Irby and Repatriation Commission - [2001] AATA 547

DECISION AND REASONS FOR DECISION [2001] AATA 547

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/383

VETERANS' APPEALS DIVISION       )              N1999/1167
           Re      HAROLD WILLIAM IRBY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date18 June 2001
PlaceSydney
DecisionThe Tribunal varies the decisions under review and decides that:

cervical spondylosis and thoracic spondylosis are accepted disabilities with effect from 9 August 1998;
the applicable lifestyle rating is 5; and
the appropriate rate of Disability Pension is to remain at 100% of general rate.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - neurofibromatosis - increase in disability pension on the basis of a worsening condition – war caused conditions – whether applicant qualifies for the extreme disablement adjustment - Guide to the Assessment of Rates of Veterans' Pensions – thoracic, lumbar, cervical spondylosis – operational service – whether disability satisfies the relevant Statement of Principles – reasonable hypothesis linking the applicant's disabilities to war service – degree of incapacity

Veterans' Entitlements Act 1986 ss 13(1)(b), (d), 14(1), (3), (4), 21A, 22, 120(1), (3), (4), (6), 120A(1)(a), (3), 196D.
Statement of Principles Instrument No 52 of 1998 concerning Lumbar Spondylosis
Statement of Principles Instrument No 54 of 1998 concerning Thoracic Spondylosis
Statement of Principles Instrument No 56 of 1998 concerning Cervical Spondylosis
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

18 June 2001 M J Sassella, Senior Member

History of the Applications
N1999/383

On 26 July 1990 the Repatriation Commission ("the Respondent") decided that a Disability Pension should be paid to Mr Harold William Irby ("the Applicant") at 100% of the general rate (N1999/383, T3). This was in respect of accepted disabilities of sensori-neural deafness and otitis externa, neurofibramatosis, gastro-intestinal disorder, sinus and skin disorder.
On 21 March 1996 the Applicant claimed for an increase in Disability Pension on the basis of his worsening neurofibramatosis and a defecation problem (N1999/383, T4).
On 23 May 1996 the Respondent decided that the Applicant's impairment rating was 60 points and his lifestyle rating was 4 points (N1999/383, T7). This resulted in a pension payable at 100% of the general rate. He qualified for no extreme disablement allowance ("EDA") or an earnings related pension.
On 6 June 1996 the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review (N1999/383, T8).
On 11 February 1999 the VRB affirmed the decision of the Respondent (N1999/383, T14). This decision was sent to the Applicant on 2 March 1999 (N1999/383, T15).
On 15 March 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the AAT", "the Tribunal") an application for review of the decision as affirmed by the VRB (N1999/383, T1).
N1999/1167
On 5 June 1998 the Applicant lodged a claim for an increase in his Disability Pension with the Department of Veterans' Affairs ("DVA") in respect of his "bad back, cervical lumbar thoracic spondylosis" to have them accepted as war caused conditions (N1999/1167, T4). He stated that this back condition was "due to a war-caused disability neurofibromatosis".
The Applicant was then in receipt of a Disability Pension paid at 100% of the general rate. The accepted conditions were and remain sinusitis, functional gastro-intestinal disorder, Von Recklinghausen's Disease (neurofibromatosis), sensori-neural deafness and otitis externa.
On 27 October 1998 the Respondent refused the claim in respect of lumbar, cervical and thoracic spondylosis (N1999/1167, T7). It was decided that the Applicant's condition did not satisfy the relevant Statement of Principles ("SoP") issued by the Repatriation Medical Authority in respect of these conditions. The Respondent considered that no reasonable hypothesis had been raised that connected the Applicant's condition with his war service.
On 9 February 1999 the Applicant lodged an application for review of the Repatriation Commission decision with the VRB (N1999/1167, T8).
On 29 March 1999 the Respondent wrote to the Applicant informing him that it had been decided not to conduct a review of his application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (N1999/1167, T9).
On 13 July 1999 the VRB affirmed the decision of the Repatriation Commission (N1999/1167, T10). Because of the nature of the Applicant's eligible war service ss 120(1) and (3) of the Act apply in this matter. Section 120A also applies because the application was lodged after 1 June 1994. The VRB found that the Applicant's conditions did not meet the relevant Statements of Principles ("SoPs"); SoP 27 of 1999, SoP 29 of 1999 and SoP 31 of 1999 for lumbar, thoracic and cervical spondylosis respectively. To satisfy any of these SoPs there must be a malalignment ("significant displacement out of line") of the spine and it must be related to war service. The VRB further found that "the proposition connecting the claimed disability with service was not reasonable, being too remote or tenuous."
On 2 August 1999 the Applicant lodged with the AAT an application for review of the decision of the Repatriation Commission (N1999/1167, T1).
In short, the issues for the Tribunal are (i) whether additional disabilities, spondylosis of the cervical, thoracic and lumbar spines, should be accepted disabilities (matters raised in N1999/1167), and (ii), whether the Applicant qualifies for payment of EDA (matter raised as a result of both applications).
Background
The Applicant was born on 8 August 1923. His father was an itinerant bricklayer and his parents were separated. He left high school at the age of 15 with the intermediate certificate. The Applicant lived in a foster home from 1936 until 1938. He has never smoked and stopped consuming alcohol in 1962 (Exhibit R1).
The Applicant served in the Australian Army from 8 May 1941 to 12 February 1954. The period 8 May 1941 to 20 June 1951 constitutes eligible service as defined in the Act. He served on operational service from 8 May 1941 to 26 November 1947 (Exhibit A8).
The Applicant served in the Middle East, Malaya, Singapore, Sumatra, Pedang and Colombo. He went to New Guinea in July 1943 and was directly involved in infantry fighting and amphibious landings against the Japanese. He also served in Borneo but returned to Australia in October 1945 having suffered from peritonitis following an appendectomy. Upon his return to Australia he joined the Regular Army in 1947 and continued with the occupational forces in Japan for four years. After time in the water transport at Chowder Bay for three years, he was discharged in February 1954. The Applicant worked at the State Brick Yard for two years and then from 1956 until 1988 for Australia Post (Exhibit R1).
The Applicant has lived alone in an apartment since 1975. He buys all his meals from Ryde TAFE for $5 per meal.
During the month of May 1945, when the Applicant was stationed on the Atherton Tableland, he was thrown onto his back while travelling in an army truck (Exhibit A6). The Applicant suffered pain and had difficulty sleeping for weeks. He further stated that, although he reported sick the day after the incident, he was said to be fit for duty and that he was not given any lighter duties or medication. The Applicant suffers pain and discomfort at most times.
On 4 November 2000 the Applicant provided a statement in regard to his conditions (Exhibit A9). He went into some detail in describing his difficulties with social relationships, mobility, recreational and domestic activities. The Applicant stated that due to the accepted condition of neurofibromatosis he has been unable to marry or even have a girlfriend. The condition causes a bad odour when he perspires and the condition causes bleeding.
At this point it may be instructive to quote from Dr Baz's report (Exhibit A1, 14 August 1996) in which she explains something of the neurofibromatosis condition. She writes:
"These were first manifest in 1943 when he was age 20 years. There are no café au lait spots but now the whole torso is covered with fibromas. A number of lesions have coalesced, and new ones continue to appear. A number of lesions were removed from the face but he has not continued with this because it is too painful. Lesions were last excised in 1977.
"The fibromas bleed easily when traumatised, are malodorous and their appearance is very embarrassing."

The Applicant takes medication for his back condition in the mornings and afternoons (2x Panadeine) and has difficulty using public transport. He further stated that he has no social outlet and never receives visitors, only occasionally seeing his brother and nieces at Christmas. The Applicant described how people avoid him and at times cover their eyes when they see him and avoid any physical contact. He described various restrictions in his domestic activities due to his back condition and the associated pain.
On 11 July 2000 the Applicant provided another statement (Exhibit A10). He stated that the truck accident of May 1945 caused him to fall and hit his back below the shoulder blades and in the small of his back.
Relevant legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") ss 13(1)(b), (d), 14(1), (3), (4), 21A, 22, 120(1), (3), (4), (6), 120A(1)(a), (3), 196D. Also relevant are the Statements of Principles Instrument Nos 52, 54 and 56 of 1998 concerning Lumbar, Thoracic and Cervical Spondylosis respectively.
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act."
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
          …
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
22 General rate of pension and extreme disablement adjustment
(1)       This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)       Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)       For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4)       Where:
          (a)       either:
(i)        the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)       a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
          (b)       the veteran has attained the age of 65;
(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
          (d)       the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
(5)       For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
          (a)       the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
          (b)       amounts are being deducted from the pension under section 79, 30P or 205; or
(c)the pension has been suspended under subsection 31 (6)."
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:   This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
          (a)       that the injury was a war-caused injury or a defence-caused injury;
          (b)       that the disease was a war-caused disease or a defence-caused disease; or
          (c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:   This subsection is affected by section 120A.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:   This subsection is affected by section 120B.
…
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
          (a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
          (b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
          (a)       a Statement of Principles determined under subsection 196B (2) or (11); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
"196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."
"Statement of Principles Instrument No 52 of 1998 concerning Lumbar Spondylosis
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about lumbar spondylosis and death from lumbar spondylosis.
(b) For the purposes of this Statement of Principles, "lumbar spondylosis" means degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-CM code 721.3, 721.42 or 722.52.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:
…
(e) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis; or
…
(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"malalignment" means the presence of significant displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes 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. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.
Application
9. This Instrument applies to all matters to which section 120A of the Act applies."
"Statement of Principles Instrument No 54 of 1998 concerning Thoracic Spondylosis
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about thoracic spondylosis and death from thoracic spondylosis.
(b) For the purposes of this Statement of Principles, "thoracic spondylosis" means degenerative changes affecting the thoracic vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of thoracic cord or thoracic nerve root compression, attracting ICD-9-CM code 721.2, 721.41 or 722.51.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that thoracic spondylosis and death from thoracic spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting thoracic spondylosis or death from thoracic spondylosis with the circumstances of a person's relevant service are:
…
(e) having a malalignment of the thoracic spine before the clinical onset of thoracic spondylosis; or
…
(h) suffering a trauma to the thoracic spine before the clinical onset of thoracic spondylosis; or
…
Other definitions
8. For the purposes of this Statement of Principles:
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"malalignment" means the presence of significant displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
"trauma to the thoracic spine" means a discrete injury to the thoracic spine that causes 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. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies."
"Statement of Principles Instrument No 56 of 1998 concerning Cervical Spondylosis
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about cervical spondylosis and death from cervical spondylosis.
(b) For the purposes of this Statement of Principles, "cervical spondylosis" means degenerative changes affecting the cervical vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of cervical cord or cervical nerve root compression, attracting ICD code 721.0, 721.1 or 722.4.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of a person's relevant service are:
…
(e) having a malalignment of the cervical spine before the clinical onset of cervical spondylosis; or
…
(h) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"malalignment" means the presence of significant displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
"trauma to the cervical spine" means a discrete injury to the cervical spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies."

Appearances

The Tribunal conducted a hearing in this matter on 5 and 20 July 2000 in Sydney. Ms Buchanan, a solicitor from the NSW Legal Aid Commission, represented Mr Irby. Ms Pacey, from the DVA advocacy service, represented the Respondent.
Documentation before the Tribunal
The Tribunal received the following documents into evidence at the hearing:

Exhibit TD1: Section 37 Statement in application number N1999/383, filed on or about 1 May 1999.

Exhibit TD2: Section 37 Statement in application number N1999/1167, filed on or about 6 September 1999.

Exhibit A1: Report by Dr M Baz, 14 August 1996.

Exhibit A2: Report by Dr M Baz, 27 July 1998.

Exhibit A3: Report by Professor Sambrook, 9 December 1999.

Exhibit A4: Report on MRI scan by Dr Brazier, 20 December 1999.

Exhibit A5: Report by Dr Chapman on CT scan, 24 December 1999.

Exhibit A6: Statement by Applicant, 17 January 2000.

Exhibit A7: Report by Professor Sambrook, 2 March 2000.

Exhibit A8: Applicant's amended statement of facts and contentions, 3 July 2000.

Exhibit A9: Statement by Applicant, 4 July 2000.

Exhibit R1: Report by Dr Lennon, 10 November 1999.

Exhibit R2: Respondent's statement of facts and contentions, 27 June 2000.

Exhibit R3: Audiogram, 8 May 1998.

Exhibit R4: Report by Dr Lennon, 30 June 2000.

Medical evidence

On 14 August 1996 Dr Martha Baz, occupational physician, provided a report on the Applicant (Exhibit A1). She noted his various conditions, in particular his neurofibromatosis, and assessed the Applicant according to the Guide to the Assessment of Rates of Veterans' Pensions ("GARP"), 4th Edition 1994. She found the following impairment ratings:
·     Sinusitis   5 points
·     Sensorineural hearing   No given rating due to   absence of audiometry
·     Tinnitus  5 points
·     Otitis externa  Nil
·     Functional gastrointestinal disorder              10 points
·     Neurofibromatosis - disfigurement                60 points
·     Neurofibromatosis - pruritis  5 points

Dr Baz found the following lifestyle ratings:

·     Personal relationships  6 points
·     Mobility  3 points
·     Community and recreational activities          6 points
·     Domestic activities  4 points

She stated that the Applicant's "current accepted disabilities satisfy the impairment rating criteria but not the lifestyle rating for the extreme disablement adjustment." The total impairment rating was assessed at 70 points.

On 22 May 1998 Professor Sambrook, rheumatologist, provided a medical report on the Applicant (Exhibit TD2 T5, pp56-61). He stated: "I don't believe there is any evidence of a significant degree of nerve condition, although the presence of kyphosis may be indicative of some degree of malalignment, at least in part." He further stated that "it is possible his neurofibromatosis has predisposed him to the development of spondylosis via malalignment in the cervical and thoracic spine, but not the lumbar spine."
On 27 July 1998 Dr Baz again reported on the Applicant (Exhibit A2). On this occasion she used the GARP 5th edition and included the conditions of cervical and lumbar spondylosis in her assessment. Dr Baz found a total impairment rating of 61 points, this assessment not including a rating for hearing loss. She provided an annotation in regard to the Applicant's condition of neurofibromatosis (disfigurement):
"I consider this to be a gross underestimate of the impairment caused by the skin condition. It does not reflect the extent or severity of the condition, nor the disadvantage experienced by Mr Irby as a result of it.
"Unless the Department is able to identify an alternative method to calculate this impairment, then he will probably need to claim a psychiatric condition, causally related to it, if with inclusion of a hearing impairment he does not meet the impairment rating criteria. It seems most unfair, that Mr Irby should be required to pursue such a course, particularly given the extreme embarrassment he experiences due to the disfigurement."

Her assessment of the lifestyle rating was unchanged from the 1996 report. Dr Baz concluded that the impairment ratings did not satisfy the impairment rating criteria for the EDA. She further stated that inclusion of an impairment rating for the Applicant's hearing condition might allow him to satisfy the GARP.

On 29 July 1998 Dr P Cook, the Applicant's treating doctor, provided medical assessment reports on the Applicant for the DVA (Exhibit TD1 T12, Exhibit TD2 T6). In relation to disfigurement and social impairment he noted the unpleasant odour of the fibromas as well as their existence on the face and neck of the Applicant. He further noted the Applicant's embarrassment at being in public places and that he was unable to go to the beach because of the unsightly nature of the condition. In relation to the cervical spine Dr Cook assessed the Applicant as having a 50% loss of movement. He noted limited rotation, pain radiating down both arms, poor grip and the fact that the Applicant needs support in the shower. Dr Cook further assessed the Applicant's thoracolumbar spine condition and noted that the Applicant felt pain after standing for 10-15 minutes and that he felt pain at most times when lying or sitting. He further noted occasional pain in both calves resulting from this condition and assessed a 50% loss of range of normal movement.
On 19 November 1999 Dr Lennon, orthopaedic surgeon, reported on the Applicant (Exhibit R1). He doubted that there was any relationship between the degenerative back condition and the Applicant's war service. He stated that the condition was due to the progressive degenerative changes associated with aging. The back condition is also in no way related to the neurofibromatosis.
On 9 December 1999 Professor Sambrook, rheumatologist, provided another report on the Applicant (Exhibit A3). He reviewed his previous report of 22 May 1998 (paragraph 28 above) and noted that the VRB had found that he was of the opinion that there was no significant malalignment of the thoracic spine. Professor Sambrook disagreed with this finding and stated that he "…noted that physical examination revealed increased thoracic kyphosis and that the presence of kyphosis may be indicative of some degree of malalignment at least in part." Further, he expressed the opinion that, as regards the SoP for spondylosis, the definition of malalignment was met in the thoracic spine. Professor Sambrook noted that the Applicant had undergone a CT scan of the cervical spine and opined that this CT report "would seem to establish that in regard to the cervical spine, Mr Irby satisfies the definition of malalignment with significant displacement out of line resulting from joint dysplasia." Professor Sambrook, in finding that there was a malalignment present, addressed the question of whether this was service related. Because of the CT report that was now available, he stated that "[the Applicant] does have osseous dysplasia at the C4 level and since the neurofibromatosis has been accepted as service related he would appear to satisfy the two requirements for the cervical spine." However, in relation to the thoracic spine, he found it unlikely, on the basis of the neurofibromatosis, that this condition was service related. Professor Sambrook concluded that other than malalignment, the Applicant did not satisfy any of the factors in the relevant SoP.
On 20 December 1999, Dr Brazier, a radiologist, provided a brief report on the Applicant (Exhibit A4). He found a mass lesion of approximately 5cm to the right of the spine at the C5/6 level. Dr Brazier presumed that this was evidence of a neurofibroma.
On 24 December 1999 Dr Chapman provided a CT-brain report on the Applicant (Exhibit A5). He diagnosed what was "presumably a mild manifestation of neurofibromatosis."
On 2 March 2000 Professor Sambrook provided a supplementary report on the Applicant (Exhibit A7). He specifically addressed the truck accident and stated that the Applicant being thrown onto his back would be a discrete injury in regard to trauma in the SoP. With the benefit of the statement of the Applicant in regard to the truck accident (Exhibit A6), Professor Sambrook stated that "if one accepts Mr Irby's history, he does meet the definition of trauma contained in the relevant SoP." Professor Sambrook took into account the fact that the Applicant's pain lasted longer than seven days and included restriction of movement and sleeping patterns for several weeks.
Professor Sambrook gave evidence for the Tribunal. Ms Pacey, for the Respondent, put to the doctor that at Exhibit TD2 T5, page 60, he had seen the SoP on spondylosis as involving only malalignment of the spine. Later in Exhibit A7 he had regarded a trauma to the spine as a possibility also. Professor Sambrook said that the Applicant's evidence tended to suggest that the fall in the truck produced symptoms for over seven days. This meant that trauma to the spine became a possibility under the SoPs. Previously he had understood Mr Irby to have been affected for only about four days. That would not suffice for a trauma under the SoPs. Professor Sambrook noted that the Applicant could not sleep for several weeks after he fell. In cross-examination Professor Sambrook conceded that no one really knows how long Mr Irby suffered symptoms after the event. It may have been only four days.
Professor Sambrook then addressed his report in Exhibit A3. He sees the cervical spine problems as associated with neurofibromatosis, a war-caused condition, but the thoracic spinal problem is not. Only the trauma caused by the fall in the truck would be the basis for it being regarded as war-caused.
Professor Sambrook said that Mr Irby suffers from a malalignment of the cervical spine, probably also of the thoracic spine, but not so much in the lumbar spine. The thoracic malalignment is in the form of thoracic kyphosis. The cervical malalignment is probably linked to the neurofibromatosis.
Ms Pacey asked Professor Sambrook whether the motor vehicle accident involving Mr Irby in 1945 could have fractured some thoracic vertebrae as was demonstrated in a CT scan of the spine. Professor Sambrook had not pursued that possibility because Mr Irby's description of the aftermath symptoms was not suggestive of the motor vehicle accident as a cause.
Dr Sambrook did not see any lumbar spine condition as service related. Only the cervical and thoracic spine would have features related to service.
In response to questions from the Tribunal Dr Sambrook said that the connection between the neurofibromatosis and the cervical spine is sufficient for cervical spondylosis to be accepted as a condition under the SoP. The malalignment can be linked by way of the abnormality at C4. Satisfaction of the SoP concerning the thoracic spine depends on whether the Tribunal accepts Mr Irby's account of the trauma to the spine. At page 45 of the transcript Professor Sambrook says, "You know the clinical history is certainly consistent with that (ie a trauma to the thoracic spine) as a possibility but it depends on what the Tribunal thinks about that history …. In the lumbar spine I didn't think the features pointed to a relationship by virtue of the neurofibromatosis or trauma."
Professor Sambrook also explained his understanding of "malalignment" as it is used in the SoPs. It can be a scoliosis or an exaggerated lordosis or kyphosis in the spine.
Professor Sambrook enlarged on why he did not regard the lumbar spine condition as service related. A major reason is that the changes in the lumbar spine are mild.
Professor Sambrook also explained that the x-rays of the thoracic spine demonstrated bridging osteophytes at T9/10 and asteria osteophytes at T12/L1 that would impede Mr Irby's bending.
On 30 June 2000 Dr Lennon provided a supplementary report (Exhibit R4). He disagreed with Professor Sambrook's assessment that kyphosis is a malalignment, and stated that it is a part of the pathology of thoracic spondylosis. He further stated that any malalignment is due to and associated with the degenerative changes occurring because of the spondylosis condition. Dr Lennon noted that there was no specific injury apart from the 1945 truck accident and that, apart from three to four days after the accident, there were no relevant symptoms until 1992.
Dr Lennon gave evidence at the hearing. He pointed out that there was no evidence that Mr Irby had any back ache when he joined the Army. There was no mention of his having neurofibromatosis when he was discharged from the Army in 1952. Back symptoms of any severity were reported only from 1988 when he retired.
Dr Lennon considered that Mr Irby would have suffered only a simple contusion to the thoraco-lumbar spine in the accident described in the truck. The effects would have cleared up in ten days to a fortnight. Later he described these injuries as musculo-ligamentous or soft tissue contusions.
Dr Lennon referred in his report (Exhibit R1) to a CT scan taken on 6 February 1996. That scan showed no abnormal soft tissue masses to suggest nerve root neurofibromata. Had the CT scan shown a massive neurofibromata surgical intervention to cut it out would have been considered.
Dr Lennon did not agree that the Applicant's current symptoms are attributable to malalignment of the spine. He regarded the Applicant's thoracic kyphosis as part of normal spinal curvature. "If you have an increase in your thoracic kyphosis, it is usually then secondary to the spondylitic disease, with possibly some wedging or changes in the vertebral bodies. It is … not what you could call a true malalignment; in effect it is part of our normal anatomy which increases with degenerative changes." (transcript, 56). A true malalignment would be "a lateral deviation, more one-sided … incongruity, or something of that nature" (transcript, 56). A true malalignment might follow from a previous fracture of a vertebral body or a dislocation of a vertebral joint, or if there were changes in the vertebral discs.
Dr Lennon saw the changes on Mr Irby's CT scan and X-ray film as an adequate explanation for his symptoms. In Exhibit R1 these were noted in the CT scan as T5 to T12 osteophytic lipping with degenerative changes at the right T6-7 and T11-12 costo vertebral joints. The plain x-ray showed mild osteophytic lipping at most levels in the thoracic spine.
Dr Lennon stated that back pain could emanate from a thoracic kyphosis if there were spondylitic changes and changes in the intervertebral disc spaces. The vertebral bodies tend to wedge.
Dr Lennon addressed the Applicant's neurofibromatosis and said that, while it can affect nerve roots there was nothing in the investigations here to suggest that had occurred with Mr Irby.
Dr Lennon thought it very doubtful any compression injury from the truck event in 1945 would be impacting on Mr Irby at this time. He does not believe that Mr Irby is suffering from any permanent ligamentous instability of his spine.
Dr Lennon had not seen a CT scan of Mr Irby's cervical spine. Professor Sambrook had seen that CT scan and noted osseous dysplasia at the posterior cortical margin of the C54 vertebral body. Dr Lennon did not accept that this amounts to malalignment of the cervical spine. It is not a deformity of the cervical spine. It is a change in the body of the cervical spine without being a malalignment. There is no lateral deviation. It is an area of dysplasia that is most probably neuro-epidermal in nature as related to the neurofibromatosis. It is not, in his view, a deformity. Dr Lennon even quarrels with the description of it as dysplasia. He says that it is only the posterior aspect of the body that is dysplastic.
Dr Lennon considered the definition of "malalignment" in SoP 56 of 1998 concerning cervical spondylosis. The definition refers to "the presence of significant displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length". Dr Lennon said, "I don't think his cervical spine was out of line" (transcript, 60). "The body itself is involved with a dysplastic lesion, in other words, it is part and parcel of his neurofibromatosis, but I doubt if it is responsible for causing the cervical vertebrae to be out of line, in other words, deviated. That is what 'out of line' to my mind means, deviated. There is no deviation. … there is no malalignment. It is neurofibrotic, ectatic …" (transcript, 60-61). Dr Lennon saw malalignment as involving "a fracture which can cause an angulation, or … a rotation. I mean, they are malalignments, rotation, angulation, deviation" (transcript, 61).
Dr Lennon, in cross-examination, agreed that it was possible that after the fall in the truck Mr Irby would have taken at least seven days of acute symptoms of pain. He later said that it was equally possible that the symptoms could settle within three or four days. The questioning here was related to the thoraco-lumbar spine.
Dr Lennon said that he was certain beyond reasonable doubt that the fall in the truck contributed in no way to the Applicant's lumbar spondylosis.
Applicant's evidence
In addition to the above documentary evidence the Applicant gave oral evidence. He gave further details of the fall in the truck. It occurred in May 1945. He was in the Atherton Tablelands doing infantry training. He is unsure of the time of day of the incident but he thinks it was in the morning. He was seated on a timber case about two to three feet high in the back of the truck. When he fell his method of falling meant that the lower part of his body below his shoulder blades took the fall. The fall was witnessed by others. The Applicant reported in sick the next day at 9.00 am. He suffered "extreme discomfort" for a period of time. Asked to enlarge on what "extreme discomfort" meant he said that it should be taken to refer to the experience of pain. He was immobile for "a couple of days". He was not given light duties. He said that there was no such thing as light duties. He had no further problem until the 1990s. From the start of the 1990s Mr Irby has been unable to sleep on his back.
Mr Irby could recall no problems arising from the injury between 1945 and the 1990s. He cannot point to any problems in his training or work activities arising from the injuries from the fall. There was no reference to this incident in the Applicant's service history. The Applicant suggested that that might be because the information was not forwarded.
Mr Irby gave evidence about his neurofibromatosis but nothing additional to the information above was forthcoming.
There was discussion of the Applicant's hearing problem. He uses a hearing aid. He can communicate fairly effectively with the aid.
As regards the Applicant's mobility it was noted that he takes Panadeine Forte for his back pain and that this causes him problems in using public transport. It limits his access to, and movement on, vehicles. He uses the bus and train. He had difficulty getting on and off both. He tries to find a seat on public transport and it is then difficult to seat himself and stand up again. He has to use the station handrails in moving up and down stairs. He has twice fallen on the train. The neurofibromatosis can be a problem on public transport. If a lesion is bumped it can haemorrhage.
Mr Irby had about 10 facial neurofibromatosis lesions removed in the 1970s. These were large at over a centimetre in diameter.
Mr Irby listed his pastimes as reading, playing music cassettes and watching television. He cannot go to the beach because he is embarrassed by his neurofibromatosis lesions. He does not attend the RSL Club because people tend to look at his lesions. He has no visitors. In cross-examination he said that he does not visit other people at home. He has no relationship with his neighbours in his units. He is largely confined to his unit and does not like going out. He stays and eats at the TAFE college with people he knows sometimes. He sees his cousin in Toongabbie sometimes and his brother once a year. He travels by train to his cousin. On a normal day he rises at 8.00 am. He showers and shaves. He has cereal and toast for breakfast. He listens to John Laws on the radio. He goes to the TAFE at 11.30 am. He watches "Judge Judy" on television. He might go to the shopping centre. He might have dinner at McDonalds.

He is impeded by back pain in carrying out domestic duties. He employs cleaners. He can do his small quantity of washing up but little else. He cannot vacuum, mop or clean the toilet. He buys meals from the local TAFE college and reheats them in a microwave oven.
He cannot stand in one place for an extended period. He fears that he will lose his balance if he turns quickly. This has been so for about 10 years. Since the early 1990s he has had difficulty bending and he finds it difficult to tie his shoe laces. In cross-examination he said that he cannot make his bed properly. He showers sitting down. Putting on socks is difficult. He can lift no more than a maximum of about seven pounds because of his back.
In cross-examination the Applicant said that the medical examination that followed his fall in the truck was not very thorough. His shirt was removed and his back was tapped. There were no bending tests.
The Applicant had problems at the Tribunal remembering certain events but in his statement in Exhibit A6 he told of his recollections concerning back pains, sleeping disturbances and other matters. The Applicant could not explain how his recall had been apparently considerably better when he wrote Exhibit A6 in January 2000.
The Applicant could not recall if his back had been bruised when he fell. The Applicant could not recall if his movements were restricted after the fall. He believes that he could do his usual duties but with some discomfort. Ms Pacey made the point that there had been no reference to injury from the fall in the Applicant's medical discharge documents.
After leaving the Army in 1947 the Applicant had worked in a brickyard doing semi-clerical work. He was there for two years. He had no problems. There was no bending or lifting required.
Mr Irby said at one point that he first saw a doctor about his back in 1998. He had x-rays and MRI scans. The pain was spread throughout his back and neck. Later he said he Saw Dr Cook about the back in 1996.
Although there had been some suggestion that the Applicant retired in 1988 because of back problems it was established that he retired at age 65 because of his age. He had intended to retire at age 60 but stayed on for the money to pay the costs involved in keeping his mother in a nursing home. The back pain had had a gradual onset. He had no treatment for the back until he raised it with Dr Cook in 1996.
Ms Buchanan in her closing summarised the Applicant's case. As regards the thoracic and lumbar spondylosis there are reasonable hypotheses. In each case the Applicant relies on factor (h) in the applicable SoP, that is "suffering a trauma to the thoracic [or lumbar] spine before the clinical onset of thoracic [or lumbar] spondylosis". The SoPs identified as appropriate were no 54 of 1998 (thoracic spondylosis) and no 52 of 1998 (lumbar spondylosis). In each case, Ms Buchanan said, there was a trauma consisting of the injury in May 1945 in the truck. The truck was travelling at 35 mph. The Applicant was seated two to three feet off the floor. The truck skidded and threw the Applicant to the floor. He was sick the next day. Ms Buchanan said, "With regard to the symptoms that Mr Irby reported he said in his considered statement that of 17 January 2000 [Exhibit A6] that he suffered discomfort in the centre and base of his spine, he had difficulty moving around and standing up. He had difficulty sleeping for weeks, he was turning in his bed for hours until he found a comfortable position to rest … his back was sore after the fall" (transcript, 3-4). He reported sick the next day, within 24 hours. He did not complain further about his back because the attitude of the infantry was that a soldier performed his full duties unless he was hospitalised.
Ms Buchanan conceded that the evidence was vague as to how long Mr Irby's symptoms subsisted. She invoked s 119(1)(h) of the Act to argue that certainty as regards such factors stretching back to 50 or more years ago should not be required in applying the SoPs. Ms Buchanan also cited the evidence of Dr Lennon and Professor Sambrook who both considered it possible that Mr Irby had shown symptoms for a week or more after the truck incident.
Ms Buchanan made submissions in respect of the lifestyle ratings on chapter 22 of GARP. As regards "personal relationships" the rating pressed was 6, on the basis that Mr Irby has difficulty relating to anyone.
As regards mobility, the rating proposed was 4, on the basis that the lumbar spondylosis is accepted. The Applicant has difficulty going up and down stairs and when bending. He has problems using public transport.
On the question of recreational and community activities a 6 rating was pressed. Mr Irby can indulge in very few satisfying recreational activities. He cannot socialise because of the embarrassment caused by his accepted disability of neurofibromatosis.
He is hampered in his domestic activities. Therefore a rating of 6 was recommended.
These ratings would result in Mr Irby attracting payment of EDA.
Respondent's argument
The Respondent suggested that it was curious that the Applicant could recall as much as he did of the motor vehicle accident in 1945. Mr Irby was unable to recall a number of other events.
Mr Irby joined the Army in 1941 and sustained soft tissue injuries in a motor vehicle accident in 1945. He reported to the sick bay but there is no record of that visit. No x-rays were taken. He lost no time off work. He reported that his symptoms lasted three or four days only. There was no mention of backache when he was discharged from the Army on 4 November 1947. He joined the regular Army in 1947 and there was no complaint of backache. His symptoms seem to have reappeared in 1992. They seem to have worsened in 1997. However, even though x-rays and CT scans have been done no treatment has been prescribed and no specialist referral was undertaken.
After his 1945 injuries the Applicant was able to undertake all his previous duties and was fully mobile, according to his own evidence. After seeing a medical officer he was certified as fit for full duties. There was no time lost and he told Dr Lennon that his symptoms lasted only a few days.
In recent years the symptoms have worsened but not in response to any specific episode. Ms Pacey relied on Dr Lennon's evidence. In Exhibit R4 Dr Lennon had commented on Mr Irby's lumbar CT scan of an unknown date. This showed no demonstrable joint displaysia or malalignment. Loss of lumbar lordosis was secondary to spondylogenic disease and not a cause of it. A plain x-ray of the lumbar spine showed mild degenerative changes and large osteophytes.
A CT scan of the thoracic spine taken on 6 February 1996 showed degenerative changes and osteophyte lipping. An x-ray of the cervical spine showed only degenerative changes. There was no evidence of any nerve root involvement nor any evidence of spondylitic disease in any of the three areas of the spine. All changes were seen as constitutional, age related and degenerative. There were no neurofibromas in the spinal canal and the 1945 back injury was a soft tissue injury only.
Mr Irby cannot satisfy SoPs 54 and 56 of 1998 because he was not incapacitated for at least seven days (as the SoPs demand) after the trauma to his cervical and thoracic spinal areas.
On the EDA issue, Ms Pacey pointed out that Dr Baz (Exhibit A2) had awarded an average of 5 without the back condition. The Repatriation Commission opted for a lifestyle rating of 4. For EDA to be payable the lifestyle rating must be 6. Ms Pacey noted that Dr Baz scored Mr Irby at 6 for personal relationships. Six points suggests that a veteran has extreme difficulty relating to anyone either because of psychosis, confinement, stroke or other accepted conditions. Having watched Mr Irby's evidence at the hearing it is clear that a six rating would be inappropriate. In addition to his presentation as a witness the evidence is that he regularly visits his family and has friends at the TAFE college with whom he can have lunch.
As regards mobility, Mr Irby said he could walk to the TAFE college and the shops. He appeared in a wheelchair at the hearing but this was not his permanent state. The Commission allowed a 4 rating for mobility. Dr Baz awarded a 3 rating (4 if thoracolumbar spondylosis becomes an accepted disability). Ms Pacey suggested that a rating of 2 would be appropriate.
Dr Baz and the Repatriation Commission agreed on a 6 rating for community and recreational activities. For domestic activities Dr Baz allowed a rating of 5 (6 with thoracolumbar spondylosis) and the Respondent allowed a 5 rating. Ms Pacey argued that a 4 would be the appropriate rating. Mr Irby can carry out most of his housework but needs some help with some tasks.
The Applicant is independent and lives alone. He is independent in his self-care, can leave the house and go shopping or to the TAFE. He shops for himself and carries shopping weighing up to about seven pounds.
There is no malalignment of the spine. There was no trauma to any part of the spine as required in the SoPs. His trauma lasted only three or four days, not at least seven days. He does not qualify for EDA because he is independent, mobile and self-reliant.
Findings on material questions of fact with reference to relevant evidence and other relevant material
The Tribunal finds that the Applicant has lodged a claim for an increase in Disability Pension (ss 13-15 of the Act). This occurred on 21 March 1996 (Exhibit TD1 T4) and on 5 June 1998 (Exhibit TD2 T4).
The Tribunal finds that the Applicant engaged in operational service between 1941 and 1947 (Exhibit A8). This means that the Applicant's claims as regards what should be accepted disabilities are to be assessed by reference to the reasonable hypothesis test in s 120(1) and (3) of the Act.
The Tribunal notes that issues as to the applicable rate of payment of pension are to be resolved at the level of the Tribunal's reasonable satisfaction (s 120(4) of the Act).
Because the Applicant's claims were lodged after 1 June 1994 the reasonableness of the hypothesis linking the Applicant's disabilities to war service must be assessed by reference to the relevant SoPs. In this case the relevant SoPs are SoP 56 of 1998 (concerning cervical spondylosis), SoP 54 of 1998 (concerning thoracic spondylosis) and SoP 52 of 1998 (concerning lumbar spondylosis). This was agreed with the Applicant's representative (Exhibit A8) and the Respondent's representative (Exhibit R2).
If the Applicant is successful to any extent in this application the date of effect of the decision would be 9 August 1998 (Exhibit A8, Exhibit R2).
The Tribunal finds that the Applicant, who is seeking payment of EDA under s 22 of the Act, satisfies the following elements of s 22 of the Act:

He is being paid a Disability Pension under Part II of the Act (s 22(1)).

None of ss 23-25 of the Act apply to the Applicant (s 22(1)).

The degree of incapacity of the veteran has been determined under s 21A of the Act to be 100% by a determination that is in force (s 22(4)(a)(i)).

The veteran has attained the age of 65 – he was 72 when he claimed for an increased pension (Exhibit TD1 T4) (s 22(4)(b)).

At present Mr Irby does not satisfy s 22(4)(c) of the Act in that he has not been assessed with a impairment rating of at least 70 points (his rating is 55 points – Exhibit TD1 T13, Exhibit TD2 T7) and a lifestyle rating of at least 6 points (his lifestyle rating is 5 points – Exhibit TD2 T7).
If Mr Irby's spondylitic conditions, or any one of them, can be accepted as war-caused then he would be better able to satisfy the requirements in s 22(4)(c) of the Act.
Cervical spondylosis
The evidence is that Mr Irby suffers from cervical spondylosis. The Applicant first saw Dr Cook about back and spinal problems in 1996. Professor Sambrook (Exhibit TD2 T5) refers to x-rays taken on 14 May 1988 showing degenerative changes at the C3/4 disc and to a lesser extent at C4/5 and C6/7 levels. An indentation of the posterior cortical margin of the C4 vertebral body was noted and Professor Sambrook said was a feature frequently seen in neuro-ectodermal dysplasia of the neurofibromatous type. From this the Professor reasoned that it is possible that the Applicant's neurofibromatosis has predisposed him to the development of spondylosis in the cervical and thoracic spine, but not in the lumbar spine.
Later, in Exhibit A3, Professor Sambrook noted that a CT scan of the cervical spine seemed to establish that he had a malalignment with significant displacement out of line resulting from joint dysplasia. This was service related because it was associated with the Applicant's accepted disability of neurofibromatosis, a condition he had suffered from since the 1940s. In later evidence Professor Sambrook was firm that the cervical spine was linked with neurofibromatosis and the problem was malalignment. He did not connect any trauma from the 1945 truck incident with the cervical condition.
Dr Cook (Exhibit TD1 T12, Exhibit TD2 T6) said that the Applicant had a 50% loss of movement in the cervical spine. A MRI scan of the cervical spine in December 1999 (Exhibit A4) showed a mass lesion approximately 5 cm to the right of the spine at C5/6 level, apparently linked to neurofibromatosis.
Dr Lennon did not see Mr Irby's cervical spondylosis as satisfying the SoP. He did not agree with Dr Sambrook that the cervical spine was in malalignment in the relevant sense. He did not see the mass lesion as causing any malalignment of the cervical spine. He regarded the condition as purely degenerative.
The Tribunal is inclined to accept the opinion of Professor Sambrook. Professor Sambrook's approach was apparently balanced and even-handed. Professor Sambrook is consulted at different times by both those representing veterans and those representing the Respondent. He was not dogmatic and was cooperative in providing full explanations for his views. He spoke at considerable length on his understanding of the concept of "malalignment" as defined in the SoP. He considered that a malalignment could be an out of spinal line condition such as scoliosis or exaggerated lordosis or kyphosis. The Tribunal accepts that this is correct. The effect would, as the Professor says, have to be exaggerated to qualify under the definition. It has also to be associated with muscle weakness, deformity of other joints, joint dysplasia or disparate leg length. In the instant case the association is with joint dysplasia which is caused by the neurofibromatosis.
Dr Lennon's views command respect but he presented to the Tribunal as more dogmatic and less considered in his views than Professor Sambrook. The Tribunal is also aware that the Act is beneficial legislation. The SoPs are statutory instruments promulgated under s 196D of the Act and are therefore also beneficial legislation. In the Tribunal's view the two interpretations of "malalignment" are sustainable under the legislation. Professor Sambrook's version is more beneficial for a veteran seeking inclusion within the SoP and should therefore be preferred.
Applying the analysis in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, the Tribunal finds that the Applicant's cervical spondylosis is war-caused. The hypothesis is that the cervical spondylosis was caused by the Applicant's neurofibromatosis which is a war-caused condition. There is a SoP on cervical spondylosis (SoP 56 of 1998). The hypothesis fits the template in the SoP in that the Applicant is said to have had, under factor 5(e), a malalignment of the cervical spine before the clinical onset of cervical spondylosis. The Tribunal has found that Mr Irby's accepted disability of neurofibromatosis has caused a malalignment of the cervical spine. The Tribunal is not satisfied beyond a reasonable doubt that as a matter of fact Mr Irby cannot satisfy the SoP. The Tribunal finds that the condition is related to relevant service (in Mr Irby's case, operational service) as required in SoP factor 4 because of its relationship to neurofibromatosis, a condition itself accepted as related to relevant service.
Thoracic spondylosis
The evidence is that Mr Irby suffers from thoracic spondylosis and has done so from at least as early as 1996. Professor Sambrook discussed the findings from investigations in Exhibit TD2 T5 and identified such changes in the thoracic spine. He discussed this condition at some length in his oral evidence.
Dr Cook (Exhibit TD1 T12, Exhibit TD2 T6) assessed a thoracolumbar spinal condition associated with a loss of 50% of the normal range of movement.
Professor Sambrook referred in his first report (Exhibit TD2 T5) to malalignment in the Applicant's thoracic spine. This was on the basis of the presence of a kyphosis and he emphasised the point later (in Exhibit A3). However, he also concluded that the Applicant had sustained a trauma to the thoracic spine during the incident on the truck in 1945. This emerged in Exhibit A7 and became Professor Sambrook's preferred thesis in relation to the thoracic spine during his oral evidence.
Dr Lennon's earlier explained views on the proper meaning of "malalignment" apply equally to his treatment of the thoracic condition. He is sceptical about there being any trauma, in the relevant sense, to the thoracic spine. He understood that the symptoms settled until 1992 after about four days. He considers that the Applicant suffered no compression injury in the truck accident and that any ligamentous spinal injury would have settled long ago. He did concede in cross-examination that it may have taken seven or more days for Mr Irby's symptoms to settle after the truck accident.
The relevant SoP, no 54 of 1998, defines "trauma to the thoracic spine" as meaning "a discrete injury to the thoracic spine that causes 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. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs" (paragraph 8).
The Tribunal again decides to prefer the opinion of Professor Sambrook for reasons similar to those stated already (paragraph 103 above). The Tribunal finds that the thoracic spondylosis has been caused by both a malalignment and by a trauma to the thoracic spine.
Applying the Deledio (supra) principles the Tribunal finds that there are two hypotheses linking the condition of thoracic spondylosis with operational service. The first is that Mr Irby had a malalignment of the thoracic spine prior to the onset of thoracic spondylosis. That malalignment was caused by the war-caused disability of neurofibromatosis.
The alternative hypothesis is that Mr Irby suffered in the course of his operational service a trauma to the thoracic spine before the clinical onset of thoracic spondylosis.
There is a SoP relevant to the condition, thoracic spondylosis. It is SoP 54 of 1998.
The Tribunal finds that the hypotheses advanced by the Applicant accord with the requirements of the SoP.
The Tribunal is satisfied, however, beyond a reasonable doubt, that factor 5(e) of SoP 54 of 1998 has not been satisfied. Professor Sambrook is adamant that the thoracic malalignment is not caused by neurofibromatosis. The Tribunal has accepted this evidence from Professor Sambrook.
However, factor 5(h) of the SoP is satisfied. The Tribunal is not satisfied beyond a reasonable doubt that the Applicant did not sustain a trauma to the thoracic spine as defined in the SoP. The Tribunal places no great weight on the fact that this incident was not recorded in the Applicant's service medical records. In many cases before the Tribunal there is no service record of an injury episode. Sometimes it appears that the records are lost. Sometimes it seems that the injury is regarded as trivial and not written up. Sometimes a veteran has understated his or her condition at the time either because of the service culture or because discharge from the services might be hindered. The Applicant's evidence has some unsatisfactory features. His recall of events from the 1940s was not impressive and yet his recall of the truck incident was sufficiently clear to arouse scepticism.

However, at base the account of the truck accident is simple and recall at that level should not be difficult. The Tribunal considers that it must give the Applicant the benefit of the doubt about the period of recuperation. It considers that the number of days the Applicant was suffering symptoms is an example of the very kind of detail he does not recollect well. Neither Professor Sambrook nor Dr Lennon would categorically assert that the Applicant is not to be believed on this point.
The truck accident occurred while the Applicant was on operational service in 1945. The trauma is therefore related to the Applicant's relevant service (paragraph 4 of the SoP).
Lumbar spine
The Applicant has lumbar spondylosis. Professor Sambrook says this in his report of 22 May 1998 (Exhibit TD1 T12). Dr Cook (Exhibit TD1 T12, Exhibit TD2 T6) diagnosed a thoracolumbar spine condition.
Neither Professor Sambrook nor Dr Lennon saw the lumbar spine condition as service related. Professor Sambrook said this in cross-examination. He saw the lumbar condition as connected in no way to malalignment or trauma. Dr Lennon's views have already been explained. They remain valid for this condition.
Applying the principles in the Deledio case (supra), the hypothesis is that there was an operational service-related trauma to the lumbar spine which resulted in lumbar spondylosis. SoP 52 of 1998 deals with lumbar spondylosis. The hypothesis accords with the requirements in factor 5(h) and paragraphs 4 (the factor must be related to eligible service) and 8 (the definition of "trauma to the lumbar spine").
The Tribunal has found that it is satisfied beyond a reasonable doubt that the Applicant's condition of lumbar spondylosis was not war-caused. Professor Sambrook saw the changes in the lumbar spine as mild only. He appears to see the lumbar spondylosis as entirely age related. The Tribunal accepts Professor Sambrook's evidence on this point.
The Tribunal has therefore found that the conditions of cervical spondylosis and thoracic spondylosis are to become accepted disabilities.
Impairment rating
The Respondent and the VRB have the Applicant assessed as 55 for his impairment rating (Exhibit TD1 T13, T14; Exhibit TD2 T 7, T10). Dr Baz has assessed the Applicant as 70 (Exhibit A1, but based on the old edition of GARP and at 41 (Exhibit A2). Dr Baz recommended additional ratings points of 12, 16 and 10 for the cervical spine, thoracolumbar spine and joint pain, respectively. The combined impairment rating would then amount to 61 points under the current edition of GARP.
The parties did not make submissions to the Tribunal about the impairment ratings. The Tribunal has noted Dr Baz's reasons for adopting the ratings she has in relation to the spinal conditions and has decided to adopt them for the purpose of argument in these reasons. However, the Tribunal would prefer to refer the matter back to the Respondent for a proper assessment to be carried out.
The Respondent's ratings plus Dr Baz's spinal ratings would result in a combined impairment rating of {37 + 16 + 15 + 15 + 12 + 10 + 5=} 72 impairment points. The Applicant appears to have satisfied one of the requirements for payment of EDA.
Lifestyle rating
Submissions were made to the Tribunal on this point. The Tribunal has noted the submissions put and has noted also the views of Dr Baz (Exhibit A1, Exhibit A2), the parties' representatives at the hearing (paragraphs 75-78, 86-88 above), the Respondent (Exhibit TD1 T13; Exhibit TD2 T7) and the VRB (Exhibit TD1 T13). The Tribunal's assessment, based on that evidence and its observation of the Applicant follows.

Table Rating           Table descriptor     Tribunal explanation
22.1 Personal Relationships        5         Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining friendships are strained and of low quality. [Ms Buchanan argued for a "6" but the Tribunal does not accept that the Applicant has extreme difficulty relating to anyone, eg because of psychosis, interaction limited to carers because of confinement or inability to communicate because of stroke, etc].   Mr Irby's own evidence was that he has no visitors. He does not attend the RSL Club. He does not usually visit others at home. He has no relationship with neighbours in his block of units. He stays in his unit and seldom goes out. He does go out sometimes, however, to eat at the TAFE college with people he knows, to see a cousin in Toongabbie, to see his brother (annually), to visit the shopping centre and to have dinner at McDonalds.
22.2 Mobility 4         Markedly reduced mobility: Assistance needed to cope with public or private transport Considerable difficulty travelling from home to destination Restricted in use of at least two forms of public transport         Mr Irby's evidence was that he travels by train to Toongabbie to see his cousin. He can walk to the shopping centre and to the TAFE. He has problems going up and down stairs and bending. He has twice fallen on the train. His taking of Panadeine Forte causes him problems on public transport. He uses bus and train but has difficulty entering and alighting.
22.3 Recreation & Community     4         It is unclear what recreational and community activities occupied the Applicant before the onset of his accepted disabilities. However, his activities can be described as those focused on in the 4 category: Generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc)    Mr Irby can indulge in very few satisfying recreational activities. Most are sedentary pursuits carried out at home.
22.4 Domestic         6         Able to carry out only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example: Able to do very light tidying, dusting but unable to cook or prepare meals Has difficulty standing to set table or wash dishes     Mr Irby's evidence was that he is restricted in carrying out his domestic duties. He can do washing up and reheat meals in the microwave oven. He seems to cater for his own breakfast. He does little or no cleaning.

This results in an overall lifestyle rating of 5.

Conclusion

The Applicant's rate of Disability Pension will remain at 100% of the general rate. While his impairment rating would seem now to be something around 70 points, his lifestyle rating remains at 5. Section 22(4)(c) of the Act requires that the lifestyle rating be 6 if a veteran is to qualify for EDA.
Decision
The Tribunal varies the decisions under review and decides that:
cervical spondylosis and thoracic spondylosis are accepted disabilities with effect from 9 August 1998;
the applicable lifestyle rating is 5; and
the appropriate rate of Disability Pension is to remain at 100% of general rate.

I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  29 May 2001
Date of Decision  18 June 2001
Solicitor for the Applicant  Ms J Buchanan
Advocate for the Respondent                   Ms G Pacey