Flanders and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1023

Flanders and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1023 (24 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/6429
Re	Patrick Flanders
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	24 December 2015
Place	Brisbane

The decision under review is set aside. I decide in substitution that the applicant’s cervical spine condition is connected with his service.

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

Senior Member McCabe

Catchwords

VETERANS’ AFFAIRS – benefits and entitlements - whether cervical spondylosis is connected with the applicant’s service – onset of condition – suffering is operative word – applicant experienced symptomatic cervical spondylosis in 2004 and 2005 – decision under review set aside – applicant’s condition is service related

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Statement of Principles concerning cervical spondylosis No. 67 of 2014

Statement of Principles concerning cervical spondylosis No. 34 of 2005 (superseded) 

REASONS FOR DECISION

Senior Member McCabe

24 December 2015

1. Mr Patrick Flanders injured his neck while he was in the Army in 1986. He sustained other injuries, including a shoulder injury, in the years that followed. He experienced regular shoulder pain (as well as lower back pain) between 1986 and 2013. I note he reported episodes of acute neck and shoulder pain in 1995, 2004 and 2005. In 2013, he was diagnosed with cervical spondylosis. He says cervical spondylosis is attributable to the neck injury he sustained in 1986. On that basis, he has applied for an increase in his disability pension paid under the Veterans’ Entitlements Act 1986 (Cth) (the Act). I must decide whether I am satisfied the neck condition arose out of, or is connected with, the circumstances of his service.

   The statements of principle

2. When considering whether there is a causal connection between the accident and the condition, I must have regard to the relevant statements of principle issued by the Repatriation Medical Authority. The statements define the condition and set out factors which an expert panel has concluded are capable of contributing to the onset or aggravation of the condition. As a practical matter, if an applicant is able to establish the facts or circumstances set out in the statement of principles are present in their case, the  person can claim there is a causal connection between the factor and the condition. If the factor is related to the applicant’s service, then – other things being equal – the causal link with service will be established.

3. The current statement of principles concerning cervical spondylosis is No 67 of 2014. The definition of cervical spondylosis at clause 3(b) refers to clinical manifestations and symptoms of cervical spondylosis being present and imaging studies which confirm the presence of degenerative change. The applicant was not the subject of imaging studies until late 2013. Those studies confirm he had cervical spondylosis at that point. The date of onset for the purposes of the statement of principles is therefore sometime around late 2013.

4. That is a problem because factor 6(f) of the statement – the factor relied on by the applicant – says cervical spondylosis must be present within 25 years of trauma to the neck. But that trauma occurred in 1986. It follows I cannot be satisfied cervical spondylosis was present within 25 years of that trauma occurring (ie, prior to 2011) because the imaging studies which were an essential component of the definition did not occur until later.

5. It follows the applicant cannot satisfy the requirements of the current statement of principles. But there is still hope. He is entitled to have his claim assessed against an earlier statement of principles that was in force at the time he lodged his claim for an increase in the rate of pension. If he can satisfy that statement of principles, he may yet succeed in his claim.

6. The earlier statement of principles in question is No 34 of 2005. There is an important difference between this statement and the one which replaced it. The difference can be found in the definition of cervical spondylosis. I have already explained that imaging studies which confirmed cervical spondylosis had to be available before cervical spondylosis could be said to be present under the current statement. The definition in the earlier statement of principles does not require imaging studies. The definition in clause 3(b) of the earlier statement merely requires me to identify:

   degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis…

7. I must be reasonably satisfied these degenerative changes were present before mid-2011 if the applicant is to succeed in his claim.

   The medical evidence

8. I was provided with a good deal of medical evidence recording the applicant’s clinical history. His service records show he experienced acute neck and shoulder pain in 1995: exhibit one at p 151. The records show the episode lasted around six weeks. The applicant was treated conservatively and it seems the symptoms resolved. The applicant presented for medical treatment with pain in his lower back, left shoulder and knees, over the years that followed. Of particular interest for present purposes, he experienced acute neck and shoulder pain in 2004 and 2005. The applicant’s treating general practitioner, Dr McGrath, also recalled the applicant making frequent complaints of shoulder pain after 2005. There are several references to shoulder pain in Dr McGrath’s clinical notes after 2005. The notes record the applicant reported shoulder pain in 2007, 2008 and 2009, while he reported one instance of “upper back pain” in 2010: exhibit one at 218-219.

9. Dr McGrath wrote a report dated 9 April 2015 and gave oral evidence at the hearing. He said he initially assumed the pain in the applicant’s neck and shoulders was attributable to a sporting injury. But he said he changed his mind once the diagnosis of cervical spondylosis was made in 2013. He said it was likely the shoulder pain was not attributable to the shoulder injury; he said it was more likely referred pain from the neck. Mr Crowe, for the Commission, explored this opinion with Dr McGrath in cross-examination. Mr Crowe referred Dr McGrath to the reports of imaging studies found in exhibit one at pp 12ff. Dr McGrath agreed it was unclear to him whether the imagining studies confirmed there was nerve compression that would generate referred pain in the shoulder.

10. I also heard from a consultant orthopaedic surgeon, Dr Michael Bryant. Dr Bryant provided a report and gave evidence at the hearing. He was asked about the imaging studies that were discussed with Dr McGrath. Dr Bryant was confident the imaging studies demonstrated degenerative change that could result in referred shoulder pain. He also confirmed it was likely the spinal degeneration evident in the 2013 studies would have been present in 2011, and perhaps earlier. He explained it was impossible to be certain of the date when the degenerative change began or became sufficiently pronounced to warrant a diagnosis. Even so, it was likely a doctor could have identified cervical spondylosis during the 25 year window contemplated by the earlier statement of principles - in the absence of evidence of other trauma. (Factor 6(f) of the current statement of principles is, for present purposes, effectively the same as factor 6(f) in the earlier statement.)

11. Unforunately, it is not enough for me to be satisfied there is medical evidence of  degenerative change in order to find the existence of cervical spondylosis as that term is  defined in the statement of principles. The definition in the statement of principles effectively requires that the condition be symptomatic. Dr Bryant pointed out imaging studies might reveal the existence of severe degenerative change in a person who remained symptom-free. A person who was symptom-free could not be said to have cervical spondylosis within the meaning of the statement of principles regardless of how much degeneration was evident in the imaging studies. It is also possible that a person might experience shoulder pain that is unrelated to severe degeneration.

12. In this case, I must be satisfied the applicant was suffering from symptomatic cervical spondylosis prior to early 2011 – suffering being the operative word.

13. The evidence from Dr McGrath confirms the applicant experienced what may have been symptoms of cervical spondylosis in 2004 and 2005. The service records confirm Mr Flanders may have experienced symptoms of cervical spondylosis as long ago as 1995. Dr McGrath agrees he initially thought the symptoms he observed in 2004 and 2005 were associated with the shoulder trauma; it is only with the benefit of hindsight that he took the view those symptoms (and presumably the ”upper back” discomfort observed in 2010) were more likely to be associated with cervical spondylosis. Dr Bryant accepted that was a reasonable view.

14. Mr Crowe, for the Commission, suggested there must be some doubt over whether a few individual acute episodes of upper back and shoulder pain over such a long period could satisfy the definition in the statement of principles. I do not accept the definition requires chronic or even frequent acute episodes; occasional acute episodes might be enough in the circumstances.

15. On balance, I am satisfied the applicant experienced symptomatic cervical spondylosis in 2004 and 2005. While there is no direct evidence in the form of imaging studies that confirm degenerative change was present in 2004 and 2005, I am reasonably satisfied I can draw an inference it was present from:

    ·the presence of significant degenerative change in 2013 that Dr Bryant said was likely to be present before that date, and which may have been present for a long time; and

    ·symptoms that were, in the opinion of Dr McGrath (whose opinion was essentially endorsed by Dr Bryant) best-explained by cervical spondylosis rather than a shoulder injury.

16. It follows I accept the applicant is able to satisfy factor 6(f) of statement of principles No 34 of 2005. I am satisfied there is a causal link between the applicant’s cervical spondylosis and the circumstances of his service.

    Conclusion

17. The decision under review is set aside. I decide in substitution that the applicant’s cervical spine condition is connected with his service.  The parties did not make submissions as to the date of effect. If they are unable to agree on the date of effect within 28 days, the Commission shall advise the Tribunal. That aspect of the matter may then be considered in a resumed hearing.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 24 December 2015

Date of hearing	15 December 2015
Advocate for the Applicant	Ken Cullen, Samford RSL
Advocate for the Respondent	Mr A Crowe, Department of Veterans’ Affairs