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Dyer and Repatriation Commission [2010] AATA 729 (23 September 2010)

Last Updated: 1 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 729

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3065

GENERAL ADMINISTRATIVE DIVISION
)

Re
ALAN DYER

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Professor RM Creyke, Senior Member
Dr M Miller AO, Member

Date 23 September 2010

Place Canberra

Decision
The decision under review varied. The Tribunal finds that the claimed condition of ‘tinnitus’ is service-related, with effect from 16 May 2007, and that the disability pension is payable to the Applicant at 30 percent of the General Rate, with effect from 16 May 2007.

.............................................
Professor RM Creyke, Presiding Member

CATCHWORDS

VETERANS’ AFFAIRS – eligibility for pension – cervical spondylosis – whether condition aggravated by ‘inability to obtain appropriate clinical management’ during service – treatment for cervical spondylosis consistent for 20 years – whether ‘management’ different to ‘treatment’ – decision under review varied


Veterans’ Entitlement Act 1986 (Cth) ss 20(1), 70


Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80


Re Dyer and Repatriation Commission (2009) VRB No 8-1050


Lee v Minister of Pension (No 2) (1948) 3 WPAR 1901


Johnson v Commonwealth [1982] HCA 54; (1982) 150 CLR 331


Repatriation Commission v Money [2009] FCAFC 11; (2009) 173 FCR 410


Repatriation Commission v Wedekind [2000] FCA 649


Repatriation Commission v Wellington (1999) 57 ALD 507


23 September 2010 REASONS FOR DECISION

Professor RM Creyke, Senior Member
Dr M Miller AO, Member


  1. Mr Alan Dyer served with the Royal Australian Navy (RAN) from 16 January 1984 to 6 March 2006. He transferred to continuous full time service in the Naval Active Reserve Force on 6 March 2006 and his service from 16 January 1984 to 30 June 2004 is eligible defence service within the meaning of the Veterans’ Entitlement Act 1986 (Cth) (Act).
  2. On 16 August 2007, Mr Alan Dyer made a claim to have bilateral compartmentation syndrome, spondylosis and osteoarthritis, tinnitus and failing eye sight accepted as service-related conditions.
  3. The Repatriation Commission (Commission) rejected the claim for the conditions, which it diagnosed as bilateral shin splints, cervical spondylosis, bilateral presbyopia and tinnitus, on the grounds that the conditions were not defence caused.
  4. On review on 25 February 2009, the Veterans' Review Board (VRB) varied the decision and found that Mr Dyer was entitled to a pension for shin splints (bilateral). Disability pension was assessed at 20 per cent of the general rate.
  5. On 3 July 2009, Mr Dyer sought review by the Tribunal. The earliest date from which a favourable condition can apply is 16 May 2007, being three months prior to Mr Dyer's lodgement of his claim.[1]

ISSUES

  1. The issue is whether Mr Dyer's conditions of cervical spondylosis and tinnitus are service-related within the terms of section 70 of the Veterans' Entitlements Act 1986 (Cth) (Act).
  2. Given the concession by the Commission at the outset of the hearing that Mr Dyer's tinnitus is service-related, the sole remaining issue was whether Mr Dyer's cervical spondylosis is service-related.
  3. Whether that condition is a service-related condition depends on whether the condition meets one or more of the factors in the relevant Statement of Principles (SoP) for cervical spondylosis (SoP No 34 of 2005).
  4. The sole factor relied on within the SoP was clause 6(u), namely, that cervical spondylosis was connected with Mr Dyer's defence service because of his 'inability to obtain appropriate clinical management' for the condition during service.

EVIDENCE

  1. As the Commission conceded for the purposes of the hearing that Mr Dyer's tinnitus was service-related, the evidence will be confined to the material relating to Mr Dyer's claim for cervical spondylosis.
  2. Mr Dyer had a motor vehicle accident in 1985 which was unrelated to service but which affected his neck. Nonetheless, Mr Dyer said any damage caused by the accident did not prevent him undertaking the prolonged marching, and physical training required while in the RAN between 1984 and the 1990s. He said he managed at least one hour's intensive physical exercise a day prior to then. He claimed that the physical onset of the claimed condition was in the 1990s.
  3. The following information is taken from Mr Dyer’s Department of Defence medical file. On enlistment in 1984, Mr Dyer's medical records notes he suffered from 'severe headaches', not 'migraines', but only '1/year', and travel sickness. However, in 1990, while at HMAS KUTTABUL, he was referred to a Dr Lawless because of 'a history of headaches and difficulty of vision whilst driving'. The referral noted: 'This has been occurring for several months'. The report, presumably by Dr Lawless, simply noted 'Needs field test my rooms'. There is no record of results of any eye field test.
  4. Mr Dyer also had other back problems. Medical notes on 3 July 1995, relating to chronic back pain, mid thoracic spine area/lumbar spine, state: '? Postural' and physiotherapy is prescribed. A report of 23 August 1995, following this referral, states:
[Mr Dyer] was tender to palpation over T4-T7 centrally. Slump stretches reproduced his occipital discomfort. I have manipulated Leut. Dyer's thoracic spine and given him stretches for his occipital discomfort. I feel he has a postural component to his problem. I have explained this to him. I'm sure his thoracic pain will quickly settle however his occipital pain will probably only respond once his tight tissues stretch.
  1. Clinical notes on a medical form, dated 19 November 1997, state that Mr Dyer 'gets migraines/headaches about 1/12. [He] is getting sharp pains in temple area both sides'. A report by a physiotherapist, dated 23 September 1998, diagnoses: 'Headaches R side related to upper neck'. After several treatments in July 1998, the report is headaches 'back to normal' and 'status at discharge: no headaches'.
  2. Cervical spondylosis was diagnosed in 1998 by Dr Thompson, sports physician, on 11 December 1998. Dr Thompson recorded that Mr Dyer had been suffering neck pain for the past eight years.
  3. An ‘Outpatient Clinical Record’ noted in early 2001: 'headache since this morning. Not throbbing, no photophobia. Nausea present/no vomits. Dull ache at back of head, then radiates through to eyes'. Paracetamol was prescribed. A specialist referral to a physiotherapist for 'upper/mid thoracic back pain' on 23 October 2001 diagnosed 'T/S [thoracic spine] hypomobility/facet dysfunction' with treatment to include 'T/S mobilisation; home exercise program; advice re posture/improving general fitness' and the ‘Outcome’ after two sessions was listed as 'Nil pain no further R/V’ [review].’
  4. Clinical notes dated 21 January 2005 referred to 'sore neck since Saturday. History – past neck pain. No trigger to provoke pain. Able to move head onto chest. General pain up neck to skull. Dull ache. Waves of pain. No other Sx [symptoms]'. A further notation by a different specialist notes 'Long history of mild cervical pain. No history of injury; No exacerbating factors. ? postural'. An X-ray by Dr Hoy of 27 January 2005 noted a history of ‘recurrent neck pain’ and reported:
Mild spondylosis of most midcervical discs includes mild loss of disc height and small osteophytes at the disc margins but no significant foraminal narrowing. Mild cervical scoliosis convex to the right is possibly associated with opposite thoracic scoliosis. Osteoarthosis possibly involves the mid cervical facet joints, particularly on the left between C3 and C6. All else is normal.
  1. A physiotherapy report dated 31 January 2005, notes exercise and stretches were prescribed and that an X-ray had noted 'C/S [cervical spondylosis] – NAD [No Abnormality Detected]’. Medications were listed as ‘NSAIDs [Non-Steroidal Anti-Inflammatory Drugs] [indecipherable] ... – good effect’.
  2. Mr Dyer underwent annual health assessments for service-related purposes which for the most part did not identify problems. However, his final health check on 11 January 2006, prior to discharge, did refer to 'scoliosis – neck discomfort' and the medical officer's comments noted 'cervical spondylosis'.
  3. In his application to the Commission in August 2007, Mr Dyer said he was suffering 'recurrent nerve pain, shoulder and back pain' with 'mild discomfort in neck and back'. The application recorded that service contributed to the neck, shoulder and back pain through 'aggressive marching at ADFA, constant movement at sea – including jangling and shuddering; ergonomics in this office – even if appropriate equipment provided the open office environment meant L and R arm never remained adjusted correctly'.
  4. The reference to 'ergonomics' was explained in another document as follows:
The varying state of office furniture and ergonomics (over the last decade and a half) would have aggravated any underlying condition.The use of open office plans, where adjustments can be made to furniture settings by visitors, or the use of shared facilities (as in watchkeeping) reduced the effectiveness of ergonomic furniture.
  1. Mr Dyer claimed he first became aware of the symptoms in the 'mid 90s'. The doctor from the Russell Health Centre, who completed the claim form, noted 'clinical presentation with recurrent pain and stiffness. X-ray from 2/2/05 shows mild spondylosis of most mid cervical discs with mild loss of disc height and small osteophytes at the disc margins'.
  2. In a physiotherapist’s report in 1998, there is a reference to diagnosis of ‘headache R side related to upper neck'. There is a further reference on 23 October 2001 to 'facet joint dysfunction'. Facet joint pain can occur in the neck and is associated with headaches. On 27 January 2005, an X-ray report on the cervical spine made reference to '[m]ild spondylosis of most midcervical discs'.
  3. Mr Dyer said that, even though his spondylosis was not diagnosed until 2005, he had:
presented [himself] to medical authorities at times during the preceding decade with symptoms that are consistent with spondylosis.

In these preceding cases, no suggestion of further investigation was made and [he] was sent to physio. Indeed, in all the above cases, the cause was indicated as 'postural' rather than some underlying medical issue.

  1. Mr Dyer agreed at the hearing that his instances of neck discomfort in 1995, 1998 and 2001 subsided after physiotherapy treatment and that he had, from time to time, used analgesics with good effect. Mr Dyer said at the hearing that he first became aware of discomfort in the 1990s and had sought advice about the condition in 1998, when he was treated by a physiotherapist. He said he had no recollection of whether he had neck pain before 1998. Mr Dyer confirmed that no contribution to any of his claimed conditions occurred after 30 June 2004. He also agreed that after the diagnosis of cervical spondylosis in 2005, the treatment prescribed for the condition had not changed.
  2. 'CompoNotes', printed on 3 January 2007, described the impact of Mr Dyer's cervical spondylosis in these terms:
The key impact is continuing mild discomfort in all activities, particularly after extended periods when working in an office environment. Activities that involve neck movement and strain ... cause stronger discomfort. The strain on the neck can also lead to headaches, which could last for a few days. The continued discomfort is a distraction at work, reducing concentration and focus on the matters at hand. In addition, the continued discomfort makes driving distances uncomfortable and, in some cases, unpleasant.
  1. Mr Dyer claimed that service had not caused his cervical spondylosis but that service had aggravated his underlying condition. He said in his application for VRB review:
I had an undiagnosed condition, probably for many years based on my memory of the chronic nature of general discomfort to the neck. Because this remained undiagnosed, I have been unable to obtain appropriate clinical management for cervical spondylosis. This lack of initial diagnosis is in spite of presenting myself (to the appropriate medical authorities) with stiffness of neck and occasional headaches consistent with the symptoms of spondylosis.
  1. Dr Andrea Follett, Mr Dyer’s general practitioner, completed a ‘Medical Impairment Assessment’ form for the Department of Veterans’ Affairs on 6 November 2007. In relation to cervical spondylosis, she said that apart from a mild level of pain in the cervical spine, the condition did not cause any restrictions of movement or use.
  2. Dr David Mackintosh, consultant orthopaedic surgeon, provided a report on 17 March 2010 and a supplementary report dated 21 May 2010. In the initial report, Dr Mackintosh diagnosed cervical spondylosis. He reported that Mr Dyer first developed neck pain in 1998 and has had recurrent neck pain since that time. Mr Dyer agreed he had no recollection of any significant injury or illness affecting his neck. In response to a question about the likely time of onset of the condition Dr Mackintosh noted that the ‘condition develops over an extended period of time usually as a result of the natural aging process’. In his view, the symptoms of Mr Dyer’s condition were sufficiently severe or specific for a medical practitioner to diagnose the condition in 1998. He assessed an impairment rating under both relevant tables of GARP as nil, giving a total impairment rating of zero.
  3. Dr Mackintosh’s supplementary report said that given the circumstances and the intermittent nature of Mr Dyer’s condition, in his opinion the treatment provided by the physiotherapist was the appropriate clinical management at the time for his cervical spondylosis. He also expressed the opinion that the physiotherapy treatment had not led to a permanent worsening of Mr Dyer’s condition.
  4. Mr Dyer agreed that he had not provided his own medical evidence about his condition. He also agreed he did not attempt to obtain medical evidence of what would have been ‘appropriate clinical management’ of cervical spondylosis at the time he first became aware of the symptoms of the condition.
  5. Mr Dyer also had a history throughout the 1990s of lower or lumbar back pain, as well as mid to upper thoracic back pain. He agreed at the hearing that he was not inhibited about seeking treatment when in pain. He also said that his treatment throughout the 1990s had been by Defence medical specialists, or on referral by Defence. On one occasion only, he had sought private medical treatment. The Tribunal notes that it is not always clear from the medical records which area of the neck or back was the subject of the recommended physiotherapy treatment.

CONSIDERATION

Tinnitus

  1. For the purposes of the hearing the Commission conceded that Mr Dyer's tinnitus was service-related. That concession was based on an audiometry report of 1 December 2009, which said that the appropriate impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) (GARP) was 5 points. If that concession was accepted, the Commission indicated that, with effect from 16 May 2007, Mr Dyer should receive a disability pension at 30 per cent.
  2. Based on this evidence and the concession which the Tribunal finds was properly made, the Tribunal finds that Mr Dyer’s condition of tinnitus was service-related, that it attracted an impairment rating of 5 points under GARP, and that as a consequence Mr Dyer is entitled to pension at 30 per cent of the general rate from 16 May 2007.

Cervical spondylosis

  1. There is no question that Mr Dyer had eligible defence service. Mr Dyer's entitlement to disability pension is accordingly governed by section 70 of the Act. For Mr Dyer's cervical spondylosis to be accepted as service-related, it must be established to the Tribunal’s reasonable satisfaction that his cervical spondylosis arose out of or was attributable to, or was aggravated by, defence service.[3] There is no question that Mr Dyer’s cervical spondylosis arose during his period of full-time service.
  2. As there is a Statement of Principles (SoP) in force in relation to cervical spondylosis, namely, Instrument No 34 of 2005, that SoP exclusively states the factors which must exist to establish a causal connection between his condition and service. Accordingly, the Tribunal must be reasonably satisfied that there is material raising a connection between Mr Dyer's cervical spondylosis and his service and that a factor, or factors, in Instrument No 34 of 2005 upholds the connection.
  3. Turning to the issue of whether a causal connection exists, the Commission submitted that Mr Dyer's cervical spondylosis was not caused by service. That is accepted by both parties. The principal argument was that Mr Dyer’s condition was aggravated by his defence service. Mr Dyer’s contention was limited to the claim that an earlier diagnosis of his cervical spondylosis would have prevented the aggravation occurring. In other words, the argument is that the aggravation of his condition occurred because of the failure earlier to diagnose his condition and as a consequence he was unable to obtain appropriate clinical management for his condition.[4]
  4. The cases have established a number of principles applying to the ‘inability to obtain appropriate clinical management’ factor. The Federal Court in Repatriation Commission v Wedekind[5] said that in order to establish an inability to obtain appropriate clinical management the decision-maker must identify:
  5. 'Clinical management' was discussed in Johnson v Commonwealth[7] where the High Court cited with approval the statement of Denning J in Lee v Minister of Pensions (No 2)[8] that the expression covers:
Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service... [T]here are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service.[9]
  1. The VRB in Re Dyer and Repatriation Commission[10] said of Johnson that in relation to clinical management: 'the inability to obtain appropriate clinical management' will only apply in those cases where:
  2. Finally, in Brew v Repatriation Commission[11] Merkel J (with whom Mansfield J agreed) said:
...."inability" in cl (1)(e) [i]s "lack of ability; lack of power, capacity, means" (Macquarie Dictionary or "the condition of being unable; lack of ability, power or means" (New Shorter Oxford Dictionary). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the "condition of being unable". Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case. ... In my view it would be erroneous to limit "inability" to "some overwhelming psychological or emotional incapacity". If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a "condition of being unable" to obtain treatment.[12]

The inability must clearly be service related. The medical treatment must also be that treatment which is appropriate at the time of service, not the current treatment.[13] The Tribunal now applies these principles to the circumstances of Mr Dyer’s claim.

The approximate date his cervical spondylosis was contracted

  1. Identifying an approximate date the condition was contracted is needed to assess the appropriate medical treatment at the particular time. A necessary precondition to that identification is that a medical expert could then have diagnosed the condition. In other words, a diagnosis by a competent medical practitioner must have been possible, given the symptoms evident at the approximate date the condition was contracted.
  2. An X-ray in January 2005 identified Mr Dyer’s cervical spondylosis, but clinical notes in 2005 referred to a ‘Long history of cervical pain’. These notes raise the issue of whether an earlier date should be considered. Although Mr Dyer said he had a record of back pain in 1989, the region of the pain was not specified in the clinical notes and there was no reference to neck pain. In 1995, medical notes refer to ‘occipital pain’, which can be related to neck pain and headaches, however, the focus at the time was on the thoracic and lumbar, not the cervical, area of Mr Dyer’s spine.
  3. At the hearing Mr Dyer said he first became aware of the symptoms in the ‘mid-90s’. Dr Thompson in 1998 noted that Mr Dyer had suffered from neck pain for the previous eight years, that is, since 1990. However, there is no clear indication in the notes prior to 1998 which would have indicated that a diagnosis of cervical spondylosis could have been made. Indeed, even in 2001, Mr Dyer’s medical file contains a notation ‘L/S [lower spine], C/S [cervical spine] niggles – long standing problems’, suggesting that any problems with his cervical spine were of minimal significance. Allowing for some imprecision in recollection when a history is provided to medical experts, the sporadic and infrequent nature of the reports of headaches or of other symptoms which could have lead to a diagnosis, these notations indicate that the earliest a medical practitioner would have been able to diagnose cervical spondylosis was 1998.
  4. That choice of date was confirmed by Dr Mackintosh, who said in his evidence that 1998 was the time at which it was most likely that a medical diagnosis could have been made. It was also the year nominated by Mr Dyer as one in which he experienced an incident of neck discomfort. In light of this evidence, the Tribunal finds that the diagnosable condition first manifested in 1998.

The appropriate form of clinical management

  1. Mr Dyer did not provide medical evidence as to what was the appropriate form of clinical management in 1998. However, he expressed the view that management of a condition was different from treatment of its symptoms. Management includes the provision of appropriate advice,[14] as well, for example, as alternative ergonomic furniture. The Tribunal does not accept that management is different from treatment since management is sufficiently broad to include all forms of treatment.
  2. Dr Macintosh said in his report that most patients have no treatment for cervical spondylosis, given that it is generally a slow, progressive disease associated with ageing. Analgesics can help with pain, and physiotherapy and chiropractic treatment are commonly recommended. Treatment relieves the symptoms but, since it is degenerative, not the condition itself. Dr Mackintosh also said that this treatment has not changed over the last 20 years.
  3. The Tribunal notes that Black’s Medical Dictionary states that treatment for spondylosis is ‘physiotherapy; often a neck collar or lumbar support helps. Rarely surgery is needed to remove the pressure from the nerves’.[15] The Tribunal accepts that analgesics, physiotherapy or chiropractic are common treatments for the condition, with surgery presumably only being prescribed in the most serious cases. The Tribunal also accepts that advice relating to posture, appropriate exercises or prosthetic devices can be appropriate clinical management. The Tribunal also accepts that these treatments were the appropriate forms of clinical management in and from 1998.

Whether Mr Dyer was unable to obtain that form of clinical management

  1. The Tribunal notes that in 1998 Mr Dyer was treated by a physiotherapist; in 2001 another physiotherapist identified exercises and advice concerning posture; and in 2005, a physiotherapist again suggested exercises and stretches. After treatment by a physiotherapist in 1998, the report was ‘back to normal’ and ‘status at discharge: normal’. Similarly in 2001, after treatment by a physiotherapist the outcome was listed as ‘Nil pain; no further R/V [review]’. So apparently this treatment was effective at relieving the symptoms and in management of the condition
  2. Although the Tribunal accepts that management may be different from treatment of symptoms, in light of Dr Mackintosh’s evidence that no medical treatment can stem the degenerative process, and that all the treatments commonly employed do no more than alleviate symptoms, the distinction for the purposes of Mr Dyer’s condition is of no consequence in his case.
  3. Another essential element of the factor 6(u) in the SoP is whether there has been an ‘inability’ to obtain the appropriate medical treatment. As Mr Dyer had eligible defence service, apart from Mr Dyer’s sea postings which occurred prior to 1998, he served onshore and in Australia. In other words, he was not facing the difficulties which can arise on occasion during service beyond Australian borders. There also does not appear to be any period since 1998 when, objectively, Mr Dyer was ‘unable’ to access appropriate treatment through lack of power, capacity or means.[16] In evidence, Mr Dyer also conceded that while on service, he had no hesitation about seeking treatment when he needed medical assistance. On that basis, the Tribunal finds that during the relevant period of his service Mr Dyer was not incapable of accessing any appropriate medical management for the condition.
  4. Finally, Mr Dyer’s claim was that the ‘inability’ related principally to the failure of medical practitioners to diagnose the condition earlier than 2005. In other words, his claim was that he had not been treated with the same skill, expedition or facilities in terms of diagnosis as he would have received in civil life.[17] As a consequence, he contended, the condition was worse than it would have been had he received a more timely diagnosis.
  5. Mr Dyer said that in the years 1995 to 2005 he presented himself to medical authorities with symptoms consistent with spondylosis on four occasions: in 1989, 1995, 1998 and again in 2001. He said ‘no suggestion of further investigation was made and I was sent to physio’ and the physiotherapists identified his problems as ‘“postural”’ rather than some underlying medical issue’. In the absence of a medical diagnosis until 2005, he said he was being treated for a number of individual conditions, and this was not ‘management’ of his cervical spondylosis. The consequence of this misdiagnosis, in his opinion, was that his medical condition was not managed appropriately. For example, he said, the RAN might have given him different furniture.
  6. The Tribunal is satisfied, given that Mr Dyer used analgesics, received massage, physiotherapy and advice about exercises on his presentations for medical assistance, that such treatments are standard for cervical spondylosis and have remained so for the last 20 years, that this element of his claim lacks substance. Had an earlier diagnosis been made, the evidence is that the management of the condition would not have been different. That is supported by the fact that following such treatments his symptoms disappeared, and he did not need to seek further medical assistance for several years. In other words, the conservative forms of treatment were effective.
  7. The Tribunal notes that there has never been any suggestion that his condition is of such severity as to warrant surgery. The 2001 notation to ‘niggles’ in his cervical spine, and the diagnosis that his condition was ‘mild’ support this finding. In the absence of any evidence that ergonomic furniture was appropriate clinical management or that it could have slowed the progression of the disease, the Tribunal makes no findings on this suggestion. So even if a correct diagnosis of the condition had occurred prior to 2005, it does not appear that any alternative treatments would have been recommended.

Whether the inability was related to service

  1. The Tribunal has made no findings that Mr Dyer was unable to obtain appropriate clinical management. There is, therefore, no need to establish whether any inability is related to service.

CONCLUSION

  1. That means Mr Dyer was not able to establish that he was unable to obtain appropriate clinical management for his condition within the terms of SoP No 34 of 2005 clause 6(u). The consequence is that Mr Dyer’s cervical spondylosis is not service-related.
  2. The decision under review is varied. The Tribunal finds that the claimed condition of tinnitus is service-related, with effect from 16 May 2007, and that the disability pension is payable to Mr Dyer at 30 percent of the general rate, with effect from 16 May 2007.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of


Signed: .................[sgd]..........................

C. Kocak, Associate


Date/s of Hearing 29 July 2010

Date of Decision 23 September 2010

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Griffin Legal

[1] Veterans’ Entitlements Act 1986 (Cth) (Act), s 20(1).
[2] The occipital nerve runs from the top, that is, the cervical, vertebrae of the spine. The occiput is the lower part of the head which merges with the neck.
[3] Act s 70(5)(a), (d).
[4] Statement of Principles No 34 of 2005, clause 6(u).
[5] Repatriation Commission v Wedekind [2000] FCA 649.
[6] Id at [12].
[7] Johnson v Commonwealth (1982) 150 CLR 331.
[8] Lee v Minister of Pensions (No 2) (1948) 3 WPAR 1901.
[9] Johnson v Commonwealth (1982) 150 CLR 331, 337.
[10] Re Dyer and Repatriation Commission (2009) VRB No 8-1050.
[11] Brew v Repatriation Commission (1999) 94 FCR 80.
[12] Brew v Repatriation Commission (1999) 94 FCR 80, 87-8.
[13] Repatriation Commission v Wellington (1999) 57 ALD 507.
[14] Repatriation Commission v Money [2009] FCAFC 11; (2009) 173 FCR 410 at [43] (per Finn and Edmonds JJ).
[15] Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (42nd ed, 2010), 617.
[16] Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80 at [22].
[17] Lee v Minister of Pension (No 2) (1948) 3 WPAR 1901.

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