Aldcroft and Repatriation Commission - [2002] AATA 432

DECISION AND REASONS FOR DECISION [2002] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1475

VETERANS' APPEALS DIVISION       )
           Re      BARRY ALDCROFT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date6 June 2002
PlaceSydney

Decision      The applicant's spondylolisthesis condition is a war-caused injury or disease and this is so with effect from 24 July 1996. The applicant's cervical intervertebral disc prolapse is a war-caused injury disease and this is so with effect from 9 August 1998.    The applicant is entitled to special rate Disability Pension with effect from 9 August 1998.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension - lumbar spondylolisthesis – cervical intervertebral disc prolapse – whether war-caused injuries or diseases – spondylolisthesis as an aggravation of congenital condition caused by war service – inabilitry to obtain appropriate clinical management - special rate Disability Pension – whether war-caused injuries or diseases alone prevent veteran from continuing to engage in suitable remunerative employment – held that spondylolisthesis and cervical intervertebral disc prolapse were war-caused injuries or diseases – held that special rate payable

Veterans' Entitlements Act 1986: ss 6C(1), 7(1)(a), 9(1)(e)(ii), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), 24A(1), 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D.

Statement of Principles 15/97 concerning spondylolisthesis.
Statement of Principles 130/96 as amended by 92/97 concerning intervertebral disc prolapse.

Arnott v Repatriation Commission (2001) 32 AAR 445.
Banovich v Repatriation Commission (1986) 69 ALR 395.
Bull v Repatriation Commission [2001] FCA 1832.
Bushell v Repatriation Commission (1992) 175 CLR 408.
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Re Ferres and Repatriation Commission [2002] AATA 410.
Harris v Repatriation Commission (2000) 31 AAR 270.
Kattenberg v Repatriation Commission [2002] FCA 412.
Re Millen and Repatriation Commission [2000] AATA 508.
Repatriation Commission v Deledio (1998) 49 ALD 193.
Repatriation Commission v Gorton (2001) 33 AAR 370.
Repatriation Commission v Smith (1987) 74 ALR 537.
Repatriation Commission v Thompson (2001) 63 ALD 1.
Repatriation Commission v Williams [2001] FCA 1195.

REASONS FOR DECISION

6 June 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATION

On 19 August 1996 Barry Aldcroft ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") an application for Disability Pension in respect of back and neck problems caused by a fall on an oil rig and aggravated by activities in his army service (T10).
On 16 October 1996 a delegate of the Repatriation Commission ("the respondent") refused the applicant's claim for conditions the respondent described as spondylolisthesis and facet joint osteoarthritis (T13). The respondent found that because the condition was congenital in nature, and because the lifting and carrying duties in Vietnam were not in themselves severe enough to cause spondylolisthesis and facet joint osteoarthritis, no reasonable hypothesis could be raised connecting the conditions to the applicant's war service. Also, the fall that the applicant claimed was a contributing factor to his back injury occurred in 1964, which was not during an eligible service period.
On 24 January 1997 the applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the Repatriation Commission decision (T14). He included additional medical reports and information in support of his application.
On 5 February 1997 a delegate of the Respondent decided not to conduct a review of the Applicant's case under s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T15). This is the same as affirming the primary decision.
On 9 November 1998 the applicant lodged another Disability Pension claim with DVA in respect of "crack disc in neck", which was caused by "original fall in 1RTB…aggrivation [sic] carrying radios in New Guinea, carring [sic] heavy weight on back in Vietnam" (T16). The applicant stated that he first became aware of this condition in November 1965.
On 27 January 1999 the respondent refused the applicant's claim for disc protrusion at C5/6 (T17). Again the respondent found that the original fall at 1RTB in 1964, and aggravation whilst carrying "heavy weight", did not occur during eligible service. The respondent further found no history of suffering trauma or injury to the C5/6 disc and no history of lifting at least 10kg, at least 10 times a day for a period of at least two years, as required in relevant Statements of Principles ("SoPs") issued by the Repatriation Medical Authority in accordance with the Act.
On 28 January 1999 the respondent rejected the applicant's claim for an increase in Disability Pension and pension was continued at 100% of the general rate (T18). The respondent found that the applicant did not cease work because of his accepted disabilities alone and therefore did not qualify for an intermediate or special rate pension.
On 15 March 1999 the applicant lodged with the VRB an application for review of the Repatriation Commission's decision of 27 January 1999 concerning disc protrusion (T19).
On 13 April 1999 the respondent's delegate elected not to conduct a s 31 review of the decision because the circumstances of the condition did not meet any of the factors of the relevant SoP (T20).
the decisions under review
On 6 September 1999 the VRB affirmed the decisions of the Repatriation Commission dated 27 and 28 January 1999 in respect of the condition of disc protrusion at C5/6 and an increase in Disability Pension (T21). In the VRB hearing the applicant submitted that the factors (a), (c) and (f) of the relevant SoP could apply to the veteran's circumstances. The VRB found that although, in relation to factor (a), the applicant performed the activities as required by the SoP, the applicant did not, as required, suffer a discrete injury to the C5/6 intervertebral disc. The pain area was reported as "jabbing left inguinal pain", far removed from the disc protrusion at C5/6. In relation to factor (c) the VRB found that the applicant did not satisfy the necessary two years of heavy lifting that the SoP requires.
The VRB further found, in respect of factor (c) of the SoP, that the applicant did not meet the requirement of having a 30 pack year history of smoking. The VRB noted the differing smoking histories given by the applicant and decided that the most contemporaneous evidence, that of 1968, was the most accurate. A smoking habit of 20 cigarettes a day between 22 April 1966 and 1993 was therefore established (ie 140 cigarettes a week). Further, clinical onset of the disc protrusion condition was established as sometime in 1992, and the applicant's spine was found to be normal at both enlistment and discharge from the army. Therefore, aggravation of the condition was found not to be relevant.
In order to qualify for the intermediate or special rate, the applicant must have ceased work for reasons solely due to his war-caused incapacity or he must not be prevented from working for reasons other than the war-caused incapacity. As for the first requirement, the VRB found that the injury sustained on an oil rig was the condition that prevented the applicant from working. As regards undertaking remunerative work in the future, the VRB found that, because the conditions preventing the applicant from working were not war-caused, he was not eligible for an earnings-related pension.
On 6 September 1999 the VRB affirmed the decision of 16 October 1996 that spondylolisthesis and facet joint osteoarthritis were not war caused conditions (T21/103). The VRB found that the applicant had a congenital condition of spondylolisthesis and that, although it was possibly aggravated during recruit training in 1964, this aggravation did not occur during the eligible service period. As regards the lifting of heavy weights as a factor in the aggravation of this condition, the VRB found that there was no factor in the governing SoP which referred to this. The VRB ultimately found that the mere possibility of a connection between the condition and war service did not constitute a reasonable hypothesis.
RELEVANT LEGISLATION
The following are the relevant provisions from the Veterans' Entitlements Act 1986: ss 6C(1), 7(1)(a), 9(1)(e)(ii), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), 24A(1), 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service--post World War 2 service in operational areas
6C.(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
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War-caused injuries or diseases
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:
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(e) the injury suffered, or disease contracted, by the veteran:
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(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.
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Eligibility for pension
13.(1) Where:
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(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
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(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
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Claim for pension
14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
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(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
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Determination of claims and applications .
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19.(6) Where the Commission has, pursuant to paragraph (5)(a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
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(9) In this section:
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application day , in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.
assessment period , in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
claim means a claim made in accordance with section 14.
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Date of operation of grant of claim for pension
20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
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Intermediate rate of pension
23 (1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
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Special rate of pension
24.(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
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Continuation of rates of certain pensions
24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
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Capacity to undertake remunerative work
28. In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
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Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
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(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
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(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
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Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
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(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
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Dates that may be specified
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157. (2) Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board's decision is to operate:
…
in any other case—a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia;
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Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
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Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

The following are the relevant Statements of Principles.

In relation to spondylolisthesis: SoP 15/97.
In relation to intervertebral disc prolapse: SoP 130/9 as amended by 92/97.
Instrument No.15 of 1997
Statement of Principles concerning SPONDYLOLISTHESIS AND SPONDYLOLYSIS
ICD CODES: 738.41, 756.11, 756.12
Veterans' Entitlements Act 1986
1. This Statement of Principles is determined by the Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act).
Kind of injury, disease or death
2. (a) This Statement of Principles is about spondylolisthesis and spondylolysis and death from spondylolisthesis and spondylolysis.
(b) For the purposes of this Statement of Principles
"spondylolisthesis" means forward displacement of one vertebra over another, attracting ICD code 738.41 or 756.12; and
"spondylolysis" means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra, attracting ICD code 738.41 or 756.11. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes.
…
Factors that must be related to service
4. 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.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting spondylolisthesis and spondylolysis or death from spondylolisthesis and spondylolysis with the circumstances of a person's relevant service are:
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(p) inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:
(i) acute traumatic spondylolisthesis or spondylolysis; or
(ii) neurological manifestations; or
(iii) severe progressive symptoms warranting surgical intervention.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(j) to 5(p) apply only to material contribution to, or aggravation of, spondylolisthesis and spondylolysis where the person's spondylolisthesis and spondylolysis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
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"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
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"relevant service" means:
(a) operational service; or
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Dated this Twentieth day of February 1997
Instrument No. 130 of 1996.
Statement of Principles concerning INTERVERTEBRAL DISC PROLAPSE
ICD CODES: 722.0, 722.1, 722.2, 722.3 or 722.7
Veterans' Entitlements Act 1986
1. This Statement of Principles is determined by the Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act).
Kind of injury, disease or death
2. (a) This Statement of Principles is about intervertebral disc prolapse and death from intervertebral disc prolapse.
(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 cervical disc prolapse - pain and paraesthesia radiating into the upper limbs or;
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attracting ICD code 722.0, 722.1, 722.2, 722.3 or 722.7";
Factors that must be related to service
4. 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.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting intervertebral disc prolapse or death from intervertebral disc prolapse with the circumstances of a person's relevant service are:
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(f) smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse; or
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Other definitions
7. For the purposes of this Statement of Principles:
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"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
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"pack year" means 7 300 cigarettes;
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"relevant service" means:
(a) operational service; or
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Dated this 26th day of September 1996
[NB paragraph 2(b) above is as amended by SoP 92/97 dated 14 November 1997.]

BACKGROUND

The background comes largely from the report of Dr Miller (T9). The applicant was born on 31 July 1946. He left school at the age of 15 before he could gain his Intermediate Certificate. He worked in motor garages and then as a labourer before joining the army in 1964. He was initially assigned to the signals branch, whereupon he trained as a cook. He then joined the infantry and was one of the first groups of Australian soldiers to be sent to Vietnam. The applicant was a rifleman and also served as a "number one" on machine gun duty. His operational service period was from 22 April 1966 until 18 March 1967.
During his military training the applicant had to carry heavy radio equipment whilst on exercises training in the signals corps, and then in Vietnam on occasions he had to carry, in addition to his pack, a machine gun. The applicant gave oral evidence that he had to jump from helicopters while carrying his infantry equipment, although he never had to jump from the helicopter with a machine gun.
In the report by Dr Miller (T9) numerous details of the applicant's Vietnam experiences were recounted. They included Viet Cong attacks on service personnel in urban districts, including a hand grenade attack on a military bar. He witnessed horrific injuries whilst fighting and on leave. On one occasion he witnessed an American soldier stabbing a Vietnamese prostitute to death. At close range he cut a Viet Cong soldier in half by machine gun fire.
After his return from Vietnam he worked as a process worker for Email in Orange for six weeks and then as a spinner in a cloth factory. The applicant then worked for two years as a steel inspector in Newcastle for BHP and then as a labourer in a sulphide plant. He left this position after 12 months. He worked in Arnhem Land as a boilermaker and trades assistant for a number of years before ceasing in 1973 [the applicant thought that this date was incorrect]. After the position in Arnhem Land he was a self-employed hire boat operator with his family on the Gibson lakes, but sold out after experiencing marital problems. The applicant worked as a prison officer in Sale between 1977 and 1982. Subsequently, he worked on the oil rigs in Bass Strait, based in Sale. He had a work accident in July 1990 on the oil rigs, and by 1992 the pain forced him to give up work and live on compensation payments. The accident occurred when he was carrying a tray of cups and slipped on some water that had spilled from the sink to the floor. He fell backwards and hit a piece of steel attached to some kitchen equipment.
Currently the applicant lives with his wife, spending his time watching television and generally on his own (ex A12). He visits his local club and has one friend with whom he keeps contact. He has children from his earlier marriages but has minimal contact with them. He does not see his eldest son at all and has only sporadic contact with the others. The applicant attributed this to his marital breakdowns and long separations from them over the years.
On 28 September 1994 the applicant had lodged an pension claim in respect of chest lung problems and pathological substance abuse (T8). On 4 January 1995 the respondent determined that the applicant's substance abuse was war-caused and granted a Disability Pension at 70% of the general rate. No chest or lung condition was found to be present. On 11 January 1995 the applicant had lodged with the respondent an application for review of this decision and, based on additional information provided, the respondent had reassessed the pension rate at 100% of the general rate.
The Applicant is currently on a Disability Pension at 100% of the general rate. He has the accepted disabilities of haemorrhoids with haemorrhoidectomy, anxiety neurosis, perceptive deafness, tinnitus of both ears, pathological substance abuse involving alcohol and post-traumatic disorder ("PTSD") (ex TD1/1). The respondent had rejected as war-caused the conditions of ingrown toenails, chest and lung problems, spondylolisthesis, facet joint osteoarthritis and disc protrusion at C5/6.
HEARING, APPEARANCES AND DOCUMENTARY EVIDENCE
The tribunal convened a hearing in this matter in Sydney on 22 May 2001. Ms J Buss of the NSW Legal Aid Commission represented Mr Aldcroft. Mr P Godwin of the DVA Advocacy Service represented the respondent.
The parties did not complete their submissions on the day of the hearing. With the leave of the tribunal they submitted written argumentation (ex AH1, ex AH2 and ex AH3) between 22 June 2001 and 13 August 2001.
The tribunal had access to the following documentary materials which were taken into evidence and given the following exhibit numbers:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T29) lodged by DVA.
Exhibit A1 – Applicant's statement of facts and contentions, 31 July 2000.
Exhibit A2 – Applicant's statement dated 1 August 2000.
Exhibit A3 – Letter dated 20 March 2000 from Ms Buss to Professor P N Sambrook, rheumatologist.
Exhibit A4 – Report by Professor Sambrook, 17 April 2000.
Exhibit A5 – Facsimile dated 28 July 2000 from Ms Buss to Professor Sambrook.
Exhibit A6 – Report by Professor Sambrook, 28 July 2000.
Exhibit A7 – Two-page letter dated 1 August 2000 from Mr Godwin to Professor Sambrook.
Exhibit A8 – Single page letter dated 1 August 2000 from Mr Godwin to Professor Sambrook.
Exhibit A9 – Report by Professor Sambrook, 8 August 2000.
Exhibit A10 – Page 3 of report by Dr M G Miller, physician, 8 August 1995.
Exhibit A11 – Page 2 of report by Dr A J Bookallil, neurosurgeon.
Exhibit A12 – Report by Dr L Brown, psychiatrist, 5 February 2001.
Exhibit R1 – Respondent's amended statement of facts and contentions, 21 May 2001.
Exhibit R2 – Documents from DVA's files.
Exhibit R3 – Copy of applicant's claim for workers' compensation, 15 August 1996.
Exhibit R4 – Clinical notes of Dr M J O'Halloran.
Exhibit R5 – Clinical notes from GIO Workers' Compensation (Vic) Ltd.
Exhibit R6 – Workers' compensation documents from P&O Catering & Services.
Exhibit R7 – Report by Professor Sambrook, 7 February 2001.
Exhibit R8 – Defence compensation file.
Exhibit AH1 – Applicant's submissions, 22 June 2001.
Exhibit AH2 – Respondent's submissions, 13 July 2001.
Exhibit AH3 – Applicant's response to ex AH2, 13 August 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following uncontroversial findings.
The applicant was born on 31 July 1946 (T10) and was aged 50 and 52, respectively when he lodged each of the two claims.
The applicant served in the army from 27 April 1964 to 26 April 1967 (T5/14-17) and rendered operational service from 22 April 1966 to 18 March 1967 (T2).
The applicant lodged valid claims on 19 August 1996 (T10) and 9 November 1998 (T16).
The date of effect of any decision favourable to the applicant in respect of spondylolisthesis and facet joint osteoarthritis would be 24 July 1996 (s 157(2)(a)(ii) of the Act), and for disc protrusion at C5/6 would be 9 August 1998 (s 20(1) of the Act). A decision to award special or intermediate rate would operate from a date depending on any acceptance of the two conditions.
The standard of proof in relation to whether any of Mr Aldcroft's conditions of spondylolisthesis, facet joint osteoarthritis and C5/6 disc protrusion are war-caused injuries or diseases is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to eligibility for special rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The SoPs relevant to the determination of these matters are SoP 15/97 concerning spondylolisthesis and 130/96 as amended by 92/97 in relation to intervertebral disc prolapse.
medical evidence
On 21 March 1978 Dr Willington, radiologist, examined the applicant and found "possible C6/7 intervertebral disc injury otherwise normal" (T14/67).
On 10 June 1982 Dr Huygens, a surgeon, wrote to a Dr Mein about the applicant's then condition (T10/57). He noted the applicant's nine-month history of pain in the right hip region and diagnosed a "muscular sprain type of injury involving the short rotator muscles of the right hip."
On 25 November 1992 the applicant was given a MR scan by a Dr Houang (T10/58). He concluded that the applicant had "…forward slip of L4 and L5 associated with arthritic changes in the facet joints. The distal sac is indented posteriorly by the posterior elements. A small disc protrusion is noted at the L5/S1 level."
Dr Peter Moloney, neurosurgeon, wrote to a Dr O'Halloran on 22 December 1992 stating that the only measure that would be of any benefit to the applicant would be surgical intervention along the lines of a spinal fusion at L4/5 (T10/59).
On 23 April 1993 the applicant underwent surgery on the recommendation of Dr Moloney but there was a failure to fuse at the L4/5 level (T21/111).
On 4 March 1994 the applicant underwent further exploratory surgery and it was found that the screws and plates inserted into the bone had come loose, no longer immobilising the back (T21/111). During the surgery the tip of a scalpel broke off and remained permanently in the L4/5 region of the spine.
On 31 August 1994 the applicant was given a myelogram and CT scan which revealed a large cervical disc protrusion at the C5/6 interspace to the right side. (T21/111).
On 8 August 1995 Dr M G Miller, a physician, wrote a report on the applicant at the request of the Vietnam Veterans' Association (T9). He gave a detailed personal and medical history of the applicant. Concerning the issues relevant in this matter, his back and neck conditions, the applicant underwent a laminectomy of L4 in 1993 and was given a lower lumbar spinal fusion. The surgery was repeated in April 1994 and March 1995 because of pins becoming loose and the increasing pain. A scalpel point broke off during one of these operations and remained in his body. The 1993 surgery was complicated by a severe pulmonary embolus. Dr Miller further stated in his report that the applicant experienced back ache if he walked and the applicant had difficulty in dressing. Dr Miller assumed that the "lumbar spondylosis" was a 1990 work injury.
On 22 August 1995 Dr Ditton, consultant in pain management, reported on the applicant for the applicant's treating doctor, Dr Scott (T16/80). He noted that the pain which the applicant was experiencing was appropriate for the conditions of spondylolisthesis and disc protrusion of the neck.
On 15 February 1996 Dr Moloney wrote to the Vietnam Veterans' Association stating that the applicant had a congenital abnormality, characterised by a pars interarticularis defect (T10/60,T21/116). He further stated that the surgery that the applicant had undergone had not relieved his pain sufficient to permit him to return to work.
On 6 November 1996 Dr Moloney wrote to the applicant confirming the diagnosis of a congenital abnormality, and stating that, in relation to his neck, it was unlikely that the condition was caused by carrying heavy weights during his army service (T14/68).
On 14 May 1997 Dr Moloney provided a detailed report on the applicant (T21/110-114). He noted on examination that the applicant had severely restricted and painful lumbar spine movements. Straight leg raising was to 75 degrees bilaterally. Dr Moloney examined the x-rays and noted a pars interarticularis defect of the L4 vertebral body and a grade two spondylolisthesis with gross narrowing of the L4/5 disc space. Dr Maloney confirmed the congenital nature of the condition. The surgery Dr Moloney recommended was undertaken on 23 April 1993 but there was a failure to fuse at the L4/5 level. As a result the applicant suffered low back pain and paraspinal muscle spasms. In response to specific questions, Dr Moloney stated that it was not the nature of the applicant's employment that caused his conditions but rather that his employment aggravated an existing condition. In his prognosis he stated, "I do not believe that Mr Aldcroft will return to his former level of employment." He further stated that rehabilitation would not be of any benefit in his particular case and that the applicant was unfit to engage in household chores, pool or garden maintenance or house repairs, due to his back and neck conditions.
On 27 November 1998 Dr Bookallil, a neurosurgeon, provided a report on the applicant at the request of his solicitor (T21/121). As well as confirming the history of Dr Moloney and others, he stated, "I am prepared to support the contention that heavy physical work during his Army service has contributed to the symptoms developing and his spondylolisthesis…It is reasonable to assume that heavy physical activity whilst in South Vietnam has aggravated his spondylolisthesis."
On 30 December 1998 Dr Bookallil stated that factor (f) of the relevant SoP might be relevant to the applicant's condition (T21/122). He further stated that "…it is more likely that the activity of the patient had in South Vietnam rendered the pre-existing spondylolisthesis symptomatic."
On 28 August 1997 Professor P N Sambrook, rheumatologist, provided a report on the applicant (T21/123). In addition to the history given to other doctors Professor Sambrook also recorded an incident in May 1964 where the applicant suffered a syncopal episode when he fell from a rope approximately 30 feet long. He also confirmed the diagnosis of congenital spondylolisthesis and facet joint osteoarthritis. In relation to the relevant SoPs, Professor Sambrook felt that the applicant did not meet any of the requirements which would link the applicant's injury to his war service. Importantly Professor Sambrook made the following statement in regard to the congenital nature of the condition:
"Nevertheless, as a general principle it is fair to state that the presence of a congenital spondylolisthesis if recognised before enlistment would normally exclude service personnel from performing duties that Mr Aldcroft had to perform including his service as a rifleman/gunner."

However, Professor Sambrook could not with certainty state that the applicant's service in Vietnam substantially aggravated his condition. "[I]n the present circumstances it is not possible to say definitely that his service in Vietnam or indeed the fall he describes in 1964 have aggravated the condition substantially."

On 21 June 1999 Dr Martha Baz, occupational physician, provided a report on the applicant at the request of his representative (T21/129). She noted significant disability related to neck and back pain and provided a detailed assessment according to the Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( ("GARP"). The ratings for conditions other than spondylolisthesis and C5/6 disc protrusion are not in dispute. Dr Baz's assessment for these two conditions resulted in an impairment rating of 30 for the former and 10 for the latter. For his accepted disabilities, as well as spondylolisthesis and C5/6 disc protrusion, she proposed an impairment rating of 73 and a lifestyle rating of 5. This would entitle the applicant to a Disability Pension at 100% of the general rate. It was her opinion that the PTSD and the spondylolisthesis and C5/6 disc protrusion had been the substantial cause of the applicant's inability to work eight hours or more a week.

On 1 August 2000 the applicant completed a statement attesting to his smoking history (ex A2). It can be summarised as follows:

Period       Smoking habit
Prior to enlistment at 15/16 years of age 10 cigarettes a day
After enlistment, prior to service in Vietnam      3-4 packets a week
During service in Vietnam 2 cartons (20 packs a week)
Upon return from Vietnam At least 5 packs a week
Present smoking habit       1-10 cigarettes a day

In this statement the applicant suggested that within any or all of these periods, perhaps with the exception of his Vietnam service period, his smoking habit was variable. When the applicant described his smoking history upon his return from overseas service, he variously stated it to be two packs a day, "at least" five packs a week and "sometimes" three packs a day. When he was working on the oil rigs he would take two cartons (20 packs) with him for the week. Occasionally he would have up to five packs left over. This would suggest a smoking habit of some 15 packs a week or two packs a day. It is difficult to establish a reliable smoking history, especially taking into account the fact that the applicant has an admitted history of memory problems.
On 8 August 2000 Professor Sambrook provided a second report for the respondent (ex A9). He stated that the applicant should not have been involved in heavy lifting in Vietnam due to his congenital condition of spondylolisthesis, a condition that had not been diagnosed at the time of the applicant's enlistment. He stated that if the applicant had complained of back pain (and there is no specific evidence of this), the applicant should not have undertaken heavy work.
On 5 February 2001 Dr Lisa Brown, consultant psychiatrist, provided a report for the applicant (ex A12). She specifically stated that the condition accepted as anxiety neurosis in 1968 would be better diagnosed or described as PTSD. She further stated that the condition the applicant suffered from, from 1996, would be that of chronic PTSD. Dr Brown noted his alcohol abuse and it was her opinion that he used to self-medicate his PTSD or anxiety disorder symptoms. She also found that it was "possible, if not probable, that Mr Aldcroft has sustained a degree of alcoholic brain damage which might explain his memory problems." Dr Brown stated that a separate diagnosis of an anxiety disorder would not be relevant to the applicant's conditions. She gave the following rating according to GARP, excepting alcohol abuse because it was not current at the time of examination, and excepting alcohol related brain damage because it was a tentative diagnosis only.

·     Subjective stress  10 points
·     Manifest stress  10 points
·     Functional effects  5 points
·     Occupation  N/A
·     Domestic situation  5 points
·     Social interaction  6 points
·     Leisure activities  6 points
·     Current therapy  3 points

Total 37 points

On 7 February 2001 Professor Sambrook provided a supplementary report on the applicant (ex R7). He confirmed his previous diagnosis of congenital spondylolisthesis of L4/5 with secondary disc disease and facet joint osteoarthritis. Based on the materials at his disposal, Professor Sambrook was of the opinion that there were few complaints of back pain prior to the fall on the oil rig in 1990. In this report he stated that he did not believe that the applicant satisfied the SoP for spondylolisthesis, the fall of 1964 not causing a high-energy trauma.
applicant's back condition
The hypothesis advanced for the spondylolisthesis and facet joint osteoarthritis was that Mr Aldcroft had a congenital spinal defect which was aggravated by the nature of his operational service in Vietnam, that service requiring heavy lifting and manoeuvring and restraining of heavy objects (ex AH1).
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant.
The second step is to ascertain whether there is a relevant SoP in force. If there is none, then the matter will be resolved in accordance with s 120(1) and (3) of the Act as interpreted by the High Court in cases such as Byrnes v Repatriation Commission (1993) 177 CLR 564.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. In a SoP case, if the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
Finn J explained the proper operation of step three in a SoP case in Harris v Repatriation Commission (2000) 31 AAR 270, 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

Again, in Arnott v Repatriation Commission (2001) 32 AAR 445, 452-453 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

As the tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the applicant, in the opinion of the tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
It is difficult not to engage in a fact finding exercise in step three of Deledio (above). There is an account given by the applicant. There is a rebuttal by the respondent where the respondent refers to evidence before the tribunal. However, the tribunal takes the correct approach to be to have regard to all of the material before it in step three and see whether that meets the SoP template and that the hypothesis is not fanciful, impossible, incredible, too remote or too tenuous.
If the tribunal finds that step three has been satisfied that means that the hypothesis raised by the applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the respondent come into play. The tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the tribunal beyond reasonable doubt that the applicant's PTSD was not war-caused.
The tribunal has identified the bare bones of the hypothesis in paragraph 54 above. There is an applicable SoP, SoP 15/97 concerning spondylolisthesis and spondylosis ( This was promulgated on 20 February 1997, whereas the relevant claim was lodged on 19 August 1996 and the primary decision was made on 16 October 1996. Ms Buss argued strenuously that, based on the full Federal Court decision in Repatriation Commission v Thompson (2001) 63 ALD 1, in a case where the primary decision predates the promulgation of a SoP, the matter must be decided as a non-SoP case applying such cases as Byrnes (above) and Bushell v Repatriation Commission (1992) 175 CLR 408. Since the Thompson decision (above), however, the full Federal Court has delivered the decisions in Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195. Neither of these cases dealt with a Thompson (above) situation. In both cases there was a SoP in force on the day of the primary decision. However, the court in those cases adopted a policy which mixed elements of accrued rights and a preference for giving priority to the most recent SoP. Essentially, a decision-maker is to apply the SoP current at the time of the decision. This reflects acceptance by the court of the theory, reflected in s 196B(2) of the Act, that the promulgation of a SoP reflects an assessment that there is sound medical-scientific evidence that indicates that a particular type of injury, disease or death can be related to relevant service. However, a doctrine of accrued rights applies to permit recourse to the SoP in force on the day of the primary decision if the veteran would succeed under the earlier SoP.
Applying the court's approach in Gorton (above) and Williams (above), the tribunal considers that the appropriate action where a SoP applies on the date of its decision, but there was no SoP in force on the date of the primary decision, is to apply the SoP in the first instance. Should the veteran fail because of the SoP requirements, then the decision-maker applies Bushell (above) and Byrnes (above) to see whether the veteran fares better under that regime. This is an application of accrued rights.
Applying the template in SoP 15/97, as required by step 3 in Deledio (above), the tribunal first finds that the applicant's diagnosis in relation to his back is spondylolisthesis. This is accepted by the respondent (ex R1, paragraph 3). It is the diagnosis of Professor Sambrook (ex A4). In accordance with clause 2(b) of the SoP this diagnosis confirms that 15/97 is the correct SoP to use. In fact, as the parties agreed, the full diagnosis was "spondylolisthesis with facet joint osteoarthritis and intervertebral disc protrusion" (Professor Sambrook, ex A4/3). The osteoarthritis and intervertebral disc protrusion are secondary to the spondylolisthesis (ex A4/3). The spondylolisthesis itself results from a congenital defect in pars interarticularis (Dr Moloney, T10/60; Professor Sambrook in oral evidence).
The applicant relied on factor 5(p)(ii) of the SoP to argue that Mr Aldcroft's spondylolisthesis was aggravated by his operational service in Vietnam in that, following a fall at 1 RTB [Recruit Training Battalion] before operational service, which caused pains in both thighs, which in turn were treated by ray lamp and massage of both thighs, he was posted to units, including in Vietnam, where he was required to carry out heavy lifting and carrying. These activities aggravated his spondylolisthesis (ex A1, paragraph 4).
In the terms of the SoP, "[t]he Applicant contends that the above sequence of events satisfies Statement of Principles No 15 of 1997, factor 5(p)(ii), in that the pains in his thighs were 'neurological manifestations' and that appropriate clinical management would, in the presence of those signs, have been to preclude heavy lifting and carrying duties" (ex A1, paragraph 5). There is no definition of "neurological manifestations" in the SoP. The applicant relied on the evidence of Professor Sambrook (T21/123 at 128; ex A4) and Dr Bookallil (T21/121 at 122).
The respondent submitted that there had been no inability to obtain appropriate clinical management, relying on Re Millen and Repatriation Commission [2000] AATA 508 where Deputy President McMahon and Member, Dr Thorpe wrote:
"22. Some attempt was made to demonstrate compliance with the Statement of Principles with reference to paragraph 5(c). Whether or not the early diagnoses and treatments were correct for Mr Millen's condition at the time is, in our opinion, irrelevant. The paragraph does not invite an inquiry as to the appropriateness of a claimant's clinical management. It requires a claimant to show an inability to obtain that management. This would commonly arise in conditions of active service. Mr Millen has had a demonstrated ability to obtain clinical management from medical practitioners of the highest reputation who undertook examination for serious and focussed reasons to determine his continuing ability to dive. Whether they misdiagnosed his condition is irrelevant. Mr Millen was not deprived of the opportunity to obtain appropriate clinical management."
The foundations for the applicant's assertions are as follows. First, there was a fall in 1964. A contemporaneous medical record exists at T5/21. This reflects a syncopal attack (ie loss of consciousness) on 8 May 1964 "when rope climbing at PT". He complained of pains in both thighs. Ray lamp and massage treatment were noted.
In oral evidence Mr Aldcroft said he was training at Wagga. He went up the rope, down the rope and then up the rope again, from where he fell. He told the VRB that he fell about 30 feet (T21/106). At the tribunal hearing he was uncertain whether he had lost consciousness. He could not recall the ray lamp and massage treatment. He felt pain from then on whenever he engaged in pursuits such as 20-mile marches. In later training at Ingleburn he felt twinges which he linked to nothing specific and which he did not report. He was trained as a signaller at Ingleburn. This required him to do heavy carrying of radios.
In Vietnam, Mr Aldcroft said, he was a rifleman. He carried rifles, machine guns, packs, magazines, ammunition and other similar weights. He felt low back pain in Vietnam when carrying a full load. He told tribunal member, Dr Campbell, that he had to carry the machine gun when the platoon was on the move. He did this for about six hours a day and he carried it five or seven times all up. The longest period of movement was maybe five days. The pain would be relieved when he removed the pack. He was air lifted out. He had to jump off helicopters. The pain e had in doing this was routine. He never jumped while carrying the machine gun. He would jump with bandoliers, a water bottle, a rifle and ration packs (maybe three for a long patrol).
Eventually he was given garbage dump duties because of his back problems. He burnt rubbish off several times a day. On one occasion he had to place upright a 44-gallon drum of petrol. He hurt himself doing that. He reported this to the Regimental Aid Post ("RAP") officer on duty. There was a diagnosis of hernia. Others serving in Vietnam also experienced back twinges. Mr Aldcroft therefore thought these twinges normal and did not return to the RAP to report them. Thus, he only once took a matter to the RAP.
Mr Aldcroft then experienced twinges of pain in his back all the time to 1990. He did not associate this with anything specific.
Mr Aldcroft set out his employment history. This was difficult to follow with accuracy but seemed to echo what Dr Brown recorded (ex A12/7):
"His occupational history was somewhat vague but he recalled initially working in the factory his father worked in prior to joining the Army at age 17. Following his military discharge, he worked at Email building fridges and then as a labourer working his way up to quality control for BHP and sulphides before a 9 month period with ASIO. He described his role as being to infiltrate anti-Vietnam groups but said he has been unable to provide documentation of his work in this capacity. He worked for some years on a power station in Arnhem Land leaving after a dispute with his superiors about their safety standards. He then worked mowing lawns and operating a boat hire business prior to a 5 year period as a prison officer, with him finally working as a kitchen hand and cleaner on their oil rigs from 1982 to 1992."

Some of these jobs involved no lifting duties. These included quality control at BHP and his work as a prison officer. During some jobs he felt twinges in his back, such as in Arnhem Land, and doing the boat hire job. He had had no back problems prior to the fall during training.

Mr Aldcroft told Mr Godwin that he did not see doctors about his back condition over the years and that he looked for jobs with minimal manual labour required.

In a statutory declaration he said that he saw Dr Sawers on 3 July 1977, that he saw Gippsland Base Hospital about his cervical spine, ie an injury to C6/7 disc, in 1978, that he saw a doctor about hip pain in 1982, that in 1986 he had x-rays taken because of a problem in the lumbosacral spine. He had L4/5 fusion after the accident on the oil rig in 1992 (T10/52). As Mr Godwin pointed out (ex AH2, paragraph 11), these were the earliest instances where Mr Aldcroft sought any medical attention for his back.
He told Dr Baz (T21/131-132) that he played soccer and ten pin bowling until he joined the oil rig in 1982.
He told Dr Moran, an orthopaedic surgeon, in September 1992 (ex R5/29) that he had his first attack of back pain on 30 July 1990. He had slipped on a wet floor at work and had had intermittent back pin but no time off work.
He told Dr Moloney, a neurosurgeon, on 18 November 1992 (ex R5/69) that he had no problems with his back prior to 1990.

Mr Godwin in cross-examination asked Mr Aldcroft about the incident with the 44-gallon drum. The contemporaneous report at T5/20 recorded only a jabbing left inguinal pain since straining against a 44-gallon drum three days earlier (ie on 24 February 1967). There was no reference to twinges of pain in the back. Mr Aldcroft responded by pointing out that experience had shown that he never had a hernia. He saw this groin pain as back pain. His back pain has always been accompanied by pain in the groin.
Mr Godwin noted, accurately, that Mr Aldcroft's recall of his employment history is poor as regards detail. Dr Moloney (T20/112) recorded that Mr Aldcroft could not, on 7 May 1997, recall details of this injury. Mr Godwin queried how Mr Aldcroft could be so certain that he fell from the top of the rope at Wagga. Mr Aldcroft's answer was somewhat vague but he said he recollected being at the top of the rope and then being on the ground. He had told the VRB that he fell on his back. He told Mr Godwin that he knew this because he recalls being on his back when the follow up events occurred.

In ex R2/6 it was recorded that Mr Aldcroft played soccer after he was discharged from the army. He told Mr Godwin that he also coached "kids' soccer". He stopped playing between 1979 and 1982. He played to "keep active". He had had a soccer injury in 1978 (ex R2/5). He told Ms Buss that he had played soccer since age 10. He played in the army. He stopped on return from Vietnam but resumed in Arnhem Land. He coached when he was a prison officer. He played perhaps three seasons; "not many games". Mr Godwin submitted that Mr Aldcroft had a record of post-service activity that was inconsistent with any significant back symptomatology. In ex AH2 he wrote:
"8.       However, when Mr Aldcroft's history of employment as a labourer, lawn mower and boat hire operator post service, and the fact that he played soccer until 1978, was considered, the Professor [Professor Sambrook] acknowledged that 'if he was getting that many symptoms, it would make it difficult for him to do that. That's true' (Tr p62 line 37- p63 line 2).
"9.       The documentary evidence in this case is that Mr Aldcroft had a very active life until his fall on the oil rig in 1990.
"…
'15.     Dr Moloney's report of 14 May 1997 shows 'on the brim rig there was a lot of running up and down stairs and Mr Aldcroft found that gradually his back became worse...' (T p110). Dr O'Halloran (GP) on 11 August 1992 noted 'a lot of climbing stairs and more bending while mopping the floors' [ex R4/40].
"…
"17.     The question for the Tribunal is whether there is any credible evidence at all of significant symptoms of spondylolisthesis until 1990. The Respondent submits it is impossible to find aggravation in such active history where the Applicant was running up and down stairs more than 20 years after the contended permanent worsening."
It is necessary to consider Professor Sambrook's evidence as he is relied on by both the applicant and respondent for different propositions. Dr Sambrook provided five reports at various times and he gave oral evidence, the crucial parts of which were the following.
In ex A4 Professor Sambrook had said that the presence of continuing symptoms would suggest that the spondylolisthesis had been made worse.
He had also said in ex A4 that "neurological manifestations" of spondylolisthesis could include referred pain into the legs. This was relevant to the alleged fall from the rope. He went on to say that one needs to consider whether the army's failure to excuse him from normal duties the next day was inappropriate clinical management. He said the pain in both legs, sometimes referred to by him as "both sides", was not likely to be due to neurological manifestations, although that could not be excluded as a possibility. If it were a manifestation of neurological problems, then the failure to exclude him from work the next day would have been inappropriate clinical management.
In ex A6 he had said that, if the pain in the thighs was a neurological manifestation, his posting to Vietnam, where he worked in areas involving heavy lifting, should be regarded as inappropriate clinical management.
In ex A9 he had said that, if Mr Aldcroft had indeed fallen 30 feet from the rope at Wagga and was complaining of pain in the thighs, it would seem that an x-ray of the lumbar spine would have been appropriate. Had he been x-rayed he would have been diagnosed, and it would been inappropriate to post him to areas involving heavy lifting, whether or not the thigh pain was a neurological manifestation. Professor Sambrook proceeded to say that whenever a person has fallen 30 feet and has thigh pain it is probably inappropriate not to it administer x-rays. Professor Sambrook later said that the appropriateness of administering x-rays is probably related to the length of the rope. The further he fell, the more it was appropriate, and the less he fell, the less appropriate it would have been. Professor Sambrook said that today almost always x-rays would be administered if a person fell 30 feet. However, that was probably not the case in 1964. Professor Sambrook said that if he were completely asymptomatic in 1964 x-rays would probably not have been ordered. However, if he had some symptoms and he had fallen 30 feet, it would have been appropriate to call for x-rays.
In oral evidence Professor Sambrook said that, having seen the GIO documents about a fall nearly 30 years later, he thought it still possible that the thigh symptoms in 1964 were nevertheless neurological manifestations.
In cross-examination Mr Godwin asked whether continuous but intermittent symptoms would be consistent with work that Mr Aldcroft did after service such as labouring, mowing lawns, hiring out boats and playing soccer until 1978. Professor Sambrook said that such symptoms would make such work difficult. He said that, with respect to some of those activities, he might be able to err on the side of lighter duties, but certainly it would make it more difficult, if he had continuous symptoms, to do those activities during that time.
Mr Godwin referred to the reports describing Mr Aldcroft's work on the oil rig as involving him running up and down stairs. He asked whether such activities would be inconsistent with a problem that had been ongoing since 1964. Professor Sambrook replied that this would suggest that the symptoms were actually more intermittent than continuous. It would be feasible for someone to have intermittent pain and be quite good on Sundays and yet symptomatic on other days. If he was doing those sorts of activities, the severity of his condition was not as great, or it was not as continuous, as had been thought.
Mr Godwin asked Professor Sambrook a number of questions about the reports of pain in both legs following the fall from the rope. He appeared to consider that a prolapse could affect both legs equally. Professor Sambrook saw some merit in this suggestion. However, he considered that, if the prolapse was a central prolapse, symptoms in both legs could be expected. Professor Sambrook referred to a CT scan taken in 1992 which found a moderate sized broad-based central posterior protrusion impinging on the sacral sac. This led Professor Sambrook to suggest that Mr Aldcroft most probably had a central disc problem. Professor Sambrook later told Ms Buss that it would be possible for the forces to have been applied disproportionately so that later symptoms could in fact affect one side more than the other. He said that a central prolapse can give symptoms on both sides which may then settle and then give symptoms on one side or the other at different times.
Professor Sambrook was also asked whether an injury from a fall from a rope would necessarily be a spondylolisthesis. Professor Sambrook said that, apart from an injury to his back, he could have injured the muscles in that region, or could have injured the hips if he fell a long-distance and landed on his legs and the force was transmitted. There would have been injury to his hip joints, the surrounding muscles and the spine. In fact, Dr Huygens (T10/57) had regarded the hip has the source of the problem.
In relation to sciatic pain, Mr Aldcroft had complained of such pain in later years. In early years he had complained of low back pain. Professor Sambrook was asked whether, if in fact Mr Aldcroft had low back pain rather than the radiating sciatic pain one would expect from damage to the discs, could these two types of pain be consistent such that in 1980 he had had a twenty-year history of low back pain and a 10-year history of sciatic pain. Professor Sambrook regarded this as a possibility.
The tribunal (Dr Campbell) asked Professor Sambrook a series of questions which produced the following answers.
"

Dr Campbell   Professor Sambrook
This fellow joined the army as a youngster in 1964 and he had this congenital lumbar disability at that stage...           Yes, well, it was congenital so he had it from birth.
… so he lines upon on the ropes on one day in May 1964, climbs up and down and then up, and he falls off from the top. We don't know the height and he goes to the RAP, and he complains of bilateral thigh pain, and he is given some heat and linament.... He walked back after he fell, he wasn't sure whether he was unconscious or not. He walked back, he was assisted and then walked back to his lines, which was in a hut, and then made to the RAP. What are we to draw from that as an injury?. Well, not a great deal, because the notes are so brief.
… There is no time off his training program, as we understand it. He completes a 20 mile route march, which is part of the training program down there in full kit and caboodle, and he gets some twinges during that activity, which he considered to be just the normal aches and pains of doing a 20 mile route March. Does that anything to it? It's in the lower back that he's getting the twinges?       You mean in terms of the spondylolisthesis, or in terms of the injury?
The spondylolisthesis?         Well, it does indicate that he is getting some symptoms at that time. We now he has got that spondylolisthesis, so it is reasonable to attribute pains after the route march to that pathology.
Then he completes his recruit training, goes to Infantry Training Centre at Ingleburn, where he carries on that activity without any difficulty. We didn't have any difficulty given to us. He then finishes his infantry training, and is allocated to one battalion that is then divided up between 1 and 5, he ends up in 5 Battalion, and then goes on does the trade training course in cooking because he was finding in 5 Battalion carrying -- they were making him the signal man in the platoon, and he was carrying wirelesses on back and front, and he was again I think in some twitching of pain in his back. ... Then after an explosion in the kitchen and he doesn't complete his cook's course, sent back to 5 Battalion, he resumes his role as infantry signalman, goes to New Guinea, again has some or twitches carrying the pain up the arm when he is carrying the various wireless equipment. He then comes back and is sent to Vietnam, and that's all we have his episodes of pain, of twitches. You described it as twitches not as in the lower back. He then goes to Vietnam, he spends the first couple of weeks digging and filling sandbags. Then he seems to -- it's a little bit vague then, but he at some stage has a haemorrhoidectomy about six or eight weeks after he gets to Vietnam. He then goes and fills more sandbags and then he goes on patrol, and on patrol for 4 or 5 days at a time, jumping out of helicopters, full pack, carrying extra bandoliers, machine gun ammunition, and again a history of some twitching. He then is relieved of his duties in the rifle company, mainly to do with the difficulties with the bowel after the haemorrhoidectomy, and continued bleeding, and he becomes an infanteer in the admin company, looking after the garbage disposal, and that's where we have that incident with the 44 gallon drum. That's the sum total of his history in Vietnam. His time as an infanteer in the line company was approximately 3 months, and he had control activities of 4 to 5 days during that period. My question to you in that history, and taking into account his previous history, is the nature of that service likely to aggravate his spondylolisthesis?     It's a possibility. I mean, if you knew he had a spondylolisthesis, you wouldn't normally recommend him to do those sort of heavy activities or digging and filling sand bags and moving 44 gallon drums. But whether it did actually permanently aggravate it is unclear but it certainly a possibility.
So if that's the situation, you say there is a possibility that there was aggravation. Was that a continuing aggravation?   Well I guess if you are getting continuing symptoms it would be continuing aggravation in that if one assumes that the spondylolisthesis was asymptomatic prior to the activity and then you get continuing symptoms, you could argue that it is a continuing aggravation. The trouble with the whole equation is that spondylolisthesis often becomes symptomatic with ageing. So they often start of asymptomatic and a becomes symptomatic as part of ageing as well. All one can say is that those sort of activities aren't activities that you would normally recommend to someone in that situation and it's possible that they could contribute to aggravation.
Now his, for whatever reason -- we are still talking about his lower back. He seems to equate an ability to describe different pain, different pain levels in the lower back. By that I mean that when he had his big accident in 1990, he was able to quite clearly indicate that was a level of pain which made him think that he talked about that as being the first incident, forgetting about the other incident of back disability earlier. Does that surprise you at all?        It does sound like that -- this is the episode of 1990?... yes, it does sound like that was a major episode. So doesn't surprise me that sticks in his mind. Many patients don't recall earlier episodes all that well unless they are pressed. So it doesn't necessarily surprise me that that's the major episode he thinks of, because you know he is having to recollect a long way back.
… Does the fact that his spondylolisthesis sitting there which has been possibly aggravated by his Vietnam service, in your opinion, does that make him more vulnerable to the further effects of damage to his back?          Well, it's a potentially unstable liege so it makes him more vulnerable to damage to his back then someone with the normal back. It's a weakness, a pre-existing weakness and it makes him therefore more vulnerable to injury of any type which is why I said if you knew this fellow had this spondylolisthesis before he joined up, well you might not let him join up until you -- you'd certainly modify the activities he could do.
… After his Vietnam service and his discharge from the Army would it be surprising that he didn't complain of serious symptoms as far as we can gather for at least a decade and a half?        Well, it makes the possibility that he seriously injured his spondylolisthesis during service less likely but not impossible and a lot of veterans seem to have not complained about episodes when they got out of service because they wanted to get out in a hurry. The fact that he didn't seem to have symptoms for the decade is in favour of being against their being a major exacerbation but doesn't exclude it.

…" (Transcript, Professor Sambrook, 16-19)

Dr Bookallil (see paragraph 44 above) also saw a likely connection between Mr Aldcroft's Vietnam army service and his spondylolisthesis.
Largely on the basis of Professor Sambrook's answers to Dr Campbell, the tribunal finds that the hypothesis raised for the applicant conforms to the SoP factor. Professor Sambrook sees it as possible, on the available material, that Mr Aldcroft experienced neurological manifestations when he fell in 1964 and that he was denied appropriate clinical management. The tribunal accepts that x-rays were ordered less readily in 1964, however, it considers that Professor Sambrook is very probably correct in his assessment that appropriate clinical management after such a fall, even in 1964, would have involved the taking of x-rays with the likely consequences of earlier diagnosis of his congenital condition. That would have made it less likely that he would be returned to full duties and given any type of heavy work in Vietnam. The tribunal, while noting the Millen (above) decision, also notes that the applicant seems not to have been provided with appropriate clinical management. He was not in a position to identify any deficiency in the management provided by the army. In such a case the provision of inadequate clinical management would constitute failure to provide appropriate clinical management.
The tribunal notes Professor Sambrook's acceptance of the notion that Mr Aldcroft could possibly have had symptomatic spondylolisthesis for many years without it registering as reportable or indeed much of a disability at the time.
The tribunal regards Professor Sambrook's oral evidence as crucial. In the absence of that, given Mr Godwin's submissions regarding Mr Aldcroft's level of physical activity and lack of reporting of symptoms over many years, the tribunal would very likely have considered the hypothesis fanciful, impossible, incredible, too remote or too tenuous to be a reasonable hypothesis. Mr Godwin also made interesting submissions in ex AH2 suggesting that it would be difficult to find any aggravation in this matter. The tribunal accepts Professor Sambrook's evidence as presented in paragraphs 81 and 91 above as supporting a possibility of aggravation in this case.
Clause 4 of the SoP requires that the hypothesis must posit that the condition was related to Mr Aldcroft's operational service. The hypothesis did this. The activities involving moving of heavy objects in Vietnam were presented as part and parcel of his operational service.
In relation to step 4 of the Deledio (above) principles, the tribunal has considered the skilful and relevant submissions by Mr Godwin but, in view of Professor Sambrook's evidence, does not see them as sufficient to show beyond reasonable doubt that the spondylolisthesis was not war-caused.
applicant's neck condition
The hypothesis advanced for the disc protrusion C5/6 was that Mr Aldcroft developed a heavier smoking habit attributable to his operational service.
The relevant SoP is 130/96 concerning intervertebral disc prolapse ( as amended by SoP 92/97 (
SoP 130/96 defines intervertebral disc prolapse as it affects the cervical spine in clause 2(b)(i). It is common ground that Mr Aldcroft has this condition (ex R1, paragraph 4, ex AH1, paragraph 30). The respondent accepted such a diagnosis from Dr J Ditton (T16/66), a pain management specialist. His examination revealed the types of symptoms required by the SoP. There is also radiological evidence of a cervical disc protrusion (T21/111). These findings date from 1994.
The factor in the SoP relied on by the applicant is 5(f), "smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse". A pack year is defined in clause 7 as "7 300 cigarettes".
It must be said that the facts raised in support of the hypothesis advanced for the applicant, as they relate to his smoking, are confused and confusing. Presently the tribunal will reproduce Mr Godwin's summary of the material before the tribunal on Mr Aldcroft's smoking history. Meanwhile, Ms Buss in ex AH1 submitted in a broad brush sense that:
"32. The cause of the cervical spine disc prolapse is alleged to be cigarette smoking. The Applicant's smoking history has consistently been reported as entailing increased smoking on and because of service in Vietnam and continuing thereafter; and at a rate capable of amounting to 30 pack years prior to the onset of the cervical disc prolapse."
Mr Godwin's tabular representation of the smoking histories presented from time to time was:
"

Date    Reference     Document
15.5.66          T5/26L CNs 36 Evac Hosp     Habits – 'neg'
23.9.66          T5/26E CNs 36 Evac Hosp     Habits – 'Usual'
12.6.68          Ex R2/2         DMO med report        Smokes 20 cigs/day
12.11.80        Ex R2/11        DMO med report        Tobacco 2pkt/day
21.10.91        Ex R4/50        Illawarra med laboratories     Smoker – 2pks/week
9.9.94 Ex R2/23        Dr Aoud's report (Thoracic Spec)      Smoking about 25 cigarettes a day in the past Continues to smoke about a packet a day
26.9.94          Ex R2/22        Applicant's smoking questionnaire     Started 1963 to join in with mates 1966-67 increased dramatically – supplied in rations

19.10.94        Ex R2/25        Applicant's smoking questionnaire     Started 1963 'during service' because of depression, nerves and peer pressure Before service - pkt a week – peer pressure During service – 3 years – 1 carton week – nerves, depression After service – 2 pkt a day – nerves, depression Now smokes 2 pkts/day
26.10.94        Ex R2/27        Applicant's smoking questionnaire     Started 1963 'before service' because of peer pressure Before service – 2 pkts of 20 a week – to be one of the boys During service – 1964, 1965 – 4 pkts of 20 a week Joined Army, drinking lifestyle 1966,1967 – S Vietnam – 2 cartons a week – pressure price availability Stopped on numerous occasions Now smokes 15-20/day – varies – tried to give up
30.5.96         Ex R5/40        Dr Wearne's report (orth)       Reformed smoker
28.8.97          T21/126         Professor Sambrook's report (rhem) Smokes about a packet a week
6.9.99 T21/97 Applicant's evidence to VRB Smoked a couple of cigs prior to enlistment 1-2 pkts per week during recruit trg Increased on infantry training Increased on posting !RAR In Vietnam 2 Cartons (400) per week Continued heavy after Vietnam, increased Ceased prior back surgery 1994 Now intermittent
31.7.2000 [actually 1.8.00]     Ex A2 Applicant's statement Age 15,16 smoked 10 cigs per week On enlistment, after recruit training, smoked 3-4 pkts per week In Vietnam smoked 2 cartons per week – cheap, devil may care attitude, outlet After Vietnam, 2 pkts per day, never less than 5 pkts per week, sometimes 15 pkts per week 2 cartons per week on the oil rig Ceased 1993 (7½) mths and 1994 (3mths) for back operations Continues smoking now 1-10 2 mgs per day

This is obviously a difficult situation. The following situation seems, on balance, to have applied:

Pre-service: Mr Aldcroft smoked from between "a couple of cigarettes" to possibly two packets a week. However, he most likely smoked from one to two packets a week. This was said "to be one of the boys".
Early service, 1964-66: He has claimed to have smoked from 20-40 cigarettes a week to 200 a week. Whatever is the correct figure, Mr Aldcroft has consistently maintained that his cigarette consumption rose early in service and he has said it gradually increased from then. He attributed this to "drinking lifestyle", "to join in with mates", "depression, nerves and peer pressure".
During Vietnam service in 1966-67: There is a fair consistency of smoking at a level of 400 cigarettes a week, a marked increase of at least 100% over his pre-Vietnam consumption. There are, of course, the medical documents from 1966 (in T5) referring to negligible and usual cigarette use by the applicant. Ordinarily, as contemporaneous documents these would be given preference. However, the tribunal sees these as very likely influenced by either under-reporting by Mr Aldcroft, or as reflecting a standard of cigarette consumption in Vietnam in accord with which 400 cigarettes a week was not regarded as unusual. He raised as reasons for this consumption that cigarettes were provided in rations, they were cheap, he had a nervous condition, he was depressed, they were readily available, he had a "devil may care" attitude and they were an "outlet".
Post-Vietnam and post-service: Mr Aldcroft was discharged very soon after returning from Vietnam. He has given widely divergent assessments over the years. However, in 1994 he cited 25 cigarettes a day as his rate of smoking. In 1968 he cited 20 cigarettes a day as his level. In 1980 and 1991 he gave figures of 40 a day and then 40 a week. There could be other figures quoted by the tribunal if we were minded to do so. The situation is that this period is the most resistant to being summarised with any sense of "order amongst the chaos". This could reflect the very long time period involved. On balance, however, the applicant seems generally to have reported a lower level of cigarette use after Vietnam than before. Save for some periods of abstinence, he seems to have admitted to smoking at least 20 cigarettes a day as a minimum. He attributed this consumption to nerves and depression.

The tribunal will apply the recent decision of the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412 where the court held that, in interpreting the smoking requirements in a factor such as SoP 130/96 factor 5(f), so long as the hypothesis suggests that operational service has at least contributed to total consumption of cigarettes at the appropriate gross level within the appropriate time frame, the SoP factor is satisfied.
The tribunal finds that the best it can do in distilling from the above Mr Aldcroft's pattern of cigarette consumption is the following: Before service he smoked around 30 cigarettes a week between 1963 and 1964. Between 1964 and 1966 he appeared to smoke at least 100 cigarettes a week on average. In Vietnam this rose to 400 a week. After service he seemed to smoke at least 140 a week.
It is necessary to identify when the applicant suggests that his cervical intervertebral disc prolapse had its clinical onset and whether that is a credible element of the hypothesis. As Ms Buss indicated in her submissions, (ex AH1, paragraph 31), the first solid material supporting a cervical intervertebral disc prolapse was Dr Moloney's report in September 1994 where a "quite large cervical disc protrusion at the C5/6 interspace to the right side" was detected by myelogram and CT scan (ex R5/90).
Mr Godwin (ex AH2) submitted that the radiology report of 21 March 1978 (T14/67) which identified a possible C6/7 intervertebral disc injury was properly to be regarded as evidence of clinical onset by that time. The problem with this is that Professor Sambrook, in oral evidence, saw this finding as indicative of only a disc lesion, not a prolapse. Ms Buss referred the tribunal also to ex R2/10 where in the early 1980s reference was made to only a cervical disc lesion, not a prolapse.
The tribunal takes the hypothesis to suggest a clinical onset of 1994. The tribunal takes Mr Aldcroft's cigarette usage to that time to have been 227,920 in total. The SoP requires 219,000. The tribunal reaches the figure of 227,920 as follows:

From around mid-1963 to around mid-1964 the applicant appears to say he smoked 1,560 cigarettes (ie 30 a week for 52 weeks).
From around mid-1964 to around mid-1966 the applicant appears to say he smoked 10,400 cigarettes (ie 100 a week for 104 weeks).
From around mid-1966 to around mid-1967 the applicant appears to say he smoked 20,800 cigarettes (ie 400 a week for 52 weeks).
From around mid-1967 to around mid-1994 the applicant appears to say he smoked 195,160 cigarettes (ie 140 a week for 1,394 weeks).

In a recent decision, Re Ferres and Repatriation Commission [2002] AATA 410, a similarly constituted tribunal considered the situation where information regarding a deceased veteran's history of alcohol consumption was in a state as imprecise as the cigarette evidence is here. The tribunal in that case, in paragraphs 77-84, considered the progress of an even earlier alcohol case through the tribunal and two levels in the Federal Court and noted that the attitude of the court was that the tribunal could, on the material before it, have decided that there was a reasonable hypothesis, but it was equally able to find as it did, that there was not. The question might be described as in the balance. The tribunal sees this as a similar case. The inconsistencies in Mr Aldcroft's accounts of his smoking over the years make it difficult to address his recollections with any confidence. However, the tribunal is cognisant that the Act is remedial or beneficial legislation and has, by and large, accepted the veteran's lower estimations of his cigarette use. Given these considerations it seems appropriate to find provisionally that the hypothesis conforms to the SoP.
Mr Godwin did, however, produce a relevant set of arguments that could suggest that the hypothesis is fanciful, impossible or incredible.
"37.     His claimed 400 cigarettes per week consumption in Vietnam would have been roughly 3 times what it was prior to this. Irrespective of the price of cigarettes, it is difficult to believe that someone can become a chain smoker overnight. It is also difficult to accept that such a chain smoker could suddenly reduce the habit, or not smoke at all for periods as he claims.
"38.     Consumption of 400 cigarettes per week means that he would have been smoking an average of 57 cigarettes per day. This would be about one every 17 minutes for 16 waking hours, not allowing for time to eat, dress, shower, or do the work required such as filling sandbags (Tr p51), patrols lasting 3-5-days (Tr p54 l30) etc.
"39.     The Respondent draws the Tribunal's attention to the inconsistent histories Mr Aldcroft has given in relation to his back and neck complaints, as well as smoking. He has documented memory problems [see ex R2/10] and perhaps this plays a part in his unreliability."
Mr Godwin's submissions were pertinent. The Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ said:
"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …
…
"21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
…
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'"

The tribunal has considered Mr Godwin's submissions. It has, however, decided that the hypothesis is not relevantly fanciful, impossible or incredible. First, the tribunal has tended to consider apparent averages over extended periods, which masks the gradual process in reaching an average. It considers this to be fair in that there is nothing to suggest that the applicant adopted an approach different from this. Second, the tribunal can conceive of a soldier smoking during much of the time he was performing duties such as those assigned to Mr Aldcroft when in Vietnam.
The SoP requires that the relevant cigarette consumption must have been related to service. The hypothesis was that in Vietnam cigarettes were provided in rations, they were cheap, Mr Aldcroft had a nervous condition, he was depressed, they were readily available, he had a "devil may care" attitude and they were an "outlet". Of these explanations for the cigarette use attributable to Vietnam, the tribunal considers that the references to Mr Aldcroft's nervous condition and his depression, together with the army culture that accepted and, to an extent, promoted cigarette use, combine to link the cigarette use to operational service.
The tribunal has considered whether there is evidence sufficient to satisfy it beyond reasonable doubt that the applicant's cervical intervertebral disc prolapse was not war-caused and has concluded that there is no such evidence. The strongest material that might have had that effect was in Mr Godwin's submissions on the rate of smoking. That has already been dealt with.
special or intermediate rate disability pension?
The tribunal has found that Mr Aldcroft's spondylolisthesis and cervical intervertebral disc prolapse are accepted disabilities. The issue is now whether the applicant qualifies for a pension paid at special or intermediate rate. The tribunal will consider special rate first as, if the applicant succeeds in obtaining that, there is no requirement to consider intermediate rate.
The tribunal finds the following elements of s 24(1) of the Act to have been satisfied:

Mr Aldcroft made valid claims under s 14 for a pension in respect of the conditions of spondylolisthesis and cervical intervertebral disc prolapse, so s 24(1)(aa) of the Act is satisfied.
Mr Aldcroft had not turned 65 when he made those claims so s 24(1)(aab) of the Act is satisfied.
Mr Aldcroft's degree of incapacity has been determined to be at least 70% so s 24(1)(a)(i) of the Act is satisfied.
Mr Aldcroft is not in receipt of temporary special rate so s 24(1)(d) is satisfied.

So far as s 24(1)(b) is concerned, the tribunal considers that provision in association with s 28 of the Act which assists in assessing a veteran's capacity to undertake remunerative work. In that respect the tribunal makes the following findings:

Mr Aldcroft's vocational, trade and professional skills, qualifications and experience did not reflect much in the way of training and qualifications. He had tended to work in relatively physical work requiring some organisational skill and some dexterity such as catering, hiring out boats, operating plant and working as a prison officer.
The types of remunerative work that a person with Mr Aldcroft's skills, qualifications and experience might reasonably undertake would be physical work requiring some organisational skill and some dexterity, that is the broadly generic type of work he did after leaving the army.
The degree to which Mr Aldcroft's physical and mental impairments as a result of war-caused injury or disease, or both, have reduced his capacity to undertake physical work requiring some organisational skill and some dexterity is as follows in paragraphs 120-121 below. If the war-caused disabilities taken alone prevent him from undertaking relevant remunerative work for more than eight hours a week, s 24(1)(b) of the Act will be satisfied.

Dr Baz (T20/129, 136) wrote:
"In my opinion Mr Aldcroft's work fitness has been significantly limited by the post-traumatic stress disorder, back and neck pain.
"He describes a severe degree of low back pain which causes significant interference with all daily activities. He is effectively limited to sedentary activity with posture autonomy, to sit, stand and move about to minimise his symptoms. Prolonged standing, sitting, lifting, stooping and bending aggravate back pain. He has a limited walking tolerance. In my opinion as a consequence of this condition on its own he would be unfit for work in his previous capacity as a prison's officer, to undertake the quality control work he has previously undertaken or to be employed as a general maintenance kitchen hand on an oil rig. The degree of pain he describes, the restriction to activity and his general presentation is such that he would also be considered unfit for work as a consequence of this condition on its own.
"Mr Aldcroft also describes significant neck symptoms which also cause significant limitation to his daily activity. The neck pain also limits him to predominantly sedentary activity with posture autonomy. Prolonged sitting, prolonged gaze in a particular direction, work at shoulder height or above and heavy lifting would particularly be limited by the neck pain. Work he has previously undertaken, as a prison's officer, quality control employee and general hand on an oil rig would be unsuitable because of his neck pain. In my opinion the extent of limitation he describes in his daily activities due to the neck pain is such that he would be unfit for paid employment as a result of this condition on its own.
"The most significant accepted disability impacting on work fitness is the post-traumatic stress disorder. The degree of agitation and irritability he describes and exhibits is such that he can be expected to have difficulty dealing with interpersonal relationships in the workplace. This disability interacts with his neck and back pain, adversely affecting his ability to cope with those symptoms, and in turn aggravated by his experience of pain. In my opinion this disorder has impacted on his work capacity over many years, causing considerable restriction to the type of work he could attempt, and leading to changing jobs and avoidance of promotion. The degree of agitation, irritability and social withdrawal he currently experiences is not consistent with an ability to work effectively or productively. I consider that this disability on its own would also cause him to be unfit for work.
"CONCLUSIONS
"In my opinion Mr Aldcroft is unfit for work of 8 or more hours duration weekly.
"I consider that the accepted disabilities on their own cause him to be unfit for work of 8 or more hours duration weekly and have done so since the date to which you refer in mid 1996."
The tribunal accepts Dr Baz's assessment of the situation and finds that Mr Aldcroft, because of the war-caused disabilities of PTSD, spondylolisthesis and cervical intervertebral disc prolapse, taken by themselves, is incapable of undertaking remunerative work for periods aggregating more than eight hours a week. This was not seriously questioned by the respondent. The respondent relied on s 24(1)(c) of the Act to argue that Mr Aldcroft did not qualify for special rate.
The respondent submitted that the applicant's inability to work is due to an injury sustained at work on 25 July 1992 and that he did not meet the requirements of s 24(1)(c) of the Act (ex R1, paragraph 8). Later the respondent submitted that the applicant's inability to work was due to an injury sustained at work (as a separate and distinct cause from his spondylolisthesis) and that he did not meet the requirements of s 24(1)(c) and s 24(2) of the Act (ex AH2, paragraph 42). The applicant responded (ex AH1, paragraphs 40 and 41):
"The Respondent, in its Statement of Facts and Contentions... states that the Applicant fails that provision because he is unable to work due to an injury sustained at work in 1992... The Respondent relies on Banovich v Repatriation Commission (full Court of the Federal Court, 17 November 1986, G178 of 1986). While Banovich dealt with the legislation preceding the VEA, the relevant provisions are the same, and referred to being 'prevented from continuing to undertake remunerative work'. That phrase does not mean 'lost his last job', as the Respondent appears to imply (except, perhaps, in the VEA provisions expressly dealing with applicants over the age of 65). The Court in Banovich said (at [23]):
'We accept that the loss referred to in para. (1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member "continuing to undertake" remunerative work. But it is, in our opinion, erroneous to read the phrase "remunerative work that the member was undertaking" as referring to a particular job with a particular employer. The term "remunerative work" is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para. (1)(b)(ii), para. (2)(b), para. (3). Consistently with the use of the phrase "remunerative work which the respondent was undertaking" should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a Special Rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity -- and by that incapacity alone -- from continuing in the field of remunerative activity.'
"The Applicant is unable to work because of his existing war-caused disabilities, particularly his psychiatric disability, and his back and neck conditions. His back was injured in the 1990 workplace accident and the consequences led to his having to cease work. However, the Applicant submits that his back condition is war-caused through aggravation which occurred decades prior to the work accident. The Applicant submits that, furthermore, the war-caused aggravation played some part in the seriousness of the consequences of the work accident, in that it made him 'more vulnerable to damage to his back... more vulnerable to injury...' (Professor Sambrook at tscpt 73 at 36 to 74 at 5)."

The tribunal accepts the validity of the arguments put for the applicant. The applicant's war-caused disabilities are the sole cause of his inability to return to work similar to that he did in the past. The reference to the passage from Banovich v Repatriation Commission (1986) 69 ALR 395 was appropriate. The issue is not simply the cause of cessation of a veteran's last employment. It extends also to the cause of the veteran being unable to resume other appropriate remunerative employment. The tribunal has already accepted that the applicant's operational service aggravated his spondylolisthesis and accepts Professor Sambrook's evidence that this aggravation predisposed him to further employment-related injury to his spine.
The tribunal therefore finds that Mr Aldcroft qualifies for special rate Disability Pension. The tribunal notes, however, that Dr Baz saw each of the three major war-caused disabilities as enough in itself to prevent the applicant from returning to appropriate employment. The condition of cervical intervertebral disc prolapse cannot be recognised as a war-caused condition until 9 August 1998. The special rate would therefore be payable from the date of effect of the decision in relation to cervical IDP. The tribunal sees no basis for applying the ameliorating provision so as to authorise payment at the special rate from 24 July 1996 as the applicant did not seek employment in the relevant period.
CONCLUSION
The tribunal has decided that Mr Aldcroft qualifies for payment of Disability Pension at the special rate and that his disabilities of spondylolisthesis and cervical intervertebral disc prolapse are war-caused in accordance with the Act.
DECISION
The tribunal sets aside the decisions under review and decides that:
(a)The applicant's spondylolisthesis condition is a war-caused injury or disease and this is so with effect from 24 July 1996.
(b)The applicant's cervical intervertebral disc prolapse is a war-caused injury disease and this is so with effect from 9 August 1998.
(c)The applicant is entitled to special rate Disability Pension with effect from 9 August 1998.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member and Dr J D Campbell, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 May 2001
Date of Decision  6 June 2002
Counsel for the Applicant        Ms J Buss
Solicitor for the Applicant         Legal Aid Commission of NSW
Counsel for the Respondent    Mr P Godwin, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA