Evidence
Evidence Before The Court
The Applicant has been married for 38 years. He and his wife have two children.Documentary medical and other evidence On 16 February 1999 Dr Stenback completed a medical impairment assessment in respect of the Applicant's thoraco-lumbar spine condition (T10). He noted lower back pain in the right side when standing and a dull backache when walking. Dr Stenback noted a 25% restriction of thoracolumbar spinal movement. On 31 May 1999 Dr Hopcroft, general orthopaedic surgeon, reported on the Applicant (T14). The Applicant recalled that, while stationed at Middle Head in 1956 he had fallen, severely injuring and bruising his back. He suffered another injury when working in a gym in 1963 and, again in 1963, whilst undertaking physical instruction, he had again injured his back. In 1965 he again hurt his back when he lifted a gun barrel from a truck. This report confirmed a diagnosis of lumbar spondylosis, and he stated that the Applicant "has commenced to develop bilateral sciatica, almost certainly arising from the accumulated effects of the injuries he has suffered." Attached to the Applicant's application for review to the VRB was a lengthy statement in support of his case, dated 4 October 1999 (T15). He stated that he reported to the Battery Commander that both knee and back injuries occurred on 13 May 1968 in Vietnam when they occurred. The Applicant further stated that there was pain and loss of mobility for days, but he "kept his mouth shut", thinking that it was a minor injury. He then referred to the opinion of Paul Ekman, physiotherapist, who stated that "the degeneration of the spine appears to be the result of an injury in the area of the L4/5." On 20 December 2000 Professor Sambrook reported on the Applicant (Exhibit A1). He took a more detailed history of the Applicant's back injuries. Back pain first developed in 1956 when he was struck by the breech of a gun. He was knocked backwards and fell across the legs of the gun. The pain lasted one to two weeks. In 1963 he strained his lumbar spine during weight training. The Applicant was in hospital for four days and suffered occasional pain thereafter. The next incident was in 1965 when the Applicant was unloading a gun barrel. The barrel slipped, pulling him forwards. The resultant pain lasted one to two weeks. The Applicant also recalled feeling pain in his back when jumping from a helicopter in Vietnam. The final episode was in 1973 when he tripped over the trail of a gun, severely injuring his back. Professor Sambrook was of the opinion that the incidents of 1956, 1963 and 1965 were of sufficient severity to trigger lumbar spondylosis. The history meets the requirements of the test in regard to factor 5(s) of the SoP. Professor Sambrook noted that a consistent history of back trouble was recorded in the Applicant's service file. He assessed the Applicant as having an impairment rating of 10 points for the lumbar spine, 10 points for the right knee and 15 for the right wrist. On 20 and 21 December 2000 the Applicant was assessed at the Vocational Capacity Centre (Exhibit R2). The Applicant's disability was found to be consistent with his symptoms and that intensive occupational rehabilitation was required to assist him in finding an appropriate category of work.
Decision
Reasons for decision
On 15 November 1999 the Respondent wrote to the Applicant informing him that it had decided not to conduct a review of his application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T17). The decision under review On 4 May 2000 the VRB affirmed the Repatriation Commission decision in relation to lumbar spondylosis but set aside those decisions in relation to the right knee and right wrist (T18). The VRB found that chrondomalacia patellae of the right knee and fracture of the right wrist were war caused conditions with date of effect being 18 September 1998. The Applicant's Disability Pension was increased to 100% of the general rate from and including that date. In relation to lumbar spondylosis the VRB noted that the Applicant had "frankly conceded that his back had not been 100% before his eligible service." Apart from the incident when the Applicant jumped from a helicopter in Vietnam whilst under heavy fire, there had been no other traumas suffered. He had not reported his back condition whilst in Vietnam. The VRB found that there was no trauma to the spine suffered by the Applicant that was sufficient to satisfy the relevant SoP. The VRB was of the opinion that, while the Applicant may have suffered trauma to the lumbar spine, it was not of sufficient severity to satisfy the SoP definition. None of the minimum factors in the SoP were satisfied and therefore no reasonable hypothesis could be raised linking the Applicant's back condition and his war service. On 31 July 2000 the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") (T1).Relevant legislation and Statements of Principles The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), 120A(1), (3):"6C Operational service - post World War 2 service in operational areas (1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…""7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…""9 War-caused injuries or diseases(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…(e) the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;but not otherwise.…""13 Eligibility for pension(1) Where: … (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act.…""14 Claim for pension(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). ….(3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…""20 Date of operation of grant of claim for pension(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…""120 Standard of proof(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.…""120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or(ii) the hazardous service rendered by a member of the Forces. …(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B (2) or (11); or (b) a determination of the Commission under subsection 180A (2);that upholds the hypothesis.…"