Neville and Repatriation Commission
[2001] AATA 919
•6 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 919
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/327
VETERANS' APPEALS DIVISION )
Re PETER ARTHUR NEVILLE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date6 November 2001
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements - disability pension – whether lumbar spondylosis is war-caused – whether there was trauma to the lumbar spine – no reasonable hypothesis connecting the disability with operational service
Veterans' Entitlements Act 1986 sections 120, 120A
Statement of Principles No 27 of 1999
REASONS FOR DECISION
6 November 2001 Senior Member WJF Purcell
This is an application for review of a decision of the Repatriation Commission (the Commission) dated 21 April 1999 which determined that the applicant's lumbar spondylosis and atrial tachycardia were not war-caused or defence-caused for the purposes of the Veterans' Entitlements Act 1986 (the Act). On 13 June 2000 the decision was affirmed by the Veteran's Review Board (VRB) which consented to the applicant's withdrawal of his claim regarding atrial tachycardia.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr White appeared for the applicant, who gave oral evidence. Mr Doube represented the Commission.
The applicant, who is 54 years of age, has rendered overseas service with the Australian Army (the Army) in South Vietnam from 13 November 1968 until 5 December 1969. He served in the Army from 26 June 1967 until 15 March 1976. He has eligible defence service from 7 December 1972 until 15 March 1976. The standard of proof in relation to his operational service is that of reasonable hypothesis in accordance with section 120(1) of the Act. In respect of his defence service the standard of proof is that of reasonable satisfaction in accordance with section 120(4) of the Act. In this matter the applicant asserts that the injury arose during his operational service and the appropriate standard of proof is that of reasonable hypothesis.
Section 120 of the Act, as far as is relevant for the purposes of this review, provides:
"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.
Note: This subsection is affected by section 120A.
(2) …
(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.
Note: This subsection is affected by section 120A.
(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.
…
120AReasonableness 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.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
…
(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.
Note: See subsection (4) about the application of this subsection.…"
The claim was lodged after 1 June 1964, and the appropriate Statement of Principles for the condition of lumbar spondylosis is Instrument No 27 of 1999 (the Statement of Principles). The applicant contends that Factor 5(h) of the Statement of Principles is satisfied:
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis"
"Trauma to the lumbar spine" is defined in the Statement of Principles as:
"a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven 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 corticosteriods or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine."
The applicant submits that an incident, which occurred in about August 1969, constitutes a "trauma to the lumbar spine" and satisfies Factor 5(h) of the Statement of Principles.
The Commission contends that the applicant at no time during his operational service suffered trauma to his back of the severity required by the definition of "trauma to the lumbar spine". Factor 5(h) of the Statement of Principles does not apply.
The applicant was 19 years old when he joined the Army in 1967. He was an Operations Clerk/Wireless Operator with 9 RAR Admin Company whilst based at Nui Dat, South Vietnam. He said in evidence that B Company secured an area for the establishment of Fire Support Base Serle (Serle) on 14 August 1969. He and some twenty other members of Admin Company were flown by helicopter to Serle the following day. The helicopter was hovering approximately 2 metres above the ground; and whilst deplaning from the helicopter the applicant's feet hit the ground, and then went from under him, with the result that the base of his spine hit the ground and he was left in a virtual sitting position. He was carrying a rifle and ammunition, and wearing full infantry equipment, which he said weighed 15-20 lbs.
The applicant gave evidence that he was unable to move; he had no feeling in his legs at all, was in acute pain and could not get up. He called for a medic, who supported him under the armpits, and, with the assistance of another soldier, carried him to one of the trenches. He could not move his lower limbs. He says that he did not recover feeling in his legs for about a day. The medic gave him analgesic tablets, but he was in such pain that he could not move around much at all; was in agony walking to the toilet and cooking his own meals, and could not resume his normal duties for "several days". He said that he understood "several days" to mean between six and ten days. He suffered extensive bruising. Every second day the medic would check up on him, and provided analgesics/codeine tablets. The applicant said in evidence that after seven days he returned to duty coding and decoding messages. He continued to experience intermittent pain at the base of the spine.
The applicant gave evidence that he did not seek medical attention when he returned to Nui Dat, but continued taking codeine tablets from time to time when the pain was severe. He travelled then, by armoured personnel carrier to Fire Support Base Wells, where he remained for a couple of weeks, and returned again to Nui Dat by helicopter. He was detached, later, with three other soldiers to the Power House where he was responsible for checking fuel and water levels in the generator. This he described as "very light work". He returned then to Australia, aboard HMAS Sydney, disembarking on 9 December 1969.
The applicant continued to serve in the Army in South Australia and New South Wales in clerical positions, until his discharge on 15 March 1976. He was posted to Torrens Training Depot in Adelaide for 6 months, and then to Moore Park, Sydney for 6 years, as pay representative and clerk. He said in evidence that between his return from Vietnam in December 1969 and his discharge more than 6 years later, he sought medical attention for his back on one occasion only, on 18 November 1974. He is recorded as suffering from "lumbar strain" (T4/30). The medical officer's notes at T17/103 read "Lumbar pain 6 days worse last few days". Indocid was prescribed, together with the use of an infra red lamp, and he was returned to duty. The applicant does not recall the details of this attendance, but said that from time to time there were problems with his lower back, which he learned to live with. He said that he thought it was arthritis, and it was generally worse in the morning in the winter months. He did not consider it necessary to report his condition to a medical officer.
The applicant worked at James Hardie for 11 years after his discharge. He was initially a process worker and then a leading hand. He said that he was required to perform heavy lifting, but that he did not suffer any back injuries whilst working at James Hardie. He suffered pain from time to time in the morning, which he thought was arthritis, as the pain went away when his back warmed up. When the factory closed down in 1987, he was unemployed for 2 years, and worked then for 18 months for JP Engineering, as a die caster. He was retrenched on 22 December 1991. He has not been in employment since this time.
The applicant gave evidence that on 29 January 1993, when he was getting out of bed, he doubled up with pain, and could not straighten up. The pain radiated into his left leg. He consulted his treating General Practitioner, Dr Lim, who ordered x-rays which revealed advanced disc degeneration at L3-4 and L4-5. The applicant applied for service pension on 16 April 1993 on the basis of permanent incapacity. He stated that the condition started in January 1993. The documentary evidence does not disclose any material in support of any alleged relationship between the applicant's back condition, and his war service.
On 18 August 1998 the applicant lodged a claim for disability pension in relation to his "heart disorder", "emotional/behavioural" and "lower spine disorder". In relation to the spine condition, Dr Lim provided a diagnosis of "discogenic back ache – advanced disc lesions at L3-4 L4-5" which he stated were evidenced by x-rays taken in 1993. Dr Lim stated also that 1984 was the date of onset (T5/39). The applicant in his Claimant Report stated that the injury occurred in Vietnam when he deplaned from a hovering helicopter.
"After jumping out of aircraft landed on the base of my spine.
…
Short term paralysis unable to move lower limbs was bedridden for seven days"
[T9/57-58]
The applicant states also that the treatment he received was "continuous medication from time of injury"
At the request of the Commission the applicant supplied a further undated statement received on 1 December 1998 (the December 1998 statement) which reads in part:
"On the 15th Aug 69, whilst deplainning [sic] from a helicopter at Fire Support Base Serle, I landed on the base of my spine. The injury caused me some discomfort and restricted my movement. … After several days I was able to resume normal duties.
…
The only treatment I recieved [sic] was rest. My unit was at Fire Support Base Serle until the 15 Sep 69.
…
I cannot explian [sic] why there is no medical record of injury in Vietnam. The reasons I did not inform the final medical board about my back, was because it had slipped my mind, and also I was not in any pain at the time.
…"
[T10/60-61]On 21 April 1999 a delegate of the Commission accepted the applicant's emotional condition, which he described as "PTSD with alcohol dependence and agoraphobia" but rejected the heart condition and the lumbar spondylosis. In relation to the lumbar spondylosis the delegate stated in part:
"Lumbar spondylosis
Your Contention
In your claim you have contended that lumbar spondylosis is the result of an injury sustained while deplaning from a helicopter in Vietnam. You state that the injury required you to be bedridden for seven days, involved short term paralysis of the lower limbs and required continuous medication from the time of the injury. There is no record of this injury in your service medical documents. All medical board examinations indicate no abnormality of the spine. In your application for service pension you advised that the onset of the condition was 1993."The applicant applied for review of the delegate's decision and on 13 June 2000 the VRB affirmed the decision, and in the course of its Reasons for Decision stated as follows:
"The Board discussed with the veteran the trauma statement given by him and copied at folios 12-13. In that statement he indicated that he was first x-rayed for a back problem in 1993. He had also stated that he suffered short term paralysis and was bed-ridden for seven days. He had been treated with "continuous medication from the time of injury".
In a further statement copied at folios 15-16 the veteran had stated that after "several days" he was able to resume normal duties. The veteran explained that by "several" he meant a period of seven days. In this later statement, the veteran also referred to the fact that the only treatment he received was rest. At the hearing, he suggested that he had forgotten being given pain killers after the incident in question.
…
The veteran told the Board that he had not stated to Mr Byrne that no medical officer was available at the Fire Support Base. At the hearing, he appeared to be at a loss to explain why a medical officer would not have examined him, given the severity of the symptoms he described. The Board also noted that the veteran had indicated, at folio 15, that after "several days" he was able "to resume normal duties". It seemed to the Board that this indicated a period of time less than at least seven days, as required by the definition of trauma in the governing Statement.
The Board also took into account the fact that there were three medical entries in relation to the veteran's period of service in Vietnam but none related to the described back injury, or any other trauma to the spine.
In his Service documents, there is a consistent pattern from 1972 until 1976 where medical examinations show the veteran's spine as normal. On folio 15 of the Service documents a medical officer recorded on 6 September 1974 that the veteran had never suffered from a back injury. In contrast, it was recorded that he had suffered from an ankle injury.
The veteran told the Board that there had been a severe incident in 1993 where he had become immobilised. His local medical officer at the time in a report dated 10 August 1998 (folio 10) recorded doctor's visits in relation to his back commencing in 1993 and continuing until1996. The doctor who completed the medical practitioner's portion of the claim form, Dr H W Lim suggested the onset of back problems in 1984. There is no written confirmation of the veterans' back problems preceding [sic] that time.
As well, it seemed unusual to the Board that, at an established Fire Support Base a soldier would be jumping from a helicopter at a height of two metres with a full pack. This seemed to the Board to be an action calculated to cause injury and seemed unlikely when the veteran was simply engaging in a routine activity namely alighting from a helicopter without any suggestion of enemy action.
The Board has concluded that that [sic] the trauma asserted by the veteran was not of the severity to meet factor 5(h) of the Statement of Principles for Lumbar Spondylosis. It has considered each of the other factors but none has application in this case.
…"The applicant called Mr Byrne, General Surgeon, as a witness. Mr Byrne has provided two written reports. In his report of 16 November 2000 (Exhibit A1) he said that on the history provided to him, the applicant had been involved in an accident in which he fell 2 metres onto a hard surface, onto his back, from a hovering helicopter. He noticed acute low back pain, and evidently he was forced to rest for about a week and was treated with analgesic tablets. He was not seen by a medical officer, because no medical officers were available at Serle. The applicant suffered continuing pain over the next 3 months in Vietnam and there was continued conservative treatment during this time. Since that time the applicant has had a history of intermittent and significant low back pain. Mr Byrne noted "that it was reasonable to state in his original fall in August 1969 that Mr Neville had sustained a significant ligamentous injury of the lumbar spine possibly involving a stretched or torn annulus (fibrous outer coating) of the L4-5 lumbar disc. … I believe it is reasonable that this man has incurred 'trauma to the lumbar [spine]' with symptoms and signs that lasted for at least seven days following their onset".
Mr Byrne said in evidence that his opinion was based on the history provided by the applicant, and by Mr Byrne's own personal knowledge of what Fire Support Bases were like at the time. He said that he served in South Vietnam as a medical officer for 13 months, from August 1969 until end of August 1970. Mr Byrne said also that if the applicant suffered such an injury, it might take weeks to months to settle in intensity; but subsequently the applicant would tend to have recurrent pain from then on. Mr Byrne would expect the applicant to have suffered continuous symptoms over the next 6 months. The x-rays, in Mr Byrne's opinion, indicate that the applicant suffered a trauma at some stage; and there may also be some degeneration. Mr Byrne said that he could not give a date to the particular traumatic incident. The applicant's statement that his symptoms went back to 1969, tended to add evidence to the original stretching of the annulus. He said however, that in the light of Dr Lim's reference to the onset in 1984 of the condition, the x-rays taken in 1993 would be consistent with the occurrence of a significant trauma in 1984.
Mr Byrne accepts the veracity of the applicant's statements. I must be satisfied however, that the applicant suffered "trauma to the lumbar spine", as defined in the Statement of Principles, and in the circumstances outlined in his sworn testimony.
The applicant gave lengthy oral evidence. His cross-examination was searching but fair. It must have been difficult for him to recall in detail events that occurred more than 30 years ago; but I found him an unimpressive witness, whose evidence was inconsistent and contradictory.
When the applicant claimed service pension on the first occasion in April 1993, he stated that the condition started in January 1993. He agreed in evidence that by the time he lodged his second claim in August 1998, he had been advised of the requirements of the relevant Statement of Principles and the necessity to satisfy the definition of "trauma to the lumbar spine". He referred to the helicopter incident and symptoms of "short term paralysis, unable to move lower limbs, was bed ridden for seven days". As to medical treatment obtained following the injury he stated "continuous medication from time of injury" (T9/58).
In the December 1998 statement he said however, that the injury caused him some discomfort, and restricted his movement; that he was incapacitated for "several days", after which he was able to resume normal duties. He stated also that the only treatment received was rest.
At the VRB Hearing he stated that several days means "7 days, about approximately one week" (Exhibit R1/15). At the Hearing he said "between 6 to 10 days, that's several days to me" (transcript p17) and later at transcript p18 he said "As far as I can remember it was between – it was approximately several days and that's … anywhere in between 6 and 10 days".
I do not intend to outline in any further detail the inconsistencies in the applicant's evidence. The foregoing is sufficient to indicate the type of inconsistencies which abound in the evidence given by the applicant. I have no wish to denigrate him personally. The evidence speaks for itself and cannot be accepted where it conflicts with other credible evidence. At no time during his 9 years of military service did the applicant refer to the alleged helicopter incident when seeking medical attention for a variety of ailments. It was not raised when he applied for service pension in April 1993. By August 1998 he had, on his own evidence, been informed of the necessity to satisfy the Statement of Principles and the definition of "trauma to the lumbar spine" in particular. I consider that he has tailored his evidence in an attempt to satisfy the Statement of Principles.
I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties' submissions. I am satisfied on the evidence that the alleged helicopter incident did not occur in the manner described by the applicant. I am satisfied on the evidence, and find as a fact, that any injury the applicant might have suffered in or about August 1969, did not occasion trauma to the lower back of sufficient severity to satisfy the definition of "trauma to the lumbar spine" in the Statement of Principles. In my view Factor 5(h) of the Statement of Principles is not satisfied.
I am satisfied beyond reasonable doubt that there is not sufficient ground for determining that the applicant's condition of lumbar spondylosis was war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.
For these reasons the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 19 July 2001
Date of Decision 6 November 2001
Counsel for the Applicant Mr T White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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