Murray and Repatriation Commission

[2007] AATA 1284

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600540

VETERANS’ APPEALS DIVISION		)
Re		WILLIAM MURRAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Associate Professor J B Morley RFD, Member

Date2 May 2007  

PlaceBrisbane  

Decision

The Tribunal sets aside the decision under review and substitutes the decision that William Murray’s cervical spondylosis is defence caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986 with effect from 16 September 2003.

The Tribunal remits the matter to the respondent so that the rate of disability pension for cervical spondylosis can be assessed.

.................[Sgd]................

Senior Member  

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – service in the Australian Army - cervical spondylosis – intervertebral disc prolapse – statement of principles – applicant engaged in numerous heavy lifting activities during service – Tribunal found that applicant suffered clinical onset and clinical worsening of cervical condition during service – disc prolapse as clinical worsening of cervical condition - decision under review set aside.

Veterans’ Entitlements Act 1986 s 70

Repatriation Commission v McKenna (1998) 52 ALD 72

Repatriation Commission v Milenz (2006) 93 ALD 107

REASONS FOR DECISION

2 May 2007

M J Carstairs, Senior Member

 Associate Professor J B Morley, RFD,  Member  

1.      Mr William Murray joined the Australian Army and served for twenty years from 9 July 1969 to 14 July 1989.  He seeks a disability pension for cervical spondylosis.  To establish an entitlement to pension for the condition, Mr Murray must show that there is a connection between the condition and his Army service.

2.      The question, in a general sense, of whether any medical condition is related to a person’s defence service is addressed under the Veterans’ Entitlements Act 1986 to the standard of reasonable satisfaction, or on the balance of probabilities.  The first issue that we must decide is whether Mr Murray suffers from cervical spondylosis, and the second issue is whether the required connection with service is made out in the context of the Act. The latter question, in large measure, is answered by applying Statements of Principles, determined under the Act.  There is a Statement of Principles for cervical spondylosis – namely Instrument No. 34 of 2005.  In paragraph 3(b) of this Statement of Principles, cervical spondylosis is defined as degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression.

3.      The first issue is uncontentious in this case because there was substantial agreement that Mr Murray suffers from cervical spondylosis.  The tenor of the medical evidence is elaborated upon further below; suffice to say here, that we accept the detailed medical conclusions of Dr A Smith (orthopaedic surgeon) and Professor P Sambrook (rheumatologist).  Both Dr Smith and Professor Sambrook considered that Mr Murray’s signs and symptoms came within the definition of cervical spondylosis as defined in the relevant Statement of Principles. Importantly, both commented that Mr Murray’s cervical changes were more marked than would be expected for a man of his age.

4.      We accept the medical evidence agreeing that Mr Murray’s condition comes within the definition for cervical spondylosis, which itself would accord with accepted medical language about the condition.  From the evidence it appears that Mr Murray has had the condition for some time, since the 1970s.

5. The real issue of contention, then, is the second identified issue: whether Mr Murray’s cervical spondylosis is related to service in any of the ways contemplated by s 70 of the Act, expressed as possible connections with service in the Statement of Principles.

6.      Mr Jones, Mr Murray’s solicitor, raised several possible connections.  It is not necessary in our view to canvass the alternatives in great detail.  We have concluded that Mr Murray’s case succeeds based upon a connection with service expressed in the Statement of Principles for cervical spondylosis as:

having a cervical intervertebral disc prolapse before the clinical worsening of cervical spondylosis at the level of the intervertebral disc prolapse.[1]

[1]        Instrument No. 34 of 2005, factor 6(q).

7.      As the law stands, such a proposition, involving as it does another medical condition namely cervical intervertebral disc prolapse, requires that we apply two Statements of Principles – that for cervical spondylosis and that for interveterbral disc prolapse (Instrument no. 34 of 2005 and Instrument no. 131 of 1996 respectively).[2]

[2]        Repatriation Commission v McKenna (1998) 52 ALD 72.

MEDICAL RECORDS RELATING TO SERVICE

8.      In regard to the medical evidence we had the advantage of Mr Murray’s service medical records[3] and his military compensation file,[4] and a number of medical reports which included reports from orthopaedic surgeon Dr P Boys (30 August 1999[5] and 25 February 2000[6]); Dr I Low, specialist in occupational medicine, (9 October 2000[7]); Dr B Turner, consultant occupational physician (13 August 2002[8]); Dr A Smith (2 February 2006[9] and 31 August 2006[10]); and Professor P Sambrook (10 February 2006[11]).  Dr Smith and Professor Sambrook were the two specialists who gave evidence at the hearing.

[3]        Exhibit R3.

[4]        Exhibit R4.

[5]        T17, folio 149 and exhibit R4, folio 190.

[6]        T17, folio 147 and exhibit R4, folio 153.

[7]        T17, folio 144 and exhibit R4, folio 91.

[8]        T17, folio 137 and exhibit R4, folio 41.

[9]        Exhibit R1.

[10]        Exhibit R2.

[11]        Exhibit A2.

9.      Mr Murray says a number of incidents in his Army service were implicated in the development of his condition.  These incidents, which involved demanding physical work and repetitious heavy lifting, included:

• in the 1974 Brisbane floods, 14 hours of sandbagging city buildings during which he filled and carried sandbags weighing 25-30kg over distances of approximately 75m;
• in March 1974 a seven-day exercise on Moreton Island, traversing the island carrying full combat loads and a 20 litre jerry-can of water;
• in October 1976 during a Canadian/Australian exchange exercise, lifting equipment and ammunition varying between 5-20kg in weight;

• during “Exercise Gold Fever” at Fraser Island/Wide Bay Training Area in June/July 1978, carrying sand filled mortars weighing about 30kg;

• in 1979 an exercise involving rescuing a half-buried soldier in a collapsed rifle pit, digging away sandbags, timber and rock, and carrying the soldier on a makeshift stretcher for about 500m;
• in 1983, during “Exercise Droughtmaster” at Bourke NSW in 1983, constructing weapon pits from boulders, rocks and logs, and laying barbed wire around a 1km² area. They carried bundles of star pickets weighing 55kg and wire bundles weighing 95kg; and also carried in their rations water and equipment, for a distance of about 1.5km.  A similar exercise was conducted at Glen Innes (NSW) in April 1985; and
• in 1985, for eight months, he had duties as acting Quartermaster Sergeant responsible for the company store, where he assisted storemen with lifting; and had similar duties as Clerk/Admin and Storeman in Darwin 1987/88.

10.     In his oral evidence Mr Murray recalled his neck pain beginning in about 1978, during the Fraser Island exercises.  This pain then improved a couple of days later, however he was bass drummer in the pipe band for the period from 1976 to 1984 (that is, from age 28 to 36 years).  Rehearsals lasted for 2-3 hours, often twice a day, during which time he was supporting a 10kg bass drum from a collar around his neck, and he said he had neck pain all the time.[12]   We noted that even the Veterans’ Review Board expressed the view that Mr Murray’s cervical spondylosis was related to the weight of the bass drum around his neck.[13]

[12]        T17: as referred to by Dr P Boys, report dated 20 August 1999.

[13]        T25, folio 291: Veterans’ Review Board Decision 31 August 2005.

11.     But these were not the only matters which might have been implicated in Mr Murray’s subsequent neck problems.

·From various sources within the documentary materials we noted that Mr Murray was boxing in the Army. In 1974 he was knocked out in a sparring incident and was unconscious for possibly 15 minutes to half an hour.[14]  He was also knocked out when playing service football and when struck in the head by a counter-balance on the rifle range.

·As reported by Dr Smith in his report of 2 February 2006,[15] Mr Murray suffered whiplash in a motor vehicle accident in 1979 and he related experiencing neck symptoms after an incident in Canada in black ice.  He also had a motor cycle accident in 1986 when he was propelled over a car after a head on collision with another vehicle.

[14]        Ibid.

[15]        Exhibit R1.

12.     In a comment to which we return later in these reasons, Dr Smith said, in his second report of 31 August 2006, that Mr Murray experienced symptoms emanating from his cervical degenerative disease sometime between the ages of 22 to 36, with no accident or injury precipitating it and then there are some frank injuries that could represent aggravations of his cervical degenerative disease.[16]

[16]        Exhibit R2, folio 3.

13.     Mr Murray said that, over the years, he continued to have bouts of neck pain, as well as intermittent numbness extending from his left hand fingertips up the length of his arm.  He said that when away on Army exercises he did not bother seeking medical attention but would sometimes attend at the RAP later, where he obtained simple treatments, without any written record necessarily being made of these attendances.  He instanced having heat applications to his neck and being supplied with aspirin and Dencorub.  Mr Murray did not recall being referred to a specialist for his complaints until he was posted to Darwin in 1987.  It was in Darwin, as Mr Murray recalled in oral evidence, that he had two bouts of left arm pain and arm weakness, lasting about 2-3 days, and occurring approximately two months apart.  He said that he did not report these.

14.     The service medical documents[17] revealed the following entries:

• A record dated 10 September 1979 (folio 19) recorded a 'whiplash injury' six days previously in a motor vehicle accident, for which he was seen in Cunnamulla Hospital.  X-rays (not specified) were said to be normal.
• Mr Murray’s Medical Board Examination Records of 21 August 1973 (folio 202), 4 December 1974 (folio 199), 5 August 1976 (folio 189), 29 August 1980 (folio 156), 11 October 1982 (folio 145), 31 March 1983 (folio 110), 12 April 1985 (folio 53), 29 May 1985 (folio 385) 1 July 1986 (folios 290 and 373) and 7 July 1987 (folio 335), all recorded that his "head, face, neck, scalp" and "upper extremities" were normal.
• On 29 November 1987 (folios 329 and 330) Mr Murray reported two days of right shoulder pain radiating down his arm, with "no history of trauma".  No explanation was found (folio 331).  There was a "recurrence" on 15 April 1988 (folio 338).
• On 2 February 1988 Mr Murray had cervical spine x-rays because of "dizzy spells", which were occurring especially when turning his neck. The Medical Officer (Capt Duncan) suspected cervical spondylosis (folio 343).  The x-rays showed severe degenerative changes at the C5/6 and C6/7 levels (folio 344). A CT scan of the cervical spine followed.  The report of Dr Bolger dated 9 February 1988 (folio 342) described this scan as examining from the C4/C5 to the C7/T1 levels.  A record (folio 341) dated 29 February 1988 referred to osteoarthritis [of] cervical spine.
• Mr Murray’s Medical Board Examination dated 17 April 1989 (folio 325) recorded his "upper extremities" as abnormal, with the annotation: spondylosis at cervical area recorded.
• Mr Murray’s Discharge Medical History Questionnaire dated 17 April 1989 (folios 327-328) again records neck complaints.

[17]        Exhibit R3.

15.     Thus, while we have no official record of Mr Murray’s reported neck or left arm complaints commencing sometime after Exercise Gold Fever, we do know that in his Board Examination Record of 1989 there were symptoms recorded.[18]  Having heard Mr Murray’s evidence we were favourably impressed by his honest account of his symptoms and have no reason to doubt that he did in fact experience symptoms before 1987, albeit that they were intermittent and treated informally at the RAP on those occasions he sought it.  Dr Smith effectively sums up the impression one gets of Mr Murray when he noted: He does not exaggerate in any way when being examined.[19]

[18]        Exhibit R3, folio 325.

[19]        Exhibit R1, folio 7: report of Dr Smith’s dated 2 February 2006.

16.     The service records do reveal what we regard as two significant episodes in Mr Murray’s longitudinal history, namely those occurring in 1987 and 1988.  In those Mr Murray reported two episodes of spontaneous pain in his right, not left, shoulder.  However, Mr Murray said in his oral evidence (see paragraph 12 herein) that he had bouts of left arm pain and weakness in Darwin.  His Medical Board Examination record of 17 April 1989,[20] shortly before his discharge, although recording that his upper extremities were "abnormal", does not designate any particular side.  Whether Mr Murray’s recollection of his left side being affected was incorrect, or whether the records note separate incidents to the two described to us in his oral evidence remains unclear.  He was not cross-examined on this evidence.  We do accept, however, that during this period in Darwin, Mr Murray had episodes of pain and weakness in one or both shoulders, from which he apparently recovered spontaneously. 

[20]        Exhibit R3, folio 325.

THE SIGNIFICANCE OF CT SCANS CONDUCTED ON MR MURRAY

17.     In their reports, and in giving their oral evidence, Professor Sambrook and Dr Smith discussed the several CT scans conducted on Mr Murray’s cervical spine.  In his oral evidence, Professor Sambrook explained the anatomical relationship between cervical intervertebral discs and their corresponding nerve roots.  He said that each intervertebral disc is identified by the two vertebrae between which it is located eg C3/4 is the disc between the third and fourth cervical vertebrae.  The C4 paired nerve roots correspond to this disc; and the higher numbered digit nerve root designation applies to each intervertebral disc level.  The paired nerve roots emerge on either side through small spaces, the neural exit foramina or intervertebral (disc) foramina (“foramina” being from the Latin “opening”).

18.     What we know of the scans is:

• 9 February 1988 (incorrectly stated as 1998 in Dr Smith's reports):  Both Dr Smith and Professor Sambrook observed that the reporting radiologist had examined Mr Murray’s cervical spine from C4 to T1 vertebral levels, but had not examined the C3/4 intervertebral disc.[21]  The 1988 scan showed degenerative changes, particularly at the C5/6 and C6/7 levels.
• 7 January 1996 and 4 December 1997: Both Dr Smith and Professor Sambrook referred to Dr Boys’ summary of the reports of these scans but neither had seen the original films or the original reports.[22]  Dr Smith observed that these scans were said to show degenerative changes at C5/6 and C6/7 levels.  No disc protrusion was seen on the former scan.  We do not know which levels were examined in either of these scans.  Professor Sambrook emphasised that we cannot now know whether C3/C4 was looked at.
• 10 November 2003: Dr Smith, in his first report and when giving oral evidence, described these films as of poor quality.[23]  Both Dr Smith and Professor Sambrook stated that the scans revealed C3/4 intervertebral disc protrusion or bulging; and that there was intervertebral foraminal narrowing on the left at C4/5, and bilaterally at C5/6.  In his second report Dr Smith refers to the C3/4 shallow central disc protrusion not being present in the 1996 scan;[24] but he acknowledged in his oral evidence that we cannot be certain whether the 1996 scan or the 1997 scan included an examination up that far.
• 15 December 2005:  Both Dr Smith and Professor Sambrook referred to the multiple level osteoarthritic changes with intervertebral foraminal narrowing on the left at C3/4, C4/5, and C5/6 levels, and on the right at C6/7. Mild deterioration at all levels since the November 2003 scan was also mentioned.  No mention was made of the previously noted C3/4 intervertebral disc bulging. 

[21]        Exhibit R3, folio 342 and exhibit R4, folio 233.

[22]        T17, folio 152.

[23]        Exhibit R1.

[24]        Exhibit R2, folio 2.

19.     Commenting on this last scan, Professor Sambrook added, the degenerative changes were considered quite marked for a gentleman of this age.[25]  Dr Smith remarked that Mr Murray has rather more in the way of cervical degenerative disease than the average man of his age.[26]

THE IMPORTANCE OF THE SCANS IN THE CONTEXT OF CERVICAL SPONDYLOSIS AND PRESENCE OF INTERVERTEBRAL DISC PROLAPSE

[25]        Exhibit A2, folio 3.

[26]        Exhibit R1, folio 6.

20.     In his report Professor Sambrook diagnosed Mr Murray as having cervical spondylosis, his intermittent left arm symptoms suggesting a left C6 nerve root compression (radiculopathy).[27]  Concerning such a diagnosis he then referred to Factors 6(g) or 6(q) in the Statement of Principles (cervical spondylosis Instrument No. 34 of 2005), noting the applicant's history of first developing symptoms of sensory loss in the left upper limb around the late 1970's.[28]  He identified this as involvement of his C6 nerve root (radiculopathy).  Professor Sambrook said in oral evidence that he suspected either C6 or C7 nerve root involvement (ie. from C5/6 or C6/7 discs) but given the issues referred to above with the various CT scans, he could not identify the level more precisely. 

[27]        Exhibit A2, folio 4.

[28]        Exhibit A2, folio 5.

21.     Importantly, Professor Sambrook concluded, referring to the scan of November 2003, that the report described C3/4 intervertebral disc protrusion, potentially causing C4 nerve root compression.  We accept that this satisfied the definition of intervertebral disc prolapse, as defined in paragraph 2(b) of the Statement of Principles for that condition (Instrument No. 131 of 1996).

22.     In his first report Dr Smith diagnosed Mr Murray as having symptomatic cervical degenerative disease, most marked at C5/6 and C6/7, without evidence of trauma.[29]  In his second report he acknowledged that cervical degenerative disease accorded with Professor Sambrook's diagnosis of cervical spondylosis.[30]

[29]        Exhibit R1.

[30]        Exhibit R2, folio 2.

23.     In this second report Dr Smith confirmed that, when he examined Mr Murray’s 2003 CT scan he noted C3/4 intervertebral disc bulging, with associated arthritic change.  Again, he noted that there was no evidence of any changes due to trauma. He added that the applicant apparently had experienced symptoms derived from his cervical degenerative disease between ages of 22 and 36 (1970 to 1984), with no precipitating accident or injury, but he also had suffered frank injuries that could represent aggravations to his cervical degenerative disease (or cervical spondylosis).[31]  In written reports Dr Smith expressed his opinion that Mr Murray’s cervical spondylosis was not related to his military service.  We thought it regrettable however, that Dr Smith had not been provided with the Statement of Principles for cervical spondylosis when asked to provide his written opinion.

[31]        Exhibit R2, folio 3.

24.     In his oral evidence, Dr Smith stated that the applicant's left arm tingling (or paraesthesia), if due to cervical nerve root involvement, could have been derived from the C6 or C7 roots, but not from the C4 nerve root.  However, when asked about the two episodes of arm weakness in Darwin, he said that a C4 root lesion, such as from a C3/4 intervertebral disc prolapse, could cause shoulder pain or weakness of this kind, as it would affect the muscles abducting the shoulder.

25.     All of the applicant's CT cervical spinal scans, from the first performed on 9 February 1988, have been reported as showing degenerative changes, particularly at the C5/6 and C6/7 intervertebral disc levels.  We accept as Professor Sambrook suggests, that factors 6(g) or 6(q) of that Statement may be relevant in this case.  On the evidence we considered factor 6(g) as less likely, because there was no evidence that clearly suggested that Mr Murray suffered a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis. 

26.     The evidence however does point more clearly to Mr Murray satisfying factor 6(q), having a cervical intervertebral disc prolapse before the clinical worsening of cervical spondylosis at the level of the intervertebral disc prolapse.  We turn now to that evidence.

27.     Both Professor Sambrook and Dr Smith agreed that, of the five CT cervical spine scan reports, the only intervertebral disc protrusion described was in that of 2003, at the C3/4 level.  Both doctors agreed that the three earlier scans of 1988, 1996, and 1997 have not reported intervertebral disc changes at the C3/4 level.  However, as Professor Sambrook has pointed out, the C3/4 intervertebral disc level was not examined in the 1988 scan.  Nor was there any evidence that this disc level was included in the CT scan examinations conducted in 1996 and 1997.  From the 2003 scan Professor Sambrook was comfortable diagnosing that Mr Murray had a C3/4 intervertebral disc protrusion, potentially causing C4 nerve root compression.  A reading of Dr Smith’s second report indicates a perhaps more grudging acceptance that the described shallow central disc protrusion came within the definition in the relevant Statement of Principles for intervertebral disc prolapse.[32]  Based on the 2003 scan, Dr Smith during his oral evidence agreed that the applicant's episodes of shoulder pain and weakness in the 1987-1988 period could have been due to a C4 nerve root compression.

[32]        Exhibit R2: report dated 31 August 2006.

28.     We should remark, at this juncture, that the definition of intervertebral disc prolapse in the Statement of Principles also requires that the protrusion causes local pain and stiffness, and/or pain and paraesthesia radiating into the upper limbs.  Mr Murray’s recollections about these consequential symptoms was not questioned and we accept that he had those symptoms by about 1987 (in the case of neurological symptoms) and earlier than that with reference to neck pain.  The factors mentioned in the Statement of Principles for intervertebral disc prolapse that were evident (some as alternatives) from the evidence presented in Mr Murray’s case were:

·Suffering trauma (as defined) at the time of clinical onset or worsening of intervertebral disc prolapse,[33] and

·Lifting 10kg, 25 times a day, for a period of two years within the five years before clinical consent or clinical worsening of intervertebral disc prolapse.[34]

[33]        Statement of Principles for Intervertebral Disc Prolapse, Instrument No. 131 of

1996, factor 7.

[34]        Ibid, factor 5(c).

29.     We note in passing that more might have been made of suffering trauma (since it is defined as including suffering injury after lifting an object weighing more than 10kg; falling from a height; or after the application of an extraneous physical force).  Mr Murray was a man who had multiple instances of being knocked unconscious including army boxing and other service sports; and who had 12 years of lifting a 10kg bass drum.  But suffering trauma before a disc prolapse was not the case presented to us.  Rather, it was the other factors, relying on lifting weights – factors 5(c) and or 5(j).  Both those factors were pointed to by the evidence.

30.     We should at this point comment on the aspects of clinical onset and clinical worsening in the context of the evidence as a whole.  Both are matters that require the exercise of clinical judgement by medical practitioners, a point more recently highlighted by the Federal Court in Repatriation Commission v Milenz.[35]  In matters of this kind it will be usual that the event took place some time ago, and the evidence will rarely be available that would enable exact findings on the clinical onset or clinical worsening (if present).  As stated, it calls upon clinical judgement, usually in the context of incomplete records, without comprehensive medical tests undertaken at the time.  In other words, clinical judgement will involve drawing inferences in the absence of a full set of objective physical tests.

[35] (2006) 93 ALD 107.

31.     So, Mr Murray’s situation is not an unusual one.  We do not know exactly when the intervertebral disc prolapse occurred (clinical onset).  But we do know that Mr Murray was experiencing symptoms of cervical spondylosis from the 1970s (that is, clinical onset was about that time).  We also know that between then and now, Mr Murray experienced worsening of his cervical spondylosis, so that the specialists reporting on his case can say that he shows more changes than would be expected for a man of his age.

32.     We would even venture to say that Mr Murray experienced clinical onset and clinical worsening during his period of service.  We say this because he entered the defence forces at the age of 21, remained in service for 20 years, carried out his heaviest working and Army sporting life then, and experienced cervical symptoms that we have described during that time.  In that sense, the presence of alternative factors within the Statements of Principle, allowing both for clinical onset and clinical worsening, suggest that some degree of imprecision within the evidence about the specific dates of either can be accommodated by the decision making process, as long as the other matters referred to with any particular factor – the factors being medical/scientific standards for a connection between injury and service – are met. 

33.     Mr Murray had cervical spondylosis from about the 1970s.  We were satisfied that the added disc prolapse, coming as it did in the 1980s, evidenced the clinical worsening of his cervical spinal condition, meaning that the evidence as a whole indicates a connection with service as described in factor 6q of the Statement of Principles for cervical spondylosis.  It seems to us quite uncontroversial that disc prolapse is a significant worsening of a cervical condition.  

34.     Doing the best we can with the available medical evidence and Mr Murray’s recollections of his symptoms, we concluded that the evidence pointed strongly to a connection between weights borne by him during service and subsequent disc prolapse.  That evidence included that Mr Murray was playing the bass drum for 12 years until 1984, and that he had symptoms referable to disc prolapse by the late 1980s.  We know his service life routinely involved him in other lifting duties.  We concluded that the evidence pointed to him lifting 10kg 25 times a day for the requisite years before the onset of the intervertebral disc prolapse.  In other words, Mr Murray meets factor 5(c) of the Statement of Principles for intervertebral disc prolapse.  It is but a short step from there to satisfying factor 6(q) of the Statement of Principles for cervical spondylosis.

35.     As a general point, we should say that in accepting that this factor is pointed to by the evidence in Mr Murray’s case, we accepted the conclusions of Professor Sambrook about the inferences that could be drawn from Mr Murray’s CT scans given the intermittent neurological symptoms and the pain he was experiencing at the time.  We accepted also his evidence concerning the inferences which should not be drawn from the earlier CT scans – namely that the absence of any mention of disc prolapse in earlier scans meant that there was no disc prolapse.  As Professor Sambrook forcefully stated, it seems scanning did not canvass C3/4 in the earlier scans.  It is in that context that Mr Murray’s intermittent shoulder symptoms take a greater significance in his clinical profile.  As we have seen, Dr Smith acknowledged that Mr Murray’s symptoms in 1987 could well have indicated the prolapse, only later revealed in the scans.

36.     Accordingly, the Tribunal finds that, on the balance of probabilities, in 1987 and 1988 the applicant already suffered a C3/4 intervertebral disc protrusion with intermittent C4 nerve root compression.  The medical evidence taken as a whole, points to this, to our reasonable satisfaction. 

DECISION

37. The Tribunal sets aside the decision under review and substitutes the decision that William Murray’s cervical spondylosis is defence-caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986 with effect from 16 September 2003. The Tribunal remits the matter to the respondent so that the rate of disability pension for cervical spondylosis can be assessed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         [Sgd]
  Michelle Brazier, Associate

Date of Hearing  5 February 2007
Date of Decision  2 May 2007
Solicitor for the Applicant          Mr P Jones
Advocate for the Respondent   Mr B Williams