Graham and Repatriation Commission - [2001] AATA 437

DECISION AND REASONS FOR DECISION [2001] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1166

VETERANS' APPEALS DIVISION          )
           Re      Thomas Clifford GRAHAM
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date23 May 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside that part of the decision of the Veterans' Review Board dated 20 May 1999 that determined that Thomas Clifford Graham ("the Applicant") did not suffer from asthma; and 2. Varies that part of the decision of the Repatriation Commission ("the Respondent") dated 12 February 1997 that refers to "generalised arthritis" by adding "and lumbar spondylosis"; and 3. Affirms those parts of the decision of the Respondent, as varied, that determine that the Applicant's conditions of chronic airflow limitation, asthma, generalized osteoarthritis and lumbar spondylosis are not war- caused.

..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – operational service – whether correct diagnosis of the claimed condition was "asthma" or "chronic airways limitation" – whether reasonable hypothesis raised that "chronic airways limitation" was war-caused – whether reasonable hypothesis was dispelled beyond reasonable doubt - whether Applicant suffered from "lumbar spondylosis" – whether reasonable hypothesis raised that "lumbar spondylosis" was war-caused – whether reasonable hypothesis dispelled beyond reasonable doubt – credibility of Applicant

Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
McKenna v Repatriation Commission (1999) 86 FCR 144
Connors v Repatriation Commission (2000) 59 ALD 61
Harris v The Repatriation Commission (2000) 31 AAR 270

Veterans' Entitlements Act1986: ss120(1), 120(3) and 120(A)

Statement of Principles Instrument No. 136 of 1996 (Chronic Airflow Limitation)
Statement of Principles Instrument No. 59 of 1996 (Asthma)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of those parts of a decision of a delegate of the Repatriation Commission (the "Respondent") dated 12 February 1997 that refused claims made by Thomas Clifford Graham (the "Applicant") that the conditions of chronic air flow limitation, asthma and generalised osteoarthrosis were war-caused. The Applicant requested a review of the decision by the Veterans' Review Board ("the VRB") on 3 March 1997. The VRB affirmed the parts of the decision under review that chronic air flow limitation and generalised osteoarthrosis were not war caused, and varied the decision on asthma to the extent that it determined that the Applicant did not suffer from asthma. The Applicant lodged an application for review by this Tribunal on 2 August 1999.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). Statements of the Applicant dated 21 October 1999 (exhibit A) and 1 November 1999 (exhibit B) were tendered as evidence on behalf of the Applicant. The Applicant gave oral evidence at the hearing and Dr M Burns (Chest Specialist) also gave evidence for the Applicant. Associate Professor A B X Breslin (Thoracic Physician) gave oral evidence on behalf of the Respondent. The following documents were tendered as evidence on behalf of the Respondent –

List of accepted and rejected disabilities of Applicant as at 1 August 2000 (exhibit 1)
Report of Clinical Associate Professor A B X Breslin, thoracic physician, dated 1 December 1999 (exhibit 2).
Report of Professor P N Sambrook, rheumatologist, dated 24 November 1999 (exhibit 3).

The Applicant enlisted in the Army on 5 May 1942. He was transferred from the Army to the Navy on 1 June 1942 and was discharged from the Navy on 26 February 1946. From 28 September 1943 to 11 December 1944 and from 25 January 1945 to 18 October 1945 he served in the South-West Pacific Area. Therefore the whole of his service is operational service. The standard of proof to be applied is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"). It requires the Tribunal to determine that his claimed 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.
As the Applicant lodged his claim after 1 June 1994, pursuant to s120A of the Act, the Tribunal is also required to apply any relevant Statements of Principles in determining this matter. The Applicant has sought to rely on his accrued right to have this matter determined in accordance with the Statement of Principles relevant at the time of the reviewable decision.
chronic air flow limitation and asthma
The Applicant seeks to rely on his smoking habit in respect of these conditions. In particular, factor 5(a) of Statement of Principles for Chronic Airflow Limitation, Instrument No.136 of 1996 requires smoking at least ten pack-years of cigarettes before the clinical onset of chronic airflow limitation. The other relevant factor is 5(d); smoking at least ten pack-years of cigarettes before the clinical worsening of chronic airflow limitation. The Statement of Principles for Asthma is Instrument No.59 of 1996. The Applicant sought to rely on factor 5(b); being exposed to antigenic or nonantigenic stimuli within 24 hours immediately before the clinical worsening of asthma.
diagnosis of the claimed conditions
Evidence of the Applicant
The Applicant made a statement dated 20 November 1996 (T18) in support of his present claim in which he said that when he was discharged from the Navy he was treated for bronchitis which "soon turned to bronchial asthma" and that he has now suffered from that condition for 50 years. He noted that he was a very light smoker before he enlisted in the Army, which was after he turned 18 years of age and while he was awaiting a "callup" for the Navy. He also stated that he became a heavy smoker while serving in HMAS Narani and a Danish oil tanker Amse Maersk.
The Applicant said in his oral evidence that Dr Paul first diagnosed asthma soon after his discharge from the Navy. He was treated with gold injections. The Applicant said that the first doctor he saw diagnosed bronchitis and the second said it was asthma. He said he had been treated for asthma for 50 years and that he takes medication every day. He said he has had oxygen at home for 20 to 30 years. He has been on Prednisone (a corticosteroid) for 30 years plus other non-steroid medication. He said that when he saw Professor Breslin he had an infection and was taking antibiotics.
The Applicant said that after his discharge he was smoking less at times because he had developed asthma. He said at times when he had asthma he would stop from smoking altogether. This occurred on numerous occasions, when he might abstain from smoking for as long as a week at a time. Between 1945 and 1958 he gradually smoked less and when he was hospitalised with a severe asthma attack in the late 1950's he stopped smoking altogether.
Associate Professor Breslin, thoracic physician
Professor Breslin opined that the primary diagnosis was bronchial asthma, that later developed into chronic bronchitis and chronic airflow limitation. He said that on the basis of the history he obtained the Applicant developed shortness of breath within twelve months of leaving the Navy. The shortness of breath could not possibly have been caused by chronic bronchitis because the Applicant had not been smoking long enough at that time to develop chronic bronchitis. He considered that smoking contributed to a worsening of the airways disease by some ten percent. He agreed that the Applicant's smoking could have put him at risk of developing a respiratory infection. However, he considered it was not possible for a person at such a young age to develop airflow limitation causing shortness of breath from smoking induced chronic bronchitis. He said that asthma was extremely common at that age.
Professor Breslin said it was likely that the Applicant's shortness of breath developed at the age of 23 years due to the onset of bronchial asthma following a respiratory infection after discharge from the Navy. He said the infection causing the asthma could not have been the infection he contracted during his service in 1943 because this predated his shortness of breath by three years. Professor Breslin could not be sure that respiratory infections were the cause of asthma but he said that the evidence to date would suggest this. He noted this was a very common way for bronchial asthma to commence.
Professor Breslin agreed that the Applicant currently suffered from chronic airflow limitation. He also agreed that the Applicant had chronic cough and sputum for a number of years, consistent with chronic bronchitis. He considered that this occurred in about half of all asthmatics. It was not chronic airflow limitation that caused the Applicant's chronic bronchitis, but asthma. He agreed that the Applicant suffered from chronic airflow limitation, bronchial asthma and chronic bronchitis in December 1996. He considered it was "very marginal" that the chronic bronchitis diagnosed in 1996 was related to the Applicant's smoking habits forty years earlier. He proposed that the cause of the chronic bronchitis was the Applicant's asthma. He said that despite 85 percent of chronic bronchitis being caused by cigarette smoking it was not the cause of the Applicant's condition. He said that when people stop smoking their cough and sputum decreases, and hence the Applicant's current cough and sputum would not be related to smoking. He notes that currently the Applicant has copious amounts of yellow sputum accompanied by coughing.
Professor Breslin noted that the Applicant's condition started a year after his discharge, that the Applicant had a cold or bronchitis soon after discharge, and that he had three periods of hospitalisation for asthma in 1960, the last being 30 years ago. At that time the Applicant had limitations in climbing stairs and gained relief from the use of a bronchodilator. His condition was exacerbated by air-conditioning and cold air.
Professor Breslin said that since discharge from the Navy the Applicant had suffered a number of acute attacks of asthma, and he reported being dyspnoeic not long after discharge. The earliest episode, in the 1960s, was at an age when the Applicant would have been too young to be suffering from smoking induced chronic bronchitis. He said that he questioned the Applicant in relation to some 15 of the well known triggers for asthma, and noted that the Applicant responded positively to air conditioning, passive smoke, exertion, pollen, and respiratory infections. Further, the spirometry he enclosed in his report showed significant though marginal bronchodilator response to Ventolin, and that was much more in line with bronchial asthma than chronic bronchitis or even chronic bronchitis disguised as asthma. He noted there was no family history of chest disease.
Professor Breslin said the Applicant's negative skin test could be dismissed easily. Skin tests were not a diagnostic tool for asthma but were used to determine what triggers existed. He stated that 30 percent of people with asthma do not have positive skin tests. Furthermore, despite 40 percent of the population having positive skin tests, only ten percent have asthma. Even people who had positive skin tests may give negative tests as they get older. He noted that the Applicant was in his seventies and concluded that a negative skin test in his case was "completely irrelevant".
In relation to Dr Burns' report, Professor Breslin agreed that the symptoms of chronic bronchitis come on in the 50s after one has been smoking for 30 to 40 years. He disagreed that shortness of breath was the main symptom of chronic bronchitis, preceded by cough and sputum. He disagreed that the Applicant had chronic bronchitis masquerading as asthma. He agreed that the Applicant's permanent dyspnoea arose in the last 20 years. Spirometry was "pretty good" and was it not for the lung function the Applicant could still be working. He considered that on the basis of the spirometry results the Applicant did not need to have oxygen at home. Nor was he hypoxemic or suffering acute attacks. Professor Breslin said it was not possible to reconcile the history that he obtained from the Applicant being hospitalised on three occasions for acute attacks with Dr Burns' report.
Dr Burns, thoracic physician
Dr Burns diagnosed chronic bronchitis with chronic airflow limitation on the basis of the Applicant's history of cough and sputum for a number of years, evidence of fixed airways obstruction without any significant reversal of the airway obstruction in the asthmatic range, and the history of smoking for ten-pack years. He stated that the absence of any family history of allergy combined with the Applicant's smoking indicated the likelihood of the condition being chronic bronchitis. He noted the Applicant's negative skin test for all standard allergens. In his experience 90 percent of people across all age groups suffering asthma have positive skin tests. However there was no reason why 10 percent of smokers with chronic airways disease could not have asthma as well. He said it was possible to have the two conditions superimposed, although to his knowledge that was not the case for the Applicant.
In his report (T28) Dr Burns noted an incident in the Navy where the Applicant was exposed to smoke via inhalation on one particular occasion and he had bronchitis during his service. However the Applicant did not have any particular respiratory problems when leaving the Navy.
Dr Burns stated that the clinical onset of bronchitis was difficult to ascertain because the early symptoms were recurrent bronchitis. He said it was difficult to tell from the Applicant's history when the recurrent attacks became continuous. The Applicant had a chest infection soon after discharge, accompanied by a recurrent cough and wheeze that masqueraded as asthma. He said that the shortness of breath was secondary to whatever condition the Applicant had. The history the Applicant gave in 1998 was that he had shortness of breath for 20 years. Dr Burns assumed that would have been in the late 1970s when the Applicant stopped working at the newsagency. He assumed the Applicant stopped work because of shortness of breath but he had no evidence that was so. The Applicant had attacks of shortness of breath from 1946 but these were acute episodes arising out of infection from which he recovered. Dr Burns considered that, by their nature, these were intermittent episodes although he did not record this in the history, nor had he recorded whether the Applicant had returned to normal after those episodes. He said if the episodes had not been intermittent the Applicant would not have been able to work at all.
Dr Burns said that those episodes were related to the Applicant's smoking. Smokers were susceptible to respiratory infections from their late 20s or early 30s. He said that permanent shortness of breath is a late symptom in smokers with chronic bronchitis, but that intermittent shortness of breath is an early symptom of chronic bronchitis. Thus he said the Applicant's history was consistent with the natural history of smoking related chronic bronchitis in its more severe form. Although the Applicant had not smoked for 30 to 40 years the damage had already been done. That meant, in combination with the recurrent attacks of shortness of breath becoming more continuous, the Applicant did not diverge from the requirements for the diagnosis of 30 to 40 years of smoking and shortness of breath.
Dr Burns regarded skin tests as a reliable diagnostic tool. He said he did not use them as a basis for treatment, but to distinguish whether certain treatment was worth pursuing. He understood that the majority of his colleagues did not use skin tests as a diagnostic tool, but many did not know how to do them and thus used other diagnostic tests that might well have come to similar conclusions. In the Applicant's case he would have used the tests to see if he was benefiting from the use of oral corticosteroids. He used them to distinguish asthma from bronchitis, an allergic cough from a non-allergic cough, or to diagnose a condition where allergy might be a factor that could be treated with asthma medication. He said that triggers were irrelevant in someone who had fixed airways obstruction because it was difficult to see the difference from one day to another. Triggers were also irrelevant in the young "pure asthmatic" where avoidance of cat fur, dust mite or some other allergen might be relevant. He disagreed with Professor Breslin's contention that 30 percent of asthmatics have negative skin tests. He said that was not consistent with his experience or his reading of the professional literature. In his experience 80 to 90 percent of asthmatics would be allergic.
Dr Burns disagreed with the contention that the cause of asthma was unknown. He said that the cause and mechanism of asthma were one and the same and that the mechanism was genetic and an allergy. He agreed that the level of agreement about the cause of asthma is not the same as that for the cause of chronic bronchitis. The major cause of chronic bronchitis was usually seen as smoking but most literature had a number of causal factors for asthma. He said that the main writers in the field of asthma were looking at the mechanisms and the types of drugs that would effect the mechanisms. He conceded that the cause of asthma was a subject for debate.
Dr Burns disagreed with Professor Breslin's diagnosis that the Applicant had bronchial asthma and considered there was no evidence to support that diagnosis. He said that wheezing alone did not constitute asthma. The early episodes of breathlessness suffered by the Applicant were normal allergies to dust mite or grass pollen and not asthma. He considered it more likely that the Applicant suffered from recurrent chronic bronchitis or recurrent acute bronchitis, both of which were features of smokers. However the episodes were intermittent. He agreed that asthma, by its nature, is intermittent in the early stages of the condition, regardless of the treatment administered.
Dr Burns pointed to the lack of any allergic pre-disposition, which he believed was usually the basis for asthma. There was no family history of asthma and no history of hay fever or allergic rhinitis. These were very common but not essential factors in asthma. He disagreed with Professor Breslin that a response to bronchodilators was an indication of asthma, and indeed he did not think the use of bronchodilators was helpful. Dr Burns said that although a differential diagnosis was difficult, he would discontinue asthma treatment and continue treating for chronic bronchitis.
Dr Burns disagreed with Professor Breslin that the Applicant's respiratory problems immediately after service could not be from bronchitis. He conceded that one could say that not enough tobacco was smoked to have established chronic bronchitis. He stated that there was no minimal threshold for smoking before being prone to recurrent acute bronchitis without having chronic bronchitis. He disagreed that a person could have chronic bronchitis at a young age but said that a young smoker could get acute bronchitis. Dr Burns disagreed with Professor Breslin's opinion that once someone stopped smoking then cough and sputum would gradually recede. In some cases the cough and sputum persisted. Additionally, cigarette smoking irreversibly damages the lining of the respiratory passages and cilia and leads to chronic recurrent infection causing more cough and sputum.
submissions relating to diagnosis of chronic airlow limitation and asthma

It was submitted for the Respondent that the correct diagnosis is asthma or bronchial asthma, not chronic bronchitis or chronic airflow limitation. Causation is the primary issue. It is necessary to look from the beginning of the disease process, taking the whole history into consideration, to determine the primary diagnosis. It was conceded that if the diagnosis was chronic airflow limitation then the smoking factor was the relevant test
It was submitted for the Applicant that Dr Burns(T28) supported the contention that the Applicant suffers from chronic airways limitation. The diagnosis sought on behalf of the Applicant was "chronic airflow limitation with asthmatic features". It was submitted, on the basis of Dr Burns' report, "chronic obstructive airways disease" and "chronic airflow limitation" are interchangeable. It was submitted that, on the evidence of Dr Burns, the cause of the Applicant's condition was his smoking. Professor Breslin's primary diagnosis was bronchial asthma (exhibit 2), but both Dr Burns and Professor Breslin diagnosed the Applicant to be suffering from chronic airflow limitation currently. Dr Burns also considered that the Applicant's chronic cough and sputum for many years supports the primary diagnosis of chronic bronchitis. It was submitted for the Applicant that, on the balance of probabilities, the skin negative tests performed on the Applicant have some predictive value.
It was submitted that Professor Breslin accepted that the most likely cause of the Applicant's chronic bronchitis was the smoking habit developed on service. The major difference between Professor Breslin and Dr Burns is in respect of the primary diagnosis. Professor Breslin conceded that 10 percent of the Applicant's airways disease would have resulted from his smoking. It was submitted that this would satisfy the Tribunal that the Applicant has chronic bronchitis that has been contributed to by smoking.
It was submitted that Dr Burns' evidence that the condition currently suffered by the Applicant is chronic bronchitis, which is smoking related, was not speculative. It was submitted that Professor Breslin had accepted that 85 percent of cases of chronic bronchitis are smoking related and that there was no need to go beyond this as an explanation for the Applicant's chronic bronchitis. Both specialists agreed that the existence of chronic bronchitis was a major component of the chronic airways limitation. It was submitted that the only question for the Tribunal was whether there was also an element of asthma.
It was submitted for the Respondent that under the Federal Court precedent of Repatriation Commission v Cooke (1998) 90 FCR 307 as supported by Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the legal test for determining the diagnosis of the claimed condition is on the balance of probabilities. It was submitted that this was not simply a matter of skin tests but it related to the whole history of the Applicant. It was submitted that the Statement of Principles for Chronic Airflow Limitation specifically cites chronic bronchitis. Hence the Tribunal must decide whether the Applicant suffers from chronic bronchitis. It was submitted that when the Applicant claimed for his chest condition in 1980 (T4) and again in 1990 (T11) the provisional diagnosis was bronchial asthma that by 1990 had become chronic airways obstruction. Further evidence that the primary diagnosis was asthma was provided by Professor Breslin. The Federal Court decision in McKenna v Repatriation Commission (1999) 86 FCR 144 was relied upon to show the importance of the primary diagnosis. It was submitted that the Tribunal must first go to the Statement of Principles for bronchial asthma and only if the relevant factors had been met, apply the Statement of Principles for chronic airflow limitation. It was submitted that to meet the Statement of Principles, Instrument No. 59 of 1996, for Bronchial Asthma the clinical onset of asthma would have to have been on service. There was no evidence that the Applicant met any definition of "occupational antigen" as set out in the Statement of Principles for Bronchial Asthma. Therefore if the Tribunal accepted "bronchial asthma" as the primary diagnosis the Applicant would not meet any of the factors in the relevant Statement of Principles.
It was submitted for the Respondent that there were two alternatives for the Tribunal, viz. either to accept the evidence of Professor Breslin and the departmental medical officers that the disease process started with bronchial asthma and then led to chronic airflow limitation, or to accept Dr Burns' evidence that there was no chronic disease until much later. It was submitted that there were a number of unsupported assumptions made by Dr Burns. He assumed that the onset of chronic bronchitis was twenty years ago because that was when the Applicant stopped working. There was no other evidence given to support this conclusion. Dr Burns provided no evidence as to why the condition had become continuous. On the other hand Professor Breslin obtained a much more detailed history including details of the acute attacks the Applicant suffered. It was submitted that the early history of the Applicant would suggest a continuous respiratory problem since 1946.
It was also submitted that there were inconsistencies within the report of Dr Burns. Dr Burns accepted the Applicant's earlier problems and accepted Professor Breslin's view that smoking related respiratory illnesses do not begin until later in life rather than immediately. However he was not able to explain the respiratory problems that the Applicant had from 1946 onwards other than that they were intermittent "asthma" and then later revising that statement to "asthma-like symptoms". It was submitted that Dr Burns placed undue emphasis on skin tests that on the evidence of Professor Breslin were not diagnostic tools. It was submitted that on the balance of probabilities the Applicant suffers from bronchial asthma and that he has been treated for that condition for the last 40 years.
It was submitted in reply for the Applicant that the Tribunal need not attempt to discern the history of the condition as to whether it was chronic or intermittent. It was submitted that it could not be assumed to be chronic simply because of an incident in 1946 and others at later times. It was submitted that it was open to the Tribunal to find that the condition was acute and intermittent because of the youth of the Applicant at the time. It was submitted that there is a speculative view that it was chronic by the 1970s and another view that it exists now. It was submitted that both specialists agreed that the Applicant had chronic airflow limitation and therefore this should be the diagnosis. Due to the wide disagreement of the specialists on bronchial asthma it would be difficult to reach a conclusion on the balance of probabilities. It was submitted however that the agreement on chronic bronchitis and the contribution of smoking made it easier to come to a conclusion on the balance of probabilities.
tribunal's findings on diagnosis of the claimed condition
The Tribunal notes the conflict of medical opinion about the correct diagnosis of the claimed condition that the Applicant describes as "respiratory C.O.A.D" (T16, p65). On the evidence before the Tribunal, it finds that the Applicant probably suffered from an asthmatic condition for 50 years that developed soon after his discharge from the Navy. The Tribunal notes that the Applicant's treatment for asthma has included treatment with Prednisone. It is unlikely that such treatment would be administered over such a long period if in fact the diagnosis of asthma were not correct. There is no evidence before the Tribunal that the Applicant's earlier asthma condition is now resolved. Dr Burns considers that it was never present and Professor Breslin considered that in December 1996 the Applicant suffered from chronic airflow limitation, bronchial asthma and chronic bronchitis. In answer to the Applicant's claim for pension the Tribunal finds that he continues to suffer from asthma as well as chronic airflow limitation arising from chronic bronchitis.
The Tribunal finds on the evidence that the Applicant does not meet the factors in the Statement of Principles for Asthma Instrument No.59 of 1996. In particular, the Tribunal considers that there is no evidence that raises facts in support of factor 5(b), on which the Applicant said he relied. Therefore, no reasonable hypothesis has been raised and hence the claim in respect of asthma fails. On the basis of the Tribunal's finding that the Applicant continues to suffer from asthma, the decision of the VRB is varied so as to read that the Applicant suffers from asthma. The Tribunal affirms that part of the decision of the Respondent dated 12 February 1997 that determined that the Applicant's asthma was not war-caused.
The Tribunal also finds that the Applicant suffers from chronic airflow limitation. On the evidence of Professor Breslin, that was least supportive for the Applicant, the Applicant's smoking contributed to the development of that condition by about ten percent. The Tribunal finds that this constitutes a material contribution. The issue the Tribunal must now consider is whether the Applicant's smoking is war-caused.
Applicant's evidence
The Applicant completed a smoking questionnaire in 1990 (T6) where he said he starting smoking in 1942, before service, and that his habit did not change during service. He wrote that his smoking changed only after service from 1946 due to asthma. He also wrote that he stopped smoking in 1950. In his oral evidence he admitted signing the questionnaire but said that it was not a true history. He said he started smoking before 1942, but he only had a few cigarettes and did not class himself as a smoker.
The Applicant said he rushed to complete the questionnaire and was not very careful. He said that the reason the questionnaire was not answered correctly was because he did not put any thought into it and never thought it would be relevant. He said he was quite short tempered when it came to filling in government forms. He said that he read the question relating to service as applying to his Naval service, not his Army service. He said that when he lodged the questionnaire as part of his application for bronchial asthma in 1990 he thought there was a relationship between smoking and asthma.
The Applicant stated that before joining the Army he was not a smoker and at most he had an occasional cigarette. When he transferred from the Army to the Navy he was still only an occasional smoker. He said that he first started smoking regularly in 1942 after his training. He could not recall the exact amount but thought that he might have smoked about six cigarettes a day.
His first Naval posting was to the Flinders Naval Depot for about three to four months. During this stage he was still smoking only the occasional cigarette. He then spent six months on a Royal Australian Minesweeper. His smoking during this period was still light. He then spent 15 months on a Danish Merchant Ship. There were 10 gunners on this ship of whom 6 or 7 were Australians. Their duties included being in charge of the guns and training the merchantmen on how to become a gun crew. He said that although he was never hit he was "pretty close to the action". At one stage whilst he was oiling ships in the harbour at Hollandia, he was a few hundred yards from the fighting.
The Applicant said that his smoking changed considerably during this period on the Danish tanker as he then had access to free or cheap cigarettes from the Americans. He said that from that period on he used to smoke "day and night". His average consumption then was at least two packets a day plus an occasional cigar and pipe. He said that he increased his smoking at this stage because of stress, as his tanker could have been hit at any time. They were in the vicinity of missiles being fired but no ships close by were damaged. He recalled a Dutch pilot coming on board to warn of an anticipated bombing of their ship by the Japanese, but before the scheduled time troops had taken control of the airport and their ship was not bombed.
The Applicant stated that he spent time on other ships in the period after leaving the Danish Tanker and before the war finished, including on the River Clarence, a cargo ship of the Australian Merchant Navy, carrying guns and supplies from Sydney to the troops. He noted that the Merchant Navy had a number of strikes and an American Liberty ship was torpedoed off New Caledonia.
The Applicant stated that in the period after he left the Danish Tanker and before the war finished he was "a full blown smoker". He said that he smoked less after he left the tanker because he had to pay for cigarettes but they were still cheap. He said he was smoking at least two to four ounces of tobacco a week.
The Applicant said that after his discharge from the Navy although his smoking fluctuated with the price of cigarettes he resumed smoking at his previous war-time level (about four ounces a week) when he was not afflicted with asthma. In a statement signed by the Applicant dated 5 January 1998 (T29) he stated he was smoking about a packet a day until he stopped smoking, and that he tried to restrict his smoking to 20 cigarettes a day when his asthma started. He said there were times when he thought his asthma was related to his smoking although at other times he thought it might have been related to his contact with asbestos or with post-traumatic stress disorder.
Associate Professor Breslin
Professor Breslin obtained a history from the Applicant that he started smoking at the age of 15 years and continued until the late 1950s when aged about 37. He noted that the Applicant smoked up to 40 cigarettes a day and increased his smoking on service. Professor Breslin noted the inconsistency between his history and that provided by the Applicant in the smoking questionnaire. He considered that three years of smoking would be extremely unlikely to cause permanent airways damage or coughing and sputum. He acknowledged that the Applicant had a 10-pack year smoking habit whilst he was smoking. He said the Applicant's smoking would have had a 10 percent effect on his total airways disease.
Dr Burns
Dr Burns noted the history given to him by the Applicant that he smoked a little before joining the Army, but due to factors such as cheap cigarettes and stress his smoking increased. Dr Burns said the Applicant had given him a history of smoking 10 to 20 cigarettes a day until the late 1950s, and he concluded that the Applicant has a 10 pack year smoking history.
submissions
It was submitted on behalf of the Applicant that despite the inaccuracies in his 1990 smoking questionnaire, most of the information in the form is accurate and consistent with his oral evidence. Some of the inaccuracies arose from the Applicant's confusion that the questionnaire related only to his Navy service and not his Army service. It was submitted that on the evidence it was clear that there had been a significant increase in his smoking habit during his operational service. It was submitted that the history given in oral evidence by the Applicant was much more complete than that of the questionnaire and consistent with the history given to Professor Breslin and Dr Burns.
It was submitted that the Applicant meets the requirements of factor 5(a) of the Statement of Principles No.136 of 1996. Both Professor Breslin and Dr Burns acknowledged smoking as a causal factor and that the Applicant's smoking was 10 pack years. It was submitted that the Applicant's evidence of smoking two packets a day on the tanker was evidence towards the 10 pack years.
It was submitted for the Respondent that if the Tribunal accepted Chronic Airflow Limitation as the appropriate diagnosis then the Applicant must satisfy factor 5(a) of the relevant Statement of Principles. The decision in Connors v Repatriation Commission (2000) 59 ALD 61 was authority for the proposition that before a reasonable hypothesis can be raised, every element of the factor in the Statement of Principles must be met.It was submitted that there was no date for the clinical onset of chronic airflow limitation. It was also submitted that it was not clear that a thorough smoking history had been taken in order to justify the conclusion that the Applicant satisfied the 10 pack years requirement. It was conceded that the Applicant faced some stress during his service that could have led to an increase in smoking. However it was submitted that there were some issues of credibility particularly relating to the smoking questionnaire he completed in 1990. It was submitted that as this was completed when the Applicant was attempting for a second time to make a claim for bronchial asthma one would expect him to put more time and effort into it. It was submitted that, on the basis that the smoking history he has now given to the Tribunal would have assisted him with his claim, the reasons given by the Applicant for the errors contained in the form were not acceptable. It was submitted that the material did not point to a reasonable hypothesis and therefore no reasonable hypothesis has been raised.
tribunal's findings on whether chronic airflow limitation was war-caused
The Tribunal accepts that the Applicant commenced smoking in 1942, and whether that was before the commencement of his Army service or merely before the commencement of his Navy service is not material. The Tribunal finds that the Applicant increased his smoking on service as a result of his conditions of service, including the ready availability of cigarettes and stress. The issue is whether he ceased smoking in 1950, as he stated in the questionnaire he completed in 1990, or whether he ceased smoking in the late 1950s after having continued smoking at about 20 per day since soon after his discharge from the Navy when he started to suffer from asthma.
As this is a reasonable hypothesis matter, the truth of that evidence is not considered in determining whether a reasonable hypothesis has been raised. That the Applicant continued smoking until the late 1950s is a raised fact, and on the basis of that evidence he smoked at least 10 pack years of cigarettes. Therefore he meets factor 5(a) of the Chronic Airflow Limitation Statement of Principles, and hence a reasonable hypothesis has been raised pursuant to s120(3) of the Act.
Turning now to s120(1), the Tribunal is required to make findings of fact and in so doing must consider the truth of the facts raised. The Respondent has raised the question of the Applicant's credibility. That was also an issue for the Tribunal. The history given by the Applicant to Professor Breslin and Dr Burns as to the time he ceased smoking was clearly given in the context of these proceedings, and it is not surprising, therefore, that the history he gave to them and to the Tribunal was consistent, that is, that he ceased smoking in the late 1950s and until then he continued to smoke about 20 cigarettes a day.
The Tribunal notes that the Applicant commenced suffering from asthma soon after his discharge from the Navy in 1946 and that he considered asthma was affected by smoking. Therefore it is inconsistent that he continued to smoke until the late 1950s at the rate of 20 per day, knowing that it affected his asthma. It is consistent, however, that from 1946 when he first suffered from asthma he changed his smoking habit and smoked only occasionally, that he was unable to smoke during asthma attacks, and that he ceased smoking altogether in 1950. That was the information he provided in the questionnaire in 1990 that was made in relation to his second claim for asthma. The issue, of course, is whether the Applicant was truthful in completing that questionnaire if he perceived a significant post-war smoking habit throughout the 1950s would have weakened his claim for asthma. The Tribunal does not accept the Applicant's explanation that he completed the questionnaire inaccurately because he was impatient with government forms and that he was careless. That is quite inconsistent with him having lodged a second claim to have his asthma accepted as war-caused.

The Tribunal finds that the Applicant was not a credible witness, and is satisfied beyond reasonable doubt that the evidence he gave to the Tribunal at the hearing and the history he gave to Professor Breslin and Dr Burns for the purpose of having his claim investigated and accepted, was not truthful. The Tribunal is satisfied beyond reasonable doubt that the evidence contained in the Applicant's questionnaire dated 4 September 1990 (T6) is an accurate description of his smoking history.
The implication of this finding is that the concession made by Professor Breslin and Dr Burns that the Applicant smoked ten pack years is unfounded, and consequently Professor Breslin's evidence that the Applicant's smoking until the late 1950s contributed 10 percent to his chronic airways limitation is also unfounded. The Tribunal finds, on the evidence of the Applicant in his 1990 smoking questionnaire, that he did not smoke at least ten pack years before the clinical onset of chronic airflow limitation. The Applicant commenced serving in the Narani in October 1942. He was discharged from the Navy in February 1946, and the Tribunal's findings are that from some time later in 1946 when he commenced suffering from asthma, he reduced his smoking to "occasionally" because of his asthma. This provides a period of 3½ years when he was smoking heavily, and on his evidence he smoked at least two packets a day plus an occasional cigar and pipe. If one accepted that evidence then this is equivalent to 7 pack years. This leaves a period of four years from the time of his discharge until he stopped smoking altogether in 1950 for him to smoke the equivalent of 3 pack years. While it is difficult to know precisely what he meant in his questionnaire when he said he "only smoked occasionally" during that period, he would need to have averaged about 15 cigarettes a day during that period in order to reach the minimum of 10 pack years in the Statement of Principles. The Tribunal finds that as he was smoking only "occasionally" during that period this would have been significantly less than 15 per day, on average. His evidence was that when he had asthma he might have abstained from smoking for up to a week at a time. Hence the Tribunal is satisfied beyond reasonable doubt that the Applicant's smoking history covered a period significantly less than 10 pack years.
Pursuant to s120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's chronic airways limitation was war-caused. The Tribunal will therefore affirm the decision of the Respondent in respect of that condition.
lumbar spondylosis
The Applicant sought to change the diagnosis of generalised osteoarthrosis to lumbar spondylosis. The primary decision in this matter was made on 12 February 1997. By that time the Repatriation Medical Authority had revoked Instrument No.105 of 1995, Instrument No.334 of 1995 and Instrument No.358 of 1995, and on 18 December 1996 Instrument No.165 of 1996 was gazetted. The Applicant sought to rely on factor 5(g) of that Statement of Principles, viz. –
suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.

Applicant's evidence

The Applicant recounted an event described in his statement (exhibit A) that occurred in August 1942. He stated that whilst some men were at the wet canteen, others would tie slipknots in the hammocks where they slept. After returning from the canteen he climbed into his hammock just after the lights were turned off. Someone then pulled the slipknot causing him to fall about 5 feet to the floor. He said he fell "head or back first", injuring his back, and he was taken to the sick bay. He said that contrary to the description in his statement, the floor was of timber not steel. He said no disciplinary action was taken against those who played the prank.
The Applicant said he suffered from a "bad back" for a while after this incident. He said he was assisted in walking to the hospital, some 100 yards away, by fellow seaman who carried him by the arms and lifted the weight from his back. However, he was he put in the 'flu ward. He could not recall whether anyone examined his back when he was admitted to the ward, but he recalled telling a hospital attendant that he had injured his back in a prank with a slipknot in his hammock. The Applicant said that he did not receive any treatment for his back while in hospital, but he did receive 'flu treatment, some of which he did not take. He said that he complained about this but was told "You're in the 'flu ward and you'll get the same treatment as everybody else". He was not sure how long he was in the ward but thought it might have been a few days. He said that whilst in hospital he was able to dress himself and get up for a shower.
The Applicant said that after he left the ward he returned to his dormitory and was placed on light duties and instructed by the doctor to avoid bending and lifting. This meant that instead of having to do PT in open fields he was put on cleaning duty. However, he was not involved in cleaning activities but only in distributing materials. He recalled handing out cleaning cloths in a room underneath the barracks. He said he then spent the rest of the day at gunnery class and torpedo classes. Two or three months later he was doing gunnery practice as part of his training and about that time he started to exercise again. He said the cessation of his exercise program was because he had not recovered fully from his back pain. He stated that there was a two month interval between the completion of his course and his first posting.
In his statement (exhibit A) the Applicant detailed a second incident that occurred during 1943 that occurred while serving in the Minesweeper HMAS Marani (sic). He stated -
The ship approached the buoy too quickly. I jumped onto the buoy and then a spar attached to the minesweeper came loose and hit me in the back and knocked me into the water. I was not confined to bed on that occasion but was restricted to light duties for about a fortnight.
In his statement of 5 January 1998 (T29) the Applicant said he was told if he applied for a pension at the time of his discharge then his discharge would be delayed. He said he was very eager to leave at that point.
The Applicant said he has had a number of problems with his back since those incidents on service. On one occasion he bent over the boot of his taxi to lift a bundle of papers and could not move "up or down". He said he attended a chiropractor who examined his back and said "you've had a bad accident here years ago". The Applicant said he had constant problems in his back and hips with lifting and bending, and with gardening, and was restricted in the distance he could walk. While on some days he could walk around the block, on other days he could walk only 50 to 100 yards. He said he could no longer play golf. He said that the primary problem was pain and noted that he took pain killers.
Professor Sambrook, rheumatologist
In his report of 24 November 1999 (exhibit 3) Professor Sambrook took a history from the Applicant that included the incident of falling from the hammock. He recorded a history provided by the Applicant that although the service medical record indicated he was hospitalised for the 'common cold' this was not possible because no one in the Navy would be admitted to hospital for a common cold. The Applicant also mentioned sustaining numerous injuries in his lower limbs and back in multiple falls whilst serving on ships at sea in bad weather conditions. The Applicant said he consulted American doctors at one stage about various injuries he sustained to the back and hips.
Professor Sambrook noted x-rays of the Applicant's cervical spine showed degenerative changes consistent with spondylosis, as well as osteoarthrosis of the hips and lumbar spondylosis, and this could also be viewed as generalised osteoarthrosis. Professor Sambrook considered factor 5(g) of the Statement of Principles No 28 of 1999; "suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis". He said the injury described by the Applicant falling from a hammock and the history of consequent pain and stiffness was consistent with the definition of trauma. Although the service medical records showed that the Applicant was hospitalised for a cold this would be an unusual cause for admission in his opinion. He said he was "inclined to believe" the Applicant's recall of the episode and his history. He said that none of the other incidents described by the Applicant would satisfy the definition of trauma.
Other Evidence
In his discharge medical report (T3, p12) the Applicant stated he suffered no injuries during service. On his record of periods on the sick list and minor injuries (T3, p15) there is an entry of the Applicant spending four days in hospital from 7 to 11 August 1942 with a "common cold".
The Tribunal notes a letter sent to the Applicant from the Department of Veteran's Affairs dated 6 June 1987 (T5), referring to his recent medical treatment at Wyong Hospital. In the letter the Applicant was asked to provide information about an injury he sustained. The Applicant noted that he sustained an accident on 25 March 1987 that he described in the following terms –
While painting scaffold collapsed & fell, hitting side of leg on piece of timber & landed on back on concrete.

He noted the following injuries –

Badly gashed leg & bruised back.

The Applicant was seen by Dr Michael Walker, orthopaedic surgeon, who reported on 25 June 1990 (T7) that the Applicant "hurt his back some weeks ago and was referred for physiotherapy". During physiotherapy treatment he then developed acute neck pain and cervical spondylitis. It was also noted that he suffered from "some degree of osteoporosis" in his cervical spine.
submissions
It was submitted for the Applicant that while his evidence that he was hospitalised in a 'flu ward was unlikely it was still true. This incident met the requirements for "trauma to the lumbar spine" in the relevant Statement of Principles. It was submitted that despite the discharge document (T3, p12) showing no injuries, there was no evidence that this was the Applicant's handwriting, and the document was not put to the Applicant so that he could provide an explanation. It was submitted that one possible explanation was that, in order to avoid having the discharge delayed, returned servicemen would say nothing about any ailments. It was submitted that the Applicant's evidence of pain and having to be helped to the place of medical examination were evidence of signs and symptoms as required under factor 5(g). It was submitted that it could be assumed Professor Sambrook would have taken a history to reveal signs and symptoms.
It was submitted for the Applicant that Professor Sambrook (exhibit 3) did not make a clear diagnosis on whether the Applicant suffered from generalised osteoarthrosis. It was submitted that the primary diagnosis was nonetheless quite specific of two conditions of osteoarthrosis of the hips and lumbar spondylosis. It was submitted that Professor Sambrook stated that the Applicant met the requirements of the Statement of Principles No 28 of 1999 that indeed was more onerous than the Statement of Principles No 165 of 1996, particularly factor 5(g), on which the Applicant sought to rely. Hence, as the Applicant met the more onerous test then he would clearly meet the relevant factor in the 1996 Statement of Principles. It was submitted that the amended diagnosis of lumbar spondylosis was merely a response to the claim. It was submitted that Professor Sambrook was aware that the original claim was for generalised osteoarthrosis and he makes that clear in his report.
It was submitted for the Respondent that all the elements had to be met for factor 5(g). The Respondent relied on the decision of the Federal Court in Harris v The Repatriation Commission (2000) 31 AAR 270 as authority for the definition of trauma in factor 5(g). It was submitted that, applying Harris, six sub-factors needed to be met; signs and symptoms of pain, tenderness and altered mobility. It was conceded for the Respondent that because of the long period since the incident it would be very difficult to ascertain the "signs" as distinct from "symptoms". It was also conceded that a lack of medical records of signs would not preclude one from having a condition accepted. However it was submitted that it was significant in this case that the medical records refer to a "common cold" which contradicts the Applicant's evidence that no one was hospitalised for such a condition.
It was submitted that the Applicant had "problems with his memory" although the Respondent did not say that he was "deliberately untruthful". He could not provide specific details about the event. He did not remember whether his back was examined on admission to hospital or at all, and did not know whether he was given pain killers for his back. It was submitted that it was illogical for the Applicant to say he was not treated for his back and at the same time to say the doctor told him to go on lighter duties. It was submitted that if the incident was so serious as to put him in hospital for 4 days then there should have been disciplinary action against those that committed the prank. It was submitted that the material does not point to a reasonable hypothesis and therefore there was no need to proceed to s120(1).
It was also submitted, relying on Harris (supra), that the injury must be a significant injury. Therefore if there was no action taken, no record of the events occurring, no record of lighter duties or being put on lighter duties then it could not be a significant injury.
consideration of evidence and findings of fact regarding lumbar spondylosis
The Tribunal finds on the evidence that the Applicant suffers from generalised osteoarthrosis, including lumbar spondylosis as part of that broader diagnosis, and he also suffers from osteoporosis at least of the cervical spine. The hypothesis pursued by the Applicant is that he had an incident of trauma to his back on service that contributed to the later development of lumbar spondylosis.
Factor 5(g) of Instrument No.165 of 1996 refers to "trauma to the lumbar spine" which is defined in the Instrument as –
… an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;

The Tribunal agrees with the Respondent's representative that, applying Harris (supra) as the Tribunal is required to do, the definition of "trauma to the lumbar spine" requires that the Applicant experienced acute signs and symptoms of pain, of tenderness and of altered mobility or range of movement of his lumbar spine. Finn J said in Harris (at 40), "The material indicated signs and symptoms of pain, but no more". It appears that the Tribunal in that matter omitted to consider the issue of tenderness and altered mobility or range of movement of the lumbar spine.

The Tribunal notes that it a commonly held medical principle that pain is a symptom and not a sign. Pain can only be reported by the person experiencing it. It cannot be observed by the doctor, although the doctor may observe muscle spasm caused by the pain. Similarly, tenderness can only be reported by the person experiencing it and cannot be observed by the doctor, but the doctor might observe a bruise at the site of the tenderness, that being a "sign". Both "pain" and "tenderness" are commonly considered in medical parlance as "symptoms". However, altered mobility or range of movement is a "sign" which can be observed by the doctor on medical examination. It may or may not be associated with "symptoms" of pain or discomfort. While the Tribunal has difficulty with the rigid interpretation of Harris made by the Respondent, the Tribunal notes the importance of applying the concept of "acute symptoms" and of "signs" as appropriate, to the concepts of pain, tenderness and altered mobility or range of movement, as they apply to the individual Veteran and his experience.
On the Applicant's evidence about the hammock incident he experienced pain in his back within 24 hours of the fall from the hammock. He demonstrated reduced mobility by needing to be assisted to walk 100 yards to the hospital for treatment. Nowhere in the Applicant's evidence is there a reference to his experiencing tenderness. In addition, there is no evidence that the Applicant continued to experience acute pain and altered mobility or restricted range of movement for at least one week immediately after the incident. The Tribunal accepts the submissions of the Respondent that on the evidence before the Tribunal factor 5(g) is not met, and therefore no reasonable hypothesis can be said to have been raised. The Applicant's case fails at this point.
In case the Tribunal is wrong in finding that no reasonable hypothesis has been raised pursuant to s120(3) of the Act, for abundant caution the Tribunal will now turn to s120(1), to consider whether the raised facts have been disproved beyond reasonable doubt. The Tribunal notes that there is no corroborative evidence of this incident which, on its own, would not destroy the Applicant's case. However, the Tribunal finds the evidence of the Applicant to be unbelievable. The Tribunal is being asked to believe that after he sustained the alleged fall the Applicant was admitted to hospital because of the injury although instead of the service records showing a back injury as the reason for his admission to hospital for four days the reason given was a "common cold". The Applicant cannot recall being physically examined at the hospital in respect of his back injury. He does recall being admitted to a ward in which people were being treated for 'flu and being given medication for 'flu, some of which he said he did not take. However, the Applicant does not recall being given any painkillers or other treatment for his back. Although when he was discharged from hospital he said he was put on light duties and did not do physical exercise for two or three months, there is absolutely no record of his being put on light duties. Moreover, given that the Applicant's alleged injury arose as a result of a prank and the Applicant allegedly spent four days in hospital and two to three months on light duty as a result of it, it is surprising that no disciplinary action was taken. When he was discharged from the Navy some 3½ years later he claimed that he had not received any injuries (T3, p12).
The Tribunal understands the commonplace situation of service personnel on discharge from the forces not wanting to delay their discharge by disclosing the existence of disabilities. However, the question at T3, p12 asked "what … injuries have you suffered" to which it was recorded "nil". He was also asked for the date of the occurrence and therefore, some 3½ years later, it would have been quite reasonable for him to have noted a back injury in 1942 and in response to question 7 he could have noted that there was no persisting disability if indeed that was the case. The Tribunal would expect that such a response would not have caused a delay in his discharge. The Tribunal does not know why the form was completed in the way it was, because this matter was apparently overlooked at the time he gave evidence and during cross-examination. However, the Tribunal notes from the evidence that the signature on the form appears to be similar to other signatures in the s.37 documents purporting to be signatures of the Applicant. On its face this form is inconsistent with the Applicant's oral evidence. The Tribunal also notes that in the course of these proceedings this is the second form, relating to an entirely different issue from the first, where the Applicant would have the Tribunal believe that he was prepared to sign a document that is not true.

The Tribunal notes the submission for the Respondent that the Applicant's memory of events is poor and unreliable and therefore his evidence should be given little weight, but the Respondent did not question the Applicant's credibility. However, having seen the Applicant giving his evidence and having considered his evidence and the documentary evidence, the Tribunal finds that the Applicant is not credible.
Taking the entire scenario of evidence, or the lack of it, in relation to the hammock incident, the Tribunal is satisfied beyond reasonable doubt that the incident did not occur. If it did not occur that would explain why there was no reference to it by the Applicant at the time of his discharge. It would explain why there was no reference to it in the service medical documents when instead he was in hospital in a 'flu ward for a "common cold". It would explain why there was no reference in the service documents to the Applicant being on light duties for two or three months. It would explain why there was no disciplinary action taken in relation to the alleged prank. When all this is juxtaposed with the evidence that in 1987 the Applicant sustained a fall on his back from scaffolding, causing "bruising" to his back (T5), and that again in 1990 he hurt his back (T7), and that he suffers from generalised osteoarthrosis in a number of anatomical sites, the total picture is sufficient to disprove beyond reasonable doubt that the hammock incident did not occur. Pursuant to s120(1) of the Act the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's condition of lumbar spondylosis is war-caused.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs M T Lewis
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 August, 2000
Date of Decision  23 May, 2001
Representative for Applicant   Mr R Sherlock, Legal Aid Commission
Representative for Respondent    Ms S Breuer, Department of Veterans' Affairs