Lynch and Repatriation Commission - [2002] AATA 1173

DECISION AND REASONS FOR DECISION [2002] AATA 1173

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1506
VETERANS' APPEALS DIVISION

Re:         ESTATE OF ERNEST ROBERT LYNCH
Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             15 November 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review in respect of lumbar spondylosis, and substitutes a decision that lumbar spondylosis suffered by the veteran is war-caused with effect from 21 September 1999 to 7 January 2002. Pension is payable at the rate of 80 per cent of the general rate with effect from 21 September 1999. In all other respects the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - lumbar spondylosis - osteoarthrosis - whether death war-caused - assessment
Veterans' Entitlements Act 1986 s8, 119(1)(h), 120(4), 120B
Re Bridgeman and Repatriation Commission (AAT 12658, 29 January 1998)

REASONS FOR DECISION

15 November 2002 G.D. Friedman, Member

This is an application by the estate of Ernest Robert Lynch (the applicant), for review of a decision of the Veterans' Review Board (VRB) dated 6 November 2000 in relation to a decision of a delegate of the Repatriation Commission (the respondent) dated 27 January 2000.
At the hearing of this matter on 24 July 2002 and 16 October 2002 Mr D. De Marchi, solicitor, represented the applicant and Ms R. Casamento, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), together with six exhibits (Exhibit A1-A6) lodged by the applicant and four exhibits (Exhibit R1-R4) lodged on behalf of the respondent.
BACKGROUND
Ernest Robert Lynch (the veteran) was born on 7 January 1922 in Ouyen, Victoria. After leaving school at the age of 13 years he worked on the family farm until he enlisted in the Royal Australian Air Force (the air force) on 19 March 1942. He completed basic training in Melbourne and trained as an aircraft electrician in Sydney for about nine months. He served at the Flying Boat Base at Rathmines, New South Wales for about six months, then at Bowen, Queensland for six months and Karumba, Queensland for a further twelve months. The veteran then spent about eighteen months in Darwin before returning to Melbourne in July 1945 to undertake an electrical fitters course. He served at Lake Boga, Victoria as an aircraft electrician until his discharge on 30 January 1946. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), this period is eligible service.
After the war the veteran operated a general store before joining the Postmaster-General's Department in 1950 as a technician, where he remained until 1977, when his employment was terminated for medical reasons. He then worked from home as secretary of the local branch of the Australian Natives Association until 1993. On 21 December 1999 the veteran lodged an application with the respondent for pension and medical treatment, claiming that a number of medical conditions were war-caused. On 27 January 2000 a delegate of the respondent accepted the claim for non-melanotic malignant neoplasm of the skin, and refused the claim for lumbar spondylosis, localised osteoarthrosis affecting both hips, Parkinson's disease, gastro oesophageal reflux disease, ischaemic heart disease, generalised osteoarthrosis and localised osteoarthrosis affecting both knees. The delegate increased the disability pension for the accepted disabilities from 40 per cent of the general rate to 60 per cent with effect from 27 September 1999.
In its decision of 6 November 2000 the VRB affirmed the decision under review in relation to the claims for lumbar spondylosis, localised osteoarthrosis affecting both hips, Parkinson's disease, gastro oesophageal reflux disease, ischaemic heart disease, generalised osteoarthrosis and localised osteoarthrosis affecting both knees. The VRB set aside the decision of the delegate in relation to assessment of pension and substituted a decision that pension be granted at 70 per cent of the general rate with effect from 21 September 1999.
On 14 December 2000 the veteran sought review of the VRB decision in relation to the claims for lumbar spondylosis and localised osteoarthrosis affecting his knees and hips. On 7 January 2002 the veteran died, and on 24 April 2002 Elva Merle Lynch, the veteran's widow, was granted approval under s126 of the Act to continue the matter as the veteran's legal personal representative.
EVIDENCE
In a written statement dated 15 March 2001 (Exhibit A4) the veteran said that as part of his duties in the air force he was required to remove 12-volt batteries (each weighing about 50 kilograms) from aircraft, and that often his back was sore from this heavy work. He said that in 1943, while serving at Karumba, Queensland (the Karumba incident), he was involved in moving heavy equipment that was packed in a crate, and he twisted his back whilst lifting a crate on his own. He was given painkiller tablets, and the pain continued for two weeks. He said that his back pain was aggravated later when digging slit trenches. The veteran stated that his back eventually improved, but he continued to suffer from intermittent pain, which became more severe in the 1950s. He said that he did not report the back injury at his medical examination prior to discharge because he wanted to leave the air force to marry his fiancee.
In a written statement dated 26 March 2001 (Exhibit A5) the veteran said that during his training as an aircraft electrician on 26 August 1942 he was running to catch a train at Town Hall Station in Sydney (the station incident) when he tripped on the stairs and fell on his knees, twisting his ankle. He said that he was placed on light duties for two to three weeks. His knees again started to cause problems in the late 1980s.
In a written statement dated 2 October 2001 (Exhibit A6) the veteran said that he had suffered from pain in his back and knees since his fall in the station incident. He said that in 1950, while working as a telephone technician, he suffered severe pain in his back and knees, and was prescribed medication to control the pain.
Mrs Lynch gave oral evidence that she and the veteran lived in the same town and were engaged in 1943. She said that she had some recollection of the veteran describing to her the pain in his back, suffered when he lifted the heavy batteries. She remembered being told about the station incident. She said that the veteran's pain became more severe in the 1980s. Under cross-examination Mrs Lynch agreed that the veteran would have informed her about other significant events involving injuries suffered by him.
Mr H. Hadley, orthopaedic surgeon, gave oral evidence and confirmed the contents of his written report dated 18 April 2001 (Exhibit A2). He stated that the veteran had described to him the incidents outlined in the written statements by the veteran. In his report Mr Hadley stated:
In my opinion his lumbar spondylosis is due to his war service with the RAAF with satisfying the statement of principles with trauma to the lumbar spine when he was serving in Karumba in about 1943 when he picked up a heavy crate by himself and twisted his back which was then painful and stiff for about three weeks and then had recurrent pain in his back spreading down his legs until ten years ago and since then he has had constant pain in his low back spreading down his legs. In my opinion the osteoarthritis in his knee joints is due to his service with the RAAF with satisfying the statement of principles in relation to osteoarthrosis due to trauma to a joint when he was serving in Sydney running down stairs at the railway station in order to catch a train when he twisted his right ankle and fell down about four steps onto his knees landing on the platform and then had pain and stiffness in his knees for about three weeks and since than has had recurrent pain and stiffness in his knees.
Mr B. Dooley, orthopaedic surgeon, stated in a written report dated 1 August 2002 (Exhibit R3) that there was a connection between war service and the disability suffered by the veteran due to lumbar spondylosis. He said:
Having regard to the trauma statements, I believe he comes more under Factor 5(h) rather than 5(d), although it could be equally argued that disordered joint mechanics resulting from the disc degeneration have led to the lumbar spondylosis. Disordered joint mechanics would be the result of the lumbar disc lesion, particularly at the L4-5 level, but also affecting the remaining lumbar spinal joints.
…
In summary, then when we speak of lumbar spondylosis, it is the late reflection seen on x-rays of lumbar disc degeneration. Injury may aggravate lumbar disc degeneration, causing lumbar disc prolapse. Similarly, retrolisthesis, or even pseudospondylolisthesis, where there appears on plain x-rays to be movement either backwards or forwards, of one vertebral body on another, stems from lumbar disc derangement or abnormality. The primary pathology here is probably that of a lumbar disc prolapse or aggravation of an already degenerate disc in the initial injury during his war service, particularly at the L4-5 level.
The main reason I say that his lumbar spondylosis is war service related is that he had onset of back pain when doing heavy lifting during his war service, and chronologically thereafter had continuing back problems without sciatic nerve involvement. Thus, the late development of lumbar spondylosis results from his war service.
Mr R. McArthur, orthopaedic surgeon, stated in an undated report written in about June 2000 that the veteran …sustained a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse.
CONSIDERATION OF THE ISSUES
There was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. In determining whether the death of the veteran was war-caused the Tribunal must first consider all the material before it and decide whether that material raises to a level of reasonable satisfaction a contention connecting the death with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the veteran. The Tribunal finds, after taking into account all relevant material, that the material does raise to a level of reasonable satisfaction a contention connecting the death with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the veteran.
The Tribunal is required to ascertain whether there is a relevant Statement of Principles (SoP) in force. The Tribunal finds that Nº 47 of 2002 (which revoked Nº 28 of 1999) concerning lumbar spondylosis, Nº 131 of 1996, as amended by Nº 93 of 1997, concerning intervertebral disc prolapse and Nº 42 of 1998, as amended by Nº 20 of 1999 and Nº 82 of 2001, concerning osteoarthrosis were in force and are relevant.
In SoP Nº 47 of 2002, concerning lumbar spondylosis, the relevant risk factors are:
…
5(d)having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis;
…
5(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis;
5(h)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;

Paragraph 8 of the SoP provides the following definitions:

"disordered joint mechanics" means maldistribution of loading forces on the lumbar spine that has resulted from:
(a)scoliosis, or
(b)loss or enhancement of the normal anterioposterior curvature of the vertebral column, or
(c)spondylolisthesis, or
(d)retrospondylolisthesis, or
(e)a deformity of a vertebra, or
(f)a deformity of a joint of a vertebra, or
(g)necrosis of bone;

…
"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.

In SoP Nº 131 of 1996, concerning intervertebral disc prolapse, the relevant risk factors are:

5(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse;
5(c)lifting at least 10 kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse;

In SoP Nº 82 of 2001, concerning osteoarthrosis, the relevant risk factors are:

5(d)for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint;
5(h)suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint;

If an SoP is in force, the Tribunal must then form an opinion whether the contention identified in the first step fits within, that is to say, is consistent with the template to be found in the SoP. If the contention fails to fit within the template, it cannot meet the test of reasonable satisfaction and the claim will fail. Mr De Marchi submitted that the contention fits within the template. He referred to the report from Mr Hadley and the other material and said that there was ample evidence to support the link between the contention and the service rendered by the veteran. In particular Mr De Marchi noted that documents (such as claimant reports) prepared by the veteran were a layperson's opinion regarding previous injuries and should not be relied upon in preference to the clear evidence from Mr Hadley and Mr Dooley, supported by the statements by the veteran and oral evidence by Mrs Lynch.
Mr De Marchi emphasised that Mr Dooley, who had been requested by the respondent to comment on lumbar spondylosis and in particular factor 5(d) of SoP Nº 47 of 2002, had established a clear connection between war service and the lumbar disc injuries, with aggravation of intervertebral disc degeneration and prolapse, and the secondary lumbar spondylosis condition. He also stated that the injuries sustained as a result of the station incident and the Karumba incident constituted disordered joint mechanics and trauma as defined in the SoPs, and that osteoarthrosis of the knees and hips were also war-caused.
Ms Casamento submitted that the evidence as a whole did not support the contention that fits the relevant SoPs, and that the link between the conditions and war service was too tenuous. Ms Casamento submitted that with respect to lumbar spondylosis the veteran had told the VRB that he developed back pain while at Rathmines, New South Wales, prior to his posting to Karumba. She also noted that this was consistent with the veteran's statement of 15 March 2002 (Exhibit A4). She stated that on a claimant report for lumbar spondylosis completed by the veteran on 14 January 2000 he said that the first indication of the condition was possibly 1943 or 44. In answer to the question: When did the injury occur? the veteran responded: No definite injury apart from back pain using spades or garden forks etc. digging air raid trenches. Ms Casamento noted that Mrs Lynch was unable to corroborate the Karumba incident and said that on the balance of probabilities the evidence points away from the applicant satisfying factor 5(g) of SoP Nº 47 of 2002. Ms Casamento submitted further that the veteran does not satisfy factor 5(d) of the SoP.
With respect to SoP Nº 131 of 1996 concerning intervertebral disc prolapse, Ms Casamento referred to the written statements from the veteran and the evidence from Mrs Lynch, and submitted that there was no evidence of trauma to the relevant disc at the time of clinical onset of the condition (factor 5(a)). She stated that Dr Dooley made no mention of factor 5(a) in his report. With regard to factor 5(c) Ms Casamento said that there was insufficient evidence to satisfy the Tribunal that the veteran had lifted the required weight, the required number of times a day, within the specified period.
With respect to the SoPs concerning osteoarthrosis, Ms Casamento stated that the medical evidence shows that the early signs of osteoarthritis of the knees were age-related, and in his statement of 26 March 2001 (Exhibit A5) the veteran said that in the station incident he fell on his knees and twisted his ankle. He added: My knees again started to give me trouble in the late 1980s. Ms Casamento submitted that the veteran was unable to satisfy any of the factors because he did not suffer from osteoarthrosis of his knees within 25 years of suffering a trauma to his knees.
With respect to the SoPs concerning osteoarthritis of the hips, Ms Casamento stated that in a claimant report for osteoarthritis of both hips completed by the veteran on 14 January 2000 he said that the symptoms of osteoarthritis of both hips were first noticed possibly about 1985-88. She said in the clinical notes (Exhibit R1) a medical report dated 10 January 2000 states in relation to pelvis and right hips: There is only early bony degenerative change. Bone density is normal. Ms Casamento submitted that the veteran was unable to satisfy any of the factors in the relevant SoP.
In relation to the third step, the Tribunal finds that Mrs Lynch gave evidence of her recollections of events that occurred nearly sixty years ago to the best of her ability. She was unable to confirm that the veteran had mentioned the Karumba incident to her. Further, the Tribunal notes the absence of medical evidence regarding any back injury during service or on discharge, or of other material that would corroborate the veteran's claim. However, with regard to lumbar spondylosis, the Tribunal accepts the evidence from Mr Dooley concerning disordered joint mechanics resulting from the lumbar disc lesion, particularly at the L4-5 level, but also affecting the remaining lumbar spinal joints. For this reason, and in view of the veteran's evidence to the VRB, the Tribunal accepts the submission by Mr De Marchi that the veteran satisfies factor 5(d) of SoP Nº 47 of 2002 concerning lumbar spondylosis.
In respect of intervertebral disc prolapse, the Tribunal finds that there is insufficient evidence for a finding that the veteran lifted at least 10 kg, at least 25 times a day, for at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse, so he does not satisfy factor 5(c) of SoP Nº 131 of 1996. Similarly, the Tribunal finds that there is insufficient evidence that there was trauma to the relevant disc at the time of clinical onset of intervertebral disc prolapse, so he does not satisfy factor 5(a) of SoP Nº 131 of 1996.
In respect of osteoarthrosis, the Tribunal accepts Ms Casamento's submission that the medical evidence shows the early signs of age-related osteoarthritis of the knees and hips, and this is supported by the written statements from the veteran. For these reasons the Tribunal is not reasonably satisfied that the veteran meets factors 5(d) or 5(h) of SoP 82 0f 2001 concerning osteoarthrosis.

Finally, the Tribunal must be reasonably satisfied that the relevant contention is causally connected to war service on the facts of the matter. Section 119(h) of the Act allows the Tribunal to take into account the effects of the passage of time and the difficulties faced by the applicant in remembering precise details of the veteran's injuries. In Re Bridgeman and Repatriation Commission (AAT 12586, 29 January 1998) the Tribunal stated at para 38:
In all veterans cases, attempts to connect service to subsequent injury or illness are increasingly difficult with the passage of time. In cases involving widows, the best witness is necessarily absent and frequently the evidence of widows is sparse. The beneficial objective of the Veterans' Entitlements Act must be to the forefront of the minds of decision makers and attempts to place an onus on veterans or their widows has no warrant.
After applying the facts and taking all relevant matters into account, including the evidence from Mrs Lynch and the written statements by the veteran, the Tribunal is reasonably satisfied that in respect to lumbar spondylosis there is a connection between the contention connecting the death with the existence of medical factors that are in turn linked to the circumstances of the veteran's eligible service.
On the question of assessment, the Tribunal takes into account the medical evidence including a Combined Impairment Assessment dated 30 October 2002 (Exhibit R4) by Dr F. Morgan. In respect of iatrogenic gastric erosions the Tribunal notes that in his report dated 29 March 2001 (Exhibit A1) Dr W. Stone provided an assessment of 20 points using the Guide to the Assessment of Rates of Veterans' Pensions (fifth edition) (GARP V), while the respondent submitted that 0 points should be allocated. After considering the upper endoscopy and other medical reports the Tribunal finds that the level of 10 points determined by the VRB is the appropriate assessment.
In respect of lumbar spondylosis the Tribunal takes into account the assessments by Mr Hadley and Dr Morgan and makes an assessment of 10 points for loss of musculoskeletal function: spinal movement, converted to 7 points for age adjustment. There is also an assessment of 2 points for disfigurement.
The overall impairment rating is assessed as follows: temporomandibular joint injury (5 points), iatrogenic gastric erosions (10 points), nonmelanotic malignant neoplasm of the skin (7 points) sensorineural hearing loss (16 points), tinnitis (5 points), vertigo (10 points) and lumbar spondylosis (7 points), giving a combined impairment of 44 points, rounded up to 45 points. The Tribunal allocates a lifestyle rating of 3, which equates to pension at 80 per cent of the general rate.
DECISION
The Tribunal sets aside the decision under review in respect of lumbar spondylosis, and substitutes a decision that lumbar spondylosis suffered by the veteran is war-caused with effect from 21 September 1999 to 7 January 2002. Pension is payable at the rate of 80 per cent of the general rate with effect from 21 September 1999. In all other respects the Tribunal affirms the decision under review.
I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  24 July, 16 October 2002
Date of decision:  15 November 2002
Advocate for applicant:               Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Ms R. Casamento
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs