Tribunal: Deputy President Dr P McDermott RFD

The applicant submitted a claim to the Department of Veteran’s Affairs (“DVA”) for several medical conditions which were allegedly caused by a vehicle accident that occurred sometime around 1977, while the applicant was serving in the Australian Army. These conditions include depression, bilateral osteoarthritis, lumbar spondylosis, bilateral trochanteric bursitis, and loss of hearing.

DVA rejected the claim with respect to all conditions except hearing loss, and the Veterans’ Review Board (“VRB”) affirmed the decision. The applicant applied to the AAT for a review of the decision.

For the applicant’s conditions to be accepted, there must be a connection between them and his service in the army[1]. To determine if a connection exists, the AAT must refer to what are called “Statement of Principles” (“SoPs”). SoPs are issued by the Repatriation Medical Authority for each kind of disease that can be considered connected to military service.[2] Each SoP essentially sets out the factors that must be satisfied for the conditions to be deemed connected to the military service for the purposes of the pension.

The applicant claimed his memory of the accident was very poor, but that since the accident he had severe and constant back pain and sciatica pain over the years, which led to severe mobility restrictions, difficulty bending, erectile dysfunction, restricted exercise, constant depression and an impact on both his social life and married life.

In its decision, the AAT referred to evidence and reports on the applicant’s conditions from five doctors: Dr Brown, Dr Pitchford, Dr Darveniza, Dr Valappil and Dr Sharwood.

The AAT first considered the applicant’s lumbar spondylosis and osteoarthritis. The parties were in agreement that the applicant had been diagnosed with both lumbar spondylosis and osteoarthritis in both hips. The relevant SoPs for these conditions require that their clinical onset occurred no more than 25 years after the trauma, the trauma being the accident.[3]

The AAT formed the view that the accident occurred no later than 1978, in reliance on the testimony of the applicant as well as evidence provided by his colleagues form the time of the accident.[4]

To determine whether the clinical onset of the two conditions were no more than 25 years after the accident, the AAT referred to the medical evidence provided. Dr Sharwood gave evidence that he was not able to go earlier in a diagnosis of clinical onset of the lumbar spondylosis than 2013. Dr Lochlin Brown and Dr Alister Darveniza reported that there was clinical onset of osteoarthritis of the hips in 2013.

The AAT concluded that clinical onset of the applicant’s lumbar spondylosis and osteoarthritis was more than 25 years after the accident. The AAT therefore could not find that the conditions were connected to the applicant’s military service.

The AAT considered the applicant’s trochanteric bursitis and the relevant SoP but concluded that none of the factors were satisfied and that the condition was not connected to the applicant’s military service.[5]

The AAT then considered the applicant’s adjustment disorder. The applicant claimed that the adjustment disorder condition was caused by the orthopaedic conditions of lumbar spondylosis, osteoarthritis of the hips and trochanteric bursitis. As the AAT found that those conditions were not connected to service it follows that this condition could not be connected to service. The AAT nevertheless considered the relevant SoP and concluded there was no evidence the requirements were met.[6]

The AAT concluded that none of the claims could succeed and affirmed the decision.

Read the full written decision on AustLII.

 

[1] Section 120(4) and 120B of the  Veterans’ Entitlements Act 1986 (Cth)

[2] Section 196B of the Veterans’ Entitlements Act 1986 (Cth)

[3] Factor 6(g) of SoP No.63 of 2014, factor 6(f) of SoP No. 14 of 2010 and factor 9(6) of SoP no. 62 of 2017

[4] See paragraph 72 of the full decision

[5] SoP No. 46 of 2015 and see paragraphs 82 – 85 of the full decision

[6] See paragraph 91 of the full decision