Monaghan and Reptriation Commission - [2000] AATA 605

DECISION AND REASONS FOR DECISION [2000] AATA 605

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/63

VETERANS' APPEALS DIVISION          )
           Re      WILLIAM DARCY JOHN MONAGHAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date21 July 2000
PlaceCanberra

Decision      The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's pension entitlement be assessed with effect from 24 August 1997 on the basis of the conditions of metatarsalgia and lumbar spondylosis being war-caused.
  ..................(Sgd.).......................
  Pamela Burton   Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – whether lumbar spondylosis is "war-caused" – impact and injury from forced aircraft landings – whether pre-existing disease – incidents of trauma prior to eligible service – whether trauma to the lumbar spine during eligible service – whether aggravation of disease – whether clinical worsening of condition subsequent to trauma to the lumbar spine.
Legislation
Veterans' Entitlements Act 1986
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

21 July 2000 Pamela Burton, Senior Member

This is an application for review of the decision of the Repatriation Commission dated 13 August 1997, part of which denied that the veteran's conditions of lumbar spondylosis and metatarsalgia were war-caused. The Veterans' Review Board ("the VRB") affirmed the decision on 2 February 1999.
The veteran was represented by Mr Paul Crabb and the respondent was represented by Ms Susie Breuer. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition medical reports of Dr Scott, occupational physician, dated 17 September 1999 (Exhibit A), and Professor Sambrook, rheumatologist, dated 7 July 1999 (Exhibit 1), the applicant's statement of trauma (Exhibit B) and two photographs (Exhibit C) were tendered at the hearing. The tribunal heard the evidence of the veteran and Dr Scott gave telephone evidence on behalf of the veteran. Professor Sambrook gave telephone evidence on behalf of the respondent.
At the hearing the respondent conceded that the condition of metatarsalgia was war-caused, and the tribunal so decides. Thus, the remaining issue before the tribunal is whether the veteran's condition of lumbar spondylosis is war-caused.
Service
The Veterans' Entitlements Act 1986 ("the Act") requires that for a claim to be accepted the disability must be related to operational and/or eligible defence service. The veteran was born on 18 February 1929. He joined the Royal Australian Air Force ("RAAF") on 4 January 1949. It is not in dispute that the veteran served in Korea from 5 April 1953 to 26 November 1953, which period constitutes "operational service" for the purpose of the Act. He also served from 7 December 1972 to 16 February 1984, which period constitutes "eligible defence service" for the purpose of the Act.
Standard of proof
The veteran does not bear any onus of proof. The standard of proof is as set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions arising out of operational service. That is, the tribunal must find that the claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the particular service rendered.
In respect of the veteran's eligible defence service, subsection 120(4) of the Act applies, that is, the tribunal is to decide the matter to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commissionv Smith (1987) 74 ALR 537). The standard of proof relevant to the assessment of the rate of disability pension is also as set out in section 120(4) of the Act.
Statement of Principles
In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority ("the RMA") from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist for a hypothesis to be considered reasonable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition. However, for operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused. For eligible defence service the tribunal must be reasonably satisfied that the factor exists before the claim can be accepted.
As to which SoPs apply in relation to the claimed condition of lumbar spondylosis the tribunal must consider the decision of the Full Federal Court in the matter of Repatriation Commission v Keeley [2000] FCA 532 which, in effect, upheld the decision of His Honour, Justice Heerey, in Keeley v Repatriation Commission [1999] FCA 1103, ruling that the applicable SoPs are those in force at the time the decision under review was made. Leave is currently being sought to appeal to the High Court from the decision of the Full Federal Court and thus the question of which SoPs apply is not yet finalised.
The decision under review is the decision of the delegate of the respondent dated 13 August 1997. The SoPs applying at the time were SoP No. 165 (operational service) and SoP No. 166 (defence service) of 1996 in relation to the claimed condition of lumbar spondylosis. At the time the VRB reviewed the decision, SoPs Nos. 52 (for operational service) and 53 (for defence service) of 1998 were issued by the RMA in relation to lumbar spondylosis in which the definition of "trauma to the lumbar spine" in the earlier instruments was revoked. By the time the matter came before the tribunal SoPs Nos. 27 and 28 of 1999 were issued, in which the definition of "trauma to the lumbar spine" replaced the previous definition. In all of those SoPs the factors the veteran is to meet require the suffering of a trauma to the lumbar spine before the clinical onset or worsening of a pre-existing lumbar spondylosis.
In view of the veteran's evidence discussed more fully below, that no incident upon which he relies in support of his claim that he suffered "trauma to the lumbar spine" occurred during his operational service, I deal only with the SoPs relevant to his eligible defence service.
Lumbar Spondylosis
In the veteran's case the SoP applying at the time of the decision under review relating to the lumbar spondylosis was instrument No. 166 of 1996. The relevant factors to be met in the 1996 SoP are 5(f) or 5(j) which require that the veteran suffered a trauma to the lumbar spine before the clinical onset or worsening of lumbar spondylosis.
Clause 4 of the 1996 SoP provides that subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person. Clause 6 states that factors 5(j) and 5(k) apply only to material contribution to, or aggravation of, lumbar spondylosis where the person's lumbar spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service.
Trauma to the lumbar spine is defined under the 1996 SoP to mean:
An injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent 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, 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 relevant factors to be satisfied in SoP No. 53 of 1998, in existence at the time the VRB reviewed the decision, are 5(g) or 5(r) which require the veteran to have suffered a trauma to the lumbar spine within the 25 years immediately before the clinical onset or clinical worsening of lumbar spondylosis; and 5(h) or 5(s) which require the veteran to have suffered a lumbar intervertebral disc prolapse before the clinical onset or worsening of lumbar spondylosis at the level of the intervertebral disc prolapse. The SoP includes a definition of trauma to the lumbar spine as meaning as follows:
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.
Under the most recent SoP No. 28 of 1999 the relevant factors to be satisfied are the same as those set out in SoP No. 53 of 1998. In SoP No. 28 of 1999 "trauma to the lumbar spine" is defined to mean:
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 and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.

Legislation

The relevant provisions of the Act are outlined as follows:
9. (1)    Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(e)       the injury suffered, or disease contracted, by the veteran:
(i)        was suffered or contracted while the veteran was    rendering eligible war service, but did not arise out of that   service; or
(ii)       was suffered or contracted before the commencement                  of the period, or last period, of eligible war service rendered by                    the veteran, but not while the veteran was rendering eligible                 war service;
and, in the opinion of the Commission, the injury or disease was    contributed to in a material degree by, or was aggravated by, any       eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
70. (5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
…
          (d)       the injury or disease from which the member died, or has              become incapacitated:
(i)        was suffered or contracted during any defence service                  or peacekeeping service of the member, but did not arise out           of that service; or
(ii)       was suffered or contracted before the commencement                   of the period, or the last period, of defence service or    peacekeeping service of the member, but not during such a   period of service;
          and, in the opinion of the Commission, the injury or disease was               contributed to in a material degree by, or was aggravated by, any   defence service or peacekeeping service rendered by the member,           being service rendered after the member suffered that injury or   contracted that disease; or
…
but not otherwise.

The evidence

The veteran was born on 18 February 1929. He enlisted in the RAAF in 1949 as an Aircraft Recruit Fitter. He served for 35 years, 32 of which he was a pilot, during which time he accumulated almost 5,000 flying hours, mostly as a jet fighter pilot. He was discharged on 16 February 1984 just after he turned 55 (Exhibit B). At the time of his discharge, he was an Executive Officer.
In his claim for disability pension and medical treatment received by the respondent on 24 February 1997 (T4), the veteran mentions three incidents during his service which he claims caused his lower back problem. He attached details about these incidents to his claim (T6).
The relevant paragraphs (T6, p.67) are set out below:
(5)    28 May 1958 – Richmond – No. 22 Sq. – Vampire T33 A9-835 – forced landing
While climbing out of Richmond on a high level navex, the engine rear bearing failed and induced severe vibration which necessitated closing the engine down. During the subsequent forced landing the aircraft ran over a deep ditch which collapsed the nosewheel, and then ran through two fences before coming to rest just short of the runway. Although neither occupant suffered any noticeable injury, I had a stiff and sore back for several weeks.
(6)    15 November 1966 – Darwin – NO. 75 Sqn. – Mirage A3-27 – Landing Accident
On return to Darwin from a low level intercept exercise, the nosewheel would not extend for landing. Although the landing was successfully carried out, the lack of an extended nosewheel meant that the nose of the aircraft directly impacted with the runway surface, creating a severe jolt to the cockpit area which is located in the very front of the aircraft over the nosewheel. Although I had no visible injury, I again had a sore and stiff back for some time.
(7)    06 October 1978 – Butterworth, Malaysia – HQBUT – Mirage A3-92 – Landing Accident
This accident was identical to that described above (Item 6), Mirage landing with no nosewheel. Again I suffered from a sore and stiff back for some weeks.
The veteran gave evidence about his service history and the various positions he held in the RAAF, and the traumatic incidents in which he was involved. During his operational service in Korea in 1953 he flew in many combat missions over hostile North Korea. On one such mission his Meteor Jet Fighter was hit by anti-aircraft fire and the starboard engine was knocked out. At the hearing the veteran gave evidence of this incident occurring in 1950, which was before his occupational service in Korea. I accept that it occurred in 1953. However, while this incident occurred in the course of the veteran's occupational service, on the evidence he gave, that incident did not cause him any physical trauma. As a result of the failed engine he was forced to land on a beach on an island occupied by United Nations forces. The engine was replaced the next day and the veteran flew the plane back to South Korea.
In giving evidence about the incident at Richmond when he was pilot of the Vampire, he said it occurred in 1953. I accept that this occurred in 1958, after the period of his occupational service, and before the commencement of his eligible defence service. The veteran had difficulty with dates of events without the aid of his flight logbook and squadron records, which were available to him when he compiled the statement referred to above (T6).
In relation to the forced landing in the Vampire at Richmond in 1958, the veteran said that, as a result of engine failure and subsequent forced landing, the aircraft overshot the runway and went into a deep ditch. The plane was so damaged it never was flown again. The veteran suffered a low back injury from the impact. The aircraft had a hard bucket seat, and there being no ejector seat in it, his body took the full impact of the landing. He felt pain in his back as he got out of the aircraft. He attended the medical officer and was examined. His sore back was noted. He said that it wasn't distressing him and he returned to his duties the next day. However, he had no further time off and the pain he had did not prevent him from flying. His back remained sore when he got in and out of the aircraft. He recalled possibly having some heat treatment for the pain he suffered for the next couple of weeks.
The forced landing without a nose wheel in the Mirage A3-27 at Darwin in 1966 also occurred outside the periods of the veteran's eligible service. The veteran said that at the time of this incident he was fit, playing golf and running. At the hearing the veteran stated that as a result of the impact of this landing he suffered a sore back for a few weeks and he received heat and massage treatment. The outpatient clinical records detail the incident and a history that there was "no excessive jarring or trauma". He was examined and no abnormality was detected (see T3, p.16). The veteran recalls that he was not able to fly for a period of at least two weeks. In cross-examination he revised this, not recalling what, if any, time he had off from flying. The pain he felt was in his lower back and across his hips. It felt tender if he moved the wrong way. He was not conscious of any long-term effects, or that he continued to have back pain in the period up until the next significant incident in 1978.
In 1978 at Butterworth, in Malaya the veteran was the pilot of the Mirage A3-92. While returning from a training mission he tried to lower the undercarriage, and once again, the nose wheel would not extent. He had the option of ejecting or landing. Having successfully landed in similar circumstances in 1966, he decided to attempt it again. On landing, the nose wheel dropped causing a heavy jolt and the veteran's feet bounced off the rudders. The seat he was sitting on was a bucket seat mounted on rails on which there was a hard, thin cushion. The veteran was sore upon leaving the cockpit – he "hobbled" but didn't need any assistance. He required no ladder to exit the plane as the cockpit was not far off the tarmac. He felt more pain than he had felt in the last incident – far more immediate and more severe - and he experienced spasms in his back. The veteran said that this incident occurred on 6 October 1978, and that just after it, he underwent a half-hour medical examination (T3, p.21) in which he spoke to the medical officer and was examined for possible shock.
The veteran said that he was able to sit comfortably, but he had to keep his right leg straight, as it took weight off his right hip. He said that the medical officer who examined him on the day of the incident sent him for an x-ray. He said that within a couple of days the medical officer called the veteran in to see him and discussed the x-ray which showed no real problem. The veteran continued to receive physiotherapy and drugs. The daily physiotherapy treatments consisted of heat, vibration and massage and the veteran was also taking anti-inflammatories. The veteran recalls that he was not able to fly for two weeks, after which time he progressively improved. However, he said that his back remained worse than it was before. He was unable to play golf, but he could care for himself and he was able to carry out all of his duties.

In the course of cross-examining the veteran, the respondent noted that the veteran apparently gave different evidence to the VRB (T13, p.92). The veteran thought that the VRB record of his evidence was probably inaccurate. By way of example, he said that while he is likely to have told the VRB that after the 1978 incident he was unable to fly, he did not say that he was, or use the word, "suspended". The respondent suggested to the veteran that the 1978 incident occurred in February 1978 rather than in October 1978. The veteran disagreed with the suggestion. The evidence to support the respondent's assertion is found in the outpatient clinical record for an attendance on that day (T3, p.15). However, no incident was noted as having occurred on that day.
It is more likely that the incident occurred on 6 October 1978. According to the veteran he obtained that date from his logbook. It is the date noted as the date of medical examination recorded on the medical examination record (T3, p.21). That record reveals that the veteran was examined because of the incident in which he was involved, and also for the purpose of an annual aircrew medical check. On that record, under the heading: Notes on Significant History and Other Findings, Medical Management and Next Examination, the circumstances of the Mirage's landing are noted, and the fact that the veteran suffered back strain. Doubt as to the date of the aircraft incident arises because the medical record goes on to note that "subsequent review (xray of spine) revealed no fractures but long standing minor degenerative osteoarthropathy was noted. Back pain resolved after use of physio and antinflamatory drugs". While this might at first glance appear to belie the assumption that the incident occurred on 6 October 1978, it is open to conclude that the note referred to above was inserted after the radiology had been completed and at the time of the follow-up examination. Further, the outpatient clinical records reveal an attendance on 13 October 1978 (T3, p.21), which is consistent with the veteran's evidence than he was examined again a week or so after the medical examination which is recorded as having taken place on 6 October 1978.
Whether trauma to the lumbar spine
I am satisfied that the veteran suffered a trauma to the lumbar spine as defined by the SoPs in the 1978 aircraft incident at Butterworth and that he satisfies the definition of "trauma to the lumbar spine" under each of the 1996, 1998 and 1999 SoPs. Dr Scott, occupational physician, finds this (Exhibit A). In telephone evidence Dr Scott said that he found that the veteran suffered "acute" sudden onset of pain (on the veteran's description of the pain he suffered) when he got out of the cockpit. The veteran walked with a stooped back and this constituted altered mobility. He had some medical intervention by way of anti-inflammatories. Dr Howe, the veteran's general practitioner, opined that the veteran satisfies the criteria of the SoP, supporting this by stating that (T12):
On 6OCT78, he aggravated his condition when he was involved in an aircraft incident. He experienced acute back pain within 24 hours of his injury with tenderness in the lower back region, associated with restricted mobility. His condition continued for at least 10 days and required physiotherapy as well as anti-inflammatory medication.
In evidence Professor Sambrook, rheumatologist, stated that the veteran's mobility was altered, but not to a significant degree. He conceded that if the veteran was favouring his left leg, and was unable to fly for a week or more after the incident, then his mobility was altered and his normal activities were interfered with. He agreed that the injury suffered in 1978 meets the definition of trauma to the lumbar spine.
Whether condition was pre-existing
Taking into account the whole of the evidence before the tribunal it seems that the veteran suffered degenerative changes to his lumbar spine prior to 1978. Clinical notes indicate that the veteran had a "back" complaint as early as 23 June 1952 (T3, p.17). Radiology of 30 August 1957 reveals the veteran had multiple Schmorl's nodes throughout the lumbar spine with narrowing of the T12/L1, L1/L2 and L5/S1 discs (T3, p.57). The veteran suffered a stiff and sore back for some time after each of the 1958 and 1966 air incidents. There is x-ray evidence of degeneration by 1969, an x-ray report dated 26 November 1969 noting degenerative changes at L4-5 level (T3, p.40). In February 1978 Schmorl's nodes in the bodies of upper lumbar vertebral were again noted (T3, pp.22 and 38). The veteran's attendance on a medical practitioner for low back pain in February 1978, although not recalled by the veteran, is consistent with the veteran having a symptomatic degenerative condition at that time. On that day the notes record "low back pain tender (right sacroiliac joint). No radiation. SLR (straight leg raising) 90 degrees. (Referred for) x-ray. [not legible]". The radiology report of October 1978 again notes Schmorl's nodes and it also states that mild anterior and lateral osteophytosis of the lumbar spine were seen, indicative of degenerative changes. The medical officer who examined the veteran on 6 October 1978 described this as "long-standing minor degenerative osteoarthropathy" (T3, p.21).
Professor Sambrook, in his report of 7 July 1999 (Exhibit 1), accepts the veteran suffered long-standing degenerative lumbar spine disease dating its onset as 1957. Dr Scott, in evidence, argued that the x-ray report of 26 November 1969 (T3, p.40) showing degenerative changes as L4/5 level was evidence that the onset of lumbar spondylosis had occurred by that time. Dr Howe, in a report dated 8 September 1998 (T12), thought the documented history revealed that the veteran suffered from pre-existing lumbar spondylosis.
Taking the whole of the evidence into account, I am satisfied that prior to October 1978 the veteran had a pre-existing degenerative condition in his lower back, most probably temporarily aggravated if not worsened by the previous two traumatic aircraft landing incidents in which he was involved in 1958 and 1966. The material put forward by the veteran raises the hypothesis that he suffered degenerative changes to his lumbar spine at least by 1969, that is, before his period of eligible service. On the medical evidence referred to above, he satisfies the definition of "lumbar spondylosis" in sub-paragraph 2(b) and paragraph 6 respectively of the relevant 1996 and 1999 SoPs.
Whether a "clinical worsening" of the condition occurred subsequently
The next issue that arises is whether on the material before the tribunal a reasonable hypothesis is raised that the veteran's eligible service materially contributed to the aggravation of his lumbar spondylosis, taking into account the factors which have to be met to satisfy the relevant SoPs. For the veteran to succeed in this claim the tribunal has to be satisfied that the veteran's pre-existing disease of lumbar spondylosis was contributed to in a material degree, or was aggravated, by trauma to his lumbar spine occasioned in the 1978 air incident. Before a hypothesis is raised as to this connection the veteran's circumstances must meet factor 5(j) of SoP No. 166 of 1996, or 5(r) of SoP No. 53 of 1998 and SoP No. 28 of 1999, namely, that he suffered a clinical worsening of his condition subsequent to the 1978 incident.
Dr Scott, Professor Sambrook and Dr Howe diagnose the veteran as having lumbar spondylosis. Radiology conducted in 1999 reveals a broad-based disc bulge at L4/5 and a significant degeneration of the disc at L5/S1.
I have found that the veteran was suffering from lumbar spondylosis prior to 1978, and therefore the 1999 radiology supports the proposition that the veteran suffered a clinical worsening of his condition subsequent to 1978, bringing him within factors 5(j) and 5(r) of the respective SoPs.
When Dr Scott saw the veteran in 1999 he noted that the veteran complained of low back pain, passing to his lateral thigh and knee, made worse with activities. He complains of pain in his left buttock and hip when he sleeps on his left side. He can bend, but needs to be careful when he lifts. Sitting is limited and standing is painful. The duration for which the veteran can drive is limited. Dr Scott assessed the veteran's level of impairment as 10% impairment under Table 3.3.1 and 3.3.2 of the Guide to the Assessment of Rates of Veterans' Pensions.
On the medical evidence I am satisfied that the veteran has suffered significant clinical worsening of his lumbar spondylosis since 1978, and (for the purpose of the more recent SoPs) within a period of 25 years from that date. I therefore find that the material before the tribunal raises a reasonable hypothesis that the veteran's eligible service materially contributed to the aggravation of his lumbar spondylosis, taking into account the factors which have to be met to satisfy the relevant SoPs.
Whether a connection with service
The question then arises as to whether, on the balance of probabilities, the clinical worsening of the veteran's degenerative condition was materially contributed to by the 1978 air incident which occurred in the period of his eligible service. The central issue for the tribunal is whether there is a connection between the 1978 trauma and the aggravation or acceleration of the veteran's lumbar spondylosis.
Where a veteran is claiming that a condition has been aggravated by service, and there has been an aggravation or an acceleration of a pre-existing disease, the existing disease has to have been made worse by the service, not "simply become worse" (Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593). The aggravation of the disease must be distinguished from aggravation of symptoms of the disease (Repatriation Commission v Yates (1995) 38 ALD 80).
The respondent submits that when considering whether a condition has been aggravated by operational or eligible service, it must be shown that the underlying pathology of the condition has been made permanently worse. The case of Yates raises the issue of whether manifestation of symptoms of a disease which could be asymptomatic is the same as aggravation of the disease. Lindgren J in that case noted:
The fact that a disease subsequently becomes asymptomatic, that is to say, the fact that it transpires that symptoms earlier present are shown by evidence of later events to have been temporary, is something conceptually distinct from the nature of aggravation of a disease, although expert evidence may establish a relationship between the two in respect of a particular disease or in the factual context of a particular case.
The respondent contends that there is no evidence that the veteran's lumbar spondylosis has been made permanently worse by his eligible defence service. Counsel for the respondent referred the tribunal to evidence at transcript pages 21, 22, 38, 40, 57, and the report of Professor Sambrook (Exhibit 1), and submitted that on the balance of probabilities the veteran's lumbar spondylosis has not been aggravated by his eligible defence service.
Professor Sambrook gave consideration to the question of whether the apparent worsening of the veteran's symptoms was contributed to by the accident in 1978, or just part of the natural history of low back problems that he had had intermittently from as early as 1957. He noted, in his report dated 7 July 1999 (Exhibit 1), that the veteran said that he had more frequent bouts of pain after the 1978 accident and had to give up jogging because of his back in 1985. As against that, Professor Sambrook also took account of the fact that the veteran's 1980 Medical Examination Record reported no problems with his back (T3, p.18).
Professor Sambrook agreed that on the veteran's story the facts were consistent with the clinical worsening of the condition, but in his opinion, he thought that the veteran's condition would look the same even if there had been no 1978 incident. That is, the veteran's injury was consistent with, not proof of, the connection between the aggravation of his lumbar spondylosis and his war service.
Professor Sambrook concludes that since the "x-rays on the day of the accident in 1978 were essentially no different to those performed some years earlier, and the overall level of symptoms did not increase dramatically at that time, one would have to conclude there was no permanent clinical worsening, just a temporary aggravation from the accident, as occurred previously" (Exhibit 1).
As to the veteran having failed to complain of or record any complaints in relation to his low back in 1980, I pay little regard. The record allows space to "tick" or make comments in relation to a list of body functions, including the spine. In 1980 when that record reported "general health good" the veteran was about 50 and fitter than he is now. The veteran said in evidence that he was keen to fly and he was fit to do so. It is understandable that the veteran made no mention of his back problems. His stoic attitude and his desire to continue in the services and with flying are sufficient reasons for him not to draw attention to his back complaints.
As to the 1978 x-ray revealing essentially no more than previous x-rays, Dr Scott pointed out that x-rays taken immediately after a traumatic incident would not necessarily show that changes had taken place, but the trauma would lead to further changes, which in fact have since occurred. Dr Scott also indicated that a CT scan such as was conducted in 1999 provides better definition than an x-ray and that he thought that the true picture of the veteran's condition in 1978 might not have been seen at that time. Unfortunately no x-rays were taken between 1978 and 1999.
I also doubt the correctness of Professor Sambrook's assumption that the veteran's "overall level of symptoms did not increase dramatically at that time". The veteran gave evidence that the acute symptoms that arose as a consequence of the 1978 incident were substantially worse at that time compared with the pain he suffered after the earlier air incidents. The symptoms didn't go away and they did get worse as time went on. Dr Scott explained that the veteran's continued exercise program, participating in sport and other activities, kept the muscles surrounding the spine strong, and that keeping a general level of physical fitness can slow down the degenerative process that was aggravated once again by the 1978 incident.
Dr Scott thought that given the history of the 1978 incident, the veteran's condition is probably worse as a result. The impact of the aircraft's landing caused a severe strain to the back which he thought would have aggravated and accelerated the veteran's pre-existing degenerative state. He expected to see an increase in symptoms and reduced mobility as a consequence of that incident, which expectation was borne out by the veteran's CT scan of 5 March 1999 and his present condition. Dr Scott thought that the veteran's description of his right leg problems since the 1978 incident were consistent with injury at the L5/S1 level indicated by the significant degeneration of the L5/S1 disc with height loss and gas shown by the scan. In addition, the disc bulge at the L4/5 level seen in 1999, is the same level as to which earlier x-rays had shown degenerative changes.
Dr Scott thought that the veteran probably suffered a lumbar intervertebral disc prolapse in the 1978 incident, seen in the disc lesion from which the veteran now clearly suffers, thereby also satisfying factor 5(s) in SoP No. 53 of 1998 (in the same terms as that factor in SoP No. 28 of 1999).
On the evidence I find that the veteran suffered an aggravation or acceleration of his pre-existing degenerative lumbar spine condition as a consequence of the 1978 incident. It is more than a minimal aggravation of his disease condition, and I find that the veteran's service materially contributed to his present degree of lumbar spondylosis. The connection with his service is more than temporal. The evidence is that the veteran suffered a significant impact in 1978 which is likely to have caused an aggravation injury to his lumbar injury. The veteran suffered more pain from that incident than other similar traumatic incidents in which he was involved. He did not make a full recovery, and his condition worsened, evidenced by radiology. There is no evidence of another such incident to account for the deterioration in his condition, and it is more likely than not that the 1978 incident, rather than the natural progression of the disease, accounts for or materially contributed to the extent of the pathology seen in the lumbar spine by 1999.
Date of effect
The agreed date of effect is 24 August 1997.
Decision
The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's pension entitlement be assessed with effect from 24 August 1997 on the basis of the conditions of metatarsalgia and lumbar spondylosis being war-caused.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Date of Hearing  9 May 2000
Date of Decision  21 July 2000
Counsel for the Applicant        Mr Paul Crabb
Solicitor for the Applicant         Snedden, Hall & Gallop
Counsel for the Respondent    Ms Susie Breuer
Solicitor for the Respondent    Department of Veterans' Affairs, Advocacy