Holyoake and Repatriation Commission (Veterans' entitlements)

Holyoake and Repatriation Commission (Veterans' entitlements) [2018] AATA 4300 (19 November 2018)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2015/5825
Re:Derek Holyoake
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:19 November 2018
Place:Brisbane

The decision under review is affirmed.
................................[Sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for an increase in disability pension – standard of proof s 120(4) of the Veterans’ Entitlements Act 1986 – relevant Statements of Principles – conditions not connected with relevant service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission v Money (2009) 173 FCR 410
Kaluza v RC (2010) FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
SECONDARY MATERIALS
Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014
Statement of Principles concerning Osteoarthritis No. 14 of 2010
Statement of Principles concerning Osteoarthritis No. 62 of 2017
Statement of Principles concerning Adjustment Disorder No. 38 of 2008
Statement of Principles concerning Adjustment Disorder No. 24 of 2016
Statement of Principles concerning Trochanteric Bursitis and Gluteal Tendinopathy No. 46 of 2015
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
19 November 2018
INTRODUCTION

The applicant, Mr Derek Holyoake, claims to suffer from a number of medical conditions as a result of a vehicle accident which occurred sometime in or around 1977, while he was serving in the Australian Army (“the Army”).
The applicant has had several medical conditions accepted by the Department of Veterans’ Affairs (“DVA”), including left corneal ulcer, sensorineural hearing loss and calcifying tendinosis of the right shoulder. He is now seeking the acceptance of further medical conditions which are claimed to be the cause of the 1977 accident.
It should be noted that the applicant has also submitted a further claim for post-traumatic stress disorder to DVA, which is not before the Tribunal. This claim covers the same subject matter as the claim for adjustment disorder.
The applicant’s service in the Army spanned from 8 October 1974 to 7 October 1980. This service is considered eligible defence service pursuant to s 68 of the Veterans’ Entitlements Act 1986 (“the Act”).
BACKGROUND
On 25 February 2015 the applicant submitted a claim for the disability pension for conditions not yet accepted as service-related, namely depression, diabetes type 2, bilateral osteoarthritis, lumbar spondylosis, bilateral trochanteric bursitis, bilateral femoro-acetabular impingement and loss of hearing.
On 21 May 2015 the respondent rejected this claim with respect to all conditions except sensorineural hearing loss, on the basis that the conditions were not related to service. The claimed “bilateral femoro-acetabular impingement” condition was rejected as no diagnosable medical condition was found to answer that claim. The applicant’s disability pension was increased to 50% of the general rate with effect from 25 November 2014.
The applicant then requested a reconsideration of this decision by the Veterans’ Review Board (“VRB”). During the VRB hearing the applicant withdrew the claims for diabetes mellitus and bilateral femoro-acetabular impingement.[1] On 29 September 2015 the VRB affirmed the decision of the respondent. The VRB confirmed that the applicant’s present of pension, 70% of the general rate, was correct.
[1] Exhibit A, T-Documents, T2, at p. B18.
On 5 November 2015 the applicant lodged an application for review with this Tribunal. The remaining claims to be determined are: lumbar spondylosis with radiculopathy, osteoarthritis in both hips, mild bilateral trochanteric bursitis and adjustment disorder with depressed mood.
ISSUE
The issue before this Tribunal is whether each of the applicant’s claimed conditions are defence-caused. If one or more of the applicant’s conditions are accepted as being defence-caused, the assessment of the rate of pension is to be determined by the Repatriation Commission.
LEGISLATIVE FRAMEWORK
As the veteran has performed defence service, the determination of whether an injury or disease is defence-caused is to be made by applying the standard of proof outlined in section 120(4) of the Act. Section 120(4) requires this Tribunal to decide the matter to its “reasonable satisfaction”.
Section 120B(3) of the Act stipulates how “reasonable satisfaction” is to be assessed:
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
…
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In Repatriation Commission v Money (2009) 173 FCR 410,[2] Dowsett J remarked:
“Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service.”
[2] At [86].
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”), which is an independent medical body that issues Statements of Principles (“SoPs”) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular injuries, diseases or death. SoPs are binding on the respondent and various review bodies, including this Tribunal.
The relevant SoPs to this application are:
(a)Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014
(b)Statement of Principles concerning Osteoarthritis No. 14 of 2010
(c)Statement of Principles concerning Osteoarthritis No. 62 of 2017
(d)Statement of Principles concerning Adjustment Disorder No. 38 of 2008
(e)Statement of Principles concerning Adjustment Disorder No. 24 of 2016
(f)Statement of Principles concerning Trochanteric Bursitis and Gluteal Tendinopathy No.46 of 2015
THE ACCIDENT
The applicant claims that sometime in 1977 an APC vehicle accident occurred during a training exercise at Shoalwater Bay, near Rockhampton. There are no medical reports from the accident or records of the applicant’s hospital stay. The applicant’s service medical records include a discharge medical history questionnaire, which states “[knocked out] in ACV early 1980”.[3] This does not correspond with the applicant’s version of events, as both the date and the vehicle type (ACV) are different; an ACV is an armoured command vehicle, and an APC is an armoured personnel carrier.
[3] Exhibit B, medical history questionnaire.
The applicant provided a brief statement dated 5 March 2016 which outlined that “since my accident I have had severe and constant back pain and sciatica pain over the years”, which has led to severe mobility restrictions, difficulty bending, erectile dysfunction, restricted exercise, constant depression and an impact on both his social life and married life.[4]
[4] Exhibit F, statement of the applicant dated 5 March 2016.
At the hearing the applicant gave evidence that his memory of the time around the accident is very poor. He stated that he still has no memory of the accident itself. It was around 1977 that he recalled being on a regimental exercise at Shoalwater Bay, exercise “K2” or Kangaroo 2, to his recollection. It should be noted that during cross-examination the representative for the respondent referred to an extract from Hansard in November 1976, in which the Minister at the time spoke about his observations of exercise Kangaroo 2; this document was not introduced into evidence.
The applicant was a trooper at the time of the accident, and stated that he was crew commander on the APC that was being driven. The applicant was asked under cross-examination why he was commandeering an APC in 1977, when he did not receive a training certificate to be an APC crew commander until 5 May 1978. The applicant was unable to provide more specificity on the timing of the accident or why he was a crew commander at the time.
The applicant stated, “All I can remember is a field of grass”, which the vehicle was driving across. At this point his memory stops, and the next thing he recalls is waking up in hospital a few days later. Hospital staff told him, “I was in an APC accident. I had stitches in my left bottom lip and the back of my head”. He didn’t learn anymore about the accident until he was visited by Mr Joseph O’Reilly, who told him that he had been in an APC accident and he had been unconscious for a period of time. No one else spoke to him about the accident. Under cross-examination the applicant advised that he was in hospital for about a week.
When he was discharged from hospital, the applicant was taken back to his troop. The exercise had been completed by this time, and the troop travelled back to Brisbane. The applicant advised that he did not resume his duties upon his return, as everyone was on stand-down after the exercise; this typically lasted for anywhere from 5 to 10 days.
When giving evidence the applicant addressed the discharge medical history questionnaire, stating that it was his signature on the form but not his handwriting. He also noted that he has only had one accident. When asked about his record of service which refers to “3 March 1978, discharged from one mil hospital”,[5] the applicant clarified that this was a private operation and had nothing to do with the vehicle accident.
[5] Exhibit A, T-Documents, T3, at p. 1.
Mr Darryl Schmidt and Mr Joseph O’Reilly both provided statements regarding their own memory of the accident. Mr O’Reilly also gave evidence at the hearing.
Mr Schmidt’s statutory declaration of 15 October 2017 noted that he served with the applicant during the mid to late 1970’s. He was away in Victoria at the time of the unit’s exercise at Shoalwater Bay, but when he returned he heard two soldiers mentioning, “[the applicant] being taken away to hospital. Vehicle hit a tree stump.”
Mr O’Reilly provided an undated letter, which he clarified at the hearing would have been written around late 2016 or early 2017.[6] Mr O’Reilly was able to provide an account of the accident. He stated that in 1977 the crew was conducting training at Shoalwater Bay, which involved moving at speed from position to position across country. “It was during such a move that the vehicle that was being commanded by [the applicant] hit a tree stump that was hidden in the long spear grass, and came to an abrupt halt with such force that [the applicant] was thrown forward into the front of the T52 turret striking his chest… and his face and chin on the lip of the turret…” The applicant was then hit in the back of the head, which knocked him unconscious. Mr O’Reilly also stated that the applicant was bleeding heavily, with obvious injuries to the back of his head. The applicant was then transported to the Rockhampton Base Hospital using a staff car.
[6] Exhibit A, T-Documents, T23, at p. 192.
At the hearing Mr O’Reilly gave evidence that APC accidents were not uncommon, as the vehicles were driving in long grass where there were tree stumps. He clarified that he was not at the scene of the accident, but he was sure he visited the applicant in hospital. While he did not actually see the applicant in the hospital, he spoke with his sister. In his statement Mr O’Reilly also stated that he spoke with hospital staff and was advised that the applicant had been unconscious for about 36 hours.
When asked whether he was certain the accident took place in 1977, Mr O’Reilly stated, “I’m pretty sure it was” and “I was very involved in that in in [sic] training”. He stated that everyone in the unit knew about the accident, as it was quite serious. The troops had to recover the applicant themselves as the unit did not have any doctors, only a medic. When asked whether a report would have been written about the accident, Mr O’Reilly said it was unlikely as accidents like that were so common.
Mr O’Reilly’s statement noted his belief that the applicant was in hospital for about 5 days and was then placed on light duties for some time upon his return. At the hearing he stated that he thought the applicant was in hospital for 2-3 weeks because he was back in camp in Brisbane when he saw that the applicant had returned; on further questioning, he agreed that the applicant could have been in hospital for just five days per his statement, and then spent the next two or three weeks on light duties with his unit. Under cross-examination he acknowledged that he was not involved in the applicant’s transfer from Shoalwater Bay to Brisbane, and he was already in Brisbane when the troops came back by train.
MEDICAL EVIDENCE
The applicant gave evidence at the VRB hearing that he had suffered from back and bilateral hip pain since approximately 1985.[7] He said that he put up with the pain as he didn’t like to go to the doctor unless it was absolutely necessary, but he was forced to seek medical treatment when the pain got too severe. He saw his GP in around 2013, and was referred for scans. The applicant resigned from his job in 2013 due to the pain he was experiencing. He had worked as a laundry attendant from 2009 to 2013, and prior to that he had worked as a security guard for many years.
[7] Exhibit A, T-Documents, T2, at p. B4.
In cross-examination the applicant was referred to his claim form, which noted that he first noticed the symptoms in 1985. The applicant stated that he did undergo an x-ray at this time, which stated that there was early degeneration of the hips, but he could not recall where it was done. He could not recall any follow-up of his injuries once he returned from Shoalwater Bay to Brisbane, nor could he recall any treatments in the subsequent years.
With respect to his claimed clinical onset of 1985, the applicant clarified at the hearing that “the symptoms of this accident were felt by me originally in hospital, when both my hips and my back were hurting”.
Diagnosis
In 2013 and 2014 the applicant underwent a series of diagnostic scans to investigate the pain he’d been experiencing in his back and hips. A CT scan performed on 11 November 2013 looked at his lumbar spine, and found “slight degenerative retrolisthesis at L5/S1”, minor right lateral bulging of the disc at L3/4, and “mild broad based posterior disc bulge at L4/5”.[8]
[8] Exhibit A, T-Documents, T15, at p. 102.
An x-ray of the applicant’s hips performed on 9 December 2013 found that there was moderate joint space narrowing and subchondral sclerosis in the right hip, and mild to moderate joint space narrowing and subchondral sclerosis in the left hip, as well as a deformity of both the right and left femurs.[9]
[9] Exhibit A, T-Documents, T15, at p. 101.
An ultrasound of the applicant’s left hip performed on 11 February 2014 found that there was anterior hip joint pain without a specific cause identified.[10] It was noted that there was “fluid in the trochanteric bursa”. An ultrasound of the applicant’s right hip performed on 12 February 2014 found that there was very restricted mobility, with the pain being identified as “primarily trochanteric, right greater than left”.[11] It was determined that there was “mild/moderate trochanteric bursitis”.
[10] Exhibit A, T-Documents, T15, at p. 100.
[11] Exhibit A, T-Documents, T15, at p. 99.
Dr Lochlin Brown provided a report dated 21 April 2015 at the request of the respondent, which was not submitted into evidence and was not relied on by the respondent. It is worth noting that Dr Brown’s report commented that the trochanteric bursitis is more of a radiological diagnosis as clinically it’s the applicant’s hip osteoarthritis that is his main limiting condition.[12] He opined a clinical onset date of 2013 for the hip and back conditions and 2014 for the bursitis condition.
[12] Exhibit A, T-Documents, T16, at p. 110.
The applicant was diagnosed with his “adjustment disorder with depressed mood” condition by Dr Jatheesh Pala Valappil, who provided a report dated 27 April 2015.[13]
[13] Exhibit A, T-Documents, T18.
Dr Don Pitchford, medical director
Dr Pitchford is the medical director of the musculoskeletal department at Gold Coast University Hospital. He provided a report dated 9 February 2016, in which he certified that the applicant underwent a total right hip replacement on 12 January 2015.[14] Dr Pitchford stated that the applicant has evidence of degenerative changes to both his spine and hips, with the right hip being more affected than the left hip. He noted that the applicant informed him that the pain in his hip and back started following an accident in 1985, where he was the passenger in a military vehicle involved in an accident. Dr Pitchford commented, “While direct link between the accident and his current situation is difficult to make it is certainly possible that the injury initiated some of the degenerative changes which have over a period of time taken place requiring surgical intervention”.
[14] Exhibit G, report of Dr Don Pitchford dated 9 February 2016.
Dr Peter Sharwood, orthopaedic surgeon
Dr Sharwood provided a report dated 13 April 2016 at the request of the applicant’s former representative. This report was released through the summons process, and is relied on by the respondent. It should be noted that the applicant has submitted that Dr Sharwood’s evidence, both in his report and given at the hearing, should be afforded limited weight as his opinion appeared to have been influenced by the letter of advice sent from the applicant’s former representative; this letter included the previous VRB decision and a copy of the relevant SoPs.
In his report Dr Sharwood noted the applicant’s belief that he suffered a back injury in 1977 as a result of a vehicle accident.[15] The applicant could not recall the details of the accident, but advised that he was in the top of vehicle when it struck a tree stump, and he suffered a head injury. He was not sure whether he actually suffered an injury to his back, and he has no record of any injuries to his back. The applicant reported to Dr Sharwood that he returned to his unit within a week of the accident, and from there returned to Brisbane. He did not seek any further treatment for his injuries.
[15] Exhibit H, report of Dr Sharwood dated 13 April 2016, at p. 1.
Dr Sharwood’s report stated that it was not until 1985 that the applicant complained of any back pain, and at that time he was treated with deep heat and massage. The applicant did not seek any treatment for his back until he was referred to the Gold Coast Hospital for management of his hip pain. In 2013 the applicant stopped work due to his back and hip pain.
Dr Sharwood reported that the applicant has had no specialist referral, no surgery and no pre-existing symptoms related to his back. At the time he saw the applicant he was not receiving any specific treatment for his back, but attended a “Back in Motion” group. In his report Dr Sharwood commented “It is interesting that he still watches movies so his back pain does not seem to worry him when sitting”.

Dr Sharwood has provided the opinion that, “It is very difficult to associate any of his back symptoms with his military service.” At the hearing Dr Sharwood was asked to elaborate on this, and he advised that it was difficult because there is no documented evidence of a back injury. The applicant could also not give him a clear history of a back injury. He stated that the applicant appeared to have suffered a head injury in Rockhampton, and given the head injury and the nature of the injury it is possible that he suffered an injury to his back, but he cannot associate the back pain to the applicant’s military service.
At the hearing Dr Sharwood was also asked to comment on the CT scan and x-ray results for the applicant’s hip and back pain. He gave evidence that the 2013 CT scan showed that the applicant was suffering from lumbar spondylosis, but noted that at that time the applicant was 60 years old so it could have been age-related degeneration. He confirmed that the x-ray of the applicant’s hips showed he had significant osteoarthritis of both hips, with the right being worse than the left.
THE CLAIMED CONDITIONS
The applicant contends that the three claimed physical conditions (i.e. lumbar spondylosis, osteoarthritis of both hips and trochanteric bursitis) were caused by the vehicle accident which allegedly took place in 1977. He further contends that the adjustment disorder with depressed mood condition was caused as a result of the pain he experiences from his physical disabilities.
Lumbar spondylosis and osteoarthritis of both hips
The applicant’s claims for lumbar spondylosis with radiculopathy and osteoarthritis in both hips are related to the same set of facts and medical evidence. The applicant contends that both conditions were caused by the accident in 1977. SoP no. 63 of 2014 is applicable to the lumbar spondylosis claim, and SoP no. 14 of 2010 is applicable to the applicant’s osteoarthritis claim.
Clause 3(b) of the lumbar spondylosis SoP provides the following definition of lumbar spondylosis:
“a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs with:
(i) clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression; and
(ii) imaging evidence of degenerative change, including disc space narrowing or osteophytes.
Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis, Scheuermann’s kyphosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Lumbar spondylosis includes spondylosis at the lumbosacral junction.”
Clause 6 of the lumbar spondylosis SoP outlines the factors that can be said to connect the condition with the person’s service. The applicant contends factors (g) and (h) are relevant to this application:
(g) having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis; or
(h) having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse
The definition of “trauma to the lumbar spine” is defined in the SoP as:
“a discrete event involving the application of significant physical force, including G force, to the lumbar spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
Clause 3(b) of the osteoarthritis SoP provides the following definition of osteoarthritis:
“a degenerative joint disorder with:
(i) clinical manifestations of pain, impaired function and stiffness; and
(ii) radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes.
Other commonly associated features are sclerosis of the underlying bone, inflammation of the synovium and, for osteoarthritis in the knee, degenerative tears of the menisci.
This definition excludes acute traumatic chondral defect and osteochondritis dissecans."
Clause 6 of the osteoarthritis SoP outlines the factors that can be said to connect the condition with the person’s service. The applicant contends factor (f) is relevant to this application:
(f) having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint;
The definition of “trauma to the affected joint” is defined in the SoP as:
"a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.”
The parties are in agreement that the applicant has been diagnosed with both lumbar spondylosis and osteoarthritis in both hips. The submissions of the applicant did not specify the date of clinical onset claimed by the applicant. The respondent has submitted that a clinical onset date of 2014 is to be preferred, on the basis that this is when the applicant was referred for management of the condition by the Gold Coast University Hospital.
The respondent’s submissions looked at the clinical onset test as discussed in Kaluza v RC (2010) FCA 1244 at [92]. Jacobson J considered the meaning of “clinical onset” as defined by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331. He considered that their definition “…therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.”
At [95] Jacobson J added that the essence of the clinical onset test is that “…all the symptoms must be displayed and treatment sought so that the practitioner can determine the date of the clinical onset.”
The respondent submits that the applicant’s lumbar spondylosis and osteoarthritis claims do not meet any factors under the relevant SoPs, as the definitions of trauma are not met by the evidence. The respondent considers that there is a lack of medical evidence that the applicant’s back and hips were injured in the 1977 accident. When giving evidence, the applicant’s only specific reference to an injury to his back and hips was a reference to symptoms experienced while in hospital: “both my hips and back were hurting”. It is unclear whether the applicant’s hospital visit and/or subsequently being placed on light duties was a result of his head injury or otherwise.
The respondent also submits that there are no medical records for the treatment of the applicant’s conditions except for the attendances for treatment in 2013 and 2014, and the applicant has no memory of receiving treatment for his injuries when he first returned to Brisbane after the accident. The respondent has also highlighted that the evidence of Mr O’Reilly and Mr Schmidt was limited as neither of them witnessed the injury, and neither witness spoke of the applicant having experienced an injury to his back or hips.
Bilateral trochanteric bursitis
SoP no. 46 of 2015 is applicable to the bilateral trochanteric bursitis claim. Clause 3(b) of the lumbar spondylosis SoP provides the following definition of trochanteric bursitis:
“a condition involving inflammation or swelling of the bursae around the greater trochanter. This condition is characterised by pain and tenderness in the region of the lateral hip or buttock that usually worsens with physical activity”
In his submissions the applicant stated that he relies on factor 6(d) of the SoP. This factor is:
(d) having direct trauma to the affected tendon or bursa within the one month before the clinical onset of trochanteric bursitis or gluteal tendinopathy
The definition of “trauma to the affected tendon or bursa” is defined in the SoP as:
"an injury to the affected tendon or bursa that causes the development, within the 24 hours of the injury being sustained, of pain and tenderness in the lateral hip or buttock, and altered mobility or range of movement of the hip. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication. These symptoms and signs must last for a continuous period of at least seven days following their onset, save for where medical intervention for the injury to that hip has occurred and that medical intervention involves either:
(a) immobilisation of the hip by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into that hip; or
(c) surgery to that hip.”
The applicant’s submissions contend that the condition was caused by the 1977 accident at Shoalwater Bay, but do not go into any further detail. The respondent considers that the applicant has not made detailed submissions in respect of this condition, and that in any case the applicant does not meet the SoP.
Adjustment disorder with depressed mood
There are two SoPs which are applicable to the applicant’s adjustment disorder claim: no. 38 of 2008 and no. 24 of 2016. The applicant has sought to rely on no. 38 of 2008.
The definition of “adjustment disorder” provided in the 2008 SoP at clause 3(b) is:
“a psychiatric condition meeting the following diagnostic criteria, (derived from DSM-IV-TR):
A.    The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B.    These symptoms or behaviours are clinically significant, as evidenced by either of the following:
(1)marked distress in excess of what is expected from exposure to the stressor; or
(2)significant impairment in social or occupational (academic) functioning.
C.   The stress-related disturbance does not meet criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.
D.   The symptoms do not represent bereavement.
E.    Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.”
The applicant considers that factor 6(h) of SoP no. 38 of 2008 is relevant. This factor is:
(h) having chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder
The definition of “chronic pain” is defined in the SoP as:
“continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”
It is the submission of the applicant that his adjustment disorder with depressed mood condition was caused by experiencing severe chronic pain from the skeletal injuries incurred as a result of the 1977 Shoalwater Bay accident.
The respondent’s submissions note that the applicant relies on the acceptance of the other physical conditions in respect of this condition. The respondent contends that this condition is not related to service, and as such the SoP cannot be met.
CONSIDERATION
Under s 120B of the Act, in deciding an application to the reasonable satisfaction standard mandated by the Act in s 120(4) of the Act, I am required to have regard to any relevant SoP issued by the Repatriation Medical Authority which binds decision-makers at all levels.
Lumbar spondylosis
I find that the applicant has lumbar spondylosis. I make this finding in reliance on the opinion of Dr Lochlin Brown who, on 21 April 2015, reported that the applicant has lumbar spondylosis.
The parties agree that the relevant SoP in relation to the claim for lumbar spondylosis is SoP no. 63 of 2014 as amended. Clause 5 of SoP no. 63 of 2014 provides that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Clause 7 has no relevance to this application.
Clause 6 of SoP no. 63 of 2014 outlines a number of factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person’s relevant service. The applicant places reliance on factor 6 (g) which refers to a person:
having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis.
The evidence before me does not raise the application of the other factors in Clause 6 of SoP no. 63.
It is important to consider when there was the clinical onset of lumbar spondylosis. On 21 April 2015 Dr Lochlin Brown reported it was on 11 November 2013 that the applicant was diagnosed with a mild diffuse posterior disc bulge at L4/L5. Dr Brown then reported that the applicant had mild back pain. When giving evidence Dr Sharwood made reference to this report. Dr Sharwood was also aware that in 1985 the applicant complained of back pain and was treated with deep heat and massage. I cannot, on the state of the evidence before me, make a finding that the date of clinical onset of the lumbar spondylosis condition was before 2013. Dr Sharwood gave evidence that he was “not able to go earlier in a diagnosis of clinical onset” and his opinion was not challenged.
I accept that the applicant was giving evidence to the best of his recollection; he believes that the trauma occurred in 1977 or 1978. Mr O’Reilly, who gave evidence, was “pretty sure” that the accident occurred in 1977. This is consistent with the recollection of Mr Schmidt who declared in his statutory declaration that the accident occurred in the mid to late 1970’s. The applicant was firm in his recollection that the accident occurred before his promotion to Lance Corporal which was in March 1978. The report of Dr Pitchford dated 9 February 2016 refers to a statement of the applicant that the accident occurred in 1985 but I have formed the view in reliance on the testimony of the applicant as well as the evidence of his colleagues that the accident occurred no later than the promotion of the applicant in 1978. The evidence before me does not enable me to make a finding that the trauma occurred within the 25 years before the clinical onset of lumbar spondylosis. In relation to this condition the SoP does not uphold the contention that the disease of the applicant is, on the balance of probabilities, connected with his service as required by s 120B of the Act. The claim in relation to lumbar spondylosis cannot therefore succeed. As a decision maker I am bound by the SoP.
I also mention that in Dr Sharwood’s report, which was commissioned by the previous representative of the applicant, he gave his opinion that it is very difficult to associate any of the applicant’s back symptoms with defence service. In giving evidence Dr Sharwood stated that having regard to the age of the applicant the back condition may well be age-related degeneration.
Osteoarthritis of the hips
The two SoPs that I am required to consider are Instrument no. 14 of 2010 and Instrument no. 62 of 2017. Both outline a number of factors that must exist before it can be said that, on the balance of probabilities, osteoarthritis is connected with the circumstances of a person’s relevant service. The applicant places reliance on factor 6(f) of the Instrument no. 14 of 2010 and factor 9(6) of Instrument no. 62 of 2017, which refer to a person:
having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint.
It is important to consider when there was the clinical onset of osteoarthritis of the hips. On 21 April 2015 Dr Lochlin Brown reported that the date of onset of the condition of the hips was in 2013. This is consistent with the report of Dr Alister Darveniza dated 9 December 2013. I rely upon these medical reports to find that there was clinical onset of osteoarthritis of the hips in 2013.
I have previously mentioned that I have formed the view that the trauma that is relied upon by the applicant occurred sometime before the promotion of the applicant in 1978. The evidence before me does not enable me to make a finding that the trauma occurred within the 25 years before the clinical onset of osteoarthritis of the hips.
I have considered the other factors in Instrument no. 14 of 2010 and Instrument no. 62 of 2017. After having reviewed the service medical documents I consider that there is no evidence which would enable me to make a finding in relation to those other factors.
Dr Sharwood, in his comprehensive medical report dated 13 April 2016, reported that there is no doubt that the applicant has pathology in his hip joints. In his report he remarked:
“Again there is no evidence to suggest that this is anything but constitutional degenerative osteoarthritis as he has no history to suggest under the Statement of Principles ... that there is any injury as such nor is there any record of depositional joint disease or infection. He is certainly not obese and there is no history of any intra-articular fracture or disorder in joint mechanics whilst he was serving.”
During the hearing Dr Sharwood confirmed that the commissioning letter from the previous representative of the applicant briefed him with Instrument no. 14 of 2010.
The two SoPs do not uphold the contention that the disease of the applicant is, on the balance of probabilities, connected with his service as required by s 120B of the Act. The claim in relation to osteoarthritis of the hips cannot therefore succeed. As a decision maker I am bound by the SoP.
The evidence does not satisfy the definition of trauma in either SoP which requires that the symptoms and signs must last for a period of at least seven days following their onset. While the applicant states he was admitted to the Rockhampton hospital for 5 to 6 days and discharged to his unit, he did not receive treatment after his hospital discharge or was placed on light duties.
Trochanteric bursitis
In his report of 21 April 2015 Dr Lochlin Brown diagnosed the applicant with trochanteric bursitis with a date of onset of 2014.
The applicant places reliance on factor 6(d) of the SoP, being Instrument no. 46 of 2015, which refers to a person:
having direct trauma to the affected tendon or bursa within the one month before the clinical onset of trochanteric bursitis or gluteal tendinopathy.
Before the VRB the applicant relied on factors 6(h) and (i) of the SoP which had been mistakenly referred to as Instrument no. 46 of 2014.
I have concluded that none of these factors are satisfied having regard to the trauma; incidents of running, jogging or weight bearing exercise not having occurred within the prescribed period of one month before the clinical onset or clinical worsening of trochanteric bursitis. The evidence before me does not raise consideration of any other factors in Instrument no. 46 of 2015.
Adjustment disorder

In his report dated 27 February 2015 Dr Jatheesa Papa Valappil diagnosed the applicant with an adjustment disorder with depressed mood from the musculoskeletal condition and pain. Dr Valappil expressed the opinion that there is no relationship between the applicant’s condition and his military service.
The applicant places reliance on factor 6(h) of the SoP, being Instrument no. 38 of 2008, which refers to a person:
having chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder.
It is important to consider when there was the clinical onset of the adjustment disorder with depressed mood. Dr Valappil was unable to provide a date of clinical onset of the condition other than to relate that the applicant had reported that the condition was present for the previous one to two years. If what the applicant stated was correct it is fair to assume that the date of clinical onset was no earlier than in or about 2012.
Before the VRB the applicant made a submission that the adjustment disorder condition is caused by the orthopaedic conditions of lumbar spondylosis, osteoarthritis of the hips and trochanteric bursitis. There is no evidence upon which I can be reasonably satisfied that these orthopaedic conditions are related to his service as required by clause 5 of the 2008 SoP. There is no evidence of the accepted conditions having any contribution to the adjustment disorder with depressed mood condition. There is also no evidence which would raise consideration of any other factors in clause 6 of the 2008 SoP.
The 2008 SoP does not uphold the contention that the disease of the applicant is, on the balance of probabilities, connected with his service as required by s 120B of the Act. At the time of the clinical onset of adjustment disorder with depressed mood, which can be assumed to be in or about 2012, the pain which was experienced by the applicant was not connected with his service.
While the applicant does not rely upon the SoP which is Instrument no. 24 of 2016, it is incumbent upon a decision maker to consider whether the claim of the applicant is upheld by the 2016 SoP. Factors 1 to 9 in section 9 can have no relevance because those factors require that certain events occur at the time of clinical onset of the adjustment disorder condition. Factors 10 and 11 are not raised by the evidence. The only event that may have been relied upon by the applicant is factor 8 which refers to a person having persistent pain at the time of clinical onset of the condition and that factor cannot apply because section 10 of the 2016 SoP requires that the factor is related to the service of the applicant, and there is no evidence that this requirement is met.
The claim in relation to adjustment disorder with depressed mood cannot therefore succeed.
Determination
For the sake of completeness I should record that there is no relevant determination under s 180A(3) of the Act.
DECISION
I affirm the decision under review.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.................................[Sgd]...................................
Associate
Dated: 19 November 2018

Date of hearing: 23 October 2017

Date final submissions received: 21 December 2017

Solicitor for the Applicant: Mr Noel Payne

Advocate for the Respondent: Mr Bruce Williams

[2018] AATA 4300

19 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Reliance

Standing

Procedural Fairness

Appeal

Date of hearing:	23 October 2017
Date final submissions received:	21 December 2017
Solicitor for the Applicant:	Mr Noel Payne
Advocate for the Respondent:	Mr Bruce Williams