Berry and Repatriation Commission - [2000] AATA 316

DECISION AND REASONS FOR DECISION [2000] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/498

VETERANS' APPEALS DIVISION       )
           Re      JAMES BERRY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member

Date20 April 2000
PlacePerth

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the rate of Disability Pension payable to the applicant be reassessed on the basis that cervical spondylosis, lumbar spondylosis, and intervertebral disc prolapse at L4/5 are war-caused injuries or war-caused diseases, with effect from and including 21 May 1997.
  .....…..(sgd S D Hotop).........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Australian Regular Army from June 1965 to June 1971 – applicant transferred to Special Air Service Regiment in July 1966 – applicant had operational service in Vietnam from February 1968 to February 1969 – applicant sustained injuries in jump from helicopter in Vietnam in June 1968 – applicant sustained injuries in parachute jumps at Bindoon (WA) in November/December 1969 – applicant presently suffers from conditions of cervical spondylosis, lumbar spondylosis, intervertebral disc prolapse at L4/5, internal derangement of left knee, unstable right knee joint and laxity of ligament in left ankle – whether those conditions war-caused – whether material raises reasonable hypothesis connecting each condition with circumstances of applicant's operational service – application of Statements of Principles – whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining each condition to be war-caused
Veterans' Entitlements Act 1986 ss 9(1), 120, 120A, 196A
Statement of Principles concerning Cervical Spondylosis (Instrument No 161 of 1996) Statement of Principles concerning Lumbar Spondylosis (Instrument No 165 of 1996) Statement of Principles concerning Intervertebral Disc Prolapse (Instrument No 130 of 1996) Statement of Principles concerning Internal Derangement of the Knee (Instrument No 59 of 1997)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Keeley v Repatriation Commission (1999) 30 AAR 48
Lees v Comcare (1999) 29 AAR 350
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

20 April 2000 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member

This is an application by James Berry ("the applicant") for review of a decision of the Repatriation Commission ("the respondent"), dated 15 October 1997, as varied and affirmed by the Veterans' Review Board ("VRB") on 4 November 1998, that the following conditions suffered by the applicant are not war-caused injuries or war-caused diseases within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the VE Act"):

cervical spondylosis;
lumbar spondylosis;
intervertebral disc prolapse at L4/5;
internal derangement of the left knee;
unstable right knee joint; and
laxity of ligament in the left ankle.

At the hearing the applicant was represented by Mr M Clarke, solicitor, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:

Statement of Evidence of the applicant, dated 17 May 1999 (A1);
Statutory Declaration of Patrick Garth Bercene, dated 16 April 1999 (A2);
Statutory Declaration of John James Agnew, dated 1 August 1999 (A3);
medical report of Mr P Hardcastle, dated 6 April 1999 (A4);
x-ray report of Dr R Thomson, dated 30 March 1998 (A5);
bundle of documents comprising service medical documents relating to the applicant (R1).

Oral evidence was given by the applicant. There were no other witnesses.

Subsequent to the hearing, with the agreement of both parties, a further medical report was obtained from Mr P Hardcastle at the Tribunal's request. That report, dated 22 November 1999, was lodged with the Tribunal by the respondent on 6 December 1999. Both parties were then accorded the opportunity to make submissions in relation to that report but declined to do so and informed the Tribunal that they had no objection to the report being taken into account by the Tribunal. The report has, accordingly, been marked as Exhibit R2.
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents and Exhibit R1, and which are not in dispute, are as follows.
The applicant, who was born on 29 January 1948, served in the Australian Regular Army from 15 June 1965 to 14 June 1971.
The applicant rendered "operational service", also being "eligible war service", within the meaning and for the purposes of the VE Act, in Vietnam from 14 February 1968 to 23 February 1969.
At the applicant's service entry medical examination on 21 May 1965, no relevant abnormalities were found and the examining medical officers recommended that he be classified as Category 1.
On 7 July 1966 the applicant was transferred to the Special Air Service (SAS) Regiment.
On 16 January 1968 the applicant was medically examined and found to be fit for overseas service.
On 14 February 1968 the applicant commenced Special Service in South Vietnam, initially as a member of 1 SAS Squadron and subsequently (from 26 February 1968) as a member of 2 SAS Squadron.
On 14 February 1969 the applicant underwent a "Return to Australia" medical examination and was found to have no injuries or relevant diseases and was found to be fit to return to Australia. The applicant returned to Perth on 24 February 1969.
The applicant's service medical documents record that on 27 May 1969 he complained of low back pain since a heavy parachute landing 2 weeks earlier and, on examination, was diagnosed as having a sacroiliac joint strain. It is further recorded that on 8 June 1969 the applicant had a medical examination and that his back injury sustained during parachuting had now "settled well". Similarly, it is recorded that on 11 September 1969 the applicant had a medical examination and that his "lumbar back injury ? sacroiliac joint strain sustained in a parachute descent in May this year has now settled".
In the applicant's Record of Service it is stated that he was injured at Bindoon on 18 November 1969. In the applicant's service medical documents it is recorded that on 1 December 1969 he had injured both knees in a heavy parachute landing during the "last jumps" and that they had not improved. It is also recorded that he had a history of "multiple small injuries to knees over recent years" and that, on examination, a "moderate degree of laxity" in both left and right cruciate ligaments was found.
On 17 December 1969 the Regiment Medical Officer noted that the applicant was experiencing "recurrent pain and clicking of knees" and referred him for an x-ray of his knees. The x-ray report, dated 17 December 1969, merely states:
"BOTH KNEES: No bony abnormalities seen."

On 29 January 1970 the applicant completed a "Report of an Injury or Illness" form, regarding an injury sustained by him at Bindoon on 18 November 1969, in which he described the circumstances of that injury as follows:
"Whilst parachuting at BINDOON I had a heavy landing causing injury to both of my knees".

On the same form the Regiment Medical Officer completed a report, on 19 February 1970, as follows:

"a.Description of the nature and location of the injury/illness:-    Strain of cruciate ligaments both knees. Moderate degree of laxity both sides.
b.Probable period, if any, during which the member will be incapacitated from resuming duty or civil avocation:-    4 weeks
c.In your opinion, will it, or is it likely to, cause permanent ill effects?   Yes
d.In your opinion, will it, or is it likely to, impair the member's future efficiency as an officer or soldier?   Yes
e.In your opinion could the present condition of the member have resulted from an injury/illness as stated by the member?    Yes
f.Is there any evidence of a pre-existing disability, and, if so, has it in your opinion been aggravated by any recent injury/illness?    Yes
g.Is the injury of a minor nature?    Yes".

On 23 February 1970 the applicant underwent a Reclassification Medical Examination at which it was noted (relevantly) that he had injured his knees "over the years and especially parachuting in mid November" and a disability of "lax cruciate ligaments knees (bilateral)" was recorded resulting in a degree of incapacity assessed as 5%. It was also noted that he had a history of sacroiliac strain but, on examination, his spine was found to be normal. Having regard to the 5% incapacity assessment, the examining medical officers recommended that the applicant's classification be downgraded to "CZE".
The applicant's "Discharge History Questionnaire", dated 3 May 1971, relevantly records a "Yes" response to the questions:
"Have you ever had or have you now:
…
2. Swollen or painful joints?
…
35. Any knee, back or joint injury?",

and the following comments in relation thereto:

"Injuries to back on parachute landings. Injuries to both knees on parachute landings 19-11-69 at Bindoon WA".

The applicant's pre-discharge Medical Examination Record, dated 3 May 1971, records (relevantly) an abnormality of his lower extremities which is described as "laxity of both knee joints with crepitus in L knee and 1" wasting L thigh" and an assessment of the degree of his incapacity as 5%. His spine was recorded as normal.

On 21 August 1997 the applicant lodged with the Department of Veterans' Affairs a Claim for Disability Pension and Medical Treatment in respect of the following disabilities:

cervical spondylosis;
intervertebral disc prolapse at L4/5;
left knee cruciate ligament laxity;
right knee instability; and
left ankle lateral ligament laxity.

On the same date the applicant lodged with the Department an additional Claim for Disability Pension and Medical Treatment in respect of a disability described as post traumatic stress disorder.

On 15 October 1997 a delegate of the respondent decided that the following conditions suffered by the applicant are not war-caused injuries or war-caused diseases:

cervical spondylosis;
intervertebral disc prolapse at L4/5;
internal derangement of the left knee;
unstable right knee joint;
laxity of ligament left ankle; and
post traumatic stress disorder.

On 23 October 1997 the applicant lodged an application with the VRB for a review of the delegate's decision of 15 October 1997.
On 16 February 1998 a senior delegate of the respondent reviewed the delegate's decision of 15 October 1997 and decided to vary that decision by accepting post traumatic stress disorder as a war-caused disease. The senior delegate decided that the applicant was entitled to a disability pension at 60% of the General Rate, with effect from 21 May 1997.
On 4 November 1998 the VRB decided to vary the delegate's decision of 15 October 1997 by including the condition, lumbar spondylosis, and to affirm that decision (as varied) that the following conditions suffered by the applicant are not war-caused injuries or war-caused diseases:

cervical spondylosis;
lumbar spondylosis;
intervertebral disc prolapse at L4/5;
internal derangement of the left knee;
unstable right knee joint; and
laxity of ligament in the left ankle.

On 11 December 1998 the applicant lodged with the Tribunal an application for review of the VRB's decision of 4 November 1998.
The Applicant's Evidence
The applicant tendered in evidence a written "Statement of Evidence", dated 17 May 1999 (Exhibit A1), and also gave oral evidence in the course of which he confirmed (subject to a minor amendment) the contents of the abovementioned written statement. The applicant's written statement and oral evidence-in-chief may be summarised as follows.
The applicant described an incident which he said occurred in June 1968 when he was engaged in a patrol in Vietnam. The applicant was a member of a 4-man patrol which was being inserted by helicopter into a landing zone in the jungle behind enemy lines for the purpose of a reconnaissance/ambush mission. The landing zone was an area covered in very thick, tall grass ("Kunai") which was approximately 2.5 – 3.0 metres in height. As the helicopter descended into the landing zone the applicant was sitting on the right-hand side of the helicopter ready to jump. Because of the Kunai grass, the pilot's vision of the ground was obscured and the helicopter struck a log which was obscured by the Kunai grass. The applicant and other members of the patrol were then ordered to jump immediately. The applicant was the first to jump and, because of the Kunai grass, he was unaware of the precise distance to the ground. The distance of the jump was in fact approximately 2.5 metres – twice the distance of a normal helicopter jump. The applicant, who was carrying a large back-pack weighing approximately 45 kgs, fell forward upon hitting the ground and his pack came over the back of his head. He immediately felt a sharp pain in his back, neck and legs. He was also winded and was struggling to breathe and lay there momentarily but, because he was involved in a "hot infiltration", he had to get up and move into the jungle for cover as quickly as possible. As he was running the 20-30 metres to the jungle tree line, he felt a "shooting" or a "nerve pinching" type of pain in his back and he was then aware that he had a problem. His neck felt stiff and painful to turn to any great degree. His left knee felt sore as if he had jarred it but he was unaware whether there was any swelling because he did not change clothes while in the jungle and did not examine his knee. As regards his left ankle, it felt as if he had twisted or sprained it.
The patrol subsequently moved further into the jungle and laid up for the night. The applicant then sought medication for his pain from the patrol medic who gave him a couple of Doloxene capsules. No medical treatment was available. Although the applicant was aware of the pain throughout the 5-day duration of the patrol, the pain did ease and he felt able to carry on with the patrol.
The patrol made no contact with the enemy during those 5 days and then returned to base by helicopter. Upon return to base the applicant sought further medication from the squadron medic, Corporal Patrick Bercene, who supplied him with Doloxene capsules on a regular basis. The nearest medical officer was located at the task force headquarters, some distance away from the squadron base camp, and the applicant did not report the abovementioned helicopter jump incident to, or seek treatment from, a medical officer for his pain symptoms arising out of that incident. The applicant did not expect at the time that he would have lasting injuries as a result of that incident and, furthermore, he wanted to remain with the SAS squadron and complete his tour of duty in Vietnam and he thought that, if he complained of his pain symptoms, he might be evacuated back to Australia. He therefore decided to carry on with his Vietnam tour of duty and put up with the pain (which he was trained to do).
The applicant next described an incident which he said occurred at Bindoon, Western Australia, in November 1969, some 9 months after he had returned from Vietnam. On that occasion, he was participating in a parachute jump at Kearney College in Bindoon. He was the 6th (out of a "stick" of 10) to jump from a Caribou aircraft. The landing zone was in a valley which was prone to gusts of wind. He was the last person to jump – the remaining 4 members were not permitted to jump because wind gusts in the landing zone had strengthened. He, and the other 5 members who jumped, were blown away from the landing zone and into the bush by the strong winds. He had a rough landing and felt pains in his back and, to a greater extent, in his knees.
The applicant said that, because medical assistance was at hand (unlike the position at the time of the incident in Vietnam), he sought medical attention and, at that time, he recalled a "slight swelling" of his knees. He said that he believed that the Bindoon incident aggravated an existing problem in his knees which he attributed to the Vietnam incident. He described the physical effects of the Bindoon incident as "much more minor" as compared with the effects of the Vietnam incident.
Prior to his discharge from the Army in 1971 the applicant was reviewed by 2 elderly medical officers. He recalled that no physical examination was conducted as part of that medical review. He also recalled one of the medical officers telling him that he would be in a wheelchair by the time he was 55 years old.
Following his discharge from the Army, the applicant worked at the Peters Ice Cream factory as a supervisor and was not involved in any heavy work. He subsequently joined the Police Force in 1977. He recalled that he was not required to undergo a major physical examination upon joining the Police Force. As a young police officer he was engaged in general uniform duties but now, having been promoted to the rank of sergeant 9 years ago, he is engaged in sedentary desk duties and is presently a shift supervisor at a suburban police station.
The applicant began consulting a chiropractor, Dr M Wayte, in the 1970s in relation to his back pain. He initially saw Dr Wayte weekly and, later, monthly. He continues to see a chiropractor approximately once per month.
The applicant described his current symptoms. He said that when he wakes up in the morning he gets a "twinge" in the right hand side of his back. When he turns his neck he experiences a "grating kind of feeling" in his neck. In winter he has trouble with his lower back and if he lifts anything heavy he experiences pain. He used to exercise by riding a pushbike but now finds that, because the cruciate ligaments in his knees are badly torn, pushbike riding will cause his knees to swell up if he does too much. He said that, instead, he walks a couple of kilometres per day if he can. He added that he has to be careful getting into his car because, if he swings his legs, his left knee will "fall out of joint" and be quite painful. He said that he gets good relief from his symptoms by having chiropractic treatment and he does not seek any other kind of treatment.
Corroborative Material
Material, in the form of 2 statutory declarations, corroborating the applicant's account of the incident in June 1968 following the jump from the helicopter in Vietnam, was before the Tribunal. A statutory declaration made by Robert John Mulholland on 4 May 1998 (T7, p70) states as follows:
"During my posting to South Vietnam from January 1968 to July 1968, with 2 Squadron, Special Air Service Regiment, I recalled a particular insertion by helicopter into a small cleared jungle area covered by tall grass.
While this particular patrol insertion was one of eighteen patrols that I had undertaken, this insertion stood out for two reasons. The first being that our patrol had to jump approximately 2 metres from the helicopter into the grass, laden with heavy packs, weighing in the vicinity of 75 to 100 pounds and this was the first time that I jumped from such a height.
The second reason was that a majority of my patrols were with the same group of soldiers, this patrol however, was a composite of soldiers from other patrols, but still within our troop. While James Berry was well known to me it was the first time we had been on the same patrol in Vietnam.
On this particular patrol James Berry and I had jumped close together and I do recall that he hit the ground rather awkwardly. I had realised that James had hurt himself, but there was little time to offer assistance as our patrol had to run into the jungle.
There were always hazards upon insertion in enemy territory, most of us had to endure physical bruising, cuts from jaggy vines. However, at the time any pain endured paled into insignificance to the reality of a viet cong sniper or patrol waiting nearby or even at the landing zone itself.
During that patrol I realised as patrol medic that James Berry had hurt himself, the continuance of our patrol was not threatened, James like most of us put up with the pain."

A statutory declaration made by John James Agnew on 1 August 1999 (Exhibit A3) states as follows:

"I served with 'H' Troop 2 Squadron the Special Service Regiment in South Vietnam. This tour commenced in February 1968 and lasted one year. My military rank was Sergeant and I was the patrol commander of 32 patrol during this tour of duty.
32 Patrol consisted basically of the same 5 members for the tour. These members would only change when the normal patrol members were either sick or on rest and recuperation leave. The patrol numbers would be made up from other short numbered patrols.
I can remember this patrol as it was the first 4 man patrol I had taken out in the country. In June 1968 I was issued with a warning order for an up and coming patrol. This patrol consisted of myself, Terry O'FARRELL, James BERRY and Robert MULHOLLAND selected from another patrol in our troop.
Our insertion was by helicopter onto a Landing Zone I had selected from an aerial visual reconnaissance. We used to sit in the door of the helicopter so we were fully aware of the terrain we were to land on. As the pilot washed off speed a branch of a dead tree came between the leading edge of the skid and the pilot's lower viewing panel. I gave the order to jump and instantly two members of the patrol left from either side of the aircraft.
From the air this area was mistaken for a grassed clearing. The grasses and vines had covered the downed trees and in my estimation we all fell between 10 and 14 feet.
As I took count of the patrol I could see that Jim was having trouble getting up. I took hold of his pack and we headed for cover. At this point of proceedings everyone is running on a very large dose of adrenalin, as the patrol must get as far away from the open ground as soon as possible in the noise confusion caused by the helicopter.
Once we had stopped moving and were in a relatively safe position I asked Jim what had happened and he said that he had been winded and had hurt his back in the fall from the helicopter. I explained to him that I could not get us out because of the condition of the Landing Zone.
Jim was the patrol signaller and carried the main radio set in his pack along with his share of the patrol's specialist equipment, then his food and water. The rest of the patrol shared out all his excess so he was left with the radio. We patrolled further until I found a place to lay up for the night."

A statutory declaration made by Patrick Garth Bercene on 16 April 1999 (Exhibit A2) states as follows:
"I was the 2 SQN Medic from 1966-1971 and I served in Sth Viet Nam with Jim Berry for the tour of 1968-69.
Jim was a patrol medic with H troop so I had a fair bit to do with him. Jim carried a more comprehensive medical pack than normal patrol members. Jim's request for extra DOLOXENE CO tablets on differing occasions required explanation. Jim told me that on odd occasions he was experiencing back pain which the capsules helped.
The treatment would have been recorded in the "DAILY TREATMENT BOOK" so any injury or illness would have been recorded, but would not appear in medical documents anywhere as the soldier had not been seen by a doctor. The treatment books were brought home to Australia for statistics to be taken from, then destroyed."

The Medical Evidence

A report by Mr PC Anderson, Orthopaedic Surgeon, dated 10 May 1997 (T7, pp47-48), states as follows:
"Thank you for asking me to see Jim Berry, a veteran from Vietnam having served with 2 Squadron SAS Regiment in the period 1968/9 in Vietnam. He stated that during the course of his military operations in Vietnam he was carrying excessive loads in excess of 100 pounds compatible with the type of operational service in which he participated. He mentioned one incident when he had to jump from a helicopter which was hovering above the grass and he experienced significant jarring on landing which is likely to have caused problems within his musculo-skeletal system. He also mentioned an incident on returning from Vietnam when he was parachuting at Bindoon and was involved in a heavy fall in the wind injuring his spine and his knees.
The clinical assessment is as follows.
Cervical Spine
He complains of pain and stiffness in the cervical spine where the rotation to the left is limited at approximately one half the normal range without abnormal features in his upper limbs.
One x-ray was sighted of the cervical spine which shows some evidence of degenerative change.
In terms of a diagnosis of cervical spondylosis this man's military history is compatible with damaging his spine during the course of his operational service in Vietnam and consequently it is considered that cervical spondylosis should be considered as an accepted disability.
Lumbar Spine
This man had trouble with his lumbar spine since his discharge from the Army, having significant incidents of incapacity during the course of the subsequent period, in particular, in 1990 he underwent a CT scan for back pain and left sided sciatica showing an intervertebral disc lesion at the L4/5 lumbar segments of moderate proportions. This condition was managed conservatively and his condition has improved since that time.
The current clinical assessment for the lumbar spine reveals a range of movement at about three quarters of the normal range without neurological features associated with these abnormal findings on his investigations. In relation to his lumbar spine the restriction of movement attracts a 10 point impairment rating under table 3.3.1 of the Veterans' tables.
Knees
This man complains of pain and instability in both knees, the left being worse than the right. The range of movement in both knees approaches the normal range. The ligament system in the right knee appeared to be reasonably stable. In the left knee however, there is significant cruciate laxity in keeping with the history of the injury sustained in the Bindoon training area. It is possible that the events of the Vietnam Campaign, particularly the event described are also a causative factor of his knee condition in terms of the expectations of soldiers serving in the Royal Australian Infantry in Vietnam.
Left Ankle
There is significant laxity of the lateral ligament system of the left ankle. He states that he sustained a specific injury after he left the Army but again involvement in the military deployments in the Vietnam Campaign and being associated with the SAS Regiment are possible causative factors in his aetiology of lateral ligament strain of the ankle. The x-rays of the ankle reveal ectopic calcification below the lateral meliolis of the fibular described as an ectopic bone by the radiologist. It is possible that this abnormal bone would have developed as a response to an injury with calcification of the haematoma associated with his injury.
The knee condition attracts a 10 point impairment rating under table 3.2.1 and the condition of his left ankle also attracts a 10 point impairment rating under table 3.2.1.
In terms of my knowledge of serving members of the Armed Forces participating in the Vietnam War, there is a strong probability at the 90 per cent level of expectation of damage to his lumbar spine associated with his military curriculum vitae and secondly injuries to the cervical spine and his knees would also have an association with his military service in terms of my understanding of the expectations of participation in the Vietnam Campaign in his role and the probability of developing cervical spondylosis and osteoarthritis of his knees is in excess of 50 per cent. There is evidence of residual ligamentous instability of his left ankle."

A report by Dr M Wayte, Doctor of Chiropractic, dated 23 July 1998 (T7, pp74-75), states as follows:
"On the 20th of May 1998 I had the pleasure of once again consulting Mr Jim Berry in my office. I have been attending to Mr Berry since the late 1970's for chronic recurring lower back pain of a pre-existing nature. That period of attendance and treatment occurred over approximately a fifteen-year period from 1979 to 1993. I clearly recall him relating to me, at the time of his first consultation, that his lower back pain started following a helicopter drop landing while in action in Vietnam. The helicopter was unable to set down and there was a drop to the ground. Mr Berry's spinal injuries and his radiographic evidence were consistent with a spinal compression injury.
Throughout the 1980's I treated Mr Berry for recurring back pain, neck pain, antalgic posture, and radiating lumbar neuralgias. These symptoms, I recall, would severely exacerbate about once every year with minor recurrences every month or so.
On examining Mr Berry 20/5/98 there was a 40% restriction of right cervical rotation and a 30% restriction of left cervical rotation. Cervical flexion, extension, as well as right and left lateral bending were all restricted by 20%.
Examination of the lumbar spine showed Fabre's Test for dorsi-flexion of the left foot to be positive for left sciatic nerve root pain. There was spasm of the intrinsic spinal musculature in the region of the right second lumbar transverse process. The fifth lumbar vertebra was subluxated spinous left. Mr Berry was unable to touch his toes to within 12 inches of the floor. Left lateral lumbar bending produced pain to the left of L4 vertebra and that movement was restricted by 20% from normal. Right lateral lumbar bending was normal. Lumbar extension produced pain to the left of L4 vertebra. Left lateral lumbar bending combined with left rotation elicited sharp pain to the left of L4 and this movement was restricted by 35% from normal. His spinal related symptoms are obviously of an ongoing nature.
Review of Mr Berry's spinal x-rays showed a large osteophyte on the left anterior superior aspect of L5 vertebral body. There is a smaller osteophyte on the anterior inferior aspect of L4 vertebral body. This is consistent with an L4-L5 anterior discal protrusion associated with anterior common ligamentous tear. There is evidence of compression injury involving trabeculae of the vertebral bodies at the anterior superior aspects of L5 and L4 lumbar vertebrae.
The radiographic evidence is consistent with Mr Berry's history of spinal compression injury such as would have been incurred dropping to the ground from a height in full combat gear.
…".

A report by Dr M Pope, Chiropractor, dated 4 September 1998 (T7, pp 80-82), states as follows:
"James first consulted me on March 30, 1998 complaining of low back pain and neck pain which had been present for some time.
His low back injuries date from a bad fall sustained in a helicopter dismount in Vietnam in 1968 where he also tore the cruciate ligaments in both knees. He reports that he injured his low back in the same fall and has experienced low back problems ever since. His cervical injuries relate to the same incident when his pack landed heavily on the back of his neck after he fell to the ground from the helicopter. Since that time these injuries have been aggravated by many high altitude, rapid descent jumps performed while in active duty which involve sharp sudden stops when the parachute opens. This can cause whiplash type injuries to the cervical and lumbar spine and would be consistent with the symptoms he describes.
SYMPTOMS:
1.   Generalised lumbo-sacral pain.
2.   Sometimes wakes in acute pain producing antalgic postures.
3.   Severe episodes lead to pain and pins and needles bilaterally in the sciatic distribution, although the left is more severe that the right.
4.   Pins and needles and numbness in the distal plantar aspect of the left foot
5.   Neck stiffness
6.   Right lower cervical pain, more severe on some days than others.
…
Tenderness was elicited over the spinous processes and facet joints of C1, C5, T2, L5 and the right sacro-iliac joint.
…
X-rays taken on March 30, 1998 reveal a mild scoliosis convex left at T3/4, to the right at T2/3 and to the left at L4/5. The cervical lordosis is reversed at C4/5. There is disc degeneration at C5/6 and L4/5 with large osteophytes at L4/5 with milder lipping elsewhere in the lumbar spine.
At a progress examination on April 20, 1998 Mr Berry has reported excellent progress in all areas. He now experiences little, if any neck discomfort and reports much greater mobility in his low back with little or no discomfort or radicular signs.
The re-exam showed improved cervical mobility with 80 deg rotation bilaterally (normal = 90 deg) and normal lateral flexion with no discomfort. C5 and C8 myotomes were normal. Normal pain free ranges of motion were elicited in the lumbar spine, however the L5 and S1 myotomes were still weak bilaterally.
He is now being monitored with weekly care and is due for another re-exam on June 12.
CONCLUSIONS:
Mr Berry has sustained trauma to his spine resulting in permanent ligamentous instability and degenerative change in both the cervical and lumbar spine which can be attributed to injuries sustained during active duty in Vietnam approximately thirty years ago.
His injuries were aggravated by high velocity free fall parachute jumps where speeds approaching 200 kph are attained. This technique is adopted to minimise the risk of detection when operating behind enemy lines. As the parachute opened, the sudden and rapid deceleration causes whiplash type injuries to the spine, especially to the cervical spine resulting in ligamentous instability.
His lumbar injuries are consistent with falls sustained in landing from helicopter dismounts, particularly into long grass where the surface of ground could not be seen prior to impact. The wrenching and jarring to the spine and lower limbs results in serious injury including ligamentous and muscle tearing. The effect of this ligamentous instability is still evident in Mr Berry's lumbar spine today.
Whilst his initial symptomatic recovery has been good, permanent ligamentous and degenerative changes have taken place in his cervical and lumbar spine. Mr Berry will be prone to future discomfort and will require ongoing care to assist in the management of these problems."
The Tribunal had before it 4 reports by Mr P Hardcastle, Orthopaedic Surgeon, regarding the applicant. In a report dated 12 May 1998 (T7, pp 71-73) Mr Hardcastle stated:
"HISTORY
This 50 year old Police Officer was evidently a soldier in the Special Air Services between 1965 and 1971. He'd left school in 1963 and went straight into the Army though he did work as a Supervisor with Peters' Ice Cream in his first 2 years after leaving school.
He did a 13 month tour of duty to Vietnam between 1968 and 1969 with the SAS. He was on a 4 man patrol in a helicopter about 5 months into the tour. They came into land the pilot thought he was almost on the ground and ordered the men to jump out. Unfortunately the pilot was on top of Cuni (sic) grass which was approximately eight foot in height. He fell approximately 6 – 8 feet landing initially on his legs and then rolled over onto the right side. He was carrying a rifle and a back pack weighing approximately 100 lbs. He described instant onset of low back pain and neck pain which lasted for about 5 days which was the period of the patrols they did.
This pain evidently settled down but tended to recur if he was carrying packs or jumping out of helicopters which they did about every 3-4 weeks. These helicopter jumps generally were about 4 foot.
He spent another 7 months in Vietnam and returned when in November, 1969 he was doing a parachute jump at Bindoon. There was strong variable ground winds and he found he was unable to control the parachute as he descended and landed very awkwardly jarring his spine and causing recurrence of his previous low back pain. I also understand that he sustained injuries to both knees.
PRESENT SYMPTOMS
His main complaint was of low back pain but he also had continuing neck pain, bilateral knee pain and pain over the lateral aspect of the left ankle. He was presently working in the Police Force and maintaining a reasonably good level of activity. He could walk as far as he liked. Sitting and standing increased his pain. He could also lift reasonable weights. There was no sleep disturbance and he had a normal sex life and could travel long distances. His social life was also normal.
He has problems with both knees more so on the left and a clunking sensation in both knees but these symptoms do not stop him running and riding his bike.
Over the past 4 years he's also complained of pain over the anterolateral aspect of his left ankle. He can't relate any specific injury, it's a sharp pain lasting a few seconds and occurs regularly about twice a week and at times he's been close to falling.
PERSONAL DETAILS
Since leaving the Armed Services in 1971 he became a Supervisor for Peters' Ice Cream up until 1977 and has been a Police Officer since then. His past medical history includes torn cruciate ligaments in both knees from the parachute jump, two episodes of malaria and a broken left wrist. I understand he has accepted claims for his ears and post traumatic stress disorder.
Present medication includes Apropax 20 mgs a day. He has no allergies and is a non-smoker and drinks minimal alcohol.
Presently he's married with 3 grown up children. Hobbies include fishing and shooting.
CLINICAL EXAMINATION
1.   Lumbar Spine – He has normal lumbar curves with no tenderness to palpation. Flexion is with the fingertips coming to the mid tibia (30 degrees on the gongiometer). Lateral deviation was to the knees and extension was of good range with some pain. Straight leg raising was 80 degrees on both sides and there were no objective neurologic signs.
2.   Cervical Spine – There's no local tenderness to palpation either anterior or posterior. Flexion was of full range and extension was 30 degrees. Rotation was restricted to 60 degrees on both sides and lateral deviation was also stiff. There was a full range of movement in both shoulders.
3.   Both Knees – There's no evidence of any deformity and there's no evidence of varus medelleous wasting. There was no swelling in either knee and he was tender under the medial aspect of both patellae. There was a full range of movement with patello-femoral crepitus. Both patellae were mobile. Rotation and stability tests were negative.
4.   Left Ankle - There's no obvious deformity but there is a palpable lump on the left just anterior but separate from the fibula. The joint itself and the lump was tender and relatively firm consistent with bone or calcification. Movements of the ankle in dorsi flexion, plantar flexion inversion and eversion were normal though inversion was perhaps slightly increased compared to the opposite side suggesting some degree of laxity of the lateral ligament.
INVESTIGATIONS
1.   Lumbar Spine
a)   Plain X-rays (28.2.90) – There is significant narrowing of the L4/5 intervertebral disc space but the other segments appear to have normal disc height. There is a scoliosis and slight length inequality on the x-rays.
b)   CT Scan L3-S1 (1.3.90) – There is far left lateral disc protrusion at L3/4 and difficult to assess whether there's associated nerve compression. There is left sided disc protrusion at L4/5 in association with disc bulging. There's a small central disc bulge at L5-S1. There is spina bifida occulta of S1 and at all three intervertebral segments slight asymmetry of the posterior facet joints.
c)   Plain X-rays Lumbar Spine (30.3.98) – There's been an increase in the traction spurs present at L4/5 and the development of some degenerative changes at L1/2 and L3/4. There appears to be a slight increase in his scoliosis.
2.   Cervical Spine (30.3.98) – There is some narrowing at the C5/6 intervertebral level on the lateral x-ray and on the open mouth view there is some narrowing of the C1/2 articulation but this is always difficult to assess on one projection.
3.   Left Ankle – Evidently x-rays of the left ankle which I haven't reviewed do show ossification adjacent to the lateral malleleous which would be consistent with an old injury.
DIAGNOSIS
1.   Multi level degenerative low lumbar disc disease in association with disc protrusions at L3/4 and L4/5 and an early resorption at L4/5.
2.   Degenerative cervical neck disease at C5/6.
3.   Probable old lateral ligament injury with associated ectopic ossification.
ASSESSMENT
1.   Lumbar Spine – The specific injury is outlined in this report with associated low back pain lasting about 5 days followed by recurring pain is consistent with the development of a ligamentous instability under 5F "Suffering Trauma to the Lumbar Spine" under Statement of Principles.
2.   Cervical Spine – The specific injury in the helicopter jump mentioned above fits under 4F of the Statement of Principles for Cervical Spondylosis this being "Suffering a Trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis".
3.   Knees – The patello-femoral laxity is demonstrated on clinical examination in the absence of any other significant clinical features could well have been a pre-existing condition which was exacerbated by the parachute jump at Bindoon in November, 1969 as outlined above. He was having some knee symptoms prior to this which could have been the effect of his previous service activities given the nature of such with an exacerbation as a result of an awkward fall.
4.   Ankle – There is evidence of a slight ligamentous instability of the ankle and I understand on the radiological investigations some ectopic ossification. Certainly to examination there is a palpable bony lump in the area described on the x-rays I understand and such would be consistent with an injury to the ankle though from the history one can't be specific as to when this occurred but it is more likely to be the result of a twisting injury causing some ligamentous instability."

In a supplementary report dated 31 October 1998 (T7, pp 83-84) Mr Hardcastle stated:

"Thank you for your letter of the 27.10.98 in which you have asked me to elaborate on both the diagnosis I have given in my report of the 12.5.98 and which SoPs and relevant causative factors apply in the case of Mr Berry's 'low spinal disc disease in association with disc protrusions'.
1. By 'low lumbar disc disease' I mean lumbar spondylosis.
As I have already stated this veteran fits the SoP for lumbar spondylosis factor 5(f) – suffering trauma which has resulted in permanent ligamentous instability (which translates to 5(g) in the recent modified version).
2. By 'disc protrusion' I mean intervertebral disc prolapse associated with the spondylosis. His spinal related symptoms are of an ongoing nature. The x-ray evidence shows a significant narrowing of the L4/5 intervertebral disc space and on the far lateral disc protrusion demonstrated at L3/4 on the CT scan consistent with a compression injury involving a jump from a considerable height as the veteran described to me.
In relation to the SoP for intervertebral disc prolapse it is very difficult to definitively state when this originated but it is quite possible that this too was a result of the jump/fall from the helicopter and that Factor 5(a)(ii) and (iii) 'suffering trauma to the relevant disc at the time of clinical onset' could also apply. He was tender and sore with altered mobility for some time afterwards.

NB A disc bulge is not a disc protrusion but an intervertebral disc prolapse is one i.e. protrusion and prolapse in medical terminology means the same."

In a report dated 6 April 1999 (Exhibit A4) Mr Hardcastle stated:

"…
Review of X-ray Results:
Having reviewed Mr Berry's x-rays again I have no reason to change any comments I made with respect to the lumbar spine, cervical spine and left ankle.
As Mr Berry wasn't complaining of thoracic symptoms I didn't specifically look at these x-rays or report on them but on review of x-rays taken by Perth Imaging of this region (30.3.98) there is a lateral deviation deformity in the upper thoracic spine involving T4 with lateral compression on the right side of about 5-10 degrees and possibly at T3 though the latter is uncertain given the difficulty of interpreting radiological signs at this level.
In my opinion this is consistent with a significant compression injury given your radiologically strong bone structure. There are also multi level degenerative changes below this.
This radiological finding in my opinion is significant not in terms of causing pain particularly as Mr Berry is asymptomatic in this region but more to confirm the fact that Mr Berry has sustained a significant injury at some stage and referring to his history the most likely cause would be during his duties with the SAS. It is not possible to distinguish whether this occurred when you fell on active service or in a parachute jump at Bindoon but more than likely it was one of these falls that caused this particular vertebral body fracture.
This has resulted in a resultant deformity which in my opinion is not congenital and most likely traumatic and confirms that there has been at least one significant compression force acting on the spine.
I apologise for not reviewing his thoracic x-rays but as there were no complaints in this region I confined my initial assessment to your present painful areas.
I reiterate my assessment as stated in my report of 12.5.98 that I believe Mr Berry's account of the significant fall he sustained in Vietnam which sent him sprawling laden down with a heavy pack cannot be discounted as being very possibly implicated in the genesis of his spinal spondyloses. Whilst he sustained a second heavy parachute landing at Bindoon afterwards, this second trauma should not eclipse probable damage that was likely to have been sustained in the earlier Vietnam incident in which he had little choice but to keep going albeit in pain. As I have already stated the specific injury in the helicopter jump mentioned has, I believe, resulted in a permanent ligamentous instability in both his lumbar and cervical spines and in my opinion he thus meets the relevant causative factors as stipulated in the respective SoPs: 'suffering from permanent ligamentous instability before the clinical onset of cervical/lumbar spondyloses'."

Finally in a report dated 22 November 1999 (Exhibit R2) Mr Hardcastle responded to a series of specific questions as follows:

"1. 'Lumbar Spondylosis'
a) 'When did the clinical onset of lumbar spondylosis occur'
The clinical complaints of pain from the history I obtained was directly after the fall from the helicopter approximately 5 months into his initial tour to Vietnam in 1968/69.
b)'Before the clinical onset of lumbar spondylosis was Mr Berry suffering from continuing or recurring abnormal mobility and instability of the lumbar spine characterised by the regular recurrence of episodes of pain or tenderness affecting the lumbar spine'

Mr Berry did not report any previous pain prior to this particular jump from the helicopter.
c)'Before the clinical onset of lumbar spondylosis did Mr Berry suffer a discrete injury to the lumbar spine causing the development, within 24 hours of the injury of acute symptoms and signs of pain and tenderness (lasting for a period of at least 7 days following their onset) and either altered mobility or range of movement of the lumbar spine'

I am not aware of any records of the time of the initial onset of symptoms to answer this particular question. I am not aware of any previous or discrete injuries apart from that mentioned in my previous report (12.5.98) under History.
2. 'Cervical Spondylosis'
a) 'When did the clinical onset of cervical spondylosis occur'
The history provided by Mr Berry is onset of cervical symptoms following the jump out of the patrol helicopter 5 months after he arrived in Vietnam.
b)'Before the clinical onset of cervical spondylosis was Mr Berry suffering from continuing or recurring abnormal mobility and instability of the cervical spine characterised by the regular recurrence of episodes of pain or tenderness affecting the cervical spine'

It is difficult to know when the cervical spondylosis started. I have only reviewed x-rays dated 28.2.90 (lateral x-rays only) which was difficult to interpret and the 30.3.98 which does show advanced degenerative changes at C5/6 on the lateral view and certainly these radiological changes are likely to have started a long time ago and at least be present no less than 15 years but it is impossible to decipher when the degeneration would have started.
My understanding is that he has continued over the years to suffer from cervical neck pain.
c)'Before the clinical onset of cervical spondylosis did Mr Berry suffer a discrete injury to the cervical spine causing the development, within 24 hours of the injury of acute symptoms and signs of pain and tenderness (lasting for a period of at least 7 days following their onset) and either altered mobility or range of movement of the cervical spine'

Again this is a difficult question to answer. He reports onset of symptoms as described above but is uncertain how long these symptoms lasted. It is certainly possible from the history that an injury was sustained as a result of this fall (Vietnam) before the onset of cervical spondylosis particularly as there were no previous complaints of neck pain until this fall it is likely that he sustained a soft tissue injury given the mechanism as described to me before the clinical onset of cervical spondylosis.
3. 'Intervertebral Disc Prolapse'
a)'When did the clinical onset of intervertebral disc prolapse in relation to Mr Berry's lumbar spine occur'

There is radiological evidence on the CT scan (1.3.90) of a left sided disc protrusion at L4/5 and a far left lateral disc protrusion at L3/4. Without the advantage of examining him until a long period after the injury it is easily possible that one of these disc protrusions occurred as a result this fall and the subsequent fall in November, 1969 was of sufficient force to have either aggravated the protrusion or even in its own right produced another one given that the radiological investigations do demonstrate evidence of two disc protrusions which could easily have been caused in this period between 1968 and 1969.
b)'At the time of the clinical onset of the intervertebral disc prolapse in relation to Mr Berry's lumbar spine did he suffer an injury to the particular prolapsed intervertebral disc(s) giving rise to immediate pain tenderness and altered mobility or range of movement of that part of the spine that persisted for at least 2 weeks'

The history is of immediate pain after both of the falls. The original fall gave recurring pain lasting 4-5 days associated with physical activity such as jumping out of helicopters up until the parachute injury in November, 1969 where there was a further aggravation and since then the symptoms have persisted. On the balance of probabilities I would consider that the initial fall was the major one causing tearing of the intervertebral disc due to the compression and flexion forces acting resulting in a ligamentous injury to the posterior annulus and possibly posterior elements most likely at the L4/5 level and then there was the further contribution by further jumping out of helicopters with a heavy pack as well as the parachute fall in November, 1969.
In my opinion the combination of these has had a significant effect on his low back condition resulting in a ligamentous problem and most likely one or both of the disc protrusions as demonstrated on the CT scan of the 1.3.90.
4. 'Internal derangement of the knee'
a)'Does Mr Berry presently suffer from a chronic disorder of the knee(s) due to (alone or in combination) torn, ruptured or deranged meniscus of the knee or torn or stretched collateral, cruciate or capsular ligament of the knee resulting in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of that knee attracting an ICD Code in the range 717.0 – 717.5 or ICD Code 717.8 or 717.9'

I have no information on these ICD codes. There's no evidence that he has a congenital discoid meniscus or other degenerative process such as osteoarthrosis or loose bodies.
He would require an MRI scan of both knees in order to specifically answer this question then I'll make arrangements for this to be undertaken.
b)'If Mr Berry does presently suffer from chronic disorder of the knees described above when did the clinical onset of that disorder occur'

The history as provided by Mr Berry was experiencing some problems before the fall but that there was a significant aggravation as a result of this parachute fall in November, 1969.
c)'Did Mr Berry suffer a direct trauma or twisting or wrenching injury to the affected knee(s) within the 6 months immediately before the clinical onset of the chronic disorder of the knee(s) as described and if so did it result in pain and swelling of the knee(s) within the 12 hours immediately following the trauma or injury'

He doesn't describe any swelling in the knee though whether some was present at the time or not would be best assessed by referring to his medical file which I don't have a copy of to see if the medical officer recorded such at the time of the fall.
5. 'Thoracic Spine'
a)'Does Mr Berry presently suffer from degenerative changes affecting the thoracic vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of thoracic cord or thoracic nerve root compression attracting ICD-9-CM code 721.2, 721.41 or 722.51'

Mr Berry suffers from degenerative changes affecting the thoracic vertebrae and intervertebral discs but doesn't complain of any symptoms in the thoracic spine.
b)'If Mr Berry does presently suffer from the condition described above when did the clinical onset of that condition occur'

The radiological evidence of the compression fracture as described in my previous report would be from the history related to one of the falls either in Vietnam or subsequently at Bindoon.
He could well have had transitory pain as a result of this particular fracture but with the other injuries go unnoticed but fortunately he appears to have made a good recovery with respect to not having any complaints of pain and disability from this. This particular fracture would be treated by early mobilisation at any rate and so he hasn't been compromised by lack of treatment to this region.
c)'Before the clinical onset of that condition did Mr Berry have a malalignment of the thoracic spine'

My interpretation of the radiological features is that he didn't have a malalignment but that the malalignment produced most likely by one of the falls was a direct result of such and is an indicator of the force implied to the spine and lower limbs at the time of the landing and also taking into account that he had in the initial helicopter fall an extra 100 lbs of force due to his pack going through his spine.
d)'Before the clinical onset of that condition was Mr Berry suffering from continuing or recurring abnormal mobility and instability of the thoracic spine characterised by the regular recurrence of episodes of pain or tenderness affecting the thoracic spine'

There is evidence of the compression fracture which could have caused onset of radiological degeneration which is present but fortunately from a clinical aspect it doesn't appear to be causing any symptoms at this stage but may do in the future.
e)'Before the clinical onset of that condition did Mr Berry suffer a discrete injury to the thoracic spine causing the development within 24 hours of the injury of acute symptoms and signs of pain and tenderness (lasting for a period of at least 7 days following their onset) and either altered mobility or range of movement of the thoracic spine'

This is difficult to assess as there's no specific history of thoracic symptoms though as previously stated they could easily have occurred after one of the falls and by virtue of the stability of the compression fracture resolved reasonably quickly particularly as he had complaints in other regions such as the cervical spine, low lumbar spine and both knees and any symptoms from here may well have been masked.
I don't have his medical records to interpret clinical examinations that may have been performed by medical officers during his Army service.
f)'Was Mr Berry suffering a thoracic intervertebral disc prolapse before the clinical onset of the condition described above at the level of the intervertebral disc prolapse'

It is most unlikely he was suffering an intervertebral disc prolapse before the clinical onset of the condition including the compression fracture as previously described."

The Law

Section 9(1) of the VE Act relevantly provides:
"Subject to this section, for the purposes of this Act, any 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
...".

The relevant provisions of the VE Act relating to the appropriate standard of proof in the present case are as follows:

"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
....
(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
...
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;

...
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.

(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
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
(b)       the kind of disease contracted by the person; or
(c)       the kind of death met by the person;

as the case may be."

Section 196A of the VE Act provides for the establishment of the Repatriation Medical Authority ("RMA") and s196B sets out the functions of the RMA. Section 196B(2) provides:

"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 services 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."

The RMA has, pursuant to s196B(2) of the VE Act, determined a Statement of Principles ("SoP") in respect of each of the following 4 relevant injuries or diseases: cervical spondylosis, lumbar spondylosis, intervertebral disc prolapse, and internal derangement of the knee. As regards each of the other 2 relevant injuries or diseases – namely unstable knee joint, and laxity of ligament in the ankle – the RMA has not determined a SoP under s196B(2) of the VE Act; nor, as far as the Tribunal is aware, has the RMA declared that it does not propose to make such a SoP.
In the case of each of the abovementioned injuries or diseases in respect of which a SoP has been determined, the original SoP has either been amended by the RMA, or revoked and replaced by a new SoP determined by the RMA, since the date of the primary decision of the delegate of the respondent in this matter, namely, 15 October 1997. The question therefore arises whether the Tribunal is to decide this matter in accordance with the SoPs as in force at the date of the primary decision (15 October 1997), or in accordance with the SoPs as presently in force.
In Keeley v Repatriation Commission (1999) 30 AAR 48 the Federal Court of Australia (Heerey J) held that, by virtue of s50 of the Acts Interpretation Act 1901, a review by the Tribunal of a decision of the respondent as affirmed by the VRB was to be determined by reference to the relevant SoP as in force at the date when the primary decision was made by the respondent; not by reference to the SoP as in force at the time of the review by the Tribunal.
In the present case, the relevant SoPs which were in force at the date of the respondent's decision (15 October 1997) were as follows:

Instrument No 161 of 1996 concerning Cervical Spondylosis;
Instrument No 165 of 1996 concerning Lumbar Spondylosis;
Instrument No 130 of 1996 concerning Intervertebral Disc Prolapse; and
Instrument No 59 of 1997 concerning Internal Derangement of the Knee.

Since the date of the respondent's decision, however:

Instrument No 161 of 1996 (Cervical Spondylosis) has been revoked and new SoPs have been determined by the RMA: see Instrument No 56 of 1998 and Instrument No 31 of 1999;
Instrument No 165 of 1996 (Lumbar Spondylosis) has been revoked and new SoPs have been determined by the RMA: see Instrument No 52 of 1998 and Instrument 27 of 1999;
Instrument No 130 of 1996 (Intervertebral Disc Prolapse) has been amended by the RMA: see Instrument No 92 of 1997; and
Instrument No 59 of 1997 (Internal Derangement of the Knee) has been amended by the RMA: see Instrument No 96 of 1997.

Mr Ponnuthurai (for the respondent) acknowledged that the effect of Heerey J's decision in Keeley (above) is that, in respect of the claimed conditions of cervical spondylosis and lumbar spondylosis, the applicable SoPs in this case are, respectively, Instrument No 161 of 1996, and Instrument No 165 of 1996. He submitted, however, that, in respect of the claimed conditions of intervertebral disc prolapse at L4/5 and internal derangement of the left knee, the applicable SoPs are, respectively, Instrument No 130 of 1996 as amended by Instrument No 92 of 1997, and Instrument No 59 of 1997 as amended by Instrument No 96 of 1997. In support of that submission Mr Ponnuthurai argued that Keeley's Case applies only where a SoP has been wholly revoked and replaced by a new SoP, not where a SoP has been merely amended. He also submitted that the application clause in each of Instruments Nos 92 and 96 of 1997 evinces a "contrary intention" within the meaning of s50 of the Acts Interpretation Act 1901 – that is, an intention that those amendment SoPs should affect rights accrued under the original SoPs.
The Tribunal does not accept Mr Ponnuthurai's argument that the application of Keeley's Case is limited to the circumstance of a total revocation of a SoP and its replacement by a new SoP, and does not include the circumstance of an amendment of a SoP. A substantive right accrued under a SoP may, of course, be liable to be affected, where such intention appears, whether that SoP is amended, or whether that SoP is revoked and replaced: see Lee v Secretary, Department of Social Security (1996) 68 FCR 491 in relation to the circumstance of amendment of a statute. As regards the question whether a "contrary intention" – that is, an intention that rights accrued under the original SoPs concerning Intervertebral Disc Prolapse and Internal Derangement of the Knee should be affected by the subsequent amendment of those SoPs – appears in the relevant amendment SoPs, the Tribunal does not accept Mr Ponnuthurai's submission that such an intention appears from the application clause in each of those amendment SoPs. The application clause in each amendment SoP states:
"The amendments made by this Instrument apply to all matters to which [the principal Instrument] and section 120A of the Act apply."

The Tribunal regards that clause merely as a provision stating the general application of the original SoP as amended by the amendment SoP. The Tribunal does not regard that clause as evincing an intention, either expressly or by necessary implication, that the relevant amendment SoP should affect rights accrued under the relevant original SoP. It does not, in the Tribunal's opinion, constitute the manifestation of a "contrary intention" within the meaning and for the purposes of s50 of the Acts Interpretation Act 1901.

Accordingly, the Tribunal will, in accordance with Keeley's Case, apply the following SoPs, respectively, in deciding whether each of the relevant claimed conditions, namely, cervical spondylosis, lumbar spondylosis, intervertebral disc prolapse at L4/5, and internal derangement of the left knee, is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act:

Instrument No 161 of 1996 concerning Cervical Spondylosis;
Instrument No 165 of 1996 concerning Lumbar Spondylosis;
Instrument No 130 of 1996 concerning Intervertebral Disc Prolapse; and
Instrument No 59 of 1997 concerning Internal Derangement of the Knee.

As regards each of the other 2 claimed conditions, namely, unstable right knee joint, and laxity of ligament in the left ankle, in respect of which the RMA has neither determined a SoP under s196B(2) of the VE Act nor declared that it does not propose to make such a SoP, the Tribunal will, pursuant to s120A(4) of the VE Act, decide whether each of those conditions is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act in accordance with subss (1) and (3) of s120 of the VE Act, without reference to s120A(3) of the VE Act.
Findings on Material Questions of Fact and Consideration of Issues – Relevant Injuries or Diseases in respect of which a SoP has been determined by the RMA
In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pp 97-98) the approach to be taken by the Tribunal in cases like the present in which s120A of the VE Act applies:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

Cervical Spondylosis

The Tribunal accepts the applicant's evidence, as corroborated by the statutory declaration of Mr Mulholland and Mr Agnew, regarding the helicopter jump incident in Vietnam in June 1968 ("the helicopter jump incident") and it also accepts the applicant's evidence that, immediately after that incident, he felt a sharp pain in his neck and his neck felt stiff and painful to turn. The Tribunal is, furthermore, satisfied on the medical evidence before it – in particular the reports of Mr Anderson and Mr Hardcastle – that the applicant is presently suffering from cervical spondylosis. The question is, however, whether the applicant's cervical spondylosis is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act. In addressing that question the Tribunal will follow the approach set out in Deledio's Case (above).
The first matter to be considered is whether the material before the Tribunal points to a hypothesis connecting the applicant's cervical spondylosis with the circumstances of his operational service in Vietnam – in particular, the helicopter jump incident. Having regard to the medical evidence before it – in particular, the reports of Mr Anderson, Dr Pope and Mr Hardcastle – the Tribunal is satisfied that that material does point to, or raise, a hypothesis that the applicant's cervical spondylosis is connected with the helicopter jump incident.
As previously mentioned, there is in force a SoP concerning cervical spondylosis determined by the RMA under s196B(2) of the VE Act. The applicable SoP, as previously discussed having regard to Keeley's Case, is Instrument No 161 of 1996 which relevantly states:
"…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, 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 cervical spondylosis or death from cervical spondylosis with the circumstances of a person's relevant service are:
…
(f)suffering trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis; or
(g)suffering trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
Other definitions
7.For the purposes of this Statement of Principles:
…
'trauma to the cervical spine' means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs,…;
'trauma to the cervical spine which has resulted in permanent ligamentous instability' means abnormal mobility and instability of the cervical spine due to ligamentous injury caused by the force of an extraneous physical or mechanical agent, and is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the cervical spine.
…".

The next matter to be considered is whether the abovementioned hypothesis is a reasonable one. That hypothesis will be reasonable if it is consistent with the "template" found in the abovementioned SoP. Clause 5 of that SoP sets out various alternative minimum factors at least one of which must exist and be related to the applicant's operational service (cl 4) before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis with the circumstances of that service. The relevant factors in the present case are those specified in paras (f) and (g) of cl 5.
The factor specified in para (f) of cl 5 is:
"suffering a trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis".

The phrase "trauma to the cervical spine which has resulted in permanent ligamentous instability" is defined in cl 7 (see para 52 above). The material before the Tribunal raises a hypothesis that, in the helicopter jump incident, the applicant suffered a trauma to his cervical spine which has resulted in permanent ligamentous instability before the clinical onset of his cervical spondylosis, within the meaning of cll 5(f) and 7. The applicant's own evidence was that, when he landed on the ground in the helicopter jump incident, he immediately felt a sharp pain in his neck and his neck then felt stiff and painful to turn. The medical evidence before the Tribunal also clearly supports that hypothesis. Dr Pope referred specifically to the helicopter jump incident and opined that the applicant "has sustained trauma to his spine resulting in permanent ligamentous instability and degenerative change in … the cervical … spine which can be attributed to injuries sustained during active duty in Vietnam approximately thirty years ago". Mr Hardcastle, in his report of 12 May 1998, opined specifically that the cervical spinal injury suffered by the applicant in the helicopter jump incident satisfies the description, "suffering a trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis", in cl 5(f) of the SoP. Mr Hardcastle reiterated that opinion in his report of 6 April 1999.

On the material before it, the Tribunal is of the opinion that the abovementioned hypothesis, connecting the applicant's cervical spondylosis with the circumstances of his operational service, contains the factor specified in para (f) of cl 5 of the SoP and, accordingly, that hypothesis is a reasonable one. In light of that opinion, it is not necessary for the Tribunal to consider whether the factor specified in para (g) of cl 5 of the SoP also exists, for the purpose of that hypothesis.
The final matter to be considered by the Tribunal is whether, for the purposes of s120(1) of the VE Act, it is satisfied beyond reasonable doubt that the applicant's cervical spondylosis is not a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act. The Tribunal will be so satisfied if it is satisfied beyond reasonable doubt that one or more of the raised facts necessary to support the abovementioned reasonable hypothesis does not or do not exist, or if it is satisfied beyond reasonable doubt that another fact which is inconsistent with that hypothesis does exist. In either case the Tribunal will be satisfied beyond reasonable doubt that the relevant hypothesis is not proved and that, accordingly, there is no sufficient ground, within the meaning of s120(1) of the VE Act, for deciding that the applicant's cervical spondylosis was war-caused: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571; Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367.
The Tribunal finds that the helicopter jump incident occurred as described by the applicant in his written statement of evidence and in his oral evidence, and by Mr Mulholland and Mr Agnew in their statutory declarations (this fact was not disputed by the respondent). The Tribunal also finds, on the basis of the applicant's evidence, that, immediately following that incident, the applicant suffered pain and stiffness in his neck. The Tribunal also finds, on the basis of the applicant's evidence and the uncontradicted medical evidence of Dr Pope and Mr Hardcastle, that in the helicopter jump incident the applicant suffered a "trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis", within the meaning of cll 5(f) and 7 of the relevant SoP. The Tribunal notes, however, that there is no reference in the applicant's service medical records to the helicopter jump incident or to any subsequent complaint of, or treatment for, pain or stiffness in his neck while he was in Vietnam. The Tribunal also notes that the applicant's service medical documents record that on 14 February 1969 he underwent a medical examination in Vietnam and was found to have no injuries or relevant diseases and was found to be fit to return to Australia. The Tribunal notes, furthermore, that there is no reference in the applicant's service medical records to any complaints or treatment in relation to his neck after his return to Australia. The Tribunal does not, however, regard the contents of the applicant's service medical records as sufficient to satisfy it beyond reasonable doubt that, in the helicopter jump incident, the applicant did not suffer a "trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis", within the meaning of cll 5(f) and 7 of the relevant SoP. The Tribunal accepts as entirely credible the applicant's explanation, given in his written statement of evidence and in his oral evidence, for his failure both to report the helicopter jump incident and to seek treatment from a medical officer at the task force headquarters for his pain symptoms arising out of that incident (see paragraph 27 above).
On the basis of the whole of the material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's cervical spondylosis "resulted from an occurrence that happened while the [applicant] was rendering operational service" or "arose out of, or was attributable to," the operational service rendered by the applicant, within the meaning of s9 of the VE Act. On the contrary, the Tribunal is satisfied, at least on the balance of probabilities, that the applicant's cervical spondylosis has resulted from, or arisen out of, or is attributable to, the helicopter jump incident. Because the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's cervical spondylosis is a war-caused injury or a war-caused disease, the Tribunal must, and does, determine, pursuant to s120(1) of the VE Act, that the applicant's cervical spondylosis is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
Lumbar Spondylosis
The Tribunal accepts the applicant's evidence that, immediately after the helicopter jump incident, he felt a sharp pain in his back, and then, as he was running towards the jungle tree line, he felt a "shooting" or a "nerve-pinching" type of pain in his back. The Tribunal is also satisfied on the medical evidence before it – in particular Mr Hardcastle's reports of 12 May 1998, 31 October 1998 and 6 April 1999 – that the applicant is presently suffering from lumbar spondylosis. The question is, however, whether the applicant's lumbar spondylosis is a war caused injury or a war-caused disease within the meaning of s9 of the VE Act. In addressing that question the Tribunal will follow the approach set out in Deledio's Case (above).

The first matter to be considered is whether the material before the Tribunal points to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his operational service in Vietnam – in particular, the helicopter jump incident. Having regard to the medical evidence before it – in particular, the reports of Dr Pope and Mr Hardcastle – the Tribunal is satisfied that that material does point to, or raise, a hypothesis that the applicant's lumbar spondylosis is connected with the helicopter jump incident.
As previously mentioned, there is in force a SoP concerning lumbar spondylosis determined by the RMA under s196B(2) of the VE Act. The applicable SoP, as previously discussed having regard to Keeley's Case, is Instrument No 165 of 1996 which relevantly states:
"…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, 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 lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:
…
(f)suffering trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis; or
(g)suffering trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
Other definitions
7.For the purposes of this Statement of Principles:
…
'trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs,…;
'trauma to the lumbar spine which has resulted in permanent ligamentous instability' means abnormal mobility and instability of the lumbar spine due to ligamentous injury caused by the force of an extraneous physical or mechanical agent, and is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine.
…".

The next matter to be considered is whether the abovementioned hypothesis is a reasonable one. That hypothesis will be reasonable if it is consistent with the "template" found in the abovementioned SoP. Clause 5 of that SoP sets out various alternative minimum factors at least one of which must exist and be related to the applicant's operational service (cl 4) before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of that service. The relevant factors in the present case are those specified in paras (f) and (g) of cl 5.
The factor specified in para (f) of cl 5 is:
"suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis".

The phrase "trauma to the lumbar spine which has resulted in permanent ligamentous instability" is defined in cl 7 (see para 61 above). The material before the Tribunal raises a hypothesis that, in the helicopter jump incident, the applicant suffered a trauma to his lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of his lumbar spondylosis, within the meaning of cll 5(f) and 7. The applicant's own evidence was that, when he landed on the ground in the helicopter jump incident, he immediately felt a sharp pain in his back followed by a "shooting" or a "nerve pinching" type of pain in his back. The medical evidence before the Tribunal also clearly supports that hypothesis. Dr Pope referred specifically to the helicopter jump incident and opined that the applicant "has sustained trauma to his spine resulting in permanent ligamentous instability and degenerative change in … the… lumbar spine which can be attributed to injuries sustained during active duty in Vietnam approximately thirty years ago." Dr Pope also opined that the applicant's "lumbar injuries are consistent with falls sustained in landing from helicopter dismounts, particularly into long grass where the surface of the ground could not be seen prior to impact" and that the "effect of this ligamentous instability is still evident in [the applicant's] lumbar spine today". Mr Hardcastle, in his reports of 12 May 1998 and 31 October 1998, opined specifically that the lumbar spinal injury suffered by the applicant in the helicopter jump incident satisfies the description, "suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis", in cl 5(f) of the SoP. Mr Hardcastle reiterated that opinion in his report of 6 April 1999.

On the material before it, the Tribunal is of the opinion that the abovementioned hypothesis, connecting the applicant's lumbar spondylosis with the circumstances of his operational service, contains the factor specified in para (f) of cl 5 of the SoP and, accordingly, that hypothesis is a reasonable one. In the light of that opinion, it is not necessary to consider whether the factor specified in para (g) of cl 5 of the SoP also exists, for the purpose of that hypothesis.
The final matter to be considered by the Tribunal is whether, for the purposes of s120(1) of the VE Act, it is satisfied beyond reasonable doubt that the applicant's lumbar spondylosis is not a war-caused injury or war-caused disease within the meaning of s9 of the VE Act. The Tribunal's approach to this matter has already been set out in paragraph 56 above.
The Tribunal has already found that the helicopter jump incident occurred. The Tribunal finds, on the basis of the applicant's evidence, that, immediately following that incident, the applicant suffered pain in his back. The Tribunal also finds, on the basis of the applicant's evidence and the uncontradicted medical evidence of Dr Pope and Mr Hardcastle, that in the helicopter jump incident the applicant suffered a "trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis", within the meaning of cll 5(f) and 7 of the relevant SoP. The Tribunal has already (see paragraph 57 above) commented on the absence of any reference, in the applicant's service medical records, to the helicopter jump incident and its aftermath, and, mutatis mutandis, adheres to those comments here.
On the basis of the whole of the material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's lumbar spondylosis "resulted from an occurrence that happened while [the applicant] was rendering operational service" or "arose out of or was attributable to," the operational service rendered by the applicant, within the meaning of s9 of the VE Act. On the contrary, the Tribunal is satisfied, at least on the balance of probabilities, that the applicant's lumbar spondylosis has resulted from, or arisen out of, or is attributable to, the helicopter jump incident. Because the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's lumbar spondylosis is a war-caused injury or a war-caused disease, the Tribunal must, and does, determine, pursuant to s120(1) of the VE Act, that the applicant's lumbar spondylosis is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
Intervertebral Disc Prolapse at L4/5
The Tribunal has already (see paragraph 59 above) noted its acceptance of the applicant's evidence that he suffered back pain following the helicopter jump incident. The Tribunal is also satisfied on the medical evidence before it – in particular, the reports of Dr Wayte, Dr Pope and Mr Hardcastle – that the applicant is presently suffering from intervertebral disc prolapse at the L4/5 segment in his lumbar spine. The question is, however, whether that condition is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act. In addressing that question the Tribunal will follow the approach set out in Deledio's Case (above).
The first matter to be considered is whether the material before the Tribunal points to a hypothesis connecting the applicant's condition of intervertebral disc prolapse at L4/5 with the circumstances of his operational service in Vietnam – in particular, the helicopter jump incident. Having regard to the medical evidence before it – in particular, the reports of Dr Wayte, Dr Pope and Mr Hardcastle - the Tribunal is satisfied that that material does point to, or raise, a hypothesis that the abovementioned condition is connected with the helicopter jump incident.
As previously mentioned, there is in force a SoP concerning intervertebral disc prolapse determined by the RMA under s196B(2) of the VE Act. The applicable SoP, as previously discussed having regard to Keeley's Case, is Instrument No 130 of 1996 which relevantly states:
"…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that intervertebral disc prolapse and death from intervertebral disc prolapse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, 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:
(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse; or
…
Other definitions
7.For the purposes of this Statement of Principles:
…
'trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, which has occurred:
(a) whilst performing, or immediately following, activities such as
(i)lifting, pushing or pulling an object weighing more than 10 kgs; or
(ii)jumping or falling from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii)diving into a body of water; or
(iv)spinal manipulation; or
(b)during or immediately following, the application of the force of an extraneous physical or mechanical agent such as which occurs in a motor vehicle accident.
…".

The next matter to be considered is whether the abovementioned hypothesis is a reasonable one. That hypothesis will be reasonable if it is consistent with the "template" found in the abovementioned SoP. Clause 5 of that SoP sets out various alternative minimum factors at least one of which must exist and be related to the applicant's operational service (cl 4) before it can be said that a reasonable hypothesis has been raised connecting intervertebral disc prolapse with the circumstances of that service. The relevant factor in the present case is that specified in para (a) of cl 5.
The factor specified in para (a) of cl 5 is:
"suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse".

The phrase "trauma to the relevant disc" is defined in cl 7 to mean (relevantly):

"an injury to the particular prolapsed intervertebral disc, which has occurred:
(a) whilst performing, or immediately following, activities such as
…
(ii) jumping or falling from a height, for example, in a parachute jump, or jumping down from a tank; …
…".

The material before the Tribunal raises a hypothesis that, in the helicopter jump incident, the applicant suffered a trauma to the L4/5 disc of his lumbar spine at the time of the clinical onset of intervertebral disc prolapse at the L4/5 segment in his lumbar spine, within the meaning of cll 5(a) and 7. Dr Wayte reviewed the applicant's spinal x-rays, noting that they were "consistent with an L4-L5 anterior discal protrusion associated with anterior common ligamentous tear", and opined that:

"The radiographic evidence is consistent with [the applicant's] history of spinal compression injury such as would have been incurred dropping to the ground from a height in full combat gear".

Mr Hardcastle, in his report of 31 October 1998, opined that it was "quite possible" that the applicant's intervertebral disc prolapse at L4/5 was the result of the helicopter jump incident. Furthermore, in his report of 22 November 1999, Mr Hardcastle stated:

" On the balance of probabilities I would consider that the initial fall [ie the helicopter jump incident] was the major one causing tearing of the intervertebral disc due to the compression and flexion forces acting resulting in a ligamentous injury to the posterior annulus and possibly posterior elements most likely at the L4/5 level and then there was the further contribution by further jumping out of helicopters with a heavy pack as well as the parachute fall in November, 1969."

Having regard to that material, the Tribunal is of the opinion that the abovementioned hypothesis, connecting the applicant's intervertebral disc prolapse at the L4/5 segment in his lumbar spine with the circumstances of his operational service, contains the factor specified in para (a) of cl 5 of the SoP and, accordingly, that hypothesis is a reasonable one.
The final matter to be considered by the Tribunal is whether, for the purposes of s120(1) of the VE Act, it is satisfied beyond reasonable doubt that the applicant's intervertebral disc prolapse at L4/5 was not a war-caused injury or war-caused disease within the meaning of s9 of the VE Act. The Tribunal's approach to this matter has already been set out in paragraph 56 above.
The Tribunal has already found that the helicopter jump incident occurred. The Tribunal finds, on the basis of the applicant's evidence, that, immediately following that incident, the applicant suffered pain in his back. The Tribunal also finds, on the basis of the applicant's evidence and the uncontradicted medical evidence of Dr Wayte, Dr Pope and Mr Hardcastle, that in the helicopter jump incident the applicant suffered a "trauma to the L4/5 disc of his lumbar spine at the time of the clinical onset of intervertebral disc prolapse at the L4/5 segment in his lumbar spine", within the meaning of cll 5(a) and 7 of the relevant SoP. The Tribunal has already (see paragraph 57 above) commented on the absence of any reference, in the applicant's service medical records, to the helicopter jump incident and its aftermath, and, mutatis mutandis, adheres to those comments here.
On the basis of the whole of the material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's intervertebral disc prolapse at L4/5 "resulted from an occurrence that happened while [the applicant] was rendering operational service" or "arose out of or was attributable to," the operational service rendered by the applicant, within the meaning of s9 of the VE Act. On the contrary, the Tribunal is satisfied, on the balance of probabilities, that the applicant's intervertebral disc prolapse at L4/5 has resulted from, or arisen out of, or is attributable to, the helicopter jump incident. Because the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's intervertebral disc prolapse at L4/5 is a war-caused injury or a war-caused disease, the Tribunal must, and does, determine, pursuant to s120(1) of the VE Act, that the applicant's intervertebral disc prolapse at L4/5 is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
Internal Derangement of the Left Knee
The Tribunal accepts the applicant's evidence that, immediately after the helicopter jump incident, his left knee felt "sore as if he had jarred it" and that his left knee is presently susceptible to instability and associated pain. The Tribunal is also satisfied, on the basis of Mr Anderson's report of 10 May 1997 and Mr Hardcastle's report of 12 May 1998, that the applicant suffers from cruciate laxity and patello-femoral laxity in the left knee. The Tribunal is prepared to accept, in accordance with the presentations of both parties in this matter, that the applicant's left knee condition constitutes "internal derangement of the knee" which is defined in cl 2(b) of the SoP concerning Internal Derangement of the Knee (Instrument No 59 of 1997) as follows:
"… a chronic disorder of the knee due to (alone or in combination) torn, ruptured or deranged meniscus of the knee, or torn or stretched collateral, cruciate or capsular ligament of the knee, resulting in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of that knee, attracting an ICD code in the range 717.0 – 717.5 or ICD code 717.8 or 717.9…".

The question is, however, whether the internal derangement of the applicant's left knee is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act. In addressing that question the Tribunal will follow the approach set out in Deledio's Case (above).

The first matter to be considered is whether the material before the Tribunal points to a hypothesis connecting the applicant's left knee condition with the circumstances of his operational service in Vietnam – in particular, the helicopter jump incident. Having regard to the abovementioned reports of Mr Anderson and Mr Hardcastle, in which the view is expressed that it is possible that the applicant's operational service activities – in particular, the helicopter jump incident – constituted a causative factor in relation to his left knee condition, the Tribunal is satisfied that that material does point to, or raise, a hypothesis that the applicant's left knee condition is connected with the circumstances of his operational service – in particular, the helicopter jump incident.
As previously mentioned, there is in force a SoP concerning internal derangement of the knee determined by the RMA under s196B(2) of the VE Act. The applicable SoP, as previously discussed having regard to Keeley's Case, is Instrument No 59 of 1997 which relevantly states:
"…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that internal derangement of the knee and death from internal derangement of the knee can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting internal derangement of the knee or death from internal derangement of the day (sic) with the circumstances of a person's relevant service are:
(a)suffering a direct trauma or a twisting or wrenching injury to the affected knee:
(i)within the six months immediately before the clinical onset of internal derangement of the knee; and
(ii)resulting in pain and swelling of the knee within the 12 hours immediately following the trauma or injury; or
…".

The next matter to be considered is whether the abovementioned hypothesis is a reasonable one. That hypothesis will be reasonable if it is consistent with the "template" found in the abovementioned SoP. Clause 5 of that SoP sets out various alternative minimum factors at least one of which must exist and be related to the applicant's operational service (cl 4) before it can be said that a reasonable hypothesis has been raised connecting the internal derangement of the knee with the circumstances of that service. The relevant factor in the present case is that specified in para (a) of cl 5.
The factor specified in para (a) of cl 5 is:
"suffering a direct trauma or a twisting or wrenching injury to the affected knee:
(i)within the six months immediately before the clinical onset of internal derangement of the knee; and
(ii)resulting in pain and swelling of the knee within the 12 hours immediately following the trauma or injury;…".

On the material before the Tribunal which raises the abovementioned relevant hypothesis – in particular, the applicant's evidence and the medical reports of Mr Anderson and Mr Hardcastle – that factor does not appear to be satisfied. That material:

does not confirm that the applicant suffered a "direct trauma or a twisting or wrenching injury" to his left knee in the helicopter jump incident;
does not indicate the time of the clinical onset of the internal derangement of the applicant's left knee; and
makes no reference to any swelling of the applicant's left knee following the helicopter jump incident.

Accordingly, the Tribunal is of the opinion that the relevant factor specified in cl 5 (a) of the SoP concerning internal derangement of the knee does not exist, or is not contained, in the raised hypothesis connecting the applicant's left knee condition with the circumstances of his operational service – in particular, the helicopter jump incident – and that, therefore, that hypothesis is not a reasonable one. It follows, by virtue of s120(3) of the VE Act, that the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant's left knee condition is a war-caused injury or a war-caused disease.

The Tribunal finds, therefore, that the applicant's left knee condition, namely, internal derangement of the left knee, is not a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
Unstable Right Knee Joint
As previously mentioned, the applicant's claimed condition of unstable right knee joint is not the subject of either a determination by the RMA of a SoP or a declaration by the RMA that it does not propose to make such a SoP. Accordingly, the appropriate course for the Tribunal to follow is to decide whether that condition is a war-caused injury or a war-caused disease within the meaning of s.9 of the VE Act in accordance with subss (1) and (3) of s120 of the VE Act, without reference to s120A(3) of that Act.
In Repatriation Commission v Bey (1997) 79 FCR 364 Northrop, Sundberg, Marshall and Merkel JJ said (at pp 366 – 367):
"The method of applying s120(1) and (3) [of the VE Act] is now well established:
1.One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2.The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3.Whether the hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4.If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."

Their Honours also commented on the meaning of the expressions "hypothesis" and "reasonable hypothesis", in the light of the leading authorities of East v Repatriation Commission (1987) 16 FCR 517, Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, as follows (at pp 372-373):

"While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker….
…
Any doubt that attends the status of East as a correct exposition of the law relating to s120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."

The medical evidence before the Tribunal does not clearly establish that the applicant is suffering from an unstable right knee joint. Mr Anderson, in his report of 10 May 1997, commented;
"The ligament system in the right knee appeared to be reasonably stable".

Mr Hardcastle, on the other hand, stated, in his report of 12 May 1998, that patello-femoral laxity in the applicant's knees was demonstrated on clinical examination. The applicant, in his oral evidence, said that, because the cruciate ligaments in his knees are badly torn, excessive pushbike riding will cause his knees to swell up. On balance, the Tribunal is prepared to accept that the applicant does presently have an unstable right knee joint condition.

The relevant hypothesis is that the applicant's unstable right knee joint condition is connected with the circumstances of his operational service in Vietnam in that it has arisen out of, or is attributable to, the helicopter jump incident. That hypothesis is raised on the material before the Tribunal – namely, Mr Hardcastle's report of 12 May 1998 in which it is stated that the applicant was experiencing "some knee symptoms", prior to the parachute jump at Bindoon in November 1969, "which could have been the effect of his previous service activities". The Tribunal understands the phrase "previous service activities", in the context of Mr Hardcastle's report, to refer to the applicant's operational service in Vietnam, including the helicopter jump incident.
The next step for the Tribunal is to determine whether, on the material before it, the abovementioned hypothesis is a reasonable one. In the Tribunal's opinion, it is not. Mr Hardcastle goes no further than to suggest that any connection between the applicant's knee symptoms prior to November 1969 and his operational service in Vietnam was merely a possibility. Likewise, Mr Hardcastle acknowledged the possibility that the applicant had a pre-existing patello-femoral laxity in his knees which was subsequently aggravated by the parachute jump at Bindoon in November 1969. In the Tribunal's opinion there is nothing in Mr Hardcastle's report of 12 May 1998 which constitutes a reasonable hypothesis that the patello-femoral laxity in the applicant's knees found by him on clinical examination had arisen out of, or was attributable to, the applicant's operational service in Vietnam, including, in particular, the helicopter jump incident.
It follows from the Tribunal's opinion that the material before it does not raise a reasonable hypothesis connecting the applicant's unstable right knee joint condition with the circumstances of his operational service in Vietnam that, by virtue of s120(3) of the VE Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the abovementioned condition is a war-caused injury or a war-caused disease.
The Tribunal finds, therefore, that the applicant's unstable right knee joint condition is not a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
Laxity of Ligament in the Left Ankle
The applicant's claimed condition of laxity of ligament in the left ankle is also not the subject of either a determination by the RMA of a SoP or a declaration by the RMA that it does not propose to make such a SoP. Accordingly the Tribunal will follow the same approach as outlined in paragraphs 83 – 84 above.
The Tribunal is satisfied, on the basis of Mr Anderson's report of 10 May 1997 and Mr Hardcastle's report of 12 May 1998, that the applicant is suffering from laxity or instability in the lateral ligament in the left ankle. The relevant hypothesis is that that left ankle condition is connected with the circumstances of the applicant's operational service in Vietnam in that it has arisen out of, or is attributable to, the helicopter jump incident. That hypothesis is raised on the material before the Tribunal – namely, Mr Anderson's report of 10 May 1997 in which it is stated that "involvement in the military deployments in the Vietnam Campaign and being associated with the SAS Regiment are possible causative factors in his aetiology of lateral ligament strain of the ankle", and the applicant's oral evidence that he felt as if he had twisted or sprained his left ankle in the helicopter jump incident.
The next matter for the Tribunal's consideration is whether, on the material before the Tribunal, the abovementioned hypothesis is a reasonable one. In the Tribunal's opinion, it is not. Mr Anderson, in his report of 10 May 1997, recorded a history of the applicant's sustaining a specific injury to his left ankle after he left the Army and he merely referred in very general terms to a possible causative relationship between the applicant's Vietnam and SAS service and his present left ankle condition. Mr Hardcastle, in his report of 12 May 1998, recorded a history of left ankle pain only over the previous 4 years and was unable to be specific regarding the occurrence of any injury to the applicant's left ankle. In the Tribunal's opinion, the material before it, including the applicant's oral evidence referred to above, at most points merely to the possibility that the applicant's present left ankle condition is connected with the circumstances of his operational service in Vietnam. In the Tribunal's opinion that material does not raise a reasonable hypothesis that the applicant's present left ankle condition has arisen out of, or is attributable to, his operational service in Vietnam including, in particular, the helicopter jump incident.
It follows from the Tribunal's opinion that the material before it does not raise a reasonable hypothesis connecting the applicant's left ankle condition with the circumstances of his operational service in Vietnam that, by virtue of s120(3) of the VE Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that that condition is a war-caused injury or a war-caused disease.
The Tribunal finds, therefore, that the applicant's left ankle condition – namely, laxity of ligament in the left ankle – is not a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.

Thoracic Spondylosis

Although the applicant did not make a claim in respect of his thoracic spine in his Claim for Disability Pension and Medical Treatment lodged on 21 August 1997, and that matter was, accordingly, not considered by the respondent or the VRB in the decision under review, the applicant's thoracic spinal condition was referred to in Mr Hardcastle's report of 6 April 1999 and it was, furthermore, raised in the hearing before the Tribunal and was one of the matters dealt with in Mr Hardcastle's final report of 9 November 1999. Because the matter of the applicant's thoracic spinal condition was not before the respondent or the VRB in the decision under review, however, the Tribunal in the present proceeding for review of that decision is not authorised to consider and make a determination in relation to that matter: Lees v Comcare (1999) 29 AAR 350. Accordingly, the Tribunal will not consider or make any determination in relation to the applicant's thoracic spinal condition.
Conclusion
The Tribunal concludes, therefore, that:

the applicant's conditions of cervical spondylosis, lumbar spondylosis, and intervertebral disc prolapse at L4/5 are war-caused injuries or war-caused diseases within the meaning of s9 of the VE Act;
the applicant's conditions of internal derangement of the left knee, unstable right knee joint, and laxity of ligament in the left ankle are not war-caused injuries or war-caused diseases within the meaning of s9 of the VE Act.

Disability pension is, therefore, payable to the applicant on the basis that his conditions of cervical spondylosis, lumbar spondylosis, and intervertebral disc prolapse at L4/5 are war-caused. Pursuant to s20(1) of the VE Act, the date of operation of the grant of the applicant's claim for Disability Pension is 21 May 1997.
Decision

For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the rate of Disability Pension payable to the applicant be reassessed on the basis that cervical spondylosis, lumbar spondylosis, and intervertebral disc prolapse at L4/5 are war-caused injuries or war-caused diseases, with effect from and including 21 May 1997.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Brigadier R D F Lloyd, Member
Dr D Weerasooriya, Member
Signed:
......................(sgd S Railton)..............................................
Associate

Date of Hearing  24 September 1999
Date of Decision  20 April 2000
Counsel for the Applicant        Mr M Clarke
Solicitor for Applicant               Kott Gunning
Counsel for the Respondent    Mr C Ponnuthurai
  Compensation and Review Branch
  Department of Veterans' Affairs
Solicitor for the Respondent    -