Jameson and Repatriation Commission - [2002] AATA 521

DECISION AND REASONS FOR DECISION [2002] AATA 521

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. S2000/492

VETERANS' APPEALS DIVISION       )
           Re      BRETT ANDREW JAMESON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date27 June 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether applicant's medical conditions of enthesitis left elbow, lateral epicondylitis right elbow, thoracic spondylosis and lumbar spondylosis are defence-caused – relevant SoPs considered.
Veterans' Entitlements Act 1986 sections 70, 120, 120B
Repatriation Commission v Gorton [2001] FCA 1194

REASONS FOR DECISION

27 June 2002 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

This is an application for review by Mr Brett Andrew Jameson (the applicant) for review of a decision of a delegate of the respondent dated 5 June 1997 (T11/133-146), as affirmed by a decision of the Veterans' Review Board (VRB) dated 27 September 2000 (T2), rejecting the conditions of enthesitis left elbow, lateral epicondylitis right elbow, thoracic spondylosis and lumbar spondylosis as defence-caused (T2/5-9), pursuant to section 70 of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with 5 exhibits, 2 lodged by the applicant (Exhibits A1-A2) and 3 lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Mr G. Doube, a departmental advocate.
The issues in this matter are:

whether the applicant's enthesitis left elbow, lateral epicondylitis right elbow, thoracic spondylitis and lumbar spondylitis are defence-caused within the meaning of section 70 of the Act; and
whether the applicant suffered trauma to his thoracic spine and his lumbar spine, as a result of his eligible defence service, of the severity defined in the Statements of Principles (SOP) for thoracic spondylosis and lumbar spondylosis; and
the actual dates of clinical onset of the claimed conditions.

history of the application

The applicant was born in Melbourne on 5 May 1960 and is 42 years of age. He enlisted in the Australian Army (the Army) on 14 January 1977 and was discharged on 2 February 1997. He served the whole of his service in Australia, and it is conceded by the respondent that this is a period of eligible defence service (T4).
The applicant was involved in various motor vehicle accidents throughout his defence service. The first occasion was on 9 August 1977 near Balcombe Barracks, where he suffered multiple abrasions and received medical treatment. He stated that on 29 March 1978 he sought medical treatment for low back pain, which had been present for several weeks prior.
The applicant's second accident involved a motor cycle on 27 April 1979, which occurred near Broadmeadows, Victoria. He was thrown over the handlebars of the motor cycle, landing heavily on his back causing him back pain. The applicant was involved in another motor vehicle accident on 1 December 1979 when he fractured his right tibia and fibula. He was then involved in a further motor vehicle accident between two cars on or about 2 May 1980. At the time he was a passenger sitting on the front passenger seat and suffered whiplash injuries and left leg injuries. When this accident occurred he was based at Watsonia.
The applicant was involved in a further motor vehicle collision on 9 May 1995. As a result of this incident he complained of a stiff and aching back. These symptoms continued, and a clinical report of 27 June 1995 confirmed the applicant suffering ongoing lower back pain.
The applicant subsequently suffered left and right elbow injuries alleging these arose from repetitive, vigorous use of his arms over his various years of defence service. He further alleged that this problem was also contributed to by the requirement to frequently lift heavy items and machinery.
On 7 January 1997, the applicant lodged a claim for pension in respect of, inter alia, "thoraco-lumbar scoliosis with osteoarthrosis" and "joint pain both elbows" (T5/116). Diagnoses of enthesitis left elbow, lateral epicondylitis right elbow, thoracic spondylosis and lumbar spondylosis have been established. However, notwithstanding that the respondent does not dispute the existence of these conditions, it does dispute that these were defence-caused.
On 5 June 1997, a delegate of the respondent rejected the claim for these conditions and gave notice of its decision that same day (T11/133-146). In her decision the delegate stated (inter alia) (T11/134-135):
"Enthesitis left elbow and lateral epicondylitis (right)
Your Contention
In your claim you have contended that enthesitis left elbow and lateral epicondylitis (right) were caused by trauma during service, your military training and activities such as patrolling and marching with heavy loads and also extensive drill and sport over many years.
In this case the RMA has not yet issued a Statement of Principles for Enthesitis left elbow. Therefore my decision is based on all of the evidence that is before me at this time.
Medical evidence is that enthesitis is part of the rheumatoid disorders unrelated to overuse or trauma. Epicondylitis is due to vigorous and repetitive movements of that elbow. There is no evidence that these conditions were the result of trauma or activities of service.
Thoracic spondylosis
Your Contention
In your claim you have contended that thoracic spondylosis was caused by trauma during service.
·Trauma to the thoracic spine
In this case there is no history of trauma to the thoracic spine.
·Other factors
The evidence before me indicates that the other factors that can cause thoracic spondylosis, contained in the Statement of Principles, do not apply in this case.
In this case there has been no permanent increase in the underlying pathology of thoracic spondylosis. Therefore thoracic spondylosis has not been aggravated by any external factors which could be due to service.
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of thoracic spondylosis. As a result I find that all the evidence does not show any reasonable connection between thoracic spondylosis and eligible defence service as a serving member. I am reasonably satisfied it was not caused by eligible defence service.
Lumbar spondylosis
Your Contention
In your claim you have contended that lumbar spondylosis was caused by trauma during service.
·Trauma to the lumbar spine
In this case there is no history of trauma to the lumbar spine
·Other factors
The evidence before me indicates that the other factors that can cause lumbar spondylosis, contained in the Statement of Principles, do not apply in this case.
In this case there has been no permanent increase in the underlying pathology of lumbar spondylosis. Therefore lumbar spondylosis has not been aggravated by any external factors which could be due to service.
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of lumbar spondylosis. As a result I find that all the evidence does not show any reasonable connection between lumbar spondylosis and eligible defence service as a serving member. I am reasonably satisfied it was not caused by eligible defence service.
…"
On 9 June 1998 the applicant lodged an application to the VRB (T12) seeking a review of the delegate's decision. On 27 September 2000 the VRB affirmed the decision of a delegate of the respondent (T2) and the applicant was advised of this decision in a letter dated 10 October 2000 (T3/10). In its reasons for decision the VRB stated (inter alia)(T2/8-9):
"…
BOARD'S DETERMINATION
The Board noted that the member had completed an 'injury questionnaire' copied at folios 9-11. In answer to a question about what activities he was involved in when his injuries occurred, he stated that he had difficulty remembering but then gave instances of military activities, training, trade employment, sport and PT.
The Board considered factor 5(f) of each of the Statements of Principles dealing with a trauma to the relevant part of the spine before the clinical onset of lumbar or thoracic spondylosis.
As discussed at the hearing, 'trauma to the lumbar spine' and with appropriate changes, to the thoracic spine, means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred.
In respect of the member's claim for lumbar and thoracic spondylosis, the Board can not be reasonably satisfied that the member suffered a trauma of sufficient severity. Certainly, the member's service records do not support a trauma of that severity.
In respect of enthesitis and epicondylitis, the Board notes the opinion of Dr W Seith copied at folio 13. Enthesitis, he considers, is part of a rheumatoid disorder unrelated to over use or trauma.
The epicondylitis is in the nature of 'tennis elbow' due to vigorous repetitive movements of that elbow. Forced marching etc would not cause it. There is no evidence of duties carried out by the member which would meet this requirement.
…"
An application seeking a review of the decision of the respondent, as affirmed by the VRB, was made to this Tribunal on 18 December 2000 (T1). It was not disputed between the parties that the earliest date from which benefits may run, if the application is successful, is 9 December 1997, being the date six months prior to the date of lodgement of the appeal to the VRB.
The applicant has sought review by this Tribunal as he strongly believes that the rejected conditions are defence service related, alleging that these arose from the same set of events as those disabilities accepted as war-caused. The applicant's accepted disabilities are osteoarthritis of the right ankle, osteoarthrosis of the left ankle, sensorineural hearing loss of the right ear with tinnitus, and osteoarthrosis of the right knee. Of the four conditions claimed, two are governed by Statement of Principles (SOP) (Exhibits R2 and R3), and two have no SOP.
As the applicant's claim was made after 30 June 1994, and in accordance with the principles enunciated in Repatriation Commission v Gorton [2001] FCA 1194, the SOP applicable is the current SOP. In the case of lumbar spondylosis, the relevant SOP is Instrument No. 28 of 1999, whilst for thoracic spondylosis the relevant SOP is Instrument No. 30 of 1999. There is no SOP in force for the conditions of enthesitis left elbow and lateral epicondylitis right elbow. The Tribunal notes that the SOP referred to succeeded the SOPs Instrument No. 166 of 1996 (T14/151) and Instrument No. 164 of 1996 (T14/153).
In respect of the applicant's defence service, sub-section 120(4) of the Act is applicable. This provides for the Tribunal to be satisfied to its reasonable satisfaction. Furthermore, the Tribunal is required to decide whether, on the balance of probabilities, the rejected claimed conditions were defence service caused. Also, as the claim was lodged after 1 June 1994, the Tribunal must apply section 120B of the Act in arriving at its decision. This requires the Tribunal to reach its conclusion, to its reasonable satisfaction, in accordance with any appropriate SOP or any relevant determinations under the Act.
The Act provides that a disease or injury of a member of the Forces or member of a Peacekeeping Force is defence-caused if it, in effect:
(a)resulted from an occurrence on peacekeeping service;
(b)arose out of or was attributable to defence service or peacekeeping/hazardous service;
(c)resulted from an accident while travelling to or from duty;
(d)was due to an accident that would not have occurred or a disease that would not have been contracted, but for defence service or peacekeeping/hazardous service; or
(e)was contributed to in a material degree or aggravated by eligible defence service or peacekeeping service.
In support of his application, the applicant contended that the accidents he had been involved in were severe enough to present sufficient trauma to either cause or aggravate his back pain and elbow joint pain. He further contended that these conditions are defence service related as they arose from the same set of events as those disabilities, which were accepted. In support of his claim he provided a number of medical attendance reports and clinical records (Exhibit A2). The Tribunal is satisfied that the applicant does suffer with these conditions and the records provided clearly show this. However, the difficulty confronting the Tribunal is that there is no medical evidence before it to corroborate his claim that these are defence-caused. In other words, there is no medical evidence to be specific as to the cause of these conditions.
In answering an Injury Questionnaire (T7) the applicant stated (T7/125), inter alia:
"I believe my condition has been worsened by many years of forced running and marching in GP boots, extended periods of Parade Ground drill, and other work related activities which have caused stress, deterioration, & aggravation to my joints. I have a great deal of difficulty working in and around vehicles and have had to cease practising any trade related activities.
During my 20 year Army career, I have carried out much Military type training, including such activities as Infantry Minor Tactics, which involves a great deal of patrolling and forced marching with heavy loads. I have also carried out extensive amounts of drill, which has subjected my joints to a great deal of impact. Numerous other Military activities, including trade related activities and PT/Sport, have either contributed to, or aggravated my condition."

Again the Tribunal has no reason to disbelieve the applicant. However, there is no medical evidence before the Tribunal which can enable it to make a finding favourable to the applicant.

In his submissions, Mr Doube submitted that in relation to thoracic spondylosis (Exhibit R3) and lumbar spondylosis (Exhibit R2), the only relevant SOP factor is that relating to suffering a trauma to the spine before the clinical onset of these conditions. He further submitted that while the applicant experienced a number of motor vehicle accidents during his eligible service, there is no evidence, including no documentary evidence, that supports the applicant's claim that these accidents caused trauma to the thoracic spine or the lumbar spine of the severity required in the SOPs.
Mr Doube referred to a medical report of Mr George Potter, Orthopaedic Surgeon, dated 18 July 2000 (T13/148) wherein he stated, inter alia:
"Medically you have been identified as having the spinal conditions of an idiopathic scoliosis and mild changes of thoracic and lumbar spondylosis. I am not in a position to determine the causation of the degenerative changes but did advise you that they had the features of age related degenerative changes in which external trauma has the potential to have a contributory role."
In response to this, the applicant stated that Mr Potter had said to him, whilst at the surgery, words to the effect that his defence service "may have or may not have contributed" to his condition. Whilst the Tribunal has no reason to disbelieve the applicant that Mr Potter may have said this, yet again, this is not concrete evidence, nor can it be taken to be corroborative of the claim by the applicant. In fact Mr Potter does not opine that there is a definite link.
The medical evidence available to the Tribunal indicates that enthesitis left elbow is a rheumatoid disorder, which is unrelated to over-use or trauma. Likewise, the medical evidence also indicates that epicondylitis right elbow is a condition caused by repetitive movements of that elbow. Apart from the applicant's claim, there is no evidence whatsoever before the Tribunal that the applicant's duties and defence service were a cause of this condition.
For the reasons outlined, the Tribunal is satisfied, and so finds, that there is no evidence before it of a causal link between the applicant's enthesitis left elbow, lateral epicondylitis right elbow, thoracic spondylosis and lumbar spondylosis and his eligible defence service.
Accordingly, the Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member).
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  28 November 2001
Date of Decision  27 June 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    DVA