Hansen and Repatriation Commission

[2004] AATA 951

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/190

VETERAN'S APPEALS DIVISION		)
Re		COLIN HANSEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date14 September 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

K L Beddoe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – lumbar spondylosis – whether reasonable hypothesis can be raised connecting condition to veteran’s operational service – applicant did not suffer a trauma to his lumbar spine during operational service – hypothesis not reasonable – decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 120, 120A, and 196B

Byrnes v Repatriation Commission (1993) 177 CLR 564
Gorton v Repatriation Commission [2001] FCA 286

REASONS FOR DECISION

14 September 2004   Senior Member KL Beddoe           

1. The respondent determined that the diagnosed condition of lumbar spondylosis was not a war-caused disability within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).  The Veterans’ Review Board (“VRB”) subsequently affirmed that decision and the applicant made a valid application for review in this Tribunal.

2.      It was accepted before me that I should be reasonably satisfied that the correct diagnosis of the applicant’s relevant condition is lumbar spondylosis.  I am so satisfied.

3.      While the applicant’s case has been equivocal he claims that there is a reasonable hypothesis connecting his operational service in South Vietnam to the diagnosed condition because there is a chain of causation with a relationship to that service.

4.      Such an hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable on the raised facts (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571).

5. At the time the Commission made its decision a Statement of Principles made pursuant to sub-section 196B(2) of the Act was in force, being Instrument No 27 of 1999. That Instrument was subsequently revoked by Instrument No 46 of 2002 but I understand the applicant to rely on No 27 of 1999, being the more favourable Statement of Principles on the raised facts (Gorton v Repatriation Commission [2001] FCA 286). At the hearing reference was made to Instrument No 28 of 1999 but I am satisfied the Instrument has no operation on the circumstances of this case. I do not understand why the VRB used this Instrument.

6.      The hypothesis will be a reasonable hypothesis, on the raised facts, if the hypothesis comes within the terms of the Statement of Principles (that is, if it is consistent with the template found in the Instrument).  If it does not come within the terms of the Instrument it will not be a reasonable hypothesis so that the claim fails.

7. If, on the raised facts, there is a reasonable hypothesis the claim will succeed unless, on the facts found, the Tribunal is satisfied, beyond reasonable doubt, that the incapacity did not arise from a war-caused injury (section 120(1) of the Act).

8.      At the hearing Mrs Nicoll appeared for the applicant and Mr McAninly represented the respondent.

9. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and Professor McPhee, a spinal surgeon.

10.     The applicant’s accepted service-related disabilities are post traumatic stress disorder, chronic obstructive airways disease and bilateral sensorineural hearing loss.  He has been in receipt of a disability pension at 100% of the General Rate effective from 24 July 1997.

11.     The applicant, who was called up for Army service pursuant to the National Service Act, was born on 24 January 1947 being 57 years of age at the time of hearing in the Tribunal. 

12.     He enlisted in the Australian Army on 11 July 1967 and was discharged on completion of two year’s service.  He rendered operational service in South Vietnam from 9 April 1968 until 11 March 1969.

13.     In an undated statement exhibited in a hearing before the VRB, the applicant said:

“My back was first hurt in a fall while attempting to scale a cliff wall used at J.T.C. training, this fall was from about 15 meters up the cliff back down onto the ground below, and when I received medical help for the pain caused by this fall, I was told that it was nothing but muscle strain and given a few tablets for the pain which continued for approximately 10 days, and to go and get on with the training programe, the pain some times returned for short periods but not enough to seek medical help and a lot of the time because of where I was at the particular time I could not get it if required and this training was required to be performed by all soldiers before embarkment for Vietnam, it lasted for 3 weeks.

It was again injured while in S.V.N. as a Gunner in an Artillery Battery, this was when it had been raining for some time and the shovel end of the gun became imbedded in the mud, I was required to lift it out and in doing so caused more damage to my back and required the medical personal to give me what ever pain relievers he could as there was no Doctors around, and then I was placed on the lightest duties possible on the gun for about 9 days as every soldier had a place on the gun and no such thing as a relief soldier so you just got on with the job that you were sent to do and not complain, or you were thought to be a bludger and life was made very hard for you if the other thought you were not doing your share and because of this when you got hurt in this sort of way you just got on with the task at hand and shut, as I was called a bludger and malingener and critised during this period, However nearly all the detachment suffered back pain during the tour and went through the same mental taunts.

When doing Clearing and Savalance Patrol, because of my size I was given the job of carrying the M60 Machine Gun, 2 belts of ammo as well as the usual water bottle and rations to last for the 2 to 3 days that we would be out, this again caused pain of which I did not tell anyone about as I did not wish to be referred to as a bludger again.”

14.     A further undated statement by the applicant referred to these incidents as follows:

“My back was first injured at Canungra after the fall the my lower back became very tender and the pain was also down in my hips and down my legs.

My mobility and movement was restricted it made it very painful to bend over and carry my back pack it would have been just about impossible for me to complete the course without people in the unit helping over the following week.

I did attend the medical centre at the time and was told it was muscle strain given some tablets to help with the pain and sent back to complete the course.

Over the next week I took any pain killing tablets I could get mainly from others on the same course.

You will also note at the same time I was passing dark coloured urine as stated on my medical records this I put down to kidney bruising from the same fall.

Back Injury in South Vietnam.

My back was reinjured while lifting the tail shovel of the artillery gun out of the mud after heavy rain the symptoms were lower back pain, hip pain, going down the legs.  I was placed on light duties [guard duties] and readying the ammo as this was the lightest duty on the gun for about seven days.

I did not receive any medical intervention for the trauma.

I was given tablets by the medic in the field with us there was no Australian army doctor with the unit in the field.”

15.     Army medical records (Exhibit 4) show that the applicant complained of pain in his back on 2 February 1968 which had been symptomatic for four days.  Back muscle strain was diagnosed.  In his oral evidence he agreed this was the fact.

16.     In Exhibit A, the applicant states that the accident in South Vietnam occurred before Christmas 1968 while his artillery battery was engaged in a fire mission.  Operation of the Howitzer required it be shifted at least four/five times during the mission.

17.     The shovel end of the Howitzer was embedded in mud and in an attempt to move the gun by lifting the shovel end the applicant suffered intense pain to his lower back.

18.     The applicant used painkillers to relieve the pain and was put on such light duties as were available for at least one week while the symptoms settled.  Back movement was restricted.  There was not any relevant medical intervention.

19.     By the time of his discharge from the Army the back condition was non-symptomatic and was not referred to on discharge.

20.     In a further statement dated 20 December 1998, the applicant said:

“I worked in the Battery Industry after I returned from the army as a sales person with close contact with the batteries and which after a number of years the fumes from the battery acid aggravated a breathing difficulty I had been having for some time and getting worse, so decided to buy into a battery importing and wholesale business with a partner as I thought that this would keep me basically working by myself most of the time and away from the fumes.

But after operating the business for twelve months I found that this was not the case as I came in constant contact with the staff and my partner and because of my attitude to other people and bad temper my partner and I decided that it was not working and sold the business, at which time I was placed on unemployment benefits from the government, at no time during this period had I given any thought to stopping work because of my back pains that I had from time to time.

While registered for unemployment benefits I had regular interview with the then C.E.S. about work situations and at one of these interviews they decided that they would send me to a government doctor for an assessment and out of this my back was used as a reason to get me off the unemployment list and onto a disability pension in their files, so it was not my decision to give up work because of my back and I feel that my attitude to people and life were more of a hinderance, along with my increasing difficulty to breathe on exertion that was the cause of me not being able to work any longer in the public work force.”

21.     There is a lack of precision in the applicant’s evidence.  However he attended Dr Strahan, a consultant physician, who made a report to the Department of Veterans’ Affairs dated 18 November 2003. While the report has no medical relevance to the issue before the Tribunal it includes the following history taken from the applicant:

“He trained as an apprentice butcher for four years and then worked for a pipe factory for twelve months.  He then worked for Exide batteries in Townsville for twelve months before joining the Army for two years.  During this time he was engaged in active service in Vietnam and took up smoking during this period when 21 years of age.  He returned to Townsville and worked for Exide batteries for a further 18 years before starting up his own battery shop which he operated for three years before he was bought out by Exide.  He then moved to Maryborough when about 44 years of age and assumed a disability pension at that time.  Since then he has been operating a small farm breeding stud cattle.”

22.     The applicant told me he breeds Dexter cattle which he sells as stud cattle.  He indicated the operations are minimal, selling two plus cattle per year.

The Medical Evidence

23.     In a standard form report dated 15 February 2002, the applicant’s general practitioner (Dr Sussens) diagnosed:

“Facet Joint degeneration at L4/5, bulging disc, osteophytes, L5/S1 degenerative disc narrow foramina CT scan 1994.”

24.     That report reflects a report by Dr Khursandi, orthopaedic surgeon, dated 9 November 1994.  The report noted the applicant had suffered periodic backache for many years.

25.     There is recorded a history of episodes of low backache with radiation of pain to both buttocks, thighs and legs, over the “past four months”.  Symptoms were said to be aggravated by walking, bending and sitting.

26.     Dr Khursandi reported a diagnosis of spinal stenosis which warrants decompression laminectomies. The applicant told me he refused to have the operation.

27.     Exhibit 3 is a medico-legal report by Professor McPhee, spinal surgeon, addressed to the Department of Veterans’ Affairs and dated 2 July 2003. Professor McPhee sets out a history generally consistent with the applicant’s assertions of fact except that he records that the applicant was on light duties for four days whereas the applicant asserts it was at least one week.  It is apparent from the report that Professor McPhee was not told about the limited cattle breeding activity (or perhaps decided it was of no consequence).

28.     He found reduced lumbar spine movement being about 75% of normal. X-rays done on 12 June 2003 showed degenerative changes throughout the lumbar spine with changes most marked at L4/5 and L5/S1 – both showing moderate narrowing of the disc space.  An MRI scan also showed a mild generalised bulging of the disc at L4/5.

29.     Professor McPhee’s opinion was that the applicant suffers from generalised lumbar spondylosis. The symptoms began with an injury in 1967 and were initially recurrent but became chronic by 1994.  He further stated that given the widespread changes it is probable that the major contributing factor is constitutionally based with injuries sustained during life being minor contributing factors.

30.     More specifically, Professor McPhee said that the injury in South Vietnam could only be described as mild if the applicant was able to resume his usual duties within the week.  He was of the opinion that the applicant did not sustain a significant injury in the South Vietnam incident.

31.     In his report addressed to the Department of Veterans’ Affairs and dated 18 November 2003, Dr Strahan, consultant physician, said, inter alia, that the applicant complained of chronic low back pain.  While he did not examine the status of the applicant’s spine he was asked to review the applicant’s medical status in the light of a spirometry report.  He noted a history of chronic lung disease and other conditions not relevant for present purposes.  Exercise testing revealed a good level of physical fitness but no opinion was expressed in relation to the applicant’s back condition.

Consideration

32.     Clearly the applicant suffers from lumbar spondylosis.  The raised facts support a tenable hypothesis that the incident with the Howitzer in South Vietnam caused a trauma to the applicant’s lumbar spine.

33. The issue to be resolved is whether the hypothesis is a reasonable hypothesis. In this regard there was in force, on the day the respondent made its decision, a relevant Statement of Principles made pursuant to sub-section 196B(2) of the Act, being Instrument No 27 of 1999. That Instrument was subsequently revoked by Instrument No 46 of 2002 which in turn was amended by Instrument No 77 of 2002.

34. The applicant’s case was based on Instruments No 28 of 1999 and 47 of 2002. Those Instruments were made pursuant to sub-section 196B(3) of the Act and apply in circumstances where section 120B operates in relation to a matter to be decided to the Tribunal’s reasonable satisfaction in accordance with sub-section 120(4) of the Act.

35. The only relevant service in this case is the applicant’s operational service in South Vietnam. I am therefore satisfied that the matter is to be decided in accordance with the requirement of sub-sections 120(3) and 120(1) of the Act and that sub-section 120(3) is subject to sub-section 120A to determine the reasonableness of the hypothesis. I am satisfied that the relevant Statements of Principles are those made pursuant to sub-section 196B(2) of the Act.

36.     Insofar as the applicant made submissions about the more favourable Instrument, those submissions were misconceived.  Having considered the relevant Instruments I am satisfied that Instrument No 46 of 2002 as amended by Instrument No 77 of 2002 is less favourable to the applicant because of the amendments made by Instrument No 77 of 2002.  I have assumed that I am not now entitled to consider Instrument No 46 of 2002 as it applied prior to the amendments. The issue was not specifically addressed before me because, I assume, both parties were focussed on the wrong Instruments.

37.     I am satisfied that the relevant Statement of Principles is Instrument No 27 of 1999 which was in force when the Commission made its determination.  Notwithstanding the submissions made to the Tribunal, the respondent did consider Instrument No 27 of 1999 as the relevant Statement of Principles when making its determination.

38.     The diagnosed condition lumbar spondylosis is within the defined meaning of the condition.  Subject to clause 6 of the Instrument, at least one of the factors set out in clause 5 must be related to the applicant’s operational service.  Of those factors the only possibly relevant ones are:

5(h):suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;

5(g):suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis;

5(j):suffering a lumbar invertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the invertebral disc prolapse;

5(s):suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis.

39.     Clause 8 of the Instrument relevantly defines “trauma to the lumbar spine” to mean a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and altered mobility or range of movement of the lumbar spine, with the acute symptoms lasting for at least seven days.

40.     A consideration of Professor McPhee’s report discounts ligamentous instability as applicable to the applicant’s condition.  The diagnosed condition did not include factors of ligamentous instability except insofar as a mild bulge in the disc L4/5 was noted on the MRI scan.

41.     The diagnosed condition is based on the generalised narrowing of disc space throughout the lumbar spine most obvious at L4/5 and L5/S1 reflecting generalised degenerative change.

42.     On that basis the diagnosed condition does not reflect any trauma to the lumbar spine and in particular does not reflect a trauma to the applicant’s operational service.

43. I am not satisfied that any of the factors in clause 5 can be satisfied by the raised facts so that the hypothesis is not a reasonable hypothesis within the terms of sub-section 120A(3).

44.     It follows that I am satisfied beyond reasonable doubt, after a consideration of all the material, that there is no sufficient ground for determining that the condition of lumbar spondylosis is a war-caused injury because the material does not raise a reasonable hypothesis connecting the diagnosed condition to the operational service.

45.     The decision under review will be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  27 February 2004
Date of Decision  14 September 2004
Counsel for the Applicant         Mrs Nicoll
Solicitor for the Applicant          Sciacca's Lawyers
For the Respondent                  Mr McAninly, Departmental Advocate