Dawson and Repatriation Commission

[2004] AATA 107

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/770

VETERANS' APPEALS DIVISION		)
Re		ROBERT DAWSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date6 February 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................(Sgd).....................

O Rinaudo
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – lumbar spondylosis – whether condition caused by applicant’s war service – whether trauma to the lumbar spine – whether symptoms continued for ten days after trauma - hypothesis does not fit within template of Statement of Principles – hypothesis not reasonable – decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 120B

Harris v Repatriation Commission [2000] FCA 873

Harris v Repatriation Commission [2000] FCA 1687

REASONS FOR DECISION

6 February 2004  Mr O Rinaudo, Member    

Decision under Review

1.      The applicant seeks review of a decision made by the Repatriation Commission on 4 April 2001 to refuse claims for lumbar spondylosis and asthma.  The Veteran’s Review Board affirmed this decision on 23 May 2002. 

2.      The applicant has abandoned his claim for asthma. 

Decision

3.      The decision of the Tribunal is to affirm the decision under review with respect to lumbar spondylosis.

History

4.      The applicant was born on 11 July 1938.  He served in the Royal Australian Airforce from 1 August 1955 to 22 April 1976. 

5.      The applicant service in the airforce included the following:

§  operational service in Vietnam from 2 July 1996 to 13 September 1967; and

§  defence service from 7 December 1972 to 22 April 1976.

6.      The applicant injured his back in 1958 whilst playing rugby and in 1974 whilst playing squash.

Issue

7. The issue for the Tribunal in this application is to determine whether the applicant’s lumbar spondylosis is war or defence caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act). In this case the standard of proof applicable is that set out in section 120B of the Act being reasonable satisfaction.

Evidence

8.      The applicant attended the hearing and gave evidence.  There were two exhibits, the T documents were marked as Exhibit 1 and the statement of the applicant dated 21 November 2002 marked as Exhibit 2.  The applicant gave the following evidence:

9.      In 1958 whilst playing a Rugby Union game at RAAF Amberley he injured his back in a tackle.  The tackler had grabbed his jersey and given him a “jersey fling”.  He landed on hard ground.  He said his back was sore so he could not continue the game. 

10.     The next morning he went to the “Medico” for treatment.

11.     The applicant referred to page 2 of T4 of the T documents, which showed an attendance on 1 September 1958 with bruised back and a further attendance on 5 September 1958.  The applicant said that he went back on 5 September because he had pain.  He said x-rays were taken of his lumbar spine, and that…