Ian Shaw and Repatriation Commission
[2014] AATA 908
•8 December 2014
[2014] AATA 908
Division Veterans' Appeals Division File Number
2014/2367
Re
Ian Shaw
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Dr M Sullivan, MemberDate 8 December 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
Dr M Sullivan, MemberCATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Application for disability pension – Cervical spondylosis – Consideration of two Statements of Principles – Neither Statement of Principles satisfied – Decision under review affirmed.
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
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr M Sullivan, Member8 December 2014
Mr Ian Shaw suffers from cervical spondylosis. He has applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth). He says his neck condition was aggravated by events occurring during the course of his service in the Royal Australian Air Force (RAAF) after 7 December 1972 until his discharge on 3 July 1984.
The Commission denied liability for the condition.
We are not satisfied Mr Shaw’s cervical spondylosis condition is connected with the circumstances of his service. In those circumstances, we must affirm the decision under review – which means Mr Shaw is unsuccessful in his application before the Tribunal. We explain our reasons below.
Our task
In order to decide Mr Shaw’s claim, we must be reasonably satisfied there is a connection between his claimed condition and the circumstances of his defence service:
s 120(4). As we go about that task, we will have regard to the statements of principles concerning cervical spondylosis issued by the Repatriation Medical Authority – namely No. 67 of 2014 and No. 34 of 2005. We will refer to the most recent statement of principles first.
We are conducting this review de novo. That means we are considering all of the evidence afresh. We are not bound by the findings of the original decision-maker or the Veterans’ Review Board. We are also not bound by policy documents or other advice that might be given by the Commission in relation to its functions. Our obligation is to reach the correct or preferable decision on the material before us.
Does Mr Shaw suffer from cervical spondylosis?
Our first task is to identify the diagnosis. Mr Shaw says he suffers from cervical spondylosis. That condition is defined slightly differently in the two different statements of principle we have referred to above. In the first Statement (No. 67 of 2014), it is defined at clause 3(b) as follows:
For the purposes of this Statement of Principles, "cervical spondylosis" means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:
(i) clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and
(ii) imaging evidence of degenerative change, including disc space narrowing or osteophytes.
There is no doubt Mr Shaw suffers from that condition as defined: see exhibit 1, p 26. But what was the date of onset? Mr Shaw says he has been suffering from cervical spondylosis since his early days in the RAAF, and may even have had the condition before he joined the services. He notes the reference in an imaging report, dated
19 July 2005, to the condition, or features of it, being congenital (see exhibit 1, p 27).
He also recollected the Veterans’ Review Board in 2008 appeared to accept his cervical spondylosis condition dated back to his early days in the RAAF.
A careful analysis of the medical records in light of the definition of cervical spondylosis shows why Mr Shaw is mistaken. The definition says a diagnosis cannot be made unless it is confirmed by imaging. The first imaging studies to confirm the existence of the degenerative change did not occur until 2001: exhibit 1, p 23. That means the earliest date on which the applicant could be said to suffer from cervical spondylosis would be in 2001. But even if we ignored the requirement that there be imaging evidence, or concluded a retrospective diagnosis could be made once the imaging studies became available in 2001, the medical evidence does not establish the applicant experienced clinically significant signs and symptoms (especially the neurological symptoms like pins and needles or numbness which are typically present) during the course of his service that would provide the basis for a diagnosis of cervical spondylosis. Some of those signs and symptoms did not become apparent until after Mr Shaw left the RAAF.
That conclusion is problematic for Mr Shaw. He conducted his case on the basis his cervical spondylosis condition was of long standing and was aggravated or clinically worsened by the rigours of his work in the RAAF. If the condition was not present before 1984, it could not have been clinically worsened by what he did during service.
It is clear from the medical evidence that Mr Shaw has had a cervical vertebral anomaly that is congenital in nature. The anomaly would have been present since the early days of his service. His congenital condition resulted in a fusion between the C6 and C7 vertebrae. There is no doubt that condition could have led to pain and discomfort – particularly in connection with physically demanding tasks – and a propensity to the early onset of cervical spondylosis.
The Statement of Principles says the presence of a specified spinal condition affecting the cervical spine for at least a year before the clinical onset of cervical spondylosis is one of the factors that might be taken to have materially contributed to the onset of the condition. The expression specified spinal condition is defined at clause 9 to include
“a deformity of a vertebra”. We are prepared to accept for present purposes that the fusion of two vertebrae satisfies that definition – however, clause 5 of the Statement points out it is still necessary to demonstrate there is a connection between the deformity and the circumstances of service. In this case, there is no connection: the evidence establishes the deformity is congenital in origin. There is also no evidence that the rigours of defence service resulted in a permanent worsening of the applicant’s underlying condition, or caused him to develop cervical spondylosis more quickly or more acutely than might otherwise have been the case. In his oral evidence, he agreed his symptoms abated in the early 1980s when he ceased doing physically demanding work and took a desk job. It seems likely the pain and discomfort he experienced in connection with his work at most brought about a temporary aggravation or temporary worsening of the congenital condition. There is no reason to doubt the change in his work pattern resulted in the condition resuming its trajectory of long term degeneration. For the sake of completeness, we note the applicant expressly denied that he experienced trauma to the cervical spine as defined in clause 9 of the Statement of Principles during the course of his service. He did give evidence that he carried excessive loads on his head when he was inverted in a cockpit fixing components tucked beneath the control panel of an aircraft, but he agreed he was not sitting upright when he did so. That last detail suggests he cannot satisfy the definition in factor 6(h). It is, in any event, impossible to be satisfied he carried those loads to “a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis”: factor 6(h).
Mr Shaw also complained he was unable to obtain appropriate clinical management of his cervical spondylosis condition. If he is right about that, he might have been able to satisfy factor 6(aa). But he cannot, for reasons we have already explained. He did not have cervical spondylosis while he was in the RAAF. That diagnosis could not possibly be made until after he was discharged.
It follows Mr Shaw cannot satisfy the current Statement of Principles. He cannot succeed in his claim unless we can be satisfied he would do better under the older Statement of Principles.
The definition of cervical spondylosis in the older Statement of Principles (No. 34 of 2005) is different to the definition in the more recent statement. The older statement defines cervical spondylosis at clause 3(b) as follows:
For the purposes of this Statement of Principles, “cervical spondylosis” means 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.
That definition does not expressly require that the diagnosis be confirmed by imaging studies. But we are not satisfied that makes a practical difference to the analysis we have undertaken in relation to the current statement. Even if we did not require imaging studies to fix a date of diagnosis and clinical onset, the evidence does not establish all of the expected neurological and orthopaedic signs were present during the course of
Mr Shaw’s service. We are satisfied a diagnosis could not properly be made until some point after Mr Shaw’s discharge in 1984.
The factors discussed in clause 6 of the current Statement of Principles (No. 67 of 2014) are in other respects similar to those referred to in clause 6 of the older Statement of Principles (No. 34 of 2005). Mr Shaw does not satisfy the equivalent factors in the older Statement for the same reasons we found he is unable to satisfy them in the current Statement.
Conclusion
We accept Mr Shaw experienced pain and discomfort during the course of his service in connection with heavy physical work he was undertaking. It is likely that exertion temporarily exacerbated his underlying congenital spinal condition. But once he stopped exerting himself and took up a desk job, the conditions settled and the degenerative process he was experiencing returned to its normal course. In 2001, that degenerative condition was diagnosed as cervical spondylosis. The cervical spondylosis was neither caused nor clinically worsened by what happened during the course of Mr Shaw’s service in the RAAF. It follows the Commission is not liable for the condition.
The decision under review must therefore be affirmed.
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 and Dr M Sullivan, Member. ........................................................................
Associate
Dated 8 December 2014
Date of hearing 17 November 2014 Applicant In person Counsel for the Respondent Mr G Purcell
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