STOTT and REPATRIATION COMMISSION

[2011] AATA 677

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 677

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4069

VETERANS' APPEALS DIVISION		)
Re		ALLEN STOTT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, Member

Date30 September 2011  

PlaceSydney

Decision

The decision with respect to cervical spondylosis and intervertebral disc prolapse is set aside and instead the Tribunal decides that:

i) the correct diagnosis of Mr Stott’s lumbar disease is lumbar spondylosis;

ii) Mr Stott’s cervical spondylosis and lumbar spondylosis are war caused; and

iii) Mr Stott’s claim is remitted to the Repatriation Commission for assessment.

......................[sgd].......................

Ms N Bell, Senior Member  

CATCHWORDS

VETERANS’ AFFAIRS – whether condition war caused – whether intervertebral disc prolapse is the correct diagnosis of back condition – correct diagnosis lumbar spondylosis – decision under review set aside and substituted

Veterans’ Entitlement Act 1986

Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879

REASONS FOR DECISION

30 September 2011 Ms N Bell, Senior Member
Dr M E C Thorpe, Member            

1.      Allen Stott was just 15 years old when he joined the Royal Australian Navy in 1961.  He had three periods of operational service in his 20 year Navy career:

·     24 May to 26 June 1964 in Sabah, Sarawak and Brunei;

·     27 May to 26 June 1965 in Vietnam; and

·     14 September to 20 October 1965 in Vietnam.

2.      After his discharge from the Navy Mr Stott was employed by the Fire Brigade as a store supervisor.  He was medically retired from this position in 2001 due to his physical and psychiatric conditions.

3.      Mr Stott has the following accepted conditions:

·     Generalised anxiety disorder;

·     Post traumatic stress disorder;

·     Osteoarthritis of the left knee; and

·     Solar keratosis.

4.      Mr Stott’s claims for gastro-oesophageal reflux disease with ulcerative oesophagitis, hiatus hernia, cervical spondylosis and lumbar spondylosis were rejected.  Mr Stott seeks a review of the decision in respect of cervical spondylosis and what was originally claimed as lumbar spondylosis but substituted by the Commission with, as a different diagnosis, intervertebral disc prolapse.

5.      Mr Stott relies on the carrying he did on service to establish conformity with the Statements of Principles relevant to his conditions.  The parties agree, and we concur, that he meets the weight and frequency aspects of the carrying factors in the SoPs.  The Repatriation Commission concedes that in all respects Mr Stott’s circumstances conform with factor 6(i) of SoP No. 33 of 2005 concerning cervical spondylosis (carrying loads of at least 15 kilograms on the head while upright to a certain cumulative total during a certain period).  We agree.

6.      As we mentioned, Mr Stott, in his claim form dated 16 October 2008 claimed, together with cervical spondylosis, lumbar spondylosis – the only condition affecting his back.

7.      On 12 November 2008 an MRI was reported as showing a disc protrusion at the L1-L2 intervertebral disc space.

8.      On 26 November 2008 Dr…