Bagust and Repatriation Commission - [2000] AATA 501

DECISION AND REASONS FOR DECISION [2000] AATA 501

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1996/1037

VETERANS' APPEALS DIVISION       )
           Re      Victor Lionel BAGUST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date22 June 2000
PlaceSydney
DecisionThe Tribunal-
1.Varies that part of the decision of the Veterans' Review Board that determined the effective date for payment of pension in respect of chronic airflow limitation as 15 November so that it reads (15 October 1992);
2.Varies that part of the decision of the Repatriation Commission ("the Respondent") dated 4 February 1994, being the decision under review, by adding to the diagnosis of the claimed conditions, that of "gastro-oesophageal reflux", being a condition arising from the claim for bronchitis;
3.Affirms that part of the decision of the Respondent dated 4 February 1994 that refused the claim of Victor Lionel Bagust ("the Applicant") in respect of migraine, papilloma uvula, multinodular goitre and fatty liver;
4.Sets aside that part of the decision under review in respect of thoraco-lumbar spondylosis and cervical spondylosis;
5.Substitutes for that part of the decision so set aside, the decision that the Applicant's conditions of gastro-oesophageal reflux, thoraco-lumbar spondylosis and cervical spondylosis are war-caused pursuant to s 9 of the Veterans Entitlements' Act 1986 ("the Act"), with effect on and from 15 October 1992; and
6.Determines that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s 24 of the Act on and from 15 October 1992.

……………………
M T Lewis
Presiding Member

CATCHWORDS
VETERANS' AFFAIRS - entitlement - whether thoraco-cervical spondylosis and fatty liver war caused - whether reasonable hypothesis raised connecting fatty liver with war service - whether hypothesis that chronic coughing from chronic airflow limitation led to osteoarthritis of spine reasonable and disproved beyond reasonable doubt - suffers from chronic fatigue - whether chronic fatigue related to war-caused conditions including PTSD - whether gastro-oesophageal reflux arising from claim of bronchitis could be added to diagnosis of claimed conditions
assessment - whether entitled to special rate - whether unable to obtain remunerative work because of war-caused disabilities alone - whether accepted disabilities substantial cause of inability to work

Veterans' Entitlements Act 1986 (Cth) ss- 120(1), 120(3), 120(4), 24, 28

REASONS FOR DECISION

22 June 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Victor Lionel Bagust ("the Applicant") lodged a claim in respect of conditions that were later diagnosed by the Repatriation Commission ("the Respondent") as chronic airflow limitation, cervical spondylosis, thoraco-lumbar spondylosis, migraine, papilloma uvula, multinodular goitre and fatty liver, all of which were rejected by a Delegate of the Respondent on 4 February 1994. Subsequently, on 6 May 1996, the Veterans' Review Board ("the VRB") accepted chronic airflow limitation as being war-caused, with effect from 11 November 1992. It was submitted for the Applicant that the effective date in respect of chronic airflow limitation should be 15 October 1992, being a date not more than three months before the lodgement of the claim. The Tribunal notes that all applications for review were lodged by the Applicant in time, and that therefore the effective date in respect of chronic airflow limitation is 15 October 1992. That part of the decision of the VRB that finds that the effective date is 15 November 1992 is therefore set aside, and in substitution the Tribunal finds that the effective date for payment of pension in respect of chronic airflow limitation is 15 October 1992.
On 26 August 1996 the Applicant also sought review by this Tribunal in respect of the decision of the Respondent dated 4 February 1994. That decision was affirmed by the VRB on 6 May 1996.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Report of Dr R Wallace, orthopaedic surgeon, dated 9 January 1997 (exhibit A);
Report of Dr M Baz, occupational health physician, dated 7 September 1998 (exhibit B);
Report of Dr D Chamberlain, general medical practitioner, dated 21 November 1996 (exhibit C);
Reports of Dr R S Baker, dated 11 June 1998 with annexures (exhibit D), and 25 September 1998 (exhibit G);
Report of Dr R J Baker, allergist, dated 3 August 1995 (exhibit E);
Report of Dr R H Loblay, immunologist, dated 19 March 1998 (exhibit F);
Clinical notes from Prince Henry/ Prince of Wales Hospitals, dated 3 September 1993 (exhibit H);
Statement of Applicant's work history (exhibit J).

The following documents were tendered on behalf of the Respondent –

Report of Dr R McMurdo, psychiatrist, dated 10 December 1998 (exhibit 1);
Report of Dr T E C Williamsz, ear, nose, throat, head and neck surgeon, dated 9 December 1996 (exhibit 2);
Reports of Professor P N Sambrook, Professor of rheumatology, dated 26 November 1996, 20 January 1997 and 28 April 1997, together with letters of instruction to him from the Respondent dated 13 November 1996 and 13 January 1997 ( exhibit 3);
Report of Dr A E Pusic, consultant psychiatrist, dated 1 February 1995 (exhibit 4).

The Applicant gave oral evidence at the hearing. Dr Baz also gave oral evidence, called by the Applicant. Professor Sambrook and Dr McMurdo were called by the Respondent to give oral evidence.

At the commencement of the hearing the Tribunal was advised by the Respondent that the conditions of lumbar spondylosis and gastro-oesophageal reflux were conceded by the Respondent as being war-caused. The Tribunal accepts that these concessions were properly made.
In accepting the concession in respect of gastro-oesophageal reflux, the Tribunal notes that the Applicant claimed the condition "bronchitis". In the medical evidence it is shown that the Applicant suffers from gastro-oesophageal reflux and this condition caused a bronchial irritant which subsequently was diagnosed as chronic airflow limitation, and ultimately it was accepted by the VRB as war-caused on the basis of the Applicant's service related smoking. The parties agree, and the Tribunal accepts, that smoking also causes gastro-oesophageal reflux. The parties also agree, and the Tribunal accepts, that under the head of the claim for "bronchitis" the diagnoses of chronic airflow limitation and gastro-oesophageal reflux should be made. While the Delegate of the Respondent and the VRB noted the existence of gastro-oesophageal reflux and its relationship to smoking, neither of those decision-makers included the condition, as they should have done, in the list of diagnosed conditions arising from the Applicant's claim.
The Applicant advised at the commencement of the hearing that he did not wish to proceed with that part of his claim relating to migraine, papilloma uvula, multinodular goitre and sinus.
background
The Applicant was born on 21 July 1950. He served in the Australian Army from 2 April 1968 to 1 April 1974. This included operational service in Vietnam from 20 August 1969 to 20 August 1970 and eligible defence service from 7 December 1972 to 1 April 1974. The Applicant already has post-traumatic stress disorder ("PTSD") accepted as war-caused.
The only conditions that are still open for the Tribunal to determine are thoracic spondylosis, cervical spondylosis and fatty liver. Arising from the Respondent's concession in respect of lumbar spondylosis and gastro-oesophageal reflux, and in the event of the Tribunal finding in his favour in respect of thoracic spondylosis, cervical spondylosis and/or fatty liver, the Applicant requested that the Tribunal assess the rate of pension payable to him, and in particular whether he is entitled to payment of pension at the Special Rate. The Applicant has suffered chronic fatigue since 1992 and it is his case that this is a symptom arising from his spondylosis.
legislation
As the Applicant has had operational service, ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") apply, which requires the Tribunal to determine, with respect to the period of the Applicant's operational service from 20 August 1969 to 20 August 1970, that the Applicant's conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions were war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service. With respect to the Applicant's defence service from 7 December 1972 to 1 April 1974, s120(4) of the Act applies, which requires the Tribunal to determine the matter to its reasonable satisfaction.
As the Applicant lodged his claim before 1 June 1994, s120A does not apply in this case and therefore the Tribunal is not required to consider whether the Applicant meets the relevant factors in the Statements of Principles.
In respect of payment of pension at the Special Rate, section 24 of the Act provides, insofar as relevant –
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
either:
the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease , or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary of wages, or of earnings on his or her own account, by reason of that incapacity if:
the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28 provides –
In determining, for the purposes of paragraph 23(1)(b) or (24)(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

applicant's evidence

The Applicant's evidence was that as a child he was generally in good health. He did not suffer from fatigue nor did he recall suffering any back problems. He remembered his neck being sore on one occasion, but he considered this was only minor. The Applicant injured himself in a car accident in 1963 when he developed a lump on the back of his head. He was taken to hospital for observation but he did not receive any treatment.
The Applicant's first full-time job was as a wire-worker and spot welder from 1966 to 1968 (exhibit J). In 1968 he joined the Army. He said at that time his health was "perfect". Before going to Vietnam he was a hygiene dutyman in the Army. This involved the handling of "contagious material" (T29, p81). His duties included cleaning toilets, inspecting kitchens and undertaking other similar activities. In Vietnam he was stationed at the First Australian Field Hospital at Buon Thuot and was posted as a hygiene dutyman/health inspector. He supervised the sanitation of the hospital, which involved monitoring the state of the toilets and dealing with human waste. The Applicant's other duty whilst serving in Vietnam involved unloading wounded troops from helicopters and carrying them to hospital. It was his responsibility to burn body parts and waste material from the operation theatre (T29, p.81).
His task as a hygiene dutyman also involved spraying residual insecticide, carrying spray pumps and large canisters around the hospital areas. The chemicals were stored in 25 litre containers, which had to be poured into a sprayer and mixed with either water or kerosene, and then sprayed around the scrub under the tress to reach the undergrowth. There was no equipment to assist in moving the drums so usually he carried them around on his shoulders even when the drums were full. He said his lower back and shoulders were sore after carrying the drums.
The Applicant said he felt sick whenever he sprayed because there was no respirator to get rid of the vapours or mist. He said he suffered from headaches, nausea and an "irresistible urge to spit all the time, to get rid of the taste …". However as one was not allowed to spit in the Army he had to swallow it if someone was watching.
The Applicant's other duty involved building and laying concrete pathways and stairways on a reclaimed swamp area in Buon Thuot. This involved bending, shovelling concrete for long periods, and lifting bags of cement and transporting wheelbarrows of concrete up and down the hill. His duties involved cement mixing and then transporting the concrete to be placed as required. He used a motorised 4-wheel cement mixer with a barrel that measured approximately 5 feet, which was moved by truck. When the mixer was being used, each person on the crew took turns at shovelling sand and gravel into it, after adding water. Another person took the concrete by wheelbarrow to where it was to be deposited. American wheelbarrows were used which the Applicant estimated to weigh approximately 400 kilos when loaded. He noted that he and others lost several loads of concrete whilst trying to negotiate a sharp angle and steep grade.
The Applicant recalled being hit in the back of his head by the "scoop" of the cement mixer, and he suffered pain in his neck as a consequence. He said that his neck "locked up" and it was difficult to move and turn it "for just over a week". He received treatment, including a ultrasound, at the physiotherapy unit of the hospital, but as this did not help he went to the township for a massage.
After returning from Vietnam to Australia in August 1970 the Applicant remained in the Army until 1 April 1974. He was posted as hygiene dutyman to 11th Field Ambulance, Wacol Barracks, Queensland. He was later transferred to Enoggera Army Barracks sometime after May 1973. He recalled an incident in late 1971/early 1972 when he was unable to get out of his car because his lower back had stiffened. In his oral evidence the Applicant could not recall the "jarring incident of 17/8/1973" to which reference was made in a file note of the Delegate of the Respondent on 5 January 1994 (T22).
In August 1973 the Applicant was posted to Ingleburn to work in the First Field Hygiene Company as a plumber and carpenter. He did not consider those duties to be heavy. He was sent to New Guinea for six weeks in May/June 1973. He could not recall any difficulty with his back whilst he was there, nor could he recall any incident relating to his neck.
After leaving the Army, the Applicant was employed as a storeman. His first job involved lifting tins of paint and rolls of plastic weighing up to 15 kilos. He considered that his heaviest duty was restacking paint pallets, and he did not have any difficulty undertaking that task. His next job, which he held for seven years, involved lifting 25 kilo boxes of nails. He had no difficulty with that lifting either.
In 1978/79 the Applicant worked as a night cleaner in the central sterilising section of the Nepean Hospital. He was required to mop floors and perform cleaning each night, seven days a fortnight. No lifting was involved in this job.
Between 1978 and 1985 the Applicant worked at Readymix and was classified as a heavy equipment and plant service person, nicknamed "a greaser". He serviced anything that was mechanical. The heaviest task in this job was to carry a 20 litre drum of oil up 14 flights of stairs.
The Applicant then obtained work as a fitter and process worker assembling mine spot lamps and batteries, proving apparatus and any unusual respiration gear, testing breathing apparatus and training people in its use. The only significant weight he was required to lift was equipment weighing about 15 kilos. The Applicant ceased this work in 1992 because "all of a sudden" he became very lethargic and tired. After ceasing work in early February 1992 the Applicant received Disability Support Pension.
The Applicant said that the first time he could recall suffering fatigue was for a few days in about 1971 at Wacol. He considered the fatigue was caused by the fumes from insecticide tins he held in his office shed. He said that the feeling of fatigue was not an isolated experience. "Every so often" he would feel "real tired" and the periods of fatigue progressively lengthened. He said "it might go for a day or it might go for a week or two weeks" until he consulted a doctor in 1974. He was prescribed Catavite, which he took for only a couple of days. Subsequently, he bought a bottle of 100 Catavite tablets, and he continued to purchase these every few years. However, he ceased purchasing them after he gave up work in 1992 because of the expense and it also gave him the "shakes" and an upset stomach. Nonetheless he said when he took it his pain was relieved.

In cross-examination the Applicant confirmed that the fatigue condition he suffered in 1992 commenced after he received a tetanus injection following a nail penetrating his foot (see also exhibit 1 and exhibit B). He said he no longer suffers from dizzy spells, nor are his headaches as severe as they were previously. He said that he suffered a similar reaction when he had his first tetanus injection when he joined the Army.
The Applicant said he currently feels tired when he attempts to walk, carry and drive. His muscles "cramp", especially in his shoulders and arms. He can only perform activities for a short time unless he is allowed to have breaks. He said the fatigue occurs all the time; it has progressively worsened, especially after his thyroid gland was removed. It is too tiring for him to go for walks and small bike rides. He has not been able to walk to the shops for the last 18 to 24 months. The fatigue is worse some days than others, and when it is worse he needs to lie down. The Applicant continues to consult Dr Pusic about his chronic fatigue and tiredness.
The Applicant said that more recently his back has been painful every day, but some days it is worse than others. The pain is acute particularly in the mornings. There is no particular pattern to his neck problem, which he has had since his service in Vietnam. He said he may be pain free for days and then suddenly he has pain "all the time". He said his neck pain is not as acute as his lower back condition. However, when his neck does become painful he is prevented from doing most things including watching television. He said that if he can "crack" his neck the pain "disappears almost instantaneously". However if he is unable to do that it can take "minutes to hours" before the pain is alleviated.
The Applicant said his neck pain restricts his ability to drive because he is unable to turn his head sufficiently. On the other hand, if he keeps his head in one place all the time his neck stiffens and he suffers from headaches. He said he experienced neck pain whilst at work but he "put up with it". At home, the pain troubled him most when he tried to sleep.
The Applicant also suffers from pain in his middle back which restricts his arm movements. Apart from his lower back pain, the Applicant said the middle back pain is the worst he has ever experienced. He gets his wife or son to massage his middle back, which helps to alleviate the pain. He said that the pain in his middle back restricts his breathing and prevents him from doing things. However, he does some gardening occasionally.
The Applicant considered that notwithstanding his neck and thoracic back pain, he would not be able to spend any significant time doing repetitive activities where he could not move around, because of his lower back condition. Coughing and wheezing can affect his lower and upper back conditions, especially when he gets a deep "hacking" cough, as bending forward to cough puts pressure on his lower back and also his neck at times. The Applicant said his back and neck are slightly tender when he feels fatigued. He said he regularly gets upset, sometimes in connection with his back condition.
The Applicant suffered a work injury as a result of falling to the ground after attempting to grab a bag of bolts whilst climbing a rack. X-rays of his back and hip were taken but no significant damage was revealed. The Applicant consulted a doctor and X-rays on his back and hip were taken. However 20 years later he said he developed hip problems.
The Applicant said he stretched the tendons in his wrist as a result of an injury he suffered around 1970 at Wacol. His hand was strapped for six weeks. Early in 1999 the Applicant injured his hands after falling from a ladder. His hands are now painful in cold weather. He does not drive as much as he used to. He has difficulty pushing anything with his hands. The Applicant also hurt his left knee in this incident. He was unable to walk on it for a couple of months and had trouble bending the knee. Initially the Applicant said he suffered pain all the way down his leg that causes him to limp more than he did before. Later, in response to questions from the Tribunal, he said that he had mobility problems prior to the incident involving his knee, but this has become slightly worse recently. He used to limp prior to the accident but he limps more now because he has arthritis in his left foot. He has had this problem for a couple of years.
The Applicant said that whereas before going to Vietnam he was a jocular and more outgoing person, his disposition had changed after returning to Australia in that he became quieter and slightly withdrawn. He said that shortly after he returned from Vietnam he used to cry. He said there were "things in the Army that were making me upset all the time but I did not know what it was and in the Army you don't go telling someone that you've started crying for no bloody reason". He said that his distress was mainly about children getting hurt and he recalled a traumatic incident in Vietnam in respect of the dismemberment of two children. He started taking anti-depressant medication in 1992, but he had had psychiatric assistance prior to 1992 from the Vietnam's Veterans' Counselling Service whilst he was still working at Readymix (which was between 1978 and 1985).
The Applicant said that after going to Vietnam he had trouble getting to sleep at night. He said that he has been unable to sleep properly for over 25 years, and estimated that on average he now sleeps "a couple of hours a night". The longest he has slept is 5 hours. He then needs to sleep in the afternoon. He considered that if he did not sleep in the afternoon he stays awake even longer at night, resulting in extreme agitation which then prevents him from getting to sleep the next night.
The Applicant said he also experiences difficulties in dealing with people. He referred to his examination by Dr McMurdo who considered that the Applicant did not have PTSD. The Applicant said that he did not know that Dr McMurdo was a psychiatrist and on the day of the examination he was not in much pain but he was very tired. Nonetheless the Applicant said he was in a good frame of mind.
The Applicant said he sometimes feels depressed. He has seen a psychiatrist and is currently taking medication (Ovine 20) for depression which has improved his mood. He did not consider that his depression was the condition that was preventing him from working. He said he has never discussed his depression with any doctor.
The Applicant said that his chest condition commenced just before he went to Vietnam. In late April 1969 he was required by the Army to have a flu vaccination, after which time he became ill and was hospitalised for five weeks. He was then posted to Canungra for a jungle training course in preparation for Vietnam. When he was in Canungra he continued to smoke and he recalled having an attack of bronchitis whilst at Canungra.
At present the Applicant suffers from breathlessness and he said that when he gets excited he starts choking. He said "its like an asthmatic episode but I'm not an asthmatic…". He considered that this condition prevents him from expending large amounts of energy. He suffers from bronchitis and pneumonia up to four times a year. He also coughs and wheezes.
medical evidence
In respect of the fatty liver condition, Dr Chamberlain, the Applicant's general medical practitioner, reported in 1996 (exhibit C) that there were several episodes in his history that could have precipitated his fatty liver condition –
(a) Treated for 5 weeks in hospital for bronchitis following a flu injection. Mr Bagust required injections of antibiotics for 2 weeks
(b) Large doses of antibiotics given in Vietnam for 4 doses of VD
(c) Treated for suspected malaria in Vietnam
(d) Antimalarials given daily over long periods of time can cause liver disorders
(e) Mr Bagust was also exposed to toxic chemicals…

Although Dr Chamberlain noted that the Applicant had been diagnosed as suffering from fatty liver about 1991, he provided no further details to support that diagnosis.

Dr Baz, occupational physician, stated in her report (exhibit B) that the diagnosis of fattty liver was not established on the documents before her. Furthermore, the Applicant did not give a history of high level alcohol consumption - only rare episodes of high level consumption. She understood that the Applicant's liver function tests were normal.
However, the Tribunal notes that a liver biopsy performed by Professor Pirola, gastroenterologist, on 3 September 1993 (exhibit H), showed on histological examination that steatosis was present in the specimen, which the Tribunal understands to be commonly known as fatty liver. It was also noted in the clinical information in that histology report that the Applicant "denies alcohol".
Dr R Wallace, orthopaedic surgeon, in his report dated 18 November 1992 (T10) noted the Applicant's cervical spine displayed no obvious swelling or deformity and that he had a full range of movement with no tender areas. He considered the Applicant suffered from a longstanding spondylolisthesis of his cervical and lumbar spine.
Dr Wallace examined the Applicant again on 19 December 1996, and obtained the following history (exhibit A) –
He now complains of lumbar spinal pain radiating to the lateral aspect of the right leg to the level of the foot and the lateral aspect of the left leg to the level of the knee….
He notes intermittent paraesthesia and numbness at the lateral aspects of the right leg to the level of the foot. He complains of occasional weakness at his bilateral lower limbs and stiffness at his lumbar spine…
He also complains of intermittent, aching pain at his cervical spine with no radiation to his arms…He complains of occasional stiffness at his cervical spine.
Dr Wallace opined that the Applicant was suffering from cervical and lumbar spondylosis. However he also noted X-rays of the thoracic spine which showed small marginal osteophytes. He considered that the Applicant's service in South Vietnam, and not his civilian employment, had materially contributed to his neck and back conditions.
Dr Broadfoot, radiologist, reported on an X-ray of the Applicant's cervical spine dated 12 October 1992 (T8) viz. –
The overall alignment of the vertebra is within normal limits. Normal mobility is seen. There is some reduction of the C5/6 disc space in particular and to a lesser extent the C3/4 disc space. There are associated spondylitic changes seen. Some osteophytes are visible in the right 3rd and 4th intervertebral foramen and in the left 3rd, 4th and 5th intervertebral foramina. No other significant focal bony abnormality seen.
Dr Broadfoot also commented on an X-ray of the Applicant's thoracic spine, viz-
There is some scoliosis convex to the right. There are some generalised spondylitic changes. The intervertebral disc spaces appear to be within normal limits.
Professor Sambrook examined the Applicant on 25 November 1996 and provided medical reports dated 26 November 1996, 20 January 1997 and 28 April 1997. In his first report, Professor Sambrook noted spinal X-rays taken on 12 October 1992 –
… showed some reduction of the C5/6 disc space and mild spondyltic change with osteophytes visible in the right 3rd and 4th intervertebral foramina and the left 3rd,4th and 5th intervertebral foramina. In the thoracic spine there was a slight scoliosis convex to the right and generalised minor spondylitic changes. In the lumbar spine changes were much more evident…
There was also an extra report on the cervical spine film performed in November, 1972 which was reported as showing no abnormality. The clinical notes accompanying this x-ray were of recurrent pain in the right side of the neck and right pectoral region on and off for 6 years with pain noted at the extremes of neck movement.
Professor Sambrook noted in his report dated 26 November 1996 (exhibit 3) that on his examination the Applicant had normal cervical spine movements. He opined that the Applicant suffers from cervical, thoracic and lumbar spondylosis "with the changes being most marked in the lumbar spine where there is evidence of functional canal stenosis". In his later report he amended the diagnosis to "spondylosis, canal stenosis and disc herniation at L5/S1".
Professor Sambrook considered that the changes in the Applicant's cervical and thoracic spine were entirely consistent with his age. He said that because there was a prior history of possible cervical injury as a result of a motor car accident prior to service, it was unlikely that the Applicant's service was related to the degenerative changes evident in the cervical and thoracic regions.
In his oral evidence Professor Sambrook explained that if the Applicant had suffered a significant trauma one would probably see radiological changes approximately two to five years thereafter. He agreed that if a person was hit in the neck by a piece of metal that was moving with sufficient force (similar to that of the cement mixer accident), injury to the cervical area could result which at a later time may become radiologically apparent. However, he considered that if this happened one would expect to see radiological evidence more advanced than would be expected in respect of the person's age.
Professor Sambrook considered that in respect of the types of duties the Applicant undertook on service, the concreting activities could have caused soft tissue damage in extreme circumstances which could have led to osteoarthritis. Professor Sambrook said that if a person suffered from some degree of disc degeneration then coughing could raise the pressure within the spinal canal and lead to an exacerbation of disc degeneration at any site in the spine. It is not uncommon for chronic coughing to cause aggravation of an underlying disc problem. The hypothesis that chronic airflow limitation can cause coughing and subsequently soft tissue damage which possibly leads to osteoarthritis, was put to Professor Sambrook. He opined that this hypothesis would be more reliable in regard to the Applicant's lumbar spine where there is radiological evidence of a focal disc lesion. It is possible, but less likely, in the cervical spine where the appearances were consistent with the Applicant's age and there was no focal lesion. It is also more plausible in the case of a thoracic spine lesion, where the X-ray appearances were much less than in the lumbar spine, and were consistent with the appearances in the cervical spine, and indeed were consistent with a person of the Applicant's age who undertook fairly physically demanding work throughout his entire career.
Professor Sambrook stated that a stiff neck was one of the features of cervical spondylosis but it was not pathognomonic, as there are plenty of causes of a stiff neck. Professor Sambrook said that in the light of the X-ray taken in 1972 of the cervical spine that was apparently normal, it was unlikely but not impossible that the Applicant's cervical spondylosis arose from his service in Vietnam.
Professor Sambrook said that the Applicant's work history and genetic factors, beside the ageing process, might well be other factors that would account for the onset of thoracic spondylosis. He said that thoracic spondylosis is a condition that normally does not arise merely from one period of exposure; rather it is related to cumulative exposure, and so it is necessary to examine the condition in terms of subsequent exposure. Based on the X-rays, Professor Sambrook considered that the Applicant's service did not contribute to his thoracic spondylosis because the X-ray appearance was consistent with his age.
Professor Sambrook considered that apart from the spondylosis which caused the Applicant's acute pain, there was no evidence of any other "rheumatic condition" suffered by the Applicant. He said that chronic pain, by virtue of a "vicious cycle", can lead to some degree of fatigue and decrease in exercise tolerance.
Professor Sambrook confirmed in his oral evidence that the Applicant did not disclose any specific injuries to his back or neck, and in particular he did not refer to any incident with a concrete mixer. He said that his opinion regarding the Applicant's cervical and thoracic spine (exhibit 3) took into account the history recorded on 28 October 1972 (T3, p11) about the motor vehicle accident, although he conceded that it was not logical to do so given that the changes were consistent with the Applicant's age, and therefore there was no need to invoke a prior episode as the "picture" was already explained by his age.
Professor Sambrook was referred to an entry in the Applicant's Army medical record dated 20 July 1972 (T3, p11) in which it was written "? neck injury MVA 10 years ago". Professor Sambrook agreed in effect that on the basis of that record it was not clearly established that the Applicant had sustained a neck injury at the time of the motor vehicle accident prior to his operational service. However, even if the motor vehicle accident was excluded, Professor Sambrook said that there was still some uncertainty about whether the Applicant's war service contributed to the neck condition. He said in effect that if one took into account the incident with the concrete mixer whilst the Applicant was on operational service, it was a "little bit less unlikely" that his cervical spondylosis was entirely age related. Although the Applicant had an X-ray of his cervical spine taken in 1972 which showed no abnormality, Professor Sambrook conceded that any neck injury on service in 1969/70 may not have shown up radiologically by 1972. However when assessing the overall picture, both clinically and radiologically, to see whether there was something more than the issue of age, Professor Sambrook said there was not a lot more to be seen in the cervical spine compared with the lumbar spine. However, he concluded that, with respect to the cervical spine, the concrete mixer incident was a trauma which may reasonably have contributed under some circumstances to cervical spondylosis, notwithstanding the X-ray appearances.
The Tribunal notes that whilst an X-ray dated 7 November 1972 showed no abnormality (T3, p12), an earlier X-ray on 20 July 1972 showed "slight posterior displacement" (T3, p11). However, this was not put to Professor Sambrook when he gave his oral evidence.
Professor Sambrook said that the tasks undertaken by the Applicant in operating a larger than average wheelbarrow over a significant amount of time would have placed most stress upon the thoracic and lumbar spine but not on the cervical spine.
Professor Sambrook did not change his opinion when presented with the nature of the Applicant's work whilst on service in Vietnam about which the Applicant gave oral evidence, and which, except for the incident when he was hit by the concrete mixer, apparently was also known to Dr Wallace (exhibit A). He maintained his opinion on the basis that the X-ray changes and clinical presentation were not greater than those expected in light of his age.
Professor Sambrook noted that he commonly approached assessment of reasonable hypothesis matters such as this by first considering whether the X-ray appearances and clinical presentation were consistent with the person's age, and only where there was an inconsistency did he then consider whether a particular aspect of the person's service might have contributed to the condition.
Dr R J Baker, allergist, in 1995 diagnosed the Applicant to be suffering from chronic fatigue syndrome (exhibit E). However by 1998 (exhibit G), having become aware that Dr Robert Loblay had concluded that the Applicant did not suffer from chronic fatigue syndrome, he agreed with that conclusion.
Dr McMurdo, psychiatrist, examined the Applicant on 8 December 1998 at the request of the Respondent and prepared a medico-legal report dated 10 December 1998 (exhibit 1). He made the following remarks about chronic fatigue syndrome –
I do believe that this condition is a clinical entity. Almost certainly it is a reaction to an infection which is followed by an abnormal response and very delayed recovery, having rather specific symptoms, and is almost always aggravated by a psychological response…..
…I will leave more learned physicians to opine about the exact diagnosis of chronic fatigue syndrome, but he [the Applicant] certainly has symptoms to support that condition.

Dr McMurdo opined the Applicant's chronic fatigue was caused by a combination of factors. He said it developed after he had an injury to his foot and was given an anti-tetanus injection, and that this was the precipitant of medical problems that developed subsequently. Indeed in his report, the following was noted by Dr McMurdo (exhibit 1, p2)-
Since leaving the army he has worked predominantly as a storeman/dispatcher but has not worked since February 1992. He said that he became ill after having an injection for tetanus after suffering an injury to his foot when he spiked it with a nail. He said that he went downhill after this and has not picked up and has developed various symptoms which have not improved….
In the same report he opined that the Applicant was not suffering from PTSD at the time of the consultation. In oral evidence, he considered that by definition, it was possible but very unlikely that the Applicant suffered from intermittent episodes of PTSD if it had been present for many years. Notwithstanding the fact that he may have suffered from a stressor, that of itself was insufficient to make a diagnosis according to DSM-IV.
Dr McMurdo also stated that it was "almost certain" that the Applicant's fatigue had a psychiatric basis. He said that chronic fatigue is more common in people who have a pre-existing psychiatric disorder. He said (exhibit 1, pp4-5) –
There is no doubt that fatigue can be a symptom of post traumatic stress disorder. This usually arises because of the constant and overwhelming anxiety and the many interferences to the quality of life. Fatigue in the case of this veteran would not seem to be related to earlier PTSD because he had had almost 18 years of apparently good health when he was working…
It is very unlikely that the development of chronic fatigue syndrome, or development of the symptoms of fatigue after about 20 years was related to post traumatic stress disorder which was caused by his… Vietnam service.
It is not uncommon for individuals who have persistent pain to become fatigued and exasperated by the restriction on their physical activities. It is my experience that many patients who have chronic skeletal, rheumatic, or myalgic pain do become worn down to the point of becoming quite inactive, fatigued, and losing stamina.
This is a different condition from chronic fatigue syndrome. It is possible that this is a factor with the veteran…
... I do not think there is any connection between the current symptoms of fatigue and the diagnosis of post traumatic stress disorder.

Dr McMurdo clarified in his oral evidence that his opinion provided in his report was based on the history provided to him, which in effect suggested that the Applicant had been functioning quite well both socially and in his work for about twenty years after returning from Vietnam. However, on the basis of a history of continual problems almost from the time the Applicant returned to Australia, that would present a very different scenario. Even without that assumption, Dr McMurdo agreed that although it may be unlikely that the Applicant's chronic fatigue was related to his PTSD, it was still possible. If the diagnosis of PTSD was accepted, then he considered that fatigue could be associated with the PTSD. If the Applicant was not suffering from PTSD, Dr McMurdo said he would make a diagnosis of chronic fatigue syndrome.
Dr McMurdo agreed that the Applicant probably suffers from depression which may not have been related to PTSD. However at the time of his consultation he did not present any symptoms of depression, notwithstanding that his relaxed behaviour on the day might have been a "front". He explained that the cause of depression could be from the Applicant's persistent and chronic pain. He also said that it was arguable whether drinking was a causal factor on the evidence he obtained. However another factor could have been the thyroid dysfunction.
If the Applicant is suffering from chronic fatigue, Dr McMurdo considered it was possible that this caused depression that in turn led to increased fatigue. Dr McMurdo suggested that an intensive pain management program could assist the Applicant if his chronic fatigue arose from his pain.
Dr Pusic, psychiatrist, considered on the basis of two separate examinations that the Applicant displayed symptoms of PTSD as a result of his experiences in Vietnam. Dr Pusic obtained the following history (exhibit 4, p2) –
Describes recurrent intrusive recollections of events in Vietnam, particularly mutilated bodies, and this is associated with a feeling of overwhelming anxiety. He does suffer from occasional disturbing nightmares involving themes of violence. He describes emotional lability with episodes of dysphoria and loss of interest in everyday activities. He can be irritable, has low frustration tolerance with frequent verbal explosive outbursts….He describes a lack of energy, constant tiredness and difficulty with concentration. There is no evidence of major depressive illness.

Dr M Baz, occupational physician, examined the Applicant on 20 August 1998 and prepared a medical report dated 7 September 1998 (exhibit B). In her oral evidence she said she understood the Applicant's fatigue had been present prior to 1992 as well as having worsened since 1992.
Dr Baz considered it possible that the Applicant's fatigue could be related to his cough and to the chronic airflow limitation as well. She stated that cough commonly causes back pain to worsen only when there is already a pre-existing back condition. Essentially Dr Baz opined that the Applicant's fatigue could be attributed to a number of physical disabilities, the most obvious ones being chronic airflow limitation with cough and also depression associated with his psychiatric disorder. She also stated that she would not relate the tetanus shot to his current fatigue, notwithstanding that doctors tend to conclude there is an association between infection, acute infectious illness and the onset of chronic fatigue syndrome.
Dr Baz also noted that sleep apnoea was a condition that should have been excluded from the equation, as part of the investigations for chronic fatigue would be to conduct sleep studies. She noted that sleep apnoea cannot be related directly to PTSD as sleep apnoea is a physical problem that involves intermittent obstruction in the nasal upper airway passages.
With respect to PTSD, when the Applicant consulted Dr Baz she noticed that he was irritable. If the Applicant was not well rested on the night before he saw her, then his presentation on the day he consulted her could have been consistent with sleeplessness the night before. She said that one could conclude the irritability resulted from poor sleep. However as there had been no positive diagnosis of sleep apnoea, she considered that the Applicant's irritability was due to a psychiatric disorder. She believed the chronic fatigue was "a red herring".
Dr Baz did not consider the Applicant's injury to his right knee affected his mobility; rather, the problem with his legs was related to his back condition rather than any disability in his knees.
Dr Baz said the increase in back pain that the Applicant is now suffering is due to his lumbar spondylosis. She opined that that the Applicant's work fitness is now limited by his cervical and lumbar spondylosis, PTSD and chronic fatigue. She did not consider the fatty liver and chronic airflow limitation to cause any significant restriction to his employability (exhibit B).
Dr Baz also noted in her report that the bilateral degenerative joint disease affecting both wrists resulting in upper limb function would affect the type of work he could do. His accepted physical disabilities would limit him to light work such as store work. Dr Baz was alerted to the Applicant's oral evidence that he had never suffered any fractures, in contrast to the history provided in her report. She said that the injury to his hands had functional effects, namely he had difficulty using tools, he no longer possessed the dexterity he had previous to the accident and his ability to carry heavier objects had reduced. She considered this limited him somewhat at least in respect of the storeman and heavy machinery work he had performed in the past. However it did not preclude him from doing certain types of work in stores and operating machinery. That is, it would cause some restriction, but would not prevent him from working. She did not expect it to stop him working full time.
According to Dr Baz, the Applicant's irritability and fatigue are significant factors restricting his employability (exhibit B). She noted that depression and fatigue are closely linked and impact on his ability to identify physically suitable employment. She considered the Applicant unfit for work of eight hours or more per week as a result of his PTSD, chronic fatigue, cervical and lumbar spondylosis and degenerative joint disease of both wrists, and she opined that the accepted disabilities together with chronic fatigue are the substantial cause of his unfitness.
In late 1996 Dr Wallace also considered the Applicant unfit to return to his pre-injury duties as a storeman, although he could be retrained to work involving either light physical activity or clerical duties. He considered the Applicant would be unfit to undertake any activity which involved repetitive bending or twisting movements of his cervical or lumbar spine, sitting or standing in one position for prolonged periods of time, repetitive lifting of more than 10 kilos, working in confined spaces or at heights, or prolonged driving of a motor vehicle.
Dr McMurdo did not consider the Applicant fit for employment and probably had not been so since 1992. However he considered that this arose from his chronic fatigue syndrome and not as a result of PTSD. Dr McMurdo saw very little likelihood of the Applicant re-entering the workforce in the foreseeable future (exhibit 1).
submissions
Respondent
It was submitted that the Applicant's cervical spondylosis is consistent with age degeneration rather than necessarily being related to his war service. Notwithstanding the Applicant's account of trauma experienced on service, the Respondent submitted that it was incredulous that the Applicant was working at a field hospital and suffer a trauma as alleged by him, yet there was no recording of that incident in his Army records for the purposes of treatment. It was submitted that the alleged trauma was not as significant as presented in evidence and that the effects of this episode were transitory, at best.
With respect to the claim for thoracic spondylosis, it was submitted that the radiological changes are consistent with age-related deterioration and unrelated to the Applicant's operational service where the circumstances of such service caused transitory changes to his spine. Therefore, it was submitted that there is no reasonable hypothesis relating the circumstances of the Applicant's operational service to the disabilities claimed in respect of both cervical and thoracic spondylosis.
It was submitted the Applicant does not satisfy all aspects of s24 of the Act to be entitled to pension at the Special Rate. It was contended that he fails to meet s 24(1)(c). It was argued that there were two issues that required consideration; the source of the chronic fatigue suffered by the Applicant that led to his ceasing work in 1992, and whether he was suffering a loss of earnings by reason of his war caused disabilities alone.
It was submitted that it was open to the Tribunal to consider a number of options that could be attributed to the origins of the Applicant's fatigue. It could be an effect of the accepted musculo-skeletal disabilities. The fatigue could also be a sequela of PTSD or it may be more properly described as an auto-immune disorder subsequent to the tetanus injection received by the Applicant in 1992.
The Respondent acknowledged that it was open to the Tribunal to find that the fatigue suffered by the Applicant from the date of his operational service until the date of the tetanus injection in 1992 may have been caused by his accepted disabilities. However, it was submitted that the Tribunal should find on the evidence that the chronic fatigue experienced by the Applicant at the time he ceased work was the product of a quite separate incident and should be properly characterised as auto-immune disorder. In making this submission the Respondent relied on the opinion of Dr Baz in her report dated 7 September 1998 (exhibit B), namely that the onset of chronic fatigue was at the time of a tetanus vaccination following the penetration of a rusty nail. Dr Baz had also noted that this fatigue interfered with the amenities of daily living and his employability. Dr Baz also considered that the Applicant's sleep apnoea affected his sleep patterns and contributed to his fatigue.
It was submitted that although Dr Baz suggested an alternative explanation by reason of association with the Applicant's PTSD, the Applicant has suffered from symptoms of PTSD intermittently over many years since his operational service in South Vietnam. Therefore, the influence of that disorder is marginal given that the Applicant had controlled the symptoms and continued to lead a full working life. It was submitted that the onset of the fatigue was at a definite date in 1992 upon suffering an adverse reaction to a tetanus injection, and that this is the primary cause of his fatigue.
The Respondent referred the Tribunal to Dr McMurdo's evidence which suggested that the depression suffered by the Applicant is an aspect of the PTSD. However in the same evidence it was also suggested that the depression is a product of an inability to complete tasks caused by the chronic fatigue such that there is a cyclical effect. Whilst PTSD is an accepted disability, it was submitted that Dr McMurdo's findings were pertinent insofar as at the date of examination, he did not observe the overt presence of the effects of the disability. In addition, the Applicant's evidence suggested he was having a "good day" when he attended Dr McMurdo. In these circumstances it was submitted that the disabling effects of PTSD may in fact be at least capable of control to the extent that the Applicant retains some significant capacity to engage in remunerative work, notwithstanding that the disability may be permanent.
With respect to sleep apnoea, the Respondent relies on Dr Baz's observations in her report (exhibit B) that the fatigue suffered by the Applicant was contributed to by the presence of sleep apnoea. Consequently, it was submitted that this disability is significant enough on presentation to constitute a factor in the fatigue suffered by the Applicant and therefore must be considered in the overall scheme as being a relevant non-accepted disability when examining the Applicant's capacity to engage in remunerative work pursuant to s 24(1)(c) of the Act.
The Respondent submitted that the degree of incapacity suffered by the Applicant could be assisted by a programme of remedial treatment particularly in regard to pain management. Hence, it was submitted that the effects of the Applicant's accepted and non-accepted disabilities are remediable and at this stage they are not yet permanent, as required by s 24(1)(c) of the Act.
It was also submitted that the non-accepted disabilities which affect the Applicant's ability to engage in remunerative work include sleep apnoea, the restriction in mobility caused by the injury to the left knee, arthritis described by the Applicant affecting his left foot, and the effect of osteoarthritis of the wrists. The latter condition, it was submitted, represented a significant restriction to the Applicant's manual dexterity. Having regard to his previous vocational skills and experience, it was submitted that the wrist condition was significantly inhibiting the Applicant from undertaking remunerative work similar to that which he had previously undertaken. The Respondent conceded that whilst the pain radiating in the Applicant's left leg may be regarded as a sequela of the accepted disability of lumbar spondylosis, the arthritis of the left foot is an intermittent though substantial restriction to mobility. Evidence of this could be found in the Applicant's own evidence that he had some difficulty in attending the Tribunal on the first day of the hearing.
With respect to s28 of the Act, it was submitted that the Applicant is trained as a storeman. While the Tribunal is precluded from considering alternative vocations it is bound to consider the effects of the Applicant's incapacity on the kinds of remunerative work that he might reasonably undertake, taking into account his concomitant skills, qualifications and experience. It was submitted that while the Applicant's accepted disabilities present some obstacles preventing him from undertaking his former work as a storeman, factors such as his non-accepted disabilities already mentioned have a profound effect such that he is precluded from undertaking any employment.
With regard to the ameliorating provisions in s24(2)(b) of the Act, it was submitted that the Applicant ceased looking for work upon receipt of the disability support pension from the Department of Social Security in 1992 and that the substantial incapacity suffered by him involves the effects of non-accepted disabilities. Hence, the Applicant is unable to satisfy this subsection.
It was submitted that the Applicant is unable to meet the requirements of s24 (1)(c) of the Act and so is not entitled to payment of pension at the Special Rate.
Applicant
With respect to the Applicant's cervical injury, it was submitted that the Respondent's incredulity regarding the unrecorded trauma to the cervical spine claimed by the Applicant to have been suffered to his neck whilst working at a field hospital, does not address the appropriate test once a hypothesis has been raised. It was submitted that the lack of documentary evidence on this point does not constitute "disproof". Counsel highlighted that the evidence before the Tribunal, particularly that of Dr Wallace, was contrary to the Respondent's assertion that the effects of the concrete mixer episode were transitory. Furthermore, Professor Sambrook in his oral evidence conceded that the lack of radiological evidence two years after the incident was consistent with a significant trauma.
With respect to the Applicant's cervical and thoracic injuries, it was submitted that a reasonable hypothesis had been raised. There was sufficient evidence of each injury, and there was nothing inherently unreasonable in the aetiology proposed by the hypothesis.
It was submitted for the Applicant in relation to s24(1)(c) of the Act that the submission of the Respondent that the Applicant's fatigue is an auto-immune disorder subsequent to a tetanus injection is but one amongst several hypotheses and offers no disproof of the other hypotheses raised. Furthermore, contrary to the assertion of the Respondent that the onset of fatigue was in 1992, the Applicant's evidence was that his fatigue had been long-standing.
With regard to Dr Baz's report in respect of the Applicant's fatigue, it was submitted that she simply reported the Applicant sleeping poorly and that he "has not had any sleep studies done". Dr Baz considered that the Applicant had "probable sleep apnoea although the condition had not been fully investigated. She opined that his fatigue may be related to sleep apnoea or it may be a manifestation of his depression.
Regarding s24(2)(b), it was submitted that the Applicant's reliance on the ameliorating provision does not arise as he had been in remunerative work at all relevant times.
consideration of evidence and findings of fact
The Tribunal is reasonably satisfied, on the evidence before it, that contrary to the evidence of Dr Baz, the Applicant suffers from a condition diagnosed as fatty liver. However there was no evidence before the Tribunal to associate that condition with the Applicant's operational or defence service. The Tribunal notes the Respondent's submission that the Applicant has not established an association between the Applicant's fatty liver condition and his service. No submissions were made to the Tribunal by the Applicant in respect of the fatty liver condition.

The only evidence before the Tribunal about the relationship of this condition with the Applicant's war service is that of Dr Chamberlain who refers to several factors in the Applicant's service that could have contributed to the development of the condition. It was noted that the Applicant was treated with large doses of antibiotics in Vietnam for bronchitis and VD, but there is nothing in the evidence to suggest that large doses of antibiotics causes fatty liver. There is no evidence as to the specific antibiotics which can cause fatty liver and the level of dosage that is required. The Tribunal notes there is an inference in point (c) of Dr Chamberlain's opinion that fatty liver is caused by malaria, but that is not at all clear on the face of the document. In respect of Dr Chamberlain's point (d), there is no evidence before the Tribunal as to whether the Applicant took large doses of antimalarial drugs, and there is no authority provided by Dr Chamberlain that such drugs cause fatty liver. As Dr Chamberlain is not a specialist medical practitioner it would certainly be necessary for him to provide the medical authority underpinning the hypothesis he raised in order for the Tribunal to find that it was reasonable. On the evidence of the Applicant he was exposed to toxic chemicals, but in respect of Dr Chamberlain's point (e) there is no evidence as to which toxic chemicals cause fatty liver. Again, as Dr Chamberlain is not a relevant specialist, the Tribunal would need him to provide the relevant medical authority to underpin his opinion if the Tribunal is to find that it is a reasonable hypothesis.
On all the evidence before the Tribunal, there is insufficient evidence for the Tribunal to find that a reasonable hypothesis has been raised in respect of the association of the Applicant's fatty liver with his service, and therefore that part of the decision under review in respect of fatty liver is affirmed.
In respect of the Applicant's claim for cervical spondylosis, the Tribunal notes the Respondent's submission that the Tribunal should not find the Applicant's evidence credible about having suffered the trauma to his neck with the cement mixer which was then treated at the field hospital without any notation having been made on his Army medical records. The Tribunal notes that the Applicant himself worked at the field hospital and his evidence was that he received physiotherapy treatment there. This makes the absence of record more credible than if a serviceman who was not employed in the hospital sustained an injury which required treatment. Particularly as the only treatment provided was physiotherapy, the Tribunal finds it feasible that no record was made in the circumstances. Moreover, the Tribunal finds that the Applicant was a credible witness and apart from this one issue his credibility was not otherwise brought into question.
On the evidence of Dr Wallace and Professor Sambrook, the Tribunal finds that a reasonable hypothesis has been raised. Professor Sambrook is well experienced in this jurisdiction in providing evidence in "reasonable hypothesis" matters, and he explained in his evidence that in matters such as this, where no Statement of Principles applies, it is his common practice to consider first whether the X-ray and clinical appearances are consistent with the veteran's age, and if so, then he considers that a reasonable hypothesis cannot be raised that a particular incident on service could have had a contributory effect – an opinion which he gave in this matter also. The Tribunal finds that the Applicant's cervical spondylosis is mild and consistent with his age. That is not the test, however.
Professor Sambrook conceded in his oral evidence that it was possible, but unlikely, that the incident on service when the Applicant was hit in his neck by the cement mixer, and the heavy physical work which he was undertaking, could, in extreme circumstances, have led to osteoarthritis. That is sufficient for the Tribunal to find as it does that the hypothesis raised is not fanciful or too tenuous or too remote, and that indeed a reasonable hypothesis has been raised.
In moving now to consider whether the hypothesis in respect of cervical spondylosis has been disproved beyond reasonable doubt, the Tribunal considers that although Professor Sambrook has noted, and the Tribunal accepts, that the Applicant's condition is consistent with his age, that factor is not sufficient of itself to disprove the hypothesis beyond reasonable doubt.
In respect of the Applicant's claim for thoracic spondylosis, the hypothesis that the Applicant's chronic coughing from his chronic airflow limitation led to soft tissue damage and possible osteoarthritis of the spine was put to Professor Sambrook. He considered that such an hypothesis was more plausible in the case of a thoracic spine lesion where spondylosis was more often caused by cumulative exposure rather than from one period of exposure. The Tribunal finds on this evidence that a reasonable hypothesis has been raised on the evidence of Professor Sambrook. Notwithstanding Professor Sambrook's consideration that the Applicant's service did not contribute to his thoracic spondylosis because the present condition is consistent with the Applicant's age, for the same reasons as outlined in the Tribunal's reasons in respect of cervical spondylosis, the consistency of the X-ray and clinical appearances with the Applicant's age is not a factor which of itself is sufficient to disprove the hypothesis beyond reasonable doubt.
Therefore, in respect of both cervical spondylosis and thoracic spondylosis, pursuant to s120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that these conditions are war-caused. The Tribunal therefore sets aside that part of the decision under review in respect of cervical and thoracic spondylosis, and substitutes therefor that these conditions are war-caused pursuant to s 9 of the Act. Pension is payable in respect of these conditions with effect on and from 15 October 1992.

Assessment of pension payable to Applicant

Under the head of this application the conditions of gastro-oesophageal reflux and cervical, thoracic and lumbar spondylosis are now accepted as war-caused disabilities. The Applicant has requested that the Tribunal now moves to assess the rate of pension payable to the Applicant in respect of all his war-caused disabilities on and from 15 October 1992.
The evidence in respect of assessment of the General Rate of pension payable to the Applicant is largely that provided in the report of Dr Baz (exhibit B). The Tribunal notes that Dr Baz provided the following impairment ratings for the Applicant's disabilities that have now been accepted –
Post-traumatic stress disorder          29
Chronic airflow limitation                   34
Lumbar spondylosis  10
Cervical spondylosis   5

Although Dr Baz has not assessed thoracic spondylosis, the Tribunal notes that Table 3.3.1 which was used by Dr Baz in her assessment is an instrument for the assessment of the thoraco-lumbar spine, and therefore, as the Applicant's thoracic spondylosis is not as severe as his lumbar spondylosis, the Tribunal finds that the inclusion of thoracic spondylosis as an accepted disability does not have any effect on the subsequent assessment of his thoraco-spine which has already been assessed in respect of his lumbar spondylosis. Neither Dr Baz nor anyone else has assessed the condition gastro-oesophageal reflux, but nothing turns on that omission. Dr McMurdo assessed the Applicant's PTSD at 7 impairment points.

On the evidence of Dr Baz the Applicant achieves a combined impairment rating of 60, and if the assessment of Dr McMurdo in respect of PTSD is used instead of Dr Baz's rating for PTSD, the combined impairment rating is 48. There is insufficient evidence before the Tribunal to undertake a lifestyle assessment. On either combined impairment assessment a General Rate assessment of at least 70 percent is achieved, using the option of the grey area in Table 23.1 of the Guide to the Assessment of Rates of Veterans' Pensions (5th Edition) instead of making a lifestyle assessment. On this basis, the provisions of s 24(1)(a) are met.
The next task for the Tribunal in considering the issue of Special Rate eligibility is to determine the role of the Applicant's chronic fatigue in relation to his accepted disabilities. If it is but a symptom of his PTSD or if it is a consequential symptom of his acute and chronic back pain then it is a factor that should be taken into account in whether the Applicant is able to undertake remunerative work for more than eight hours per week. Dr Pusic, whose evidence the Tribunal found to be clear, concise, and unambiguous, was preferred to that of Dr McMurdo. The Applicant has PTSD accepted as a war-caused condition, and the Tribunal finds on the evidence of Dr Pusic that he still suffers from that condition. The Tribunal notes the evidence of Dr McMurdo that if the Applicant suffers from PTSD then his chronic fatigue could be associated with his PTSD.
The Tribunal rejects the evidence of Dr McMurdo that the Applicant suffers from a condition diagnosed as chronic fatigue syndrome. He has been investigated for that condition by Dr Baker, an allergist, who agreed with Dr Robert Loblay, a relevant specialist in chronic fatigue syndrome, that that diagnosis could not be made in the Applicant's case. The Tribunal prefers that evidence to the opinion of Dr McMurdo as a psychiatrist purporting to diagnose chronic fatigue syndrome.
The Tribunal notes the opinion of Dr Baz that it is possible that the Applicant's fatigue is attributed to a number of his disabilities, and prefers that evidence. In addition to its relationship with his PTSD, his chronic fatigue is also likely to be a factor arising from the pain from his back condition and the regular exacerbations of bronchitis and pneumonia related to his chronic airflow limitation and cough. The Tribunal notes Dr Baz's comment's about the possibility of sleep apnoea being a condition from which the Applicant suffers, but as there has been no specific diagnosis of sleep apnoea and Dr Baz did not provide that as a definitive diagnosis, then the Tribunal is not reasonably satisfied that the Applicant suffers from that condition and that it has a role in the Applicant's chronic fatigue. There is insufficient evidence before the Tribunal to be reasonably satisfied that the Applicant's chronic fatigue is associated with any condition other than his war-caused conditions.
Having made that finding, the Tribunal now returns to the issue of s 24(1)(b), viz. whether he is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week because of his war-caused conditions alone. On the evidence of Dr Baz the Tribunal finds that the Applicant meets this requirement. There is some support in that from Dr McMurdo also insofar as Dr McMurdo considers that because of the Applicant's chronic fatigue he has been unfit for such work since 1992.
Whether or not the Applicant actually sustained fractures of his wrists, as described in the history obtained by Dr Baz (exhibit B) the fact remains that on examination he was found to have about half normal movement in his wrists and bilateral degenerative joint disease affecting both wrists which, on the evidence of Dr Baz, contributed to his unfitness to work for eight or more hours per week. However, in her oral evidence Dr Baz clarified that whilst the Applicant's wrist condition restricted him from doing certain types of work as a storeman it would not prevent him from working full-time.
The Applicant acknowledged injuries to his left knee and left foot, and that these cause him to limp. There is no evidence before the Tribunal, however, that these disabilities have any effect on his inability to work, and the Tribunal so finds.
The application date in this matter is 15 January 1993, and is the date from which the Tribunal is to assess the Applicant's incapacity for work. The Tribunal finds that the Applicant ceased work in February 1992, and from that time he has been in receipt of Disability Support Pension.
Taking into account all the evidence, the Tribunal finds that at the application date the Applicant, by reason of his war-caused conditions alone, is prevented from continuing to undertake the remunerative work that he had been undertaking before he ceased work in February 1992, and he is, by reason of that incapacity, suffering a loss of earnings that he would not be suffering if he was free of that incapacity. He meets the provisions of s 24(1)(c) of the Act, without needing to consider whether he meets the ameliorating provisions of s 24(2)(b). He is therefore entitled to be paid pension at the Special (Totally and Permanently Incapacitated) Rate, with effect on and from 15 October 1992.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  27 April 1999, 13 August 1999, 21 June 2000
Date of Decision  22 June 2000
Counsel for the Applicant        M.Vincent
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    N/A
Solicitor for the Respondent    R.Wallis, Department of Veterans' Affairs