Jacobs and Repatriation Commission
[2003] AATA 600
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/580
VETERANS' APPEALS DIVISION )
Re NATHAN JACOBS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date27 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether conditions of lumbar spondylosis, spondylolisthesis and ischaemic heart disease are war caused – whether Statements of Principles satisfied – whether rate of pension has been correctly assessed
Veterans’ Entitlements Act 1986 ss 9, 29, 120(4), 120B
REASONS FOR DECISION
27 June 2003 Mr IR Way, Member 1. This is an application by Nathan Jacobs (“the applicant”) for review of a decision of the Repatriation Commission made on 14 November 2001, and affirmed by the Veterans’ Review Board on 13 May 2002, which refused the applicant’s claim for war-caused lumbar spondylosis and ischaemic heart disease and assessed the applicant’s disability pension at 80% of the General Rate.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentary evidence as follows:
§Exhibit A1 Letter from RSL to Department of Veterans’ Affairs dated 15 March 1993
§Exhibit A2 Statement of Nathan Jacobs dated 1 June 2003
§Exhibit R1 Reports – Dr P Grant dated 9 September 2002 and 12 November 2002
§Exhibit R2 Reports – Dr BM Farage dated 15 November 2002, 5 November 2002 and 21 January 2003
3. The applicant was self-represented and gave oral evidence. Dr P Grant, Senior Medical Officer, Compensation gave oral evidence for the respondent. The respondent was represented by Mr M Smith, Departmental Advocate.
4. The applicant was born on 6 April 1915 and saw Australian Army non-operational service during World War II from 3 May 1941 to 27 April 1942.
5. The applicant’s accepted disabilities are:
§Generalised anxiety disorder
§Gastro-oesophageal reflux disease with hiatus hernia
§Bilateral sensori-neural hearing loss with tinnitus
§Solar keratoses.
6. The applicant’s rejected disabilities are:
§Hyperchlorhydria
§Lumbar spondylosis
§Ischaemic heart disease
§Paroxysmal tachycardia, unspecified.
Issues
7. The issues in this matter are:
§whether lumbar spondylosis and ischaemic heart disease are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”); and
§whether pension payable pursuant to the provisions of the Act is correctly assessed at 80% of the General Rate.
8. This matter is to be determined to the Tribunal’s reasonable satisfaction pursuant to section 120(4) of the Act, or in other words, on the balance of probabilities.
9. Pursuant to the Act (section 120B) the Tribunal must decide this matter in accordance with any relevant Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
10. In this case the relevant SoPs are:
§Ischaemic Heart Disease – Instrument No 39 of 1999
§Lumbar Spondylosis – Instrument No 47 of 2002
§Spondylolisthesis – Instrument No 16 of 1997
Statements of Principles
11. The Statements of Principles in relation to the claimed conditions in this matter relevantly state as follows.
Ischaemic Heart Disease:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b)For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure,
attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person’s relevant service are: …
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii) smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; or …
Other definitions
8. For the purposes of this Statement of Principles:
‘cigarettes per day or the equivalent thereof, in other tobacco products’ means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;
‘pack years of cigarettes or the equivalent thereof, in other tobacco products’ means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the ‘standard’ cigarette pack contents) per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;”
Lumbar Spondylosis:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about lumbar spondylosis and death from lumbar spondylosis.
(b)For the purposes of this Statement of Principles, ‘lumbar spondylosis’ means degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis. Lumbar spondylosis attracts ICD-10-AM code M47.16, M47.17, M47.26, M47.27, M47.86, M47.87, M47.96, M47.97 or M51.3.
Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The 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 are: …
(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or …
(i)manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity; or …
Other definitions
8. For the purposes of this Statement of Principles:
‘trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 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. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.”
Spondylolisthesis:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about spondylolisthesis and spondylolysis and death from spondylolisthesis and spondylolysis.
(b) For the purposes of this Statement of Principles:
‘spondylolisthesis’ means forward displacement of one vertebra over another, attracting ICD code 738.41 or 756.12; and
‘spondylolysis’ means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra, attracting ICD code 738.41 or 756.11. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that spondylolisthesis and spondylolysis and death from spondylolisthesis and spondylolysis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, spondylolisthesis and spondylolysis or death from spondylolisthesis and spondylolysis is connected with the circumstances of a person’s relevant service are:
(a) suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch or vertebral dislocation at the involved level:
(i)at the time of the clinical onset of lumbar spondylolysis; or
(ii) at the time of the clinical onset of lumbar spondylolisthesis secondary to vertebral facet joint dislocation; or
(iii) within the six weeks before the clinical onset of lumbar spondylolisthesis due to fracture of the pedicle, pars interarticularis or facet joints of the vertebral arch; or …
(f) suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis; or …
Other definitions
7.For the purposes of this Statement of Principles:
“a severe, high energy trauma to the thoracic spine” means a major, high impact, direct injury to the thoracic spine, giving rise to immediate thoracic spine pain and precluding unaided ambulation for a period of at least two weeks, and associated with other fractures and/or significant soft tissue injuries. Examples would include: a fall from a significant height directly onto the back; a major motor vehicle accident; being struck across the thoracic spine by a heavy, high momentum object such as a falling tree;”
Applicant’s Evidence
12. In respect of his back condition, the applicant told the Tribunal that in his training in the Army for overseas service he had to undertake serious hard training, including four to five kilometre route marches every day for five days a week carrying heavy packs and a .303 rifle. He said that during training he had to negotiate obstacles and had numerous falls with his pack on, causing pain in his back. However, he did not complain at the time, nor did he seek or have any treatment for his back, as he did not want to jeopardise his chances of going overseas. He said he had suffered from back pain for many years (circa 1950) which he contended arose out of the solid training he undertook for overseas service during World War II.
13. It was the applicant’s contention that he suffered from a heart condition as a result of a service-related smoking habit. He said he had started smoking in 1933, and then smoked between 10 to 15 cigarettes a day until he joined the Army in 1941 when he started to smoke twice as much, approximately 40 cigarettes per day. He put the increase in smoking down to the stress of service. He told the Tribunal that he continued to smoke 40 cigarettes a day until 1970 when he stopped on the advice of Dr Stillwell (his LMO), having consulted him about chest pain and shortness of breath.
14. It was the applicant’s evidence that prior to joining the Army he had no health problems and on enlistment his fitness was assessed as A1. The applicant was discharged from the Army, medically unfit, because of dyspepsia and hyperchlorhydria. Following his discharge the applicant said he unsuccessfully tried to re-enlist and then went into a business selling land on time payment until about 1949, when he established his own business, still in Victoria, in time payment clothing. He said he retired from the latter in 1972 and shortly thereafter came to the Gold Coast where he now resides. He said that apart from some odd jobs he had not worked since coming to the Gold Coast.
Medical Evidence
15. The Tribunal notes that the applicant said he had been seeing Dr Bruce-Smith, his General Practitioner, since coming to the Gold Coast and that Dr Bruce-Smith records the applicant as having significant back problems in early 1987, recurring thereafter and treated conservatively (T4/23). Dr Bruce-Smith stated that he (and Dr Dow) first saw the applicant for back pain in 1987; and that Mr Jacobs considered that his back pains dated from circa 1950.
16. Dr Farage, Cardiologist, first saw the applicant on 14 August 1998 and reviewed him subsequently. Dr Farage provided a number of written reports dated 2 November 2001 (T4/59-61), 5 November 2002, 15 November 2002 and 21 January 2003 (Exhibit R2). Dr Farage expressed the view that the applicant’s symptoms supported the diagnosis of ischaemic heart disease causing nocturnal angina.
17. Dr Grant, Senior Medical Officer Compensation, provided two written reports dated 9 September 2002 and 12 November 2002 (Exhibit R1) and gave oral evidence. In his oral evidence Dr Grant opined that the veteran suffered from ischaemic heart disease and that, on the evidence available to him, the clinical onset of this disease was 1997. The Tribunal notes that this opinion is consistent with that of Dr Farage.
18. Dr Grant said that in his opinion the applicant suffered from lumbar spondylosis and spondylolisthesis. Insofar as the clinical onset of these conditions is concerned, Dr Grant was not able to form an opinion.
19. In respect of causation of these conditions, Dr Grant said that if the applicant were found to have suffered a trauma to the lumbar spine, the applicant’s lumbar spondylosis must have a clinical onset no later than 1967 to fit the relevant SoP template. However, on the material available to him, Dr Grant was of the opinion that it was unlikely that the applicant met the terms of the definition of “trauma to the lumbar spine” in the relevant SoP. Furthermore, Dr Grant said the level of trauma defined in the relevant SoP for spondylolisthesis was not met in this case, in his opinion.
Consideration
20. The Tribunal, on all of the material before it, is satisfied that the applicant suffers from lumbar spondylosis. The Tribunal is also satisfied that the applicant suffers from lumbar spondylolisthesis. Furthermore, the Tribunal is reasonably satisfied that the applicant suffers from ischaemic heart disease and that the clinical onset of this disease was in 1997.
21. The crucial question then is whether the applicant’s contentions satisfy the relevant SoPs and in the first instance the Tribunal must be reasonably satisfied that the contended factors exist, such that the applicant’s contentions fit the templates of the SoPs.
22. Turning firstly to ischaemic heart disease and the veteran’s smoking habit.
23. The Tribunal accepts the applicant’s evidence about his smoking habit and as set out above in paragraph 13. Given the Tribunal’s finding that the clinical onset of ischaemic heart disease was in 1997 and that the veteran stopped smoking in 1970, it is not possible for the applicant to meet factor 5(e) of the relevant SoP since the applicant’s smoking habit ceased some 27 years prior to the clinical onset of ischaemic heart disease. It matters not whether the applicant’s smoking habit can be related to his World War II service (and the Tribunal makes no finding in respect of this matter), the simple fact remains that he is outside the timeframes of smoking that can be related to ischaemic heart disease.
24. There being no other relevant factors for consideration in respect of the applicant’s heart condition, the Tribunal is reasonably satisfied that the applicant’s circumstances are such that his ischaemic heart disease is not war-caused.
25. In respect of lumbar spondylosis, for the applicant’s claim to succeed he must have suffered a trauma to the lumbar spine as defined in the relevant SoP and as set out in paragraph 11 above.
26. After careful consideration of the applicant’s description of the circumstances of his service, the Tribunal, on balance, is not satisfied that the applicant suffered a discrete injury to his lumbar spine that caused the development, within 24 hours of the injury, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. Nor is there evidence of any such symptoms or signs lasting for a period of at least 10 days following their onset. On the applicant’s own evidence he suffered falls carrying a heavy pack but continued on with training of a like nature, essentially every day, and made no report of any back problems, received no treatment for back pain and there was no record of any back injury or back pain in service documents or on his discharge Medical Board papers.
27. The Tribunal has also considered whether the applicant could meet the requirement of factor 5(i), namely, manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168,000 kg within any 10 year period before the clinical onset of lumbar spondylosis. The applicant served during World War II for approximately 11 months.. Assuming that the applicant trained at a vigorous level involving carrying a 35 kg pack for 22 days in each month, the applicant would need to carry on one day some 700 kg or lift a load of 35 kg twenty times each day. The applicant was unable to recall the weight of his pack, only that he carried his overnight gear, his eating utensils, his .303 rifle and some ammunition. On these facts and taking into account the generous assumptions the Tribunal has made about the number of training days and weight of pack carried, the Tribunal is reasonably satisfied, on all of the material before it, that the applicant’s circumstances do not satisfy factor 5(i) of the relevant SoP.
28. The Tribunal is satisfied that no other factors are relevant and following the above findings is satisfied that none of the factors in the relevant SoP exist and the applicant’s lumbar spondylosis is therefore not war-caused.
29. In respect of spondylolisthesis (following the above findings), factor 5(f) of the relevant SoP is not met. The Tribunal is also satisfied that there is no evidence to support a finding that factor 5(a) exists and, there being no other relevant factors, the Tribunal is satisfied that the applicant’s circumstances do not meet any of the necessary factors in the relevant SoP and that the applicant’s lumbar spondylolisthesis is not war-caused.
30. In respect of assessment, the Tribunal has carefully considered the assessment of the veteran in accordance with the current Guide to the Assessment of Rates of Veteran’s Pension (GARP) which is approved under section 29 of the Act.
31. On all of the material before it and taking into account the findings of the Tribunal as set out above, the Tribunal is reasonably satisfied that the veteran’s pension is correctly assessed at 80% of the General Rate, and furthermore, the Tribunal is reasonably satisfied that assessment of the veteran’s pension at the intermediate or special rate is not warranted.
32. The Tribunal therefore affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 2 June 2003 (at Southport)
Date of Decision 27 June 2003The Applicant appeared in person
For the Respondent Mr M Smith
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