat applied to the low back four times daily.   In reports dated 1 April 1999 and 4 April 1999, a Dr G Johnston, an orthopaedic surgeon noted symptoms of low back pain with action, only improved with rest; with x-rays revealing spurring at the L4-5 interspace, indicative of instability at that level.

32.     While it is possible sprain or strain of the lumbar spine, or alternatively initiation of lumbar spondylosis, could have occurred during army service, there is no evidence indicating where or when this may have occurred, its severity or duration, and any associated medical factors.   Even if a prospective hypothesis could be identified linking the claimed disabilities and operational service, SoP Instrument No 50 of 1994 (sprain or strain of the lumbar spine) and SoPs Instrument Nos 165 of 1996 and 46 of 2002 (lumbar spondylosis) involve identification of acute trauma and other specific factors before a linkage to operational service can be demonstrated.

33.     In the absence of any comprehensive medical reports dealing with the onset and history of each claimed disability, neither sprain or strain of the lumbar spine and/or lumbar spondylosis can be accepted by the Tribunal as war-caused.

Summary

34.     Key outcomes of the Tribunal’s de novo review can be briefly summarised as follows:

(a)The applicant’s claim of diabetes mellitus has been accepted by the Repatriation Commission, with pension to be paid from 2 January 1997;

(b)Neither the Repatriation Commission or the Veterans’ Review Board accepted disability claims for sprain or strain of the lumbar spine and/or lumbar spondylosis.   Following de novo review the Tribunal affirms this decision;

(c)The VRB varied the decision under review, by accepting haemorrhoids were service-related, with pension payable from 19 September 1997.    The Tribunal affirms this decision;

(d)On the balance of probabilities the Tribunal has decided that the claim of acute tonsillitis should be accepted as service-related, with pension payable from 19 September 1997.

Decision

35.     The decision under review is affirmed with respect to diabetes           mellitus and claimed disabilities of strain or sprain of the lumbar spine and/or lumbar spondylosis.

36.       The decision under review is varied to accept haemorrhoids and acute tonsillitis as service related, with pension to be paid from 19 September 1997.

37.     The matter is remitted to the Repatriation Commission for assessment and payment of pension.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers
Date of Decision  20 April 2005