Willcoxson and Repatriation Commission

[2006] AATA 447

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2005/624

VETERANS’ APPEALS DIVISION		)
Re		Morris WILLCOXSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Dr J D Campbell, Member and Mr I Way, Member

Date 24 May 2006

Place Sydney

Decision

 The decision under review is set aside and in substitution for the decision set aside the Tribunal finds that:

(a) The disability of lumbar spondylosis is war caused;

(b) The date of effect is 12 May 2004; and

(c) The matter is remitted for an assessment of the incapacity arising from     the war caused lumbar spondylosis.

[Sgd] Dr J D Campbell, Member

Mr I Way, Member

CATCHWORDS

Veterans’ entitlements – claim for lumbar spondylosis – entitlement – assessment – decision under review is set aside.

Veterans’ Entitlement Act 1986; ss 9, 15, 19, 31, 120, 120A, 135

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

24 May 2006 Dr J D Campbell, Member, Mr I Way, Member

1.      Mr Willcoxson was born on 4 October 1924.  Mr Willcoxson served in the Royal Australian Navy from 20 April 1942 to 25 March 1946, with nearly all this period being served outside Australian territorial waters on the ships HMAS Warrego (“Warrego”), HMAS Barcoo (“Barcoo”) and HMAS Quibron (“Quibron”).

2.      Mr Willcoxson has had the following conditions accepted as war caused, with an assessment of these conditions determining that disability pension be paid at 70 percent of the general rate:

·Dysidrotic eczema with superadded tinea (28 October 1954);

·Lumbar fribrositis (7 March 1955);

·Hypertension (5 November 2001);

·Recurrent bronchitis (29 November 1968);

·Sensori-neural deafness (9 September 1992);

·Anxiety state; and

·Bilateral tinnitus (16 February 2002)

3.      On 12 August 2004 Mr Willcoxson lodged a claim for the condition of lumbar spondylosis to be accepted as a war caused disability.  Mr Willcoxson also made a claim for an increase in disability pension for previously accepted disabilities.

4.      On 29 October 2004 the Repatriation Commission notified Mr Willcoxson of their determination on both issues, namely:

·That the condition of lumbar spondylosis is not related to service; and

·That the claim for an increase in the rate of disability pension was accepted, with such an increase to 90 percent of the General Rate to be paid with effect from 12 August 2004.

5.      Mr Willcoxson requested a review of the decision in relation to the condition of lumbar spondylosis to both the Repatriation Commission and the Veterans’ Review Board pursuant to sections 31 and 135 of the Veterans’ Entitlement Act 1986 (the Act), contending that his lumbar spondylosis was caused by disordered joint mechanics as a result of his service related lumbar fibrositis.  Mr Willcoxson was unsuccessful in both reviews and as a consequence sought review by the Administrative Appeals Tribunal on 20 May 2005.

ISSUES

6.      The relevant issues in this matter are:

(a)From what lumbar conditions does Mr Willcoxson suffer?

(b)Is Mr Willcoxson’s lumbar condition war caused? and

(c)If the condition is war caused, considerations as to assessment of the disability.

FINDINGS

7.      For the reason nominated later in this decision, we find that:

(a)The diagnosis for Mr Willcoxson’s lumbar condition is lumbar spondylosis;

(b)That Mr Willcoxson’s disability of lumbar spondylosis is war caused; and

(c)That the matter be remitted to the Repatriation Commission for assessment of the disability of lumbar spondylosis with date of effect for both entitlement and assessment arising from the war caused lumbar spondylosis being 12 May 2004.  In making such assessment care must be given as to understanding what disability has been assessed as arising from the lumbar fibrositis.

BACKGROUND MATERIAL

8.      Mr Willcoxson detailed a history of his lower back symptomology, which he described commencing as low back pain some six weeks after commencing service on the Warrego.  This he associated with sleeping on the deck, during which he would be soaked with intermittent showers.  Such sleeping arrangements were practiced to escape the harsh conditions existing below deck, as a result of the ship being in tropical waters.  Mr Willcoxson stated that he sought advice from the ship’s doctor, a Dr Church, who suggested he desist from sleeping on the deck.  Mr Willcoxson stated that he has been troubled with discomfort at the base of the spine and in the left buttock since that time.

9.      In 1953 Mr Willcoxson stated that after attending a rugby match at which he got wet, he suffered an onset of acute pain in his lower back.  He believes he was in bed for one week, with strict bed rest for the first three days.  As a consequence of this episode Mr Willcoxson stated that he sought assessment and treatment from the department at Concord Hospital, that his lower back was x-rayed and that the condition of lumbar fibrositis was accepted as a war caused condition by the Department of Veterans’ Affairs in 1955.

10.     Subsequent to that episode Mr Willcoxson stated that he continued to suffer low back pain, with no further episodes similar to that experienced in 1953, although he was mindful of an episode a few years ago, when he had to be carried from his car in Queensland after driving for half a day.  Mr Willcoxson stated that his lower back pain and discomfort has increased over time and is made worse by bending.

11.     Mr Willcoxson detailed a history of commencing to smoke upon joining the navy, increasing his smoking quantity to 60 cigarettes a day within months of commencing his sea duty and continuing to smoke at this rate until 1963.  At this time (1963) he ceased smoking all tobacco products on the advice of his doctor.

12.     Dr Hamilton, Mr Willcoxson’s daughter, detailed briefly her memory of her father in the early seventies, at which time she was a teenager.  Dr Hamilton remembers her father complaining of back pain at this time, particularly after gardening, his need to go to bed early after such activities and his need to have a day in bed every few weeks because of his back pain.

CONSIDERATIONS AND FINDINGS

13.     In considering this matter, we note the relative consistency with which Mr Willcoxson has presented the history of his lower back disability to various doctors (Drs Needs and Millons), to his general practitioner (Dr Calderbank) and to the Tribunal.  We also notice the relative consistency of the smoking history detailed by Mr Willcoxson in 1983 (T6 p22), to Dr Millons (Exhibit R2 p3), the smoking questionnaire of April 2006 (Exhibit A3) and to the Tribunal.  We consider, in the light of such relative consistency over time, that Mr Willcoxson is presenting the history of relevant events and circumstances with such accuracy and truthfulness as is permitted by memory of events commencing some 65 years past.

DIAGNOSIS OF THE CONDITION CLAIMED

14.     We note the following:

·The clinical history as given by Mr Willcoxson in relation to his lower back condition;

·The plain x-ray report of the lumbar sacral spine in 1954 which was reported as demonstrating a normal lumbar sacral area and sacroiliac joints (Exhibit R5);

·The plain x-ray report of 16 September 2003 (T9 p41), which concluded, “There is advanced degenerative change in all of the lumbar discs.  The changes are of longstanding and associated with advanced degenerative arthropathy in the lower lumbar facet joints”.

·The CT scan of the lumbosacral spine of 23 September 2003 (T9 p42) which was summarised as demonstrating, “Extensive DISH with mild narrowing of the vertebral canal at L2/3 and L4/5, and mild narrowing of the lateral intervertebral foramina at L4/5.  Posterior facet joint osteoarthritis, most pronounced at L4/5”.

·The medical report of Dr Millons (consultant orthopaedic surgeon) dated 30 August 2005 (Exhibit R2) in which he concludes, “that Mr Willcoxson does have lumbar spondylosis with extensive degenerative changes and particularly in the lower two lumbar discs”.  Dr Millons also commented that “Mr Willcoxson has degenerative changes through the lower two lumbar discs, but there is no evidence of any frank disc prolapse at any stage in the past”.

·The medical report of Dr Millons dated 13 February 2006 (Exhibit R3) in which he concludes, “I do not agree that Mr Willcoxson’s lumbar spondylosis was associated with a prior intervertebral disc prolapse as defined in the Statement of Principles”.

·The medical report of Dr Needs (consultant rheumatologist) of 28 January 2005 (T17 p79), in which his clinical assessment is best summarised by the final two paragraphs of his report:

“Degenerative disc disease is a spectrum of pathology developing   over a forty year period with lumbar spondylosis being a late   expression of the degenerative process.  The earliest manifestation                 being annular tears of the disc followed by disc herniation.  Deyo &               Tsui (1987)* found that people with back pain lasting two weeks are              likely to have long term problems with back pain.

Mr Willcoxson indicated that he had x-rays performed in 1953 that   were normal following which the diagnosis of lumbar fibrositis was   made.  Clinical features that he experienced at that time were   consistent with disc herniation through the vertebral end plate.  Indeed                on questioning him regarding the pains he experienced in 1942, 1943               such severe bouts of pain would clinically be consistent as what is               now referred to as an annular tear of the inter-vertebral disc and,   hence, possibly the first manifestation of degenerative disc disease.             As such, given the balance of probabilities and the presence of   vertebral end plate changes currently seen on the x-rays at L4/5   (where such changes were features of inter-vertebral disc herniation                    though those end plates) that the original diagnosis of lumbar   fibrositis, using current understandings, may have been classified as               lumbar inter-vertebral disc prolapse.  Hence, one of the early   manifestations of lumbar degenerative disc, a forerunner of Lumbar              Spondylosis.”

*Deyo & Tsui (1987) Descriptive Epidemiology of low back pain and its related                    medical care in the United States.  Spine 12, 264-68

·The medical report of Dr Needs of 3 January 2006 (Exhibit A2) in which he further addresses relevant issues:

“Mr Willcoxson has a current diagnosis of lumbar spondylosis.  I understand he has a Veterans’ Affairs entitlement for treatment of lumbar fibrositis.

In my previous letter I stated Mr Willcoxson gave a history of recurrent back pain while in Navy service between 1942 and 1943.  A more severe episode occurred in 1953.  Following this the diagnosis of Lumbar fibrositis was made.  Such episodes of pain were historically consistent with a tear of the annulus of the lumbar intervertebral disc.  Such tears will often progress to allow lumbar intervertebral disc prolapse.  That is all lumbar intervertebral disc prolapses are preceeded by a tear in the annulus.  The direction in which the disc may prolapse varies from postero-lateral protrusions to prolapse through the vertebral end-plate.  Vertebral end plate disc prolapses will not produce radiation of pain into the legs but cause back pain alone.

Mr. Willcoxson’s X-rays show the presence of vertebral end plate changes consistent with intervertebral disc prolapse through those end plates.  As such his lumbar spondylosis was associated with prior intervertebral disc prolapse.

As such in the statement of principles regarding the lumbar spondylosis, Paragraph 5, Factor (i), in my opinion fulfils the known background factors responsible for the later onset of lumbar spondylosis.”

15.     Analysis of the material detailed clearly demonstrates that Mr Willcoxson suffers from degenerative changes affecting the lumbar spine, which has caused local pain and stiffness over many years.  We conclude on the balance of probabilities that the diagnosis of Mr Willcoxson’s lower back condition is lumbar spondylosis.  We also conclude, as evidenced by this material, that Mr Willcoxson also suffers from disseminated idiopathic skeletal hyperostosis (“DISH”), noting in particular the various radiological reports and the opinion of Dr Millons.

IS LUMBAR SPONDYLOSIS A WAR CAUSED DISABILITY?

16.     We note that Mr Willcoxson’s service during World War II was operational service and as such the standard of proof relating the disability of lumbar spondylosis to his service is that of reasonable hypothesis.

17.     We note the following hypotheses postulated in this matter, namely:

(a)That the war caused disability of lumbar fibrositis gave rise to a postural and gait disorder, which in turn has caused disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis; and

(b)That Mr Willcoxson had a war caused smoking habit and that by 1953 he had smoked 30 pack years of cigarettes, with such smoking giving rise to an intervertebral disc prolapse in 1953 and/or multiple disc prolapses in the lumbar spine in later years prior to the clinical onset of lumbar spondylosis.

18.     We note that the relevant Statement of Principles (“SOP”) in this matter are:

(a)Lumbar Spondylosis:                   Instrument No 37 of 2005

Instrument No 46 of 2002

(b)Intervertebral Disc Prolapse:      Instrument No 130 of 1996

as amended by

Instrument No 92 of 1997

19.     In considering the hypothesis (a) (gait disorder and disordered joint mechanics) we note that this hypothesis was postulated by Dr Calderbank (Mr Willcoxson’s general practitioner) in his report of 3 August 2004.  In considering whether the hypothesis is a reasonable hypothesis we note factor 6(e) of Instrument No 37 of 2005 concerning lumbar spondylosis, this being the Instrument current at the time of the hearing, “having a condition of the lumbar spine from the specified list of spinal conditions before the clinical onset of lumbar spondylosis”.

20.     The specified list of spinal conditions are defined in clause 9 of the same Instrument, namely:

(a)Scoliosis;

(b)Spondylolisthesis;

(c)Retrospondylolisthesis;

(d)A deformity of a vertebra;

(e)A deformity of a joint of a vertebra; or

(f)Necrosis of bone.

21.     For the hypothesis to be reasonable there must be material (raised fact) pointing to each element of the factor relied upon in the Instrument linking the disability claimed with the circumstances of his service.  We note that factor 6(e) is particular in nominating that a condition of the lumbar spine must exist prior before the clinical onset of lumbar spondylosis.  We note the definition of a specified list of spinal conditions as outlined.  Upon consideration of all the material in this matter, we are satisfied that there is no material pointing to the existence of a condition of the lumbar spine (as defined).  In such circumstances we conclude that a reasonable hypothesis has not been raised and the claim considered pursuant to this particular SOP must fail.

22.     As Mr Willcoxson lodged his claim in August 2004, the SOP concerning lumbar spondylosis current at that time must also be considered.  This was Instrument No 46 of 2002 and the relevant factor was factor 5(e), “having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis”.  Disordered joint mechanics as defined in clause 8 of that Instrument:

“means maldistribution of loading forces on the lumbar spine that has resulted from:

(a)Scoliosis; or

(b)Loss of enhancement of the normal anterioro posterior curvature of the vertebral column, or

(c)Spondylolisthesis; or

(d)Retrospondylolisthesis; or

(e)A deformity of the vertebra; or

(f)A deformity of a joint of the vertebra; or

(g)Necrosis of bone.

23.     We note that factor 5(e) is particular in nominating that disordered joint mechanics affecting the lumbar spine must be present prior to the clinical onset of lumbar spondylosis.  Again disordered joint mechanics is defined.  Upon consideration of all the material we are satisfied that there is no material pointing to the existence of disordered joint mechanics of the lumbar spine (as defined) prior to clinical onset of lumbar spondylosis.  In such circumstances a reasonable hypothesis has not been raised and the claim must fail.

24.     In addressing the hypothesis relating Mr Willcoxson’s lumbar spondylosis to his service, with the hypothesised causal connection being intervertebral disc prolapse and a war caused smoking habit, we not the following:

(a)Factor 6(h) of SOP Instrument No 37 of 2006:

“6(h)Having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse”.

(b)Definition of intervertebral disc prolapse as nominated in clause 2(b) of Instrument No 130 of 1996 as amended by Instrument No 92 of 1997:

“2(b)For the purposes of this Statement of Principles, “intervertebral disc prolapse” means protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness and may include:

(i)in the case of the cervical spine …

(ii)in the case of the lumbar spine – pain and paraesthesia radiating into the lower limb.”

(c)Factor 5(f) of Statement of Principles Instrument No 130 of 1996 concerning intervertebral disc prolapse:

“5(f)Smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse.”

25.     In addressing the chain of causal connection with Mr Willcoxson’s service, the following hypotheses are postulated:

(a)That his service in the navy was associated with the commencement of his smoking and this smoking habit increased in late 1942 at a time Mr Willcoxson was experiencing stress because of his sea duty;

(b)That he smoked 30 pack years before the onset of intervertebral disc prolapse; and

(c)That he suffered an invertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse.

WAS MR WILLCOXSON’S SMOKING HABIT WAR CAUSED?

26.     In addressing the issue of smoking there is material pointing to Mr Willcoxson commencing to smoke early in his service (namely May 1942), and as a consequence of “being socially equal”.  There is further material pointing to an increase in the quantity of cigarettes smoked to 60 per day in December 1942 – this increase being a compulsive need once sea time pressure began.  There is also other material pointing to stress arising from his operational service, namely the acceptance of an anxiety disorder as war caused.  We further note that there is material pointing to cessation of smoking all tobacco products in 1963 on medical advice, with the material pointing to a tobacco habit of 60 cigarettes or equivalent a day from December 1942 to cessation in 1963.

27.     In such circumstances, and in the absence of any SOP for smoking, we are satisfied that a reasonable hypothesis has been raised relating Mr Willcoxson’s smoking habit to his service.  Further there has been no material adduced which would allow us to conclude that one or more of the facts necessary to support the hypotheses are disproved beyond reasonable doubt, or alternatively the truth of another fact in the material, which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus, disproving beyond reasonable, the hypothesis (Byrnes v Repatriation Commission (1993) 177 CLR 564).

28.     With a reasonable hypothesis found to exist, Mr Willcoxson’s smoking habit is determined to be war caused.

THE SMOKING QUANTITY

29.     The material points to Mr Willcoxson’s commencing to smoke at the rate of 60 cigarettes a day in December 1942 and continuing to smoke at this rate until 1963.  Such material points to a smoking habit consumption of three pack years per year, a consumption of 30 pack years by the end of 1952 and some 60+ pack years smoked prior to cessation in 1963.  Again we note no material adduced which would permit the facts raised by the material to be disproved beyond reasonable doubt or the existence of other facts which are inconsistent with the raised facts as proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the raised facts.

DID MR WILLCOXSON SUFFER AN INTERVERTEBRAL DISC PROLAPSE?

30.     The material points to Mr Willcoxson experiencing a severe low back pain episode following his attendance at a rugby union match in 1953.  The material points to Mr Willcoxson suffering lower lumbar pain and left buttock pain at that time, necessitating Mr Willcoxson to be confined to bed for a week, with strict bed rest for the first three days.  The material points to investigation of his lower back condition in 1954 at Concord Hospital, with an x-ray at that time demonstrating a normal lumbosacral area.  Following further assessment by the Department of Veterans’ Affairs, Mr Willcoxson’s lower back condition was accepted in 1955 as war caused lumbar fibrositis.

31.     It is noted that lumbar fibrositis is a condition which denotes “inflammation of muscle sheath and fascial layers of the locomotor system masked by pain and stiffness” (Dr Millons, Exhibit R2, extracted from Dorland’s Illustrated Medical Dictionary).

32.     Dr Needs, in his reports of 27 January 2005 and 3 January 2006 and in his oral evidence, was of the opinion that the clinical features of the low back episode in 1953 were consistent with an annular tear of the disc and consequential disc herniation through the vertebral end plate, with such vertebral end plate disc prolapses causing back pain alone and not producing radiation of pain into the legs.  Dr Needs draws confirmation of this opinion from “the presence of vertebral end plate changes currently seen on the x-rays at L4/5” with the lumbar spondylosis at the L4/5 level being a later expression of the degenerative process.  Dr Needs also expressed the opinion that the x-rays of the lumbar spine showed degenerative changes in all the lumbar discs, particularly at L4/5, with again the resulting spondylosis being the consequence of the degenerative process involving the intervertebral discs by way of disc herniation through the vertebral end plate.

33.     We also note the opinion of Dr Millons’ expressed in both his written and oral opinions.  Dr Millons acknowledged that the diagnosis of lumbar fibrositis following the 1953 acute episode of low lumbar pain was a diagnosis made on clinical grounds with such a diagnosis encompassing lumbar pain arising from one, all or any combination of the following, namely muscle/tendon strain, facet joint arthritis and annular tear of the disc with or without disc prolapse.  Dr Millons commented that advances in investigative techniques and clinical interpretations have resulted in clinicians being better able to identify with more particularity the nature of the underlying cause giving rise to a low lumbar back pain.

34.     With such understandings Dr Millons acknowledged that the 1953 episode experienced by Mr Willcoxson may have involved disc damage, and that the description of the clinical pathway/evolution of lumbar spondylosis being the end point of a degenerative process involving disc herniation has been and remains a clinical explanation espoused by the general body of specialist rheumatologists.

35.     Dr Millons, while acknowledging that the degenerative process does involve disc dehydration, loss of disc height, annular tears and disc herniation through the vertebral end plate, was and remained of the opinion that Mr Willcoxson’s lumbar spondylosis was the consequence of an aged related degenerative process, with no evidence of any frank disc prolapse at any stage in the past.  While, having expressed an opinion in his report of 13 February 2006 that Mr Willcoxson’s lumbar spondylosis was not associated with prior intervertebral disc prolapse as defined in the SOP, Dr Millons, in oral evidence, was less prepared to conclude that the definition of intervertebral disc prolapse, which includes protrusion, herniation or rupture was excluded in the consideration of this matter.

36.     Our task is but a simple one.  From the material outlined, and having considered all the material, we conclude that there is material pointing to the definition of an invertebral disc prolapse (clinical history of Mr Willcoxson’s low lumbar pain and Dr Needs’ clinical opinions derived from his understanding of the clinical history and the x-ray findings).  We further note that such material points to the intervertebral disc prolapse occurring in 1953 (Dr Needs, Dr Millons – a possibility), or at a later time and at a number of levels in the lumbar spine during the degenerative process associated with a clinical end point diagnosis of lumbar spondylosis (Dr Needs).

37.     With material pointing to the past existence of an invertebral disc prolapse, we note factor 5(f) of the SOP Instrument No 130 of 1996 as amended by Instrument No 90 of 1997 (detailed earlier) concerning intervertebral disc prolapse.  Earlier in this decision we concluded that there was material pointing to a cigarette consumption of 30 pack years prior to the 1953 incident and 60 packs years up to the time of ceasing to smoke in 1963.

38.     Having considered the elements of factor 5(f) we are satisfied that the hypothesis is a reasonable hypothesis, with material pointing to each element of the hypothesis consistent with the elements nominated within factor 5(f).  That is smoking 30 pack years before the clinical onset of intervertebral disc prolapse.

39.     In addressing the issue of whether we are satisfied beyond reasonable doubt that the intervertebral disc prolapse was not war caused we note the evidence of Dr Millons in relation to both the criteria for a diagnosis of intervertebral disc prolapse and his contention that there was no evidence of any frank disc prolapse in the past.  We are also mindful of his somewhat contradictory oral evidence that intervertebral disc damage and prolapse was one of three diagnostic possibilities encompassed by a diagnosis of lumbar fibrositis.  However we also note his finite reluctance to exclude that the degenerative disc process does not include disc herniation at some stage.  In such circumstances we are satisfied that there is no material adduced which would allow us to conclude beyond reasonable doubt that Mr Willcoxson’s intervertebral disc prolapse at L4/5 and other disc prolapse associated with the degenerative disc process in the lumbar spine were not war caused.

IS THE LUMBAR SPONDYLOSIS A WAR CAUSED DISABILITY?

40.     The hypothesis postulated is that Mr Willcoxson suffered from a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the L4/5 disc prolapse, and at other levels as demonstrated by the radiological evidence of degenerative disc disease and herniation in the lumbar spine.  We are satisfied that there is material pointing to each element of the hypothesis.

41.     Factor 6(h) of SOP Instrument No 37 of 2005 provides for:

“6(h)having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse.”

42.     We are satisfied that the hypothesis is a reasonable hypothesis in that there is material pointing to each element of the hypothesis, with such material being consistent with the elements nominated within factor 6(h).

43.     Further, while noting Dr Millons’ contention that lumbar spondylosis is the end result of a degenerative process associated with aging, we are satisfied that there has been no material adduced which would allow us to conclude that Mr Willcoxson’s lumbar spondylosis was not war caused.

44.     In summary we have concluded that Mr Willcoxson’s lumbar spondylosis is war caused.

ISSUE OF ASSESSMENT

45.     The issue of assessment of the war caused disability in this matter is not without difficulty.  We note that incapacity arising from his war caused disability of lumbar fibrositis has been included in the assessment of his overall incapacity arising from his war caused disabilities.  On the clinical evidence available there seems little to differentiate between the assessment of incapacity arising from the lumbar fibrositis and that from the newly accepted condition of lumbar spondylosis, for it would appear that both are giving rise to a similar and perhaps the same incapacity.

46.     In such circumstances, we remit the issue of assessment to the Respondent with the guidance that the effective date of entitlement and assessment of the war caused disability of lumbar spondylosis is 12 May 2004.  We also note that the effective date for the increase in his rate of disability pension to 90 percent was 12 August 2004.

DETERMINATION

47.     The decision under review is set aside and in substitution for the decision set aside the Tribunal finds that:

(a)The disability of lumbar spondylosis is war caused;

(b)The date of effect is 12 May 2004; and

(c)The matter is remitted for an assessment of the incapacity arising from the war caused lumbar spondylosis.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member and Mr I Way, Member

Signed:         Associate

Date of Hearing  21 April 2006            
Date of Decision  24 May 2006
Solicitor for the Applicant  Ms J Wyatt, Wyatt Attorneys
Counsel for the Applicant  Mr C Colbourne
Solicitor for the Respondent  Mr N Bunn
Counsel for the Respondent  Ms L Firth