Fitzgerald and Repatriation Commission

[2004] AATA 333

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 333

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No T2003/17

VETERANS' APPEALS  DIVISION		)
Re		THOMAS HENRY FITZGERALD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date31 March 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans’ Appeals – applicant’s conditions of osteoarthritis of both hips and lumbar spondylosis whether war-caused – relevant Statements of Principles – neither condition war-caused.

Veterans’ Entitlements Act 1986 – 9(b), 120(1) and (3)

Deledio and Repatriation Commission 1997 47 ALD 261

REASONS FOR DECISION

31 March 2004 Ms A F Cunningham (Part-time Member)           

1.      The applicant has sought the review of decision of the Repatriation Commission dated 26 June 2002, which was affirmed by a decision of the Veterans’ Review Board (VRB) on 5 December 2002 rejecting the applicant’s claim that the conditions of osteoarthritis of both hips and lumbar spondylosis are due to his service in the Australian Army and/or the Royal Australian Air Force.

2. Both parties agreed to the Tribunal determining the appeal of the basis of the written material before it. This included the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 containing the applicant’s letter of appeal to the Tribunal dated 14 January 2003.

3.      It is the applicant’s contention that his claimed conditions of osteoarthritis of both hips and lumbar spondylosis can be attributed to his condition of arthralgia which was accepted as being war-caused on 17 November 1954.   The applicant stated in his letter to the Tribunal that his doctor, Dr Abuyar had written a short report in 2001 to the effect that osteoarthritis was evident in the applicant’s x-rays at the time and was caused by his long term suffering of arthralgia.

4.      The respondent relies on the written opinion of Dr Henry Brigden, departmental medical officer, who stated on 22 August 2002:

“Arthralgia, as such, does not to lead to other conditions, such as arthritis.”

5.      The applicant’s claim is to be considered pursuant to the provisions of the Veterans’ Entitlements Act 1986 (“the Act”). Eligibility for a pension arises under s 9 of the Act, and in particular sub-section (b) which provides:

“(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”

6.       There is ample evidence before the Tribunal to satisfy it that the applicant suffers from the claimed conditions.   In a report dated 29 August 1997, Dr David Chapman diagnosed his condition as lumbar spondylosis and noted that the applicant had been experiencing pain in the upper lumbar region of his spine for the past 12 months.  He commented that the condition is degenerative in origin.

7.      It would appear from the relevant medical material that the clinical onset of the applicant’s osteoarthritis of both hips was in or around 1993.

8. The applicant’s period of service in the Australian Army/Royal Australian Air Force was between 25 September 1942 and 3 September 1945. As this service constituted operational service within the meaning of the Act, the Tribunal is required to determine the application in accordance with the provisions of sub-section 120(1) and (3) of the Act. The subsections state as follows:

“(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.”

9. AS the applicant’s claim was lodged after 1 June 1994, the provisions of s120A require that the reasonableness of a hypothesis is to be assessed by reference to any relevant Statement of Principles.

10. It is submitted and the Tribunal accepts that the relevant Statements of Principles are (1) in respect of osteoarthritis No 81 of 2001 and (2) in respect of lumbar spondylosis No. 46 of 2002 as amended by No 77 of 2002.

11.     The decision-maker is bound to refer to any relevant Statement of Principles in its determination as to whether a claimed condition is war-caused.    Such is clear from the decision of Jenkin and Repatriation Commission 1997 47 ALD 721.

12.     Whilst the applicant contends that his osteoarthritis is caused by his accepted condition of arthralgia, unless arthralgia is a factor stated in the relevant Statement of Principles connecting the osteoarthritis with the circumstances of the applicant’s service, the Tribunal is not at liberty to consider this contention.

13. The relationship between the Statement of Principles and s120 of the Act was stated by Heerey J in the decision Deledio and Repatriation Commission 1997 47 ALD 261 as follows:

“But it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s120(1)) of the particular facts of a veteran’s case.   The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis.   In the words of the Minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of provided (Bushell at 414) or known (Byrnes at 571) scientific fact.   Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”

14.     The Tribunal must first be satisfied that an hypothesis is raised on the basis of all of the material before it connecting the injury with the circumstances of the applicant’s service.    It is the applicant’s contention that Dr Abujabor had reported in around 2001 that his condition of arthralgia is causative of his osteoarthritis.

15.     Further the applicant contends that his low back problems could be attributed to his work as a ball turret operator in a B24 Liberator Bomber.   The applicant described how he was required to squeeze into cramped gun turrets on the aircraft where his back was pushed against cold, unlined metal.   He indicated that his back disability was in the same part of his body that had made contact with the unlined metal.

16.     Whilst the medical discharge reports indicate that the applicant was not suffering from his claimed conditions at the time of discharge, the applicant maintains that the onset of these conditions some years later, is attributable to his service.

17.     On the basis that a hypothesis has been raised by the applicant, the reasonableness of the hypothesis is to be considered in accordance with the relevant Statements of Principle as outlined above. This exercise was comprehensively performed by the VRB in its decision dated 5 December 2002.

18.     The VRB noted that there are no factors in either SoPs relating to the effects of arthralgia.   Accordingly the decision-maker is not at liberty to conclude that either of the applicant’s claimed conditions are related to his accepted condition arthralgia.

19.     In relation to the applicant’s claimed condition of osteoarthritis, the VRB referred to the factor stated in sub-paragraph (b) “suffering inflammatory joint disease of the affected joint before the clinical onset of osteoarthrosis in that joint”, and concluded that there was no medical evidence that would allow this definition to be met.

20.     The Tribunal has carefully examined the factors listed in paragraph 5 and agrees with the conclusion of the VRB that there is simply no medical evidence to support any of the listed factors.  

21.     The Tribunal agrees with the VRB’s conclusion where it stated:

“In short, the veteran’s contention with regard to inflammatory joint disease does not come within the template of the Statements of Principles.”

22.     Similarly with the applicant’s condition of lumbar spondylosis, after careful consideration of all of the material before it, the Tribunal is unable to conclude that any of the factors listed in paragraph 5  of the relevant SoP are met which would raise a connection between the applicant’s condition and the circumstances of his service.   Again, the condition of arthralgia is not listed as a factor that would connect the applicant’s service with his condition.

23. For the above reasons, the Tribunal concludes that the material before does not raise a reasonable hypothesis within the meaning of sub-section 120(3) of the Act, which could connect the applicant’s conditions with his period of service. Accordingly, the Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller (Administrative Assistant)       

Date/s of Hearing  Matter decided on the papers              

Date of Decision  31 March 2004