Grant and Repatriation Commission [1999] AATA 629 (25 August 1999)

Last Updated: 2 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/893

VETERANS' APPEALS DIVISION )

Re JACK GRANT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date 25 August 1999

Place Melbourne

Decision The Tribunal affirms the decision under review.

......(Sgd) B. H. Pascoe......

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - entitlement - cervical spondylosis - whether veteran suffered trauma - whether reasonable hypothesis connecting service with medical conditions - carrying heavy weight - definition of trauma in SoP

Veterans' Entitlements Act 1986

Statements of Principles:

Instrument No. 31 of 1999 concerning cervical spondylosis

REASONS FOR DECISION

25 August 1999 Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Veterans' Review Board, dated 3 April 1998, which affirmed a decision of the respondent made on 18 December 1997, that Mr Grant's cervical spondylosis was not war-caused.

2. Pursuant to section 34B of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") parties consented to the review being determined without a hearing and for the Tribunal to review the decision by considering the documents or other material lodged with the Tribunal. In addition to the documents provided by the respondent pursuant to section 37 of the AAT Act (T1-T37) the Tribunal had letters from Mr Grant, dated 29 November 1998, 8 February 1999, 26 February 1999 and 13 May 1999, to which was attached Mr Grant's hand written comments on a copy of the Statement of Principles ("SoP") concerning cervical spondylosis (Instrument No. 31 of 1999). The Tribunal was provided also with copies of the clinical notes of Dr N. Struk, Mr Grant's local medical officer, and Dr B. Clark, his former local medical officer.

3. Mr Grant served in the Australia Army from 23 April 1952 to 14 May 1954 and had accepted operational service in Japan and Korea from 2 January 1953 to 17 April 1954. In his original claim to have cervical spondylosis accepted as war-caused, Mr Grant stated that the symptoms had been present "as long as I can remember after service on active service in Korea 1954". He did not identify any specific injury to the neck but attributed the cause to:

"Carrying heavy weapons e.g. 2? mortars - Vickers machine guns - Bren-guns, heavy ammunition boxes. Climbing very steep hills with equipment. Wearing wet clothes for six weeks in monsoon weather. Period of time in front line was 6 weeks in - six weeks out."

In his letter of 13 May 1999 Mr Grant, in answers to questions asked by the respondent, stated (inter alia):

"I relate my neck pain to carrying heavy loads on back in sub-zero temperatures. It started off with a stiff neck which gradually got worse over the years... My altered movement caused me some moderate to heavy discomfort. My neck pain was moderate to severe which altered my movement somewhat. ...No medical attention was required at that point in time... It did limit me somewhat in carrying out my duties to a point. ...My army duties were restricted. I had to loaf on my mates to get them to carry heavy loads such as ammunition, machine guns (Bren and Vickers) and Bazookas."

In his hand written notes on a copy of the relevant SoP, Mr Grant noted "no" against all of the factors listed therein but noted "pain in the neck since serving in Korea". In his letter of 26 February 1999, Mr Grant referred to examples of what may be described as some mental or psychological traumatic experiences in Korea but made no reference to any physical trauma.

4. Section 120(3) of the Veterans' Entitlements Act 1986 ("the Act") requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of Mr Grant's operational service. Under section 120A, if there is in force a SoP issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoP here is that concerning cervical spondylosis (Instrument No. 31 of 1999). The SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. Given the statement in his application and subsequent letters, it would appear that the only relevant factor on which Mr Grant could rely is "suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis". The definition of trauma in the SoP is:

"a discrete injury to the cervical 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 cervical spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention ... has occurred..."

5. The difficulty Mr Grant has is satisfying this definition of trauma. Unfortunately the SoP does not include repeated trauma which may well have been suffered in the regular incidents outlined in his statement and the strain on neck and back from the heavy weight carried and the conditions in which he served. It is accepted also, that, notwithstanding possible pain and tenderness, he may well have continued on without complaint, partly because there was nobody to whom he could complain, partly so as not to let down his team.

6. It may well be that the repeated trauma from the conditions described by Mr Grant contributed to the early degeneration of his cervical spine. Unfortunately, the relevant SoP does not include this as an accepted factor. It requires a specific discrete injury causing acute symptoms and altered mobility or range of movement lasting for at least seven days. The passing of time may have made it difficult for him to be specific as to the precise symptoms and periods for which they lasted. Nevertheless, the Tribunal is bound by the factors set out in the relevant SoP and I cannot be satisfied that the material has raised a reasonable hypothesis connecting the cause of Mr Grant's cervical spondylosis with his service.

7. It follows that the decision under review will be affirmed.

I certify that the seven (7) preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B. H. Pascoe, Senior Member

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Decision done on the papers

Date of Decision 25 August 1999