Cotterill and Repatriation Commission - [2000] AATA 555

DECISION AND REASONS FOR DECISION [2000] AATA 555

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1997/23

VETERANS' APPEALS DIVISION )

Re EVERARD BANKS COTTERILL
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date4 July 2000
PlaceCanberra

Decision The tribunal sets aside the decisions under review and in substitution therefor decides that: (a) the veteran's condition of "gross incisional wear to upper anterior of teeth" is war-caused; (b) the veteran's condition of "bunions (right)" is war-caused; and (c) the veteran's condition of "osteoarthrosis of the right and left knees" is not war-caused.

..................(Sgd.).......................
Pamela Burton Senior MemberCATCHWORDS
VETERANS' AFFAIRS – operational service - veteran's entitlements – conditions - wear to teeth, osteoarthrosis of the knees, and bunion (right) - whether "war-caused".
Legislation
Veterans' Entitlements Act 1986 ss 13(1), 120(1), 120(3), 120A, 120B
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Ogston and Repatriation Commission (1998) 52 ALD 392

REASONS FOR DECISION

4 July 2000 Pamela Burton, Senior Member

This is an application to review decisions of the Repatriation Commission dated 14 June 1995 and 13 January 1996 affirmed by the Veterans' Review Board ("VRB") on 27 November 1996. The decisions rejected the veteran's claims in respect of "gross incisional wear to upper anterior of teeth" and "osteoarthrosis of the right and left knees and bunions (right)" on the grounds that these conditions were not war-caused.
Mr Crabb appeared on behalf of the veteran, and Mr Sylvestre appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various documents tendered by the parties. The veteran gave oral evidence at the hearing which incorporated his written statement (Exhibit D). Dr Scott, occupational physician, and Dr Griffiths, dental surgeon, gave telephone evidence on his behalf.
Pursuant to subsection 13(1) of the Veterans' Entitlements Act 1986 ("the Act"), the Commonwealth is liable to pay a pension by way of compensation to a veteran where a veteran has become incapacitated from a war-caused injury. The Act requires that for a claim to be accepted the disability must be related to operational or eligible defence service. The veteran was born on 5 May 1923 in New South Wales. He was 19 years old at the date of enlistment. He served in the Royal Australian Air Force ("RAAF") from 6 October 1942 to 5 April 1946. He served some of that time in Queensland and he served on Horn Island from 7 April 1943 to around 3 November 1943. The veteran also had a temporary period of duty in New Guinea from 15 May to 22 May 1944 and short periods in Milne Bay and on Goodenough Island. As a consequence of his overseas service, it is not in dispute that the veteran's service constitutes "operational service" for the purpose of the Act.
The applicant has the following disabilities accepted as having been war-caused:
(i)Lumbar spondylosis; and
(ii)Cervical spondylosis.

The issue to be determined is whether his conditions of "gross incisional wear to upper anterior of teeth" and "osteoarthrosis of the right and left knees and bunions (right)" arose in the course of or are attributable to his war service.

The standard of proof applicable is set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions during operational service. The effect of the provisions is that the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the particular service rendered. The veteran does not bear any onus of proof.
In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority ("the RMA") from time to time, if any, in relation to a claimed war-caused condition. The SoPs list the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised, pursuant to sections 120A and 120B of the Act. However, in respect of operational service, the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.
Sub-sections 120(1) and (3) apply to all claims made as to which there is no Statement of Principle ("SoP") applicable to the injury, disease or death in question. The way in which these provisions inter-related before the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. In Ogston and Repatriation Commission (1998) 52 ALD 392, Justice Matthews summarised the effect of these major decisions in relation to the application of these provisions as follows (at para.10):
... the situation was reached, before the 1994 amendments, where a hypothesis was likely to be treated as reasonable if it was put forward by a medical practitioner who was eminent in a particular field of knowledge, notwithstanding that it might be in conflict with other medical opinions on the subject. The raising of a reasonable hypothesis thus depended, in some cases, upon the applicant being able to find a single eminent practitioner who could support the hypothesis, notwithstanding that the practitioner's views were in conflict with the bulk of medical opinions on the subject. Once a reasonable hypothesis was raised, the claim would be successful unless the factual foundation upon which the hypothesis rested was disproved beyond reasonable doubt.

It was this situation which, her Honour explained (at para.11), the 1994 amendments were designed to address. The amendments consisted of the insertion of the notes at the end of subsections 120(1) and (3) and the insertion of subsections 120A and 196A-ZP.

In this case, there are two SoPs in existence that are relevant to the applicant's osteoarthrosis knee condition about which I say more below. There is no SoP in existence relating to bunions, or to the incisional wear condition of the teeth. I deal first with that condition.
Whether 'gross incisional wear to upper anterior of teeth' is war caused
On 11 January 1942, the veteran underwent a dental examination by the RAAF dentist. During this examination a number of his teeth were extracted which the veteran thought should have been filled (T16, p.57). A dental prosthesis was issued to him but it was ill-fitting and he was unable to wear it. The veteran contends that as a consequence he relied on his front teeth for most of his chewing, which is the cause of his current dental problem.
The respondent contends that the condition of the veteran's teeth today is a consequence of his poor dental prosthesis on enlistment. The need for extractions at that time arose because of the condition of his teeth prior to his service. In relation to the ill-fitting dental prosthesis, the respondent contends that appropriate treatment was available, but not sought. Further, the respondent contends that the wear of the veteran's teeth has occurred over the last 50 years, in which time he has had plenty of opportunity to obtain a new prosthesis.
The respondent relies on the report of Dr Lewis, a Commonwealth Medical Officer, dated 19 June 1995 (T23), in which he states that the dental records available revealed that the veteran had 7 missing teeth on enlistment, and a further 4 were extracted. Dr Lewis concluded from this that the veteran's teeth would have been in a very poor condition when he enlisted. In his opinion the incisional wear occurred over the last 50 years "due to the annals of time" together with the very poor dental state on enlistment.
The veteran denies that his teeth were in a poor condition when he was enlisted at the age of 19. He is adamant that he did not have 7 missing teeth prior to joining the RAAF. He said that he was "horrified and quite upset at the number of extractions", and that he could not understand the reason for it and he was quite sure the extractions were not necessary (T33, p.96).
Dr Griffiths, dental surgeon, supports the veteran's recall. In oral evidence Dr Griffiths said that judging by the current condition of the veteran's teeth which are relatively good, the veteran's dental state at the time he joined the RAAF was likely to have been better than Dr Lewis concluded. He thought it unlikely that the veteran had such a number of bad teeth on enlistment. He noted that the veteran retained a significant number of teeth into his seventies, and that if his teeth have been as described by Dr Lewis, he would not expect the veteran to have any now. Dr Griffiths said that the wear on the teeth was excessive and beyond what he would expect from the aging process, given the state of the rest of the veteran's teeth.
In Dr Griffiths' view the dental records relied upon by Dr Lewis are unreliable. Dr Griffiths noted that some of the teeth noted as having been extracted are still present in the veteran's mouth. In his report dated 9 November 1998 (Exhibit B), Dr Griffiths says that:
the standard of record keeping falls well short of that which would be regarded as being adequate in the 1940's. There are inaccuracies in the dental charting and no where are the reasons for any extractions stated. Such records would now days be regarded as totally inadequate and would constitute professional misconduct.
Taking the whole of the available evidence into account, I conclude that Dr Lewis' judgment was based on inaccurate and unreliable information. It is in conflict with the veteran's recall, and the objective evidence referred to by Dr Griffiths. To the extent that consideration of the issue of the veteran's teeth at the time he enlisted is important to the issue of whether his current condition is war-caused, I accept that the veteran had less than adequate, or inappropriate, dental treatment in his early days in the RAAF. The further issue then arises as to whether his current incisional wear is causally war related.
As a consequence of the extractions the veteran was issued with a dental prosthesis. His evidence is that the prosthesis provided by the RAAF dentist was ill-fitting and caused him too much pain to wear. The veteran claims that he sought further dental attention because of the uncomfortable prosthesis but that advice offered was unsatisfactory and assistance was not forthcoming. As most of his missing teeth were lower back teeth he was compelled to chew to a large extent with his front teeth, resulting in their extreme wear.
Dr Griffiths described the mechanism of the veteran's incisional wear in his report of 12 April 1995 (T17). He reports:
Mr Cotterill is suffering from gross incisional wear to his upper anterior teeth caused by the absence of several posterior teeth.
The loss of these teeth and the lack of prosthetic replacement has led to a total collapse of his posterior occlusion. The resultant reliance on purely anterior teeth for mastication has caused the remaining anterior teeth to wear to such degree that they are very prone to fracture and the loss of vertical dimension means that the future of these teeth is uncertain.

In his report dated 9 November 1998 (Exhibit B) Dr Griffiths states:

An inadequate prosthesis which Mr Cotterill would have been unable to wear would have meant that all the conditions necessary for the gross incisional wear to his upper anterior teeth to occur would have been present. … [t]here is no doubt in my mind that his war time treatment particularly the failure to provide adequate prosthetic replacement for the extracted teeth set in motion a series of events which have led to the state of Mr Cotterill's dentition at the present time.

I further note that the veteran's previous dentist, Dr Denney, in a report of 21 October 1995 (T26, p.81) says he observed that:
attrition on the palatal surfaces of the upper anterior and incisional edges of lower teeth was evident from time of earliest examinations, and a number of the occluding posterior bicuspid teeth were also showing more than normal wear.

The veteran's evidence is that he saw Dr Denney shortly after his discharge from the RAAF (T19). This indicates that the incisional wear had commenced at that early time.

I reject the respondent's contention that the veteran has had the opportunity over the last 50 years, and that he failed to take it, to arrange for a new prosthesis. The veteran's evidence is that prior to attending Dr Denney he attended a dentist in Bombala and then a dentist in Goulburn, both of whom are deceased (T26, p.81). He then attended Dr Denney regularly until he retired. Since Dr Denney's retirement he has been under Dr Griffiths' care (T20). Dr Griffiths has seen the veteran regularly since 21 November 1990 (T26).
I find that the veteran was unable to obtain appropriate dental treatment and management of his dentition. A reasonable hypothesis has been raised that as a consequence of the loss of teeth and the lack of prosthetic replacement this can lead to excessive incisional wear of anterior teeth. This has occurred in the veteran's case. In the circumstances of this case it is reasonable to conclude on the material and evidence available to me that the unsatisfactory or inappropriate attention the veteran received in the RAAF in the course of his war service, has led to him suffering from "gross incisional wear to upper anterior of teeth".
I find that the condition of "gross incisional wear to upper anterior of teeth" is war-caused. The date of effect for this condition is 12 January 1995, the claim having been received by the respondent on 12 April 1995.
Whether 'osteoarthrosis of the knees' is war caused
At the hearing the parties agreed that the most recent SoPs apply in relation to all the claimed conditions, as per Ogston. Since that time, however, the decision of the Full Federal Court in the matter of Repatriation Commission v Keeley [2000] FCA 532 has been handed down which, in effect, upheld the decision of His Honour, Justice Heerey, in Keeley v Repatriation Commission [1999] FCA 1103, ruling that the applicable SoPs are those in force at the time the decision under review was made. Leave is currently being sought to appeal to the High Court from the decision of the Full Federal Court and thus the question of which SoPs apply is not yet finalised. Further, it is not clear from the reasons for decision in Keeley whether the SoPs in existence at the time the decision under review was made apply only if those SoPs are more beneficial to the veteran than any more recent SoP or any amendment to the existing SoP.
The date of the decision under review relating to the veteran's knee condition was 13 January 1996. At that time SoP No. 71 of 1995 concerning osteoarthrosis was in existence. It is this SoP that was considered by the VRB. As a minimum, one of the following factors must exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis which are relevant to the factual circumstances of the veteran's service: factor 1(b) "contracting significant inflammatory joint disease in the relevant joint before the clinical onset of osteoarthrosis"; 1(d) "having a malalignment of the relevant joint before the clinical onset of osteoarthrosis"; 1(f) "suffering a depositional joint disease in the relevant joint before the clinical onset of osteoarthrosis"; 1(g) "suffering a trauma to the relevant joint which has resulted in permanent ligamentous instability before the clinical onset of osteoarthrosis"; and 1(h) "suffering a trauma to the relevant joint which has resulted in permanent ligamentous instability before the clinical worsening of osteoarthrosis"; the latter applying only where the veteran's osteoarthrosis was contracted prior to service.
SoP No. 71 of 1995 defines malalignment as "the displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length". It does not define "trauma to the relevant joint".
On 29 June 1998, the RMA revoked SoP No. 71 of 1995 and determined a new SoP No. 41 of 1998 specifying new factors connecting osteoarthrosis with the circumstances of a person's relevant service. As to this instrument, the veteran must, as a minimum, meet one of factors 5(b) (similar to 1(b) in the earlier SoP); 5(h) (which does not require "trauma" as against 1(g) in the earlier SoP which does); 5(j), and possibly 5(r) which requires a malalignment of the joint before the clinical worsening of osteoarthrosis in that joint. SoP No. 41 of 1998 includes a definition of "trauma to a joint" as follows, not included in the earlier SoP:
'trauma to a joint' means a discrete joint injury that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.
The tribunal also heard submissions from the parties regarding this SoP, being the most recent SoP relevant to the veteran's knee condition. Since the hearing, this definition has been revoked and replaced with a new definition of "trauma to a joint" contained in SoP No. 19 of 1999. It is as follows:
'trauma to a joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These acute symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
b) injection of corticosteroids or local anaesthetics into that joint; or
c) aspiration of that joint; or
d) surgery to that joint.
In the matter before me nothing turns on the change in the definition of "trauma to a joint", as the veteran sought no medical attention after the incidents he described as causing trauma to his knees. The issue before this tribunal is whether, on the evidence now before it, the veteran's circumstances meet any of the factors in the relevant SoPs. I first deal with the question of whether the veteran suffered a discrete trauma to the knees on one or more specific occasion, and if not, whether the continuous repetitive movements involved in the nature of his work, or "multiple minor traumata" as referred to by the VRB, falls within the SoPs.
The evidence
On his squadron's arrival at Horn Island the veteran's duties included setting up base from scratch. This involved digging very deep trenches with picks and shovels over a period of up to three months. To get in the trenches he had to jump down, even when at times they were seven to eight feet deep. He states that he recalls a number of occasions when he landed at the bottom of the trench and felt a sharp shooting pain mostly in his right leg and knee, and on occasions in both knees. He describes this pain as different from the daily knee pain he felt when shovelling and swivelling his body and from weight bearing on his knees during the hard labour. Once the acute pain occurred the veteran would rub his leg and "shake it down" before resuming work. The sharp, shooting pain thus dissipated in a few minutes. He thought he suffered pain and discomfort for about a fortnight after these incidents. He could not recall swelling at this time. Swelling to his knees occurred some years later. He said that he suffered a dull ache for over a week, and associated stiffness, and his knees ached at night. He did not seek medical treatment at the time.

The veteran made no mention of these specific incidents in the statement that he wrote in 1995 in support of his claim for disability pension (T22, p.70), nor in what he told the VRB in 1996 (T36). In his written statement the veteran said that he suffered extensive micro-trauma from activities such as jumping on and off the back of trucks, loading and unloading, and getting in and out of steep trenches, and pick and shovel work. In oral evidence he said that he attributed his knee problem to those activities as well as to the specific incidents of jumping into the trenches.
In his statement and in giving evidence to the VRB, the veteran did not mention the specific pain he felt on any particular occasion when he jumped down into a deep trench. Nor did he tell the VRB that he had any pain in his knees during his service. Dr Scott, occupational physician, records taking a history from the veteran on 18 March 1997 (report dated 15 April 1997, Exhibit A) as first noticing pain in his knees in about 1948. The veteran did refer, however, to feeling pain in his right knee when he was digging in the trenches. Dr Kitchin, orthopaedic surgeon, records a history of "no particular pain in 1943" and trouble five years after that (T31, p.92).
It seems that the veteran recalls suffering specific acute pain on some occasions when he jumped down into steep trenches. This acute pain, he said, was different from the general knee pain he suffered from the constant and repetitive manual duties he performed. However, the stiffness and dull ache he says he recalls that he suffered for two weeks after these events is consistent with the description of the general chronic knee pain the veteran suffered while carrying out his duties. There is no evidence that he suffered acute symptoms of pain for a period of at least seven days after any one event. The evidence is that he continued his digging work which required him to climb in and out of a trench. He said that the knee pain eased off when he undertook lighter duties.
Taking the whole of the evidence into account, the veteran's recall of acute or different pain lasting over a two-week period is unreliable. The veteran specifically put his mind to the issue of whether or not he sustained a trauma or injury to his knee or foot during his service when he appeared before the VRB. He said that he did not, and that the pain he suffered was a consequence of the hard work he performed for long periods. He demonstrated the method by which he had removed the dirt from the trenches and made no reference to any difficulty he had in jumping into the trenches. I am satisfied that, even if the veteran's recall of feeling acute pain on some occasions when he jumped into a deep trench is accurate, it was short-lived. If his recall of suffering stiffness and dull ache when he was working in the trenches during his service is accurate, the description he gives fits with his description of the general pain he says he felt as a consequence of the manual work he performed over long periods. Continuous repetitive digging movements and working hard for long periods may have caused the veteran what is generally referred to as "multiple minor traumata" which may have contributed to the osteoarthrosis of his knees.
The veteran suffers from osteoarthrosis of both knees. Dr Griffin's x-ray report of 9 November 1995 (T25) reveals osteoarthritic changes in both knee joints with spurring of the joint margins, subchondral sclerosis and evidence of loose body formation on the right. Dr Scott, in his report dated 21 April 1999 (Exhibit A), is of that opinion, having taken a history from the veteran of pain, impaired function and stiffness, with some joint swelling.
Dr Scott in his report dated 15 April 1997 (Exhibit A), thought the veteran satisfies at least one of factors 1(b), 1(d) or 1(f) of the earlier SoP, and in his report of 21 April 1999 (Exhibit A), thought that the veteran satisfies at least one of factors 5(b), 5(h), 5(j) and possibly 5(r) of the new SoP.
Both factors 1(g) and 1(h) of SoP No. 71 require permanent ligamentous instability occasioned by a trauma to have been suffered by the veteran. Trauma in this SoP is not expressly defined. Dr Scott thought that it could be inferred that trauma occurred when the veteran jumped into the trenches because it caused shooting pain. "Trauma" is defined in the Macquarie Dictionary as "a bodily injury produced by violence, or any thermal, chemical etc. extrinsic agent". "Trauma" requires a specific discrete injury occasioned by a violent event which causes acute symptoms. I agree with the view of the VRB that continuous repetitive movements generally referred to as "multiple minor traumata" does not come within the meaning of the factors in SoP No. 71 as raising a reasonable hypothesis between this traumata and the veteran's war service (T36, p.102).
In his report dated 21 April 1999 (Exhibit A), Dr Scott regarded trauma as having occurred, not from a specific event, but as a result of repeated incidents. This accords with my findings. I reject his view that minor injury occasioned on repeated occasions satisfies factor 5(j) of the more recent SoP and the subsequent definitions of "trauma". Those definitions require the discrete injury occasioned by trauma to cause acute symptoms and altered mobility or range of movement lasting for at least seven days after the particular traumatic event, a requirement not met by the veteran's circumstances on the evidence before me.
In the absence of any incident in which the sharp or shooting pain lasted for in excess of a few minutes, and of evidence of any injury occurring as a consequence of any recalled incident, I am satisfied beyond reasonable doubt that the veteran did not suffer a trauma to the knees. Therefore, the veteran's circumstances do not satisfy the factors which require trauma in any of the relevant SoPs that have been issued by the RMA.
There is no evidence of the veteran "contracting significant inflammatory joint disease in the relevant joint before the clinical onset of osteoarthrosis" to meet factor 1(b) of the earlier SoP, or 5(b) of the more recent SoP. The veteran recalls no swelling at the time. Dr Scott thought it likely that the veteran had some inflammatory joint disease, but he acknowledged that it didn't satisfy the SoPs in this respect. There is no evidence of the veteran "suffering a depositional joint disease in the relevant joint before the clinical onset of osteoarthrosis" (factor 1(f)).
In his report dated 21 April 1999 (Exhibit A), Dr Scott said that the veteran's actions described when digging trenches would have caused permanent damage and instability of ligaments in and around his knees. However, there is no evidence of any abnormal instability or lack of mobility or recurrence of pain to indicate that there was permanent instability before the onset of the osteoarthrosis to satisfy factor 5(h) of the later SoP.
Dr Scott suggested that the incidents described by the veteran could possibly have caused malalignment of the joints and thereby satisfies factor 5(r) of the recent SoP or factor 1(d) of the earlier SoP. He said that standing in deep trenches and shovelling would be a significant traumatic event that could well displace out of line tissue, even if on a temporary basis – but nevertheless can lead to arthritis. However, there is no medical or other evidence to support the suggestion that the veteran had a malalignment of the knee joints before the clinical worsening of osteoarthrosis, or that he had a pre-existing arthritic condition in either knee joint. The veteran's counsel in submissions placed no reliance on these factors.
Dr Kitchin, on the history he was given, assumed there was no specific traumatic injury and accepted that the symptoms have been ongoing. He noted that the left knee causes minor symptoms now, and was first noticed at a much later date. He says it is reasonable to say that there were initiating factors to the veteran's right knee condition in particular, and to a lesser degree his left, during the veteran's service years.
While the medical evidence is that the veteran's heavy manual duties materially contributed to his current state of osteoarthrosis in the knee joints, the veteran's circumstances do not fall within the SoPs requiring trauma to the knee joint, upon which a reasonable hypothesis connecting his condition with his service can be raised. I affirm the decision under review in relation to the condition of osteoarthrosis of the right and left knees.
Whether the bunion on the right foot is war caused
No relevant SoP had been issued by the RMA in relation to bunions. The veteran suffered trouble with his right foot when digging the trenches on Horn Island. He attributed the onset of the problem to his ill-fitting airforce boots. When he began working each day he noticed that the outside edge of his right foot rubbed against his boot where the bunion now exists. He noticed there was a slight bump which was red and sore. He tolerated the discomfort when he worked; occasionally removing his boot to relieve the pressure, but having to put it back on to complete his work. At the time he did not know that it was a bunion. Upon ceasing the manual labour it had developed into a slight lump only, and he did not worry about it.
The veteran was discharged from the forces on 5 March 1946. On demobilisation he undertook share farming (sheep and cattle) and he resided on and managed a grazing property at Tarago near Goulburn NSW. His work involved sitting on and driving a tractor and the lump on his foot did not worry him. Once he undertook heavy manual work again the problem reappeared. The veteran now requires specially made footwear.
Mr Fleet, podiatrist, in a report dated 7 November 1996 (T34), noted that the veteran has a mild foot deformity which he was born with and which over the years has increasingly given him more problems. He seemed surprised that the RAAF considered he was in good health on recruitment.
The respondent contends that the veteran's evidence is that the problem arose from the rubbing of the boot; and that this rubbing caused a temporary aggravation only to an existing condition. On the respondent's behalf it is submitted that the problem flared up later only when the veteran performed manual labour. The respondent claims that the veteran's foot problem, veering to the side as it does, is a congenital problem, which manifested itself temporarily during the applicant's minimal period of operational service.
I reject this submission. The evidence is that the aggravation which occurred during the veteran's service was not temporary. The lump proving to be the beginnings of the bunionette did not go away, and later got worse. Dr Scott, in his report dated 15 April 1997 (Exhibit A), considered that it was a reasonable hypothesis that the bunionette was connected to the veteran's war service. He is of the opinion that the veteran's ill-fitting boots could cause a bunion.
Dr Kitchin, in his report of 5 December 1995 (T27), said that the right foot showed early degenerative arthritis of the first metatarsal phalangeal joint and also some prominence of the head of metatarsal five. He saw the right foot condition as being due to the bunionette and to early degenerative arthritis of the great toe at the first metatarsal phalangeal joint. As mentioned earlier, in his report of 24 July 1996 (T31), Dr Kitchin thought it was reasonable to say that there was an initiating factor in the veteran's war service so far as the right foot condition is concerned.
I set aside the decision under review in relation to this condition and in substitution therefor decide that the veteran's condition of right bunion is war-caused, the date of effect being 13 October 1995.
Decision
The tribunal sets aside the decisions under review and in substitution therefor decides that:
(a)the veteran's condition of "gross incisional wear to upper anterior of teeth" is war-caused;
(b)the veteran's condition of "bunions (right)" is war-caused; and
(c)the veteran's condition of "osteoarthrosis of the right and left knees" is not war-caused.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Date of Hearing  4 August 1999
Date of Decision  4 July 2000
Counsel for the Applicant        Mr Paul Crabb
Solicitor for Applicant               Snedden, Hall & Gallop
Counsel for the Respondent    Mr John Sylvestre
Solicitor for the Respondent    Advocacy, Department of Veterans' Affairs