Woods and Repatriation Commission
[2004] AATA 132
•11 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 132
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/85
VETERANS' APPEALS DIVISION )
Re CHARLES MAXWELL WOODS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr JB Morley, Member Date11 February 2004
PlaceBrisbane
Decision The Tribunal:
(a) varies the decision under review by substituting a diagnosis of migraine in lieu of the diagnosis of cervicogenic headache; and
(b) affirms the decision under review refusing the applicant's claims for pension for the conditions of migraine, cervical spondylosis and memory and concentration problems.
……(Sgd) ……
JB Morley
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – cervical spondylosis, migraine and memory/concentration problems – hypothesis – fall during operational service caused injury to neck leading to headaches – diagnosis – migraine not cervicogenic headache – hypothesis not reasonable – conditions not caused by war service
Veterans’ Entitlements Act 1986 ss 120(1), 120(3)
REASONS FOR DECISION
11 February 2004 Dr JB Morley, Member 1. This is a review of a decision by a Delegate of the Repatriation Commission, dated 19 April 2002, refusing the claim of the applicant, Charles Maxwell Woods, for cervical spondylosis, migraine and memory and concentration problems. The Veterans’ Review Board, on 29 October 2002, varied the diagnosis of migraine to cervicogenic headache, and then affirmed the decision as varied.
2. At this Tribunal hearing, the applicant represented himself and the Commission was represented by a Departmental advocate, Mr Bruce Williams.
3. Because no evidence or submissions were presented to the Tribunal concerning the applicant's claim for memory and concentration problems, the Tribunal confined its attention to the applicant's claimed conditions of cervical spondylosis and cervicogenic headache, including whether the headache's diagnosis was migraine or cervicogenic headache.
4. The Tribunal noted that the applicant had rendered operational service for the entire period of his service with the Royal Australian Air Force from 10 March 1944 to 19 December 1945. Accordingly the standard of proof that applies in determining the applicant’s claim for pension in this case is contained in provisions of subsections 120(1) and 120(3) of the Veterans’ Entitlements Act 1986 (“the Act”). The onus of proof is on the respondent to show that the applicant's war service did not cause or contribute to his headache.
5. At the hearing, the only witness appearing for the applicant was himself; and the only witness called by the respondent was Dr John Cameron, who gave evidence by telephone, as well as providing a report (exhibit R 2).
6. The applicant's evidence was that his headaches began in 1945, during his war service with the Royal Australian Air Force in Balikpapan, Borneo, following an injury. He said that he incurred this when, with three other men, he stumbled as they were lifting a heavy radar receiver on to an Army truck. He said that, while lifting the radar receiver on his right side, he struck the left side of his neck against the side of the truck. He kept his feet, and does not recall having to rest. However his headache commenced then or some uncertain, but brief, time later. He described his headaches as recurring ever since, without any significant period of freedom from them, more when he was stressed, or after exertion. They were helped by chiropractic. They continued throughout his working life after the war. They were responsible for him leaving his first post-war job, with the Commonwealth Bank, after only two years. They persisted after he then went to work on his father's small farm, later developing horse breeding work there, at which he continued for the next 40 years. They have still recurred since he retired in 1988, despite his much quieter lifestyle, including after moving to the Toowoomba district five years ago. They develop irregularly, from as often as two in a week, to up to six weeks without them. They locate in his left upper neck region, behind his ear. They extend over several hours around into his left eye and into his sinus region. He told the Tribunal that he has no other present problems with his neck. He avoided taking pain relieving medications, because about 35 years ago he suffered a large intestinal haemorrhage after taking Bex and Vincent's APC. As well, he recently has been investigated for a possible kidney cancer, perhaps caused by these medications.
7. During cross-examination the applicant was shown the Royal Australian Air Force Hospital or Sick List - Record Card for No 27 Medical Clearing Station 26 to 29 September 1945 (Exhibit R1, Folios 5-6, 8-9). He said that he had had his headache for four or five days before that admission. He agreed that there was no record of an injury, including to his neck, presumably because he did not mention it, perhaps because his colleagues had not thought it significant. He also agreed that he did not seek treatment for any neck injury.
8. The respondent called in evidence Dr John Cameron, consultant neurologist, Fellow of the Royal Australasian College of Physicians, and a Member of the Australian Association of Neurologists. He had examined the applicant on 5 August 2003, and had been sent several documents to study by Dr PA Grant, Senior Medical Officer Compensation for the Department of Veterans' Affairs Queensland Office. Dr Cameron opined that the applicant's diagnosis was migraine, and that he also suffered neck discomfort from underlying degenerative changes related to cervical spondylosis. He had seen the applicant's Hospital Record Card of September 1945. He opined that the applicant's present condition was not identical to that which he had in September 1945, which seemed to have been an acute sinusitis or an inflammation of his nasal cavities. He was aware of different medical opinions, that the applicant had cervicogenic headache or cervicogenic migraine. However his opinion was that neck problems do not cause migraine. He cited large studies showing that 20-25% of migraine headaches occur over the upper neck and cervical region. He believed that migraine is a vascular disturbance and any of the four major vessels coming to the head can be involved, the headache at the back of the head being related to problems in the vertebral artery and brainstem region rather than from anything from the cervical spine.
9. When cross-examined Dr Cameron said that, in his view, the applicant's x-rays and CT scan of his cervical spine of 2 July 2003 (Exhibit A3) showed mild degenerative changes from C4 to C7 levels, which, for his age, were mild. The applicant disputed several of Dr Cameron's observations of his conduct and findings of their consultation, later tendering supporting documents (Exhibits A2 and A4)..
10. In reply to a question from the Tribunal, Dr Cameron stated his opinion that the applicant's migraine and cervical spondylosis were coincidental. Although cervical spondylosis does not cause migraine, it can cause occipital headache due to muscular contraction discomfort.
11. Other medical evidence available to the Tribunal consisted of the following:
(a)Dr Ben Griffin of Toowoomba, the veteran's present general practitioner, in his report of 16 December 2001 (Exhibit R1, Folios 33-36 and 38-39) referred to the applicant's frontal headaches. These were more prevalent on the left side of his head, lasting for five days, occurring each three weeks, commencing in the occipital region. He said that these resulted from his cervical spondylosis, responding to chiropractic and physiotherapy over the years, and were due to his injury to his head and neck in 1945. In his letters of 15 August 2002 (Exhibit R1, Folios 77-78) and 19 September 2002 (Exhibit R1, Folio 74), Dr Griffin again referred to the applicant's war injury to his cervical spine, resulting in his chronic headaches ever since. In his report of 7 December 2003 (Exhibit A1), he described "the nature of these headaches (as) muscle contraction", due to his longstanding cervical spinal degeneration following his claimed war injury. He also referred to the applicant's previous excessive analgesic ingestion, possibly causing renal impairment, with additional recent concern regarding a possible early lower urinary tract cancer.
(b)Doctor of Chiropractic John A Zambo of Penrith reported on 19 March 2002 (Exhibit R1, Folio 42 and reproduced at Folio 66), recording the applicant's attendances at his practice from 1977 to 1993, for treatment of "recurrent neck pains and associated headaches"; he referred to his "degenerative joint disease" in his mid and upper cervical spine with "local muscular spasms". He opined that an earlier injury "may have contributed significantly" to the degenerative joint disease.
(c)Consultant Neurologist Dr PJB Landy of Brisbane reported on 26 March 2002 of his examination of the applicant on that day (Exhibit R1, Folios 44-47). He opined that the applicant's headaches were due to migraine, fulfilling the criteria for migraine set out by PJ Goadsby in the New England Journal of Medicine, volume 346, number 4, 24 January, 2002. Because the applicant brought no x-rays with him, he offered no comment regarding the diagnosis of cervical spondylosis.
(d)Radiologist Dr Michael D Lynch of Toowoomba on 1 July 2002 (Exhibit R1, Folio 71) reported that the applicant's x-rays of his cervical spine showed "possible disc lesions" of his lower cervical spine.
(e)Physiotherapist Ms Angela Scott of Wilsonton on 5 August 2002 (Exhibit R1, Folio 65) reported the applicant's physiotherapy treatments to his neck for his headaches for many years, describing the cervical spine as "stiff and restricted in movement". She opined that this was "sufficient to induce headaches", remarking that he responded well to treatment of mobilisation, ultrasound, massage and heat, and that migraine headaches "rarely respond this well".
(f)Consultant Neurologist Dr Cecilie Lander of Brisbane opined, to Dr Griffin on 30 August 2002 (Exhibit R1, Folios 69-70 and reproduced at Folios 75-76), that his headaches "roughly fit the description of migraine".. She diagnosed against cluster migraine or tension headache. She added that, because physical treatment to his upper cervical spine was effective, "the most likely cause" of his headaches was derived from his upper cervical nerve roots. She remarked that "so-called cervicogenic migraine" has long been recognised.
(g)Doctor of Chiropractic David Hodal of Toowoomba, in an undated report received by Veterans' Review Board on 12 September 2002 (Exhibit R1, Folio 67), recorded that the applicant has suffered frequent headaches caused by a head on neck injury many years before; and that he has obtained "considerable relief" from "regular chiropractic adjustments".
(h)Radiologist Dr P Doyle of Toowoomba on 2 July 2003 reported (Exhibit A3) that no significant abnormality was found in the applicant's CT scan of his head and sinuses; and that x-rays and CT scan of his cervical spinal revealed multilevel degenerative changes, mainly from the C4/5 to C7/T1 levels.
12. In addition, there were reports of the applicant's myocardial perfusion study of 30 July 2002 (Exhibit R1, Folio 68), and of his neurosensory examination of 25 September 2002 (Exhibit R1, Folios 79-82), but these were not relevant to the issues being examined by the Tribunal.
13. The Tribunal first addressed the questions of the applicant's diagnoses.
14. With regard to the applicant's longstanding headache, the Tribunal is satisfied that, as stated by the applicant, he has suffered his headaches with the frequency, severity, and length of history, as stated by him. This has been well documented in the various reports cited above from his general practitioner Dr Griffin, his chiropractors Drs Zambo and Hodal, and his physiotherapist Ms Scott.
15. As for the diagnosis of the applicant's headache, the medical opinions are divided between cervicogenic headache and migraine.
16. Cervicogenic headache was diagnosed by the applicant's general practitioner, Dr Griffin, his previous and current chiropractors, Drs Zambo and Hodal, and his physiotherapist, Ms Scott.
17. Migraine was supported by all three consultant neurologists, Drs Landy, Lander, and Cameron. Dr Lander has alluded to cervicogenic migraine, referring to the derivation of the applicant's headaches being from his upper cervical nerve roots. However the Tribunal has noted that the applicant's x-rays of his cervical spinal of 1 July 2002 (Exhibit R1, Folio 71), and his x-rays and CT scan of his cervical spine of 2 July 2003 (Exhibit A3) refer only to changes in the mid and lower cervical spinal region, as distinct from the upper cervical spinal region, which has been described as having been included in these examinations. Accordingly, the Tribunal concludes that there is no evidence supporting any upper cervical nerve root involvement in the applicant's headaches. In any event, Dr Lander has duly diagnosed in favour of migraine. In addition, the evidence of Dr Cameron, whose expertise is accepted by the Tribunal, specifies migraine to be "a vascular disturbance", derived in the applicant's case from his vertebral artery and brainstem regions rather than his cervical spine. The Tribunal particularly notes Dr Landy's statement that the applicant's headaches fulfil Goadsby's diagnostic criteria for migraine, published recently in the authoritative medical publication, the New England Journal of Medicine. The Tribunal prefers the essentially unanimous opinions of the three neurologists, recognising their specialised knowledge in this diagnostic field. On these grounds the Tribunal determines that the applicant's diagnosis is migraine.
18. In considering the applicant's claim that his migraine was war caused, the Tribunal has referred to the relevant Statement of Principles, which is Instrument No 74 of 1999. The only applicable factor is that in paragraph 5(a) – that is, an inability to obtain appropriate clinical management for migraine. In the only available service document (Exhibit R1, Folios 5-6 and 8-9), the only medical condition referred to do is maxillary antritis, with no documentary evidence of treatment for migraine being sought by the applicant. The Tribunal is satisfied that the material before it does not raise a reasonable hypothesis connecting the applicant's migraine with the circumstances of the particular service that he rendered. As such, there is no sufficient ground for determining that the applicant's migraine was war-caused.
19. From the findings reported as multilevel degenerative changes on the applicant's x-rays and CT scan of his cervical spine of 2 July 2003 (Exhibit A3), and in the absence of any opposing opinion, the Tribunal concludes that the applicant has cervical spondylosis.
20. In determining the applicant's claim that his cervical spondylosis is war- caused, the Tribunal has referred to Statement of Principles concerning Cervical Spondylosis, Instrument No 50 of 2002 amended by Instrument No 81 of 2002. The relevant factor is factor 5(h), "suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis".. Paragraph 8 defines trauma to the cervical spine as follows:
“Trauma means a discrete injury to the cervical spine that causes the development within 24 hours of the injury being sustained of symptoms and signs of pain and tenderness and altered mobility of range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following the onset, save where medical intervention has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or(c) surgery to the cervical spine.”
21. The Tribunal accepts the applicant’s evidence that during service in Bulikpapan, he struck the left side of his neck against the side of the truck. However, he did not have to rest, and he did not seek medical treatment for his neck at the time, nor within 24 hours of the injury. There is no evidence that he had pain, tenderness and altered mobility of a range of movement of the cervical spine for at least seven days. The circumstances of the applicant’s injury to his neck and his later development of cervical spondylosis do not satisfy SoP No 50 of 2002, as amended by No 81 of 2002. Therefore the hypothesis pointed to by the material linking the applicant’s cervical spondylosis to his eligible service is not reasonable. Consequently, the Tribunal is satisfied beyond reasonable doubt that the applicant’s cervical spondylosis is not war-caused.
22. The Tribunal varies the decision under review, from the diagnosis of cervicogenic headache, to the diagnosis of migraine. It affirms the decision refusing the applicant's claim for migraine and cervical spondylosis. In the absence of any evidence presented to the Tribunal regarding the applicant's claim regarding his memory and concentration problems, the decision refusing this also is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JB Morley, Member
Signed: S Oliver
Associate
Date of Hearing 10 December 2003
Date of Decision 11 February 2004The Applicant appeared in person
For the Respondent Mr B Williams, Departmental Advocate
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