Hall and Repatriation Commission
[2008] AATA 35
•14 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 35
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/969
VETERANS’ APPEALS DIVISION ) Re IRIS HALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date14 January 2008
Place Coffs Harbour
Decision The Administrative Appeals Tribunal affirms the decision under review.
......................SGD..........................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – eligible war service – claim that lumbar spondylosis was war-caused – consideration of Statement of Principles – the Tribunal decides that the decision under review is affirmed.
Veterans’ Entitlements Act 1986 (Cth) sections 9, 120(1), 120(3), 120A, 196B(3), 120(4), and 120B(3)
Statement of Principles – Instrument No. 39, 40 of 1996
Statement of Principles – Instrument No 38 of 2005, 47 of 2002, as amended by No. 78 of 2002
Repatriation Commission v Smith (1987) 15 FCR 327.
McKenna v Repatriation Commission 29 AAR 70.
REASONS FOR DECISION
14 January 2008 Ms N Isenberg, Senior Member 1. The decision under review is the decision of the Repatriation Commission dated 16 December 2005 as affirmed by the Veterans’ Review Board (“the VRB”) on 30 June 2006 that refused the claim by Mrs Hall (“the Veteran”), that her lumbar spondylosis is service related.
ISSUE BEFORE THE TRIBUNAL
2. There was no dispute that the Veteran suffers lumbar spondylosis. The only issue was whether the condition was related to her war service.
BACKGROUND
3. The Veteran served in the Women’s Royal Australian Air Force between 14 March 1942 and 9 March 1946. That service was not “operational service” as defined in the Act.
4. On her Entry Examination in 1942 the Veteran was noted to have both hammer toes and scoliosis.
5. The Respondent conceded that the Veteran’s hammer toes were service related, in that her pre-service condition was aggravated by ill-fitting service issue footwear. The condition was previously accepted as service related by the Tribunal in a decision dated 2 August 2005.
APPLICANT’S CONTENTION
6. The Veteran contended that her war-caused hammer toes aggravated her scoliosis, or a deformity of a vertebra or deformity of a joint of a vertebra, before the clinical onset of lumbar spondylosis.
7. Alternatively, by virtue of her hammer toes, the Veteran had suffered disordered joint mechanics, before the clinical onset of lumbar spondylosis.
LEGISLATIVE BACKGROUND
8. Section 9(1) of the Veterans’ Entitlements Act 1986 (“the Act”) sets out the circumstances in which a condition may be said to be war-caused:
9 War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
9. As the Veteran did not have “operational service”, pursuant to section 120(4) of the Act, the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.
10. I am required to decide matters to my reasonable satisfaction in accordance with any Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (RMA) or any relevant determinations or declarations under the Act: section 120B(3). The RMA issues SoP based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: section 196B(3).
11. The RMA has issued SoPs in relation to lumbar spondylosis. Currently that SoP is No 38 of 2005. I must apply the SoP that is currently in force, unless, the SoP in force when the claim was first determined is more beneficial to the Veteran: Gorton v Repatriation Commission [2001] FCA 286. The earlier SoP is No 47 of 2002 as amended by No 78 of 2002.
VETERAN’S EVIDENCE
12. The Veteran gave evidence that she had previously worn “special shoes” because of her extremely narrow fitting but none were available during her service. She stated that to stop her feet moving around in the issued shoes she wore thick socks. Upon commencement of her service, there was initially intense marching and throughout her service parades continued, although less frequently. At the end of the day she had pain in her feet, but she just put up with it. On discharge, she immediately went to a podiatrist to have orthotics fitted and has worn them ever since.
13. She stated that she had experienced back pain “all [my] life on and off” but in 2005 she required hospitalisation for five to six weeks because of intense pain. About five years ago she took to using a walking stick because her balance was affected and her toes were getting more painful. About 18 months to two years ago, she commenced using a walking frame.
MEDICAL EVIDENCE
14. Dr Shatwell, Orthopaedic Surgeon, provided a report dated 15 March 2007, and gave telephone evidence. In his report he wrote: “As a result of her foot deformities Mrs Hall’s gait has been altered leading to the development of low back pain in the 1980’s. She was considered to have a diagnosis of lumbar spondylosis in 1985 and she sought help on many occasions from General Practitioners.” On examination he found her to have, “very minor lumbar scoliosis.”
15. Dr Shatwell considered the Veteran’s lumbar spondylosis to have involved: “loss of integrity of the intervertebral discs with reduction in height and consequent mal-alignment of the face joints of the lumbar region. The body reacts by buttressing the lumbar discs with spondylophytes (osteophytes) and calcification in the ligaments surrounding the spine and facet joints.”
16. He agreed with the view of Dr Smith, Orthopaedic Surgeon, that the Veteran had disordered joint mechanics of the facet joints. However, he said there was no deformity of the facet joints. He noted that an X-ray report of 23 July 2004 showed scoliosis at the mid to upper lumbar spine, at the same time as the degenerative (i.e. spondylitic) changes were first apparent.
17. Dr Shatwell did not think that the Veteran’s hammer toes had affected her scoliosis. The effect of the hammer toes was to alter her gait and possibly made it difficult for her to load her spine evenly. In his view, a combination of the Veteran’s hammer toes and the scoliosis would lead to acceleration of degeneration of the lumbar spine. He agreed that the disordered joint mechanics of a change in gait may have affected the back, but not the scoliosis. He described scoliosis as “a structural abnormality.”
18. He thought the entry in the Veteran’s entry medical documents may have suggested ‘thoracic’ scoliosis, but he thought it was improbable that a curve in the spine would be in one part of the spine only. If the primary curve was in the thoracic spine, he would have expected a second compensatory curve. He noted that on X-ray the scoliosis in the lumbar spine was minor only.
19. On 15 June 2007 Dr Smith reported:
“I do not believe there is any relationship between her military service and the aging (sic) process for the changes in her lumbar spine and entirely consequent to the ageing process and possibly a genetic abnormality.”
….
“Scoliosis is a structural anomaly where there is a rotary deformity and it is inherited in some way the mechanism of which is not well understood and it is fairly common at 6% of the female population and the scoliosis is not due to thr (sic) war service”
20. On 24 July 2007 Dr Smith reported:
“I do not believe her scoliosis would have been made worse by her service in any way, assuming it is thoracic spondylosis.
Therefore, I could not agree with Dr Shatwell’s opinion that a thoracic spondylosis would have any bearing on lumbar spondylosis.
…
There would be no relationship between her facet joint arthritis and her foot condition that is hammer toes.
There would be no connection between the scoliosis of the thoracic spine and hammer toes either.”
21. Dr Smith said that the altered gait would not necessarily worsen degeneration of the back but the symptoms may worsen. He said in his report dated 24 July 2007 that “She would have disordered joint mechanics of the facet joints and possibly also the intervertebral discs themselves before the clinical onset of symptoms from lumbar spondylosis and that is what normally happens.”
22. Dr Smith in his report dated 15 June 2007 referred to the CT scan dated 1 November 2006 wherein Dr Welshman noted: “At L5/S1 there is significant bilateral facet joint arthritis, posterior osteophyte and outlet canal stenosis bilaterally more so on the left than the right.”
23. Dr Smith said that the hammer toes had no impact on disordered joint mechanics and therefore has no impact on the lumbar spine.
CONSIDERATION
24. Under clause 6 of the current SoP Instrument No. 30 of 2005, at least one of the factors set out in the clause must be related to the relevant service by the Veteran. The only relevant factor prescribed by the SoP was 6(d):
“having a condition of the lumbar spine from the specified list of spinal conditions before the clinical onset of lumbar spondylosis.”
25. The specified list of spinal conditions’ included:
(a) scoliosis;
…
(d) a deformity of a vertebra;
…
(e) a deformity of a joint of a vertebra, or
…
26. However, I must consider each condition in the alleged chain of causation in order to establish whether there was a link between each condition in the chain and service. This includes conditions which have already been accepted as service related: McKenna v Repatriation Commission 29 AAR 70. I therefore must first be reasonably satisfied, having regard to the Veteran’s contention, that she has hammer toes, and then whether scoliosis, deformity of a vertebra, or a deformity of a joint of a vertebra that can be related to service.
27. There is no SoP for any of those specified conditions. This means, I must decide on the balance of probabilities that is whether it is more likely than not, on the available evidence, whether those conditions were war-caused or caused by her war service.
were the veteran’s hammer toes worsened by war service?
28. After considering the Veteran’s evidence and the medical evidence, I was prepared to accept, on the balance of probabilities, that the service provided ill-fitting footwear which exacerbated the Veteran’s congenital hammer toes.
was the veteran’s scoliosis worsened by war service?
29. Both doctors agreed the Veteran’s hammer toes had no effect on her congenital scoliosis. There was no evidence that her war service aggravated her scoliosis.
did the veteran have a deformity of a vertebra or a deformity of a joint of a vertebra?
30. Dr Shatwell wrote that there was “loss of integrity of the intervertebral discs”. The CT scan of 1 November 2006 noted, inter alia, significant bilateral facet joint arthritis. On that basis, I am prepared to accept, on the balance of probabilities, that the Veteran had a deformity of a joint of a vertebra.
was the deformity of the joint of the vertebra contributed to by the veteran’s service?
31. While Dr Shatwell was of the view that the Veteran’s hammer toes and scoliosis brought about the early onset of lumbar spondylosis, this is not the test. The test at this stage is whether her hammer toes only - as scoliosis has been eliminated as unrelated to service - affected her facet joints. There was no other contention as to connection with service. Dr Smith considered the facet joint arthritis was part of the normal aging process. Dr Shatwell described lumbar spondylosis as ‘involving’ the loss of integrity of the intervertebral discs, rather than that the disc problem caused the lumbar spondylosis. Dr Shatwell also noted that the Veteran’s scoliosis would have rendered her more likely to suffer a disc prolapse due to altered mechanics in the lumbar spine than a person with normal spinal curvature i.e. without scoliosis. There was no evidence that the disc or joint problems preceded the clinical onset of lumbar spondylosis, which had been diagnosed in 1985. I therefore find, on the balance of probabilities that any deformity of a joint of the vertebra was not contributed to by the Veteran’s service.
32. Having come to that view, I find that no factor of the current SoP is raised by the veteran’s evidence in this case. I am therefore reasonably satisfied that under that SoP the material before me does not raise a connection between the veteran’s lumbar spondylosis and her service.
33. Having found that the Veteran cannot succeed under the current SoP (No. 38 of 2005), I turn to consider the SoP in operation at the time her claim was decided: No. 47 of 2002 as amended by No. 78 of 2002. Relevantly, that contains the following factor:
5 (d) having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis
“Disordered joint mechanics” is defined as maldistribution of loading forces on the lumbar spine that has resulted from:
(a) scoliosis, or
…
(e) a deformity of a vertebra, or
(f) a deformity of a joint of a vertebra, or
…
34. I have already found that the Veteran’s scoliosis was unaffected by her service and that she did not have a deformity of a vertebra. I have found that she had a deformity of a joint of a vertebra but that there was no evidence that the disc or joint problems preceded the clinical onset of lumbar spondylosis, as required by the factor. I note that the medical evidence is that her gait was affected by her war-caused hammer toes but this does not amount to disordered joint mechanics, as defined.
35. Having come to that view, I also find that no factor of the previous SoP is raised by the evidence in this case. I am therefore reasonably satisfied that the material before me does not raise a connection between the Veteran’s lumbar spondylosis and her service.
36. I note Mrs Hall’s contribution to defending Australia during her service during World War II. Sadly, not all conditions suffered later in life can be related back to those years spent in the defence force. In matters such as this, where a SoP has been issued for a particular condition relating to the circumstances of a Veteran’s condition, determining authorities, including the Tribunal, are bound by the relevant SoP’s. The Tribunal is not permitted any discretion in this regard.
DECISION
37. For the above reasons, I affirm the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ..............................SGD..................................................
Associate: Felicia DanieleDate/s of Hearing 22/11/2007
Date of Decision 14 January 2008
Counsel for the Applicant Ms Elizabeth WoodSolicitor for the Applicant Joanne Pollock, Legal Aid Commission Veterans Advocacy
Counsel for the Respondent
Solicitor for the Respondent Ms Jane Warmoll, Advocate, Department of Veterans’ Affairs.
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