Crockett and Repatriation Commission - [2002] AATA 208

DECISION AND REASONS FOR DECISION [2002] AATA 208

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/106
VETERANS'    APPEALS     DIVISION
  Re:         DAVID CROCKETT
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mrs J.R. Dwyer, Senior Member
  Mr P.J. Lindsay, Senior Member
Date:             28 March 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(Sgd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS – whether lumbar spondylosis, cervical spondylosis and chronic airflow limitation are war-caused diseases – diagnosis of conditions to be by reference to medical criteria rather than by reference to definition in a Statement of Principles – whether raised hypotheses meet the templates in the SoPs – difficulty when veteran has given inconsistent smoking histories – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 13, 120(1) and (3), 120A(3), 196B(2) and (14)

Bushell v Repatriation Commission (1992) 175 CLR 408
Benjamin v Repatriation Commission, [2001] FCA 1879
Deledio v Repatriation Commission (1998) 47ALD 261
Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Deledio (1988) 83 FCR 82
Harris v Repatriation Commission (2000) 62 ALD 174
Harris v Repatriation Commission (2000) 62 ALD 161
Repatriation Commission v Bey (1997) 47 ALD 481
Arnott v Repatriation Commission (2001) 32 AAR 445 (2001) 63 ALD 575
Budworth v Repatriation Commission (2001) 63 ALD 422
Re Paine and Repatriation Commission [2001] AATA 489
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
Repatriation Commission v Gosewinckel (1999) 59 ALD 690

REASONS FOR DECISION

28 March 2002 Mrs J.R. Dwyer, Senior Member
Mr P.J. Lindsay, Senior Member

This is an application for review of a decision made by the Repatriation Commission on 14 August 1996. The Veterans' Review Board affirmed that decision on 12 December 2000. The Repatriation Commission rejected Mr Crockett's claim to have lumbar spondylosis, cervical spondylosis and chronic airflow limitation accepted as war-caused conditions under the Veterans' Entitlements Act 1986 ("the Act").
Mr D. Hyde of Counsel appeared for the applicant. Mr K. Rudge, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Crockett gave evidence. Mr Hadley, an orthopaedic surgeon, gave telephone evidence on his behalf. Mr Dooley, an orthopaedic surgeon, gave evidence on behalf of the repondent.
Mr Crockett, who was born on 25 October 1949, served in the Royal Australian Navy from 5 January 1966 to 16 January 1974.
The following periods of his service, being voyages to Vietnam, constitute operational service under the Act:
21 May 1968 - 13 June 1968
13 November 1968 – 28 November 1968
8 February 1969 – 25 February 1969
8 May 1969 – 30 May 1969
17 November 1969 – 5 December 1969
16 February 1970 – 5 March 1970

Mr Crockett also has eligible service under the Act from 7 December 1972 to 16 January 1974.

Mr Crockett claims that he has cervical spondylosis and lumbar spondylosis which result from incidents which occurred on his first and second periods of operational service.
LEGISLATIVE BACKGROUND
Subject to the Act, the Commonwealth is liable to pay pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or a war-caused disease: section 13(1). Section 9 sets out the circumstances in which a veteran's injury or disease will be taken to be a war-caused injury or war-caused disease. Relevantly, s.9 provides:
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(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; . . .

It is not in dispute that Mr Crockett rendered operational service while serving in HMAS Sydney at the relevant time. Accordingly, pursuant to s.7 Mr Crockett is taken to have been rendering eligible war service while he was rendering operational service.

Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 outlined the application of s.13 to a claim for pension as follows:
Section 13 creates in the Commonwealth a liability, inter alia, to pay a pension to a veteran who "has become incapacitated from a war-caused injury or a war-caused disease". The terms "war-caused injury" and "war-caused disease" are defined for the purposes of the Act by s.9. It is not necessary to set out the whole of that provision; it is sufficient to note that the definitions it contains prescribe either a causal or temporal connection between the relevant morbid condition suffered by a veteran and "operational service" or "eligible war service". Those terms are themselves defined by ss.6 and 7 respectively. An entitlement to a pension under s.13 thus depends upon three matters of fact: the veteran's operational service or eligible war service, the veteran's morbid condition and the connection between the two.
The Commission, in determining a veteran's claim for a pension by way of compensation for incapacity from injury or disease, must have regard to s.120 of the Act, which deals with the standard of proof. Relevantly, it provides in respect of incapacity that relates to operational service:
(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.
Since Mr Crockett's claim for pension was made after 1 June 1994, section 120A applies, and of particular relevance is s.120A(3) which states:
(3) For the purposes of section 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.
Subsection 196B(2) gives power to the Repatriation Medical Authority to determine a Statement of Principles (SoP) and provides:
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
Subsection 196B(14) is also relevant because it provides:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or . . .
At this point, it is appropriate to record that both parties have treated Mr Crockett's claim in respect of "general pain in limbs, chest and back" (T7) as a claim for incapacity resulting from cervical spondylosis and lumbar spondylosis.
The Tribunal's decision making process in relation to a veteran's claim for a pension must commence with the Tribunal determining whether the veteran's symptoms constitute an injury or disease as defined. The Full Court of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 at paragraph 55 explained the sequence in the decision making process as follows:
The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s.120(4).

The diagnostic label that the veteran (or the veteran's doctor) gives to a condition can be a guide for the Tribunal in carrying out this inquiry, but the label will "… not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability" (Benjamin par 48). Further, it is clear from Benjamin, paragraph 41, that the enquiry will not be conducted in compliance with the Act if the decision-maker regards itself as bound to apply a definition in a SoP when characterising the condition.
CERVICAL SPONDYLOSIS

Mr Crockett's claim for pension, which was lodged on 19 June 1996, referred to his disability as "general pain in limbs, chest and back". In his claim form he explained that his service caused this disability because he had to "carry heavy weights and [had] hits to the head during service." (T7). Mr Crockett stated in the claim that he first became aware of the disability in 1979 (T7).
In his report of 5 September 2001 (A1) Mr Hadley said that Mr Crockett:
… has early spondylosis in his cervical spine and changes in his upper lumbar spine which are very suggestive of old Scheuermann's disease … he satisfies the Statement of Principles concerning cervical spondylosis.
Mr Dooley examined Mr Crockett on 30 May 2001 and provided a report of the same date (R9). In his opinion:
1. No definite diagnosis can be made for the claimed conditions of lumbar and cervical spondylosis. The x-rays of his lumbar spine in 1995 were normal. He has minor restriction of movements in the cervical and thoraco-lumbar regions of the spine, consistent with soft tissue injuries and possibly associated with cervical and lumbar disc degeneration. There is nothing to confirm that he suffers from lumbar or cervical spondylosis.
2. He suffered minor trauma to the neck and low back in two separate incidents whilst on active service on the ship to and from Vietnam. There is nothing to suggest that he sustained significant trauma that would have caused either a cervical or lumbar disc rupture, or contributed to the onset of either cervical or lumbar spondylosis.
3. I do not believe that his neck or low back problem is service-related.
The Repatriation Commission submitted that Mr Crockett does not suffer from cervical spondylosis. In addition to the reports of Mr Hadley and Mr Dooley there were a number of other medical opinions before the Tribunal regarding Mr Crockett's neck condition.

A letter from Dr Wilson of Flemington dated 9 September 1985 to solicitors acting for Mr Crockett in County Court litigation resulting from a car accident. Dr Wilson saw Mr Crockett a few weeks after the accident. Mr Crockett had complained of a stiff neck and some stinging in his right arm. Dr Wilson noted:
Examination of his neck was normal and I ordered an x-ray of his cervical spine which was performed on 16th August and it too was normal. His symptoms were consistent with a whiplash injury of the neck and direct trauma to the right arm. (R7, page 1)
Dr Mullen, Mr Crockett's general practitioner, completed a Departmental medical report in relation to Mr Crockett's claim under the Act. In answer to the report's question "How did the trauma to the cervical spine occur?" Dr Mullen wrote "Motor accident – struck from side by another vehicle 1986" (T11 page 35). Dr Mullen also completed a Departmental Medical Impairment Assessment – cervical spine condition. In answer to the question, "Does Mr Crockett suffer symptoms of cervical spondylosis?" Dr Mullen wrote, "Yes. Dull pain in neck, [left] arm: intermittent every few days: moderate in nature" (T11 page 42).
An X-ray was taken of Mr Crockett's spine after he was again injured in a further car accident in 1999. The report prepared by the Department of Radiology of the Royal Melbourne Hospital noted that the anatomical alignment of the cervical spine had been maintained. (R15 page 7).

Mr Dooley modified his opinion in his evidence. He agreed that Mr Crockett "as of today" might come within the definition of cervical spondylosis. He explained that the latest X-ray reported minor spondylosis at C5/6. It reads (Attachment to A1):
Cervical Spine
Mild disc space narrowing is present at C5/6 with minimal osteophytic lipping.
On the basis of the X-ray report and the opinions of Mr Hadley, Dr Mullen and Mr Dooley, the Tribunal is satisfied on the balance of probabilities that Mr Crockett does suffer from cervical spondylosis.
The RMA has made a number of SoPs dealing with cervical spondylosis. The following SoPs have covered cervical spondylosis: Instrument No 101 of 1995, as amended by Instruments No 330 and No 354 of 1995; Instrument No 161 of 1996 which revoked the earlier three SoPs; Instrument No 56 of 1998 which revoked No 161 of 1996; and Instrument No 31 of 1999 which revoked No 56 of 1998.
The Repatriation Commission made its decision before the RMA determined the 1996 SoP. The Full Court of the Federal Court in Gorton v Repatriation Commission [2001] FCA 1194 held that the Tribunal should apply the SoP current at the time of the hearing unless an earlier SoP is more beneficial to the veteran. Allsop J, with whom Emmett J agreed, said at paragraph 65 of the Full Court decision:
If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley [Repatriation Commission v Keeley (2000) 98 FCR 108] by reference to the repealed SoP.

Thus we must first consider SoP No. 31 of 1999 which was current at the time of the hearing.

The interrelationship between ss.120(1) and (3) and s.196B(2) was considered by the Full Court of the Federal Court in Deledio v Repatriation Commission (1998) 47 ALD 261. The Full Court described the application of these provisions as follows:
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) …
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 ss 196B(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 s 120(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. (1988) 83 FCR 82 at 97-98
Under the first step in Deledio, the Tribunal must consider all the material before it and determine whether the material points to a hypothesis connecting the injury or disease with the veteran's service.
In his trauma statement (A2), Mr Crockett described the circumstances which he claims caused his cervical spondylosis as follows:
2        During the first period of operational service, during defence stations, when the ship was being closed, I was closing the dead light, which is solid steel, it came down and hit me on the head. I fell backwards.   It did not break the skin of my head.   I had to stay down for a while as I could not get up.   My head was sore and my neck was sore.
3        I did not report this incident because I did not wish to cause trouble and felt that the pain would improve.
4        I suffered severe pain to my neck for at least one week to 10 days.   My neck was sore and stiff and I could turn my head adequately.
. . .
7        Although I continued with my duties, . . . I did so with severe limitations from pain and restriction of movement.   This continued . . . for at least 7-10 days.
8        Since that time I have always suffered with my neck and back intermittently, with them becoming progressively worse over the years.
In his evidence, Mr Crockett did not add substantially to that account. He said that the incident had occurred on his first voyage to Vietnam in HMAS Sydney. It happened about 6pm as the vessel was nearing Vung Tau harbour and went to defence stations. While performing his defence station duties in closing up the vessel, Mr Crockett said a solid steel deadlight gave way, came down and struck him in the forehead. The blow did not break his skin. He was knocked back by the deadlight. "… it just knocked me back for a few minutes there. And just saw a few stars. I just sat down for a while. And then got up and then just carried on what I was doing." (trans. p15). His next task was to watch on deck and he continued on look out until 8 p.m. when he went off duty. The following day Mr Crockett was on duty as a sentry on the upper deck of the vessel, which left Vung Tau harbour that night.

When asked to describe what he felt after being struck, Mr Crockett stated "Well, it was just like stinging. It went down the back. And it just – it probably would have went on for well over a week, the pain." (trans. p15). During that period of over a week, Mr Crockett was able to carry out his duties, but he was sore. Mr Crockett said that the incident was "Just restricting me from bending a lot and just sort of a few headaches I got." (trans. p16). He said that during the first week it was "Just like a sudden – comes back and ache and then just lingered on" (trans. p15). When asked about the length of time that he suffered pain and restriction of movement, he said "Yeah, after a couple of weeks it seemed to be all right. But it probably - it just lingered on. It would just keep coming back every now and then." (trans. p17).
Mr Crockett did not report the injury or attend at the sick bay. He explained, "You know, if you got hit or anything like that or that, you would just carry on with what you were doing. They are not going to do anything for you anyhow really. There is nothing they can do." (trans. p16).
In his report of 5 September 2001 (A1) Mr Hadley set out the history Mr Crockett gave him of the incident when he was hit by the deadlight. He added:
He states since then he has had recurrent stiffness in his neck and to a lesser extent recurrent pain in his back which has gradually become more frequent and more severe. He states he has recurrent headaches in his forehead and recurrent spread of pain from his neck up to the back of his head. He states for about the last ten years he has had recurrent attacks of pins and needles spreading from his upper arms down to his fingers and thumbs and occasionally his hands feel weak. He states he now has minor loss of digital dexterity causing hand writing changes, difficulty in manipulating small or fine objects and minor loss of grip strength causing difficulty in gripping moderately heavy to heavy objects.

In his conclusions Mr Hadley wrote:

With him stating during his first trip to Vietnam in 1968 on HMAS Sydney, when a deadlight, being a solid steel cover fell on to the centre of his forehead causing pain, stiffness and tenderness to his neck for at least ten days he satisfies the Statement of Principles concerning cervical spondylosis.

After taking into account all the material, including Mr Crockett's evidence as to the injury he sustained in 1968 while closing down in HMAS Sydney and Mr Hadley's evidence, the Tribunal determines that the material points to a hypothesis connecting Mr Crockett's cervical spondylosis with his war service.
Step 2 of Deledio is satisfied because of the existence of the 1999 SoP relating to cervical spondylosis.
Step 3 involves the Tribunal forming an opinion about the reasonableness of the hypothesis. For the raised hypothesis connecting cervical spondylosis with Mr Crockett's war service to be reasonable, the hypothesis must contain at least one of the factors in clause 5 of the 1999 SoP, and that factor must be related to Mr Crockett's war service. The applicant relied on factor 5 (h) "suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis." There is a definition of "trauma to the cervical spine" in the 1999 SoP. It reads as follows:
"trauma to the lumbar spine" means a discrete injury to the cervical spine 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 cervical spine. 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 the cervical spine has occurred, . . .

If the hypothesis fits or is consistent with the template in the SoP, the hypothesis will be reasonable: Deledio.

Finn J in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 explained what is required when applying step 3 of Deledio:
… It is important to bear in mind that the tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis.
Is the material before the Tribunal, as to Mr Crockett having been struck on the head by the steel deadlight, and experiencing pain in his neck and back which lasted for over seven days, consistent with the template in SoP No 31 of 1999? Finn J, in Harris at pp183-184, commented on the definition of 'trauma to the lumbar spine' in SoP No 105 of 1995 (as amended) which provided:
'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 the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered." (emphasis added)
Although that definition differs slightly from the definition of 'trauma to the cervical spine' in SoP No 31 of 1999, his Honour's comments in Harris are relevant to the issue before the Tribunal. He said at pp183-184:
31 Insofar as the trauma component of those factors is concerned this requires, inter alia, that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. . . .
32 The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury. (emphasis added)
An appeal from the decision of Finn J was unsuccessful. In Harris v Repatriation Commission (2000) 62 ALD 161, the Full Court said, at paragraph 51:
[51] In our view, the construction adopted by the primary judge accords with the ordinary meaning of the words in the definition. It was not necessary for the drafter of the definition to repeat the preposition "of" before "tenderness" and "altered mobility" in order to arrive at the meaning conveyed by the ordinary rules of grammar to which his Honour gave effect. No doubt some might have inserted a so-called "Oxford" comma after the word "tenderness", but its absence is immaterial. The primary judge's construction is supported by the reference in the same sentence to "such acute symptoms and signs" lasting for a period of a week after the injury. The natural reading of that reference is that the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week.
The Full Court went on to say at paragraph 54:
[54] We have not overlooked the fact that SoP No 27 of 1999 introduced an amended definition which more or less accords with the appellant's construction of SoP No 105 of 1995.

The changes in the 1999 definition, which relevantly consist of inserting the word "either" before "altered mobility or range of movement", do not alter the requirement that there be "acute signs and symptoms of both pain and tenderness". The change does indicate that the third component of the definition namely "either altered mobility or range of movement of the cervical spine" does not require "acute signs or symptoms".

Proof of facts is not an issue at step 3 of the Deledio formula. However, the Tribunal recognises that, "While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East [East v Repatriation Commission (1987) 74 ALR 518] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker." (Repatriation Commission v Bey (1997) 47 ALD 481, at 489). Does the material point to the requirements of the definition of trauma to the cervical spine namely:
(i)acute (meaning "sharp" or acting "keenly on the senses") symptoms and signs of pain
(ii) acute (meaning "sharp" or acting "keenly on the senses") symptoms and signs of tenderness; and
(iii)either altered mobility or altered range of movement of the cervical spine
which lasted for at least seven days following their onset?
Mr Crockett did not report the deadlight incident, nor, so far as the evidence reveals, did he refer to it in his numerous medical examinations during the years after service, prior to lodging his claim under the Act. When asked by his Counsel to flesh out the incident and describe the symptoms he felt, Mr Crockett said (trans. p15):
There was just pain went down through the neck. Just down through the back there. And it was just – it just lingered on for a while.
As set out in paragraphs 26 and 27 of these reasons, in response to his Counsel asking about the pain he felt, Mr Crockett stated (trans.p15):
Well, it was just like a stinging. It went down the back. And it just – it probably would have went on for well over a week, the pain.
In answer to a question from the Tribunal about how he was affected during that first week after the injury Mr Crockett replied:
Well, I was just – what do you call it? Just like a sudden – comes back and ache and then just lingered on.

His evidence (at trans 16) was:

[The incident was] Just restricting me from bending a lot and just sort of a few headaches I got. Yeah, there was nothing much they can do for that.

Though Mr Crockett said the pain stayed with him for over a week, on the day of the incident, after sitting down for a while, he just "got up and then just carried on what I was doing" (trans. p15). He was able to complete his closing up of the vessel, go on sentry duty that evening and again on the following day. HMAS Sydney sailed out of Vung Tau harbour within 24 hours of the incident and Mr Crockett would then have had an opportunity to seek medical attention or report the incident, but he did not. Nor did he have to absent himself from duty due to the injury.
In deciding whether the material is consistent with the definition of trauma to the cervical spine in the 1999 SoP, the Tribunal notes and agrees with the observation of his Counsel that " … Mr Crockett is vague, to use perhaps a neutral term, a little bit unclear on the facts." The Tribunal considers that the material before it regarding the incident in HMAS Sydney does not point to the elements required to satisfy the definition of "trauma to the cervical spine" in SoP No 31 of 1999 which as set out in paragraph 31 reads:
"trauma to the cervical spine" means a discrete injury to the cervical spine 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 cervical spine. 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 the cervical spine has occurred, where that medical intervention involves …
Mr Crockett said he had ache and pain for at least a week and his bending was restricted. However, there is no evidence from Mr Crockett that he developed acute symptoms and signs of pain and tenderness after the incident. He was able to go about his work, and he did not report the incident or seek any medical treatment or require time off his duties. The Full Court of the Federal Court in Arnott v Repatriation Commission (2001) 32 AAR 445 and (2001) 63 ALD 575, adopted Finn J's construction in Harris of 'trauma to the lumbar spine', and said (at 32 AAR 454, per Merkel J, Spender and Marshall JJ agreeing):
However, in my view the views expressed at first instance, and on appeal, of the meaning of "acute" symptoms or signs in the sense of being "sharp", acting "keenly on the senses" or being "significant manifestations" appropriately define the word "acute" as used in both the 1995 and the 1999 SoPs.

There is no material that would point to Mr Crockett's symptoms being "sharp" or acting "keenly on the senses" or being "significant manifestations" for at least seven days. Rather Mr Crockett's evidence was of an injury that caused pain that "lingered on" and "just sort of hung in there for a long time", but did not have "acute" symptoms for more than a few minutes.

Accordingly, the hypothesis relied on by Mr Crockett does not fit the template in the 1999 SoP. Nor does it fit the template in the 1995 SoP as amended because the definition of 'trauma to the cervical spine' there is not materially different to and is if anything less beneficial to an applicant than that in the 1999 SoP.
The decision rejecting the claim to have cervical spondylosis accepted as a war-caused disease will be affirmed.
LUMBAR SPONDYLOSIS
The claim in respect of lumbar spondylosis relies on Mr Crockett's trauma statement (A2) which so far as relevant reads:
…
5.During my second trip I was going through a door hatch, again closing down for defence stations, I was going through really quickly, lost my footing, and fell backwards with my lower back area on to the steel frame on the bottom part of the door hatch.
6.I took a couple of minutes to recover, sufficiently to continue moving.   However, my back was extremely sore for at least seven days.   I did not report this incident either, as I knew there was nothing that could be done for my back other than resting it.   I went to sick bay and was given panadol.   No forms were completed at this time.
7.Although I continued with my duties, on both occasions, I did so with severe limitations, pain and restriction of moving.   This continued on both occasions for at least 7-10 days.
Mr Crockett's evidence is that this incident also occurred during the closing up of the HMAS Sydney as it went into defence stations while entering Vung Tau harbour. The procedure requires the sailors to move quickly and, while he was doing so, Mr Crockett lost his footing and fell back onto a raised part of the steel doorway. Mr Crockett struck his back just above the waistline. He did not report the injury, nor was he given any medication other than aspirin.
When asked by his Counsel to recall what happened and what he felt when he slipped, Mr Crockett said (trans. p20):
It was like a stinging pain. And it is just sort of, like, you just sort of freeze up for a minute because – you just go ah. You know? And then I have gone over and sat down for a minute. Just to ease up – until the pain went. Eased up the pain a bit. And I then just off again, to close up the ship. Because even though I was paining, you know, you sort of – you are young and strong and that. So you just – and you are not – you don't let a bit of pain stop you from doing your job.

He said, "It pained all that day" (trans. p20). After finishing his closing up duties, he went back into the mess area and sat down and rested. The following day he continued with his normal duties, which at that time involved working in a cafeteria, clearing the tables and wiping them down. In cross-examination he said (trans. p32):

Yeah, it was bending over a bit, yeah, but it was – the back was – you know, it ached a bit but you know you've got to do your job.

There is an issue as to the question of diagnosis. Mr Hadley in his report of 5 September 2001 (A1), stated:
He has no spondylosis of the lumbar spine. …
He in my opinion satisfies the Statement of Principles concerning lumbar spondylosis. I note in the Statement of Principles concerning lumbar spondylosis, lumbar spondylosis is stated to mean degenerative changes in the lumbar spine, including changes in the vertebral body with the intervertebral disc, the ligamentum flavum, the zygapophyseal joint, the intervertebral joints and the other ligamentous structures of the lumbar spine, which in the case of Mr David Crockett is aggravation to previously asymptomatic Scheuermann's disease.
When he gave evidence, Mr Hadley said that Mr Crockett had changes in the upper lumbar spine suggestive of Scheuermann's disease, "but he does not have what we, orthopaedic surgeons, call spondylosis of the lumbar spine." (trans. p64). Mr Hyde asked Mr Hadley how he could be of the opinion that Mr Crockett "has no spondylosis of the lumbar spine", yet satisfies the Statement of Principles concerning lumbar spondylosis. Mr Hadley, whose report was prepared by reference to the definition of lumbar spondylosis in Instrument No 105 of 1995, stated that Mr Crockett's condition was covered by the definition because his lumbar discs are subject to degeneration in such a manner as to suggest Scheuermann's disease.
The definition of lumbar spondylosis in SoP No. 105 of 1995 was amended by Instruments Nos. 334 of 1995 and 358 of 1995, both of which had come into effect at the time of the Repatriation Commission's decision on 14 August 1986. However, the Tribunal does not consider the amended definitions to be materially different from the definition on which Mr Hadley relied.
Mr Hadley was of the opinion, that the pain that Mr Crockett suffered as a result of the incident suggested an aggravation of previously asymptomatic Scheuermann's disease which is a form of disc degeneration of the lumbar spine that occurs during adolescence. Therefore Mr Hadley said that Mr Crockett suffers from lumbar spondylosis, as that term is defined in the SoP, notwithstanding that Mr Crockett's condition "… is not what we orthopaedically would call spondylosis." (trans. p65)
Mr Dooley agreed with Mr Hadley that there was nothing to confirm that Mr Crockett suffered from lumbar spondylosis. He wrote of the two incidents (R9):
…
2.He suffered minor trauma to the neck and low back in two separate incidents whilst on active service on the ship to and from Vietnam. There is nothing to suggest that he sustained significant trauma that would have caused either a cervical or lumbar disc rupture, or contributed to the onset of either cervical or lumbar spondylosis.

He acknowledged that Mr Crockett had a minor loss of movement of the thoraco-lumbar spine.

Mr Dooley agreed with the diagnosis of Scheuermann's disease. He said Mr Crockett had degenerative changes in his thoraco-lumbar spine which were of long standing and largely adolescent age related. He said Mr Crockett did come within the definition in the SoP because he had "degenerative changes of adolescent disc degeneration" (trans. p88). The Tribunal asked:
Has he only got that adolescent degeneration or Scheuermann's disease or is there other degenerative change there as well?

Mr Dooley replied (trans. p88):

No, it's just that Scheuermann's disease first described by Scheuermann and then later Schmorl and others, just reflects disc degeneration commencing in adolescence.

Mr Dooley was referred to the X-ray report obtained by Mr Hadley in 2001 (part of exhibit A1). It reads as to the lumbo-sacral spine:
At the upper lumbar levels there is anterior wedging of the vertebral bodies involving T12, L1 and L2. As well there are Schmorl's nodes at the end plates of these vertebral bodies with the appearance indicating past Scheuermann's osteochondrosis producing these changes.
There is no disc space narrowing in the lumbar region and in particular the lower 2 lumbar disc spaces have a normal appearance with no osteophyte formation being visible.
The lumbar facet joints and sacro-iliac joints show no abnormality.

The Tribunal asked Mr Dooley (trans. p89):

[I]f we just read this report line by line it seems to be saying that it is only describing Scheuermann's disease – that degenerative change – and I am wanting to know whether I am correct in that or not?
Mr Dooley: Yes, you're correct.

Mr Dooley's evidence was that Mr Crockett suffers from disc degeneration which developed at a young age, but which would not be termed spondylosis. Mr Rudge asked:
Mr Rudge: Doctor, did the x-ray reports which you observed and the extra material which was sent to you, change your opinion in any way from when you wrote your report?
Mr Dooley: No, I believe that this man suffers from minor degenerative changes in his cervical spine and also adolescent disc degenerative changes in his thoraco-lumbar spine which are of long standing and largely are age related.
The Full Court in Benjamin, at paragraph 41 said:
The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever.

Both Mr Hadley and Mr Dooley said that Mr Crockett did not suffer from lumbar spondylosis "as that term is understood by orthopaedic specialists". Mr Hadley qualified his answer by stating that he could come within the definition in a particular SoP. However the Full Court in Benjamin has emphasised that diagnosis should be by reference to medical standards or criteria and not by reference to a SoP. That applies particularly where the definition in a SoP does not accord with the way the diagnostic term is understood by specialists in the relevant field.

On the basis of the evidence of Mr Hadley and Mr Dooley, the Tribunal is satisfied that Mr Crockett's symptoms in relation to his back do not constitute "lumbar spondylosis" as that term is understood by orthopaedic specialists.
The Full Court of the Federal Court, in Benjamin at paragraph 47, said that the Tribunal is obliged not to limit its determination to the "case" articulated by an applicant, but must consider other ways of looking at the issue raised by the evidence and material that it accepts. A similar view was expressed by the Full Court in Budworth at paragraph 19.
In this matter Mr Hadley offered an alternative diagnosis of the symptoms of which Mr Crockett complains. He said that in his opinion Mr Crockett's current symptoms, which he recorded as including so far as relevant "recurrent pain and stiffness in his low back" and "for the last ten years recurrent pain down the back of his right thigh" result from an aggravation of his adolescent Scheuermann's disease caused when Mr Crockett fell on his back during service. He said he thought the Scheuermann's disease was aggravated because (trans. p68):
The Scheuermann's disease is a type of degeneration of the discs. And he had no symptoms with the degeneration until he was in the Navy.

Mr Hadley said of the changes reported in Mr Crockett's lumbar spine X-ray (attachment to A1) (trans. p70):

And these changes are very, very typical of Scheuermann's disease and especially with it being in the upper lumbar spine. It is much more common getting Scheuermann's disease in the upper lumbar spine than the lower lumbar spine.
What is Scheuermann's disease?---It's degeneration of the discs during adolescence and the bones next to the discs become soft and they sometimes become wedge shaped through being soft and also through being soft at the disc degenerating the discs tend to bulge into the vertebral bodies forming a distinct bulge. We call it Schmerl node, or little bulges where the margin of the vertebral body is irregular instead of being straight.
Yes. Now, you mentioned in the teenage years, will that condition become manifest to the person suffering it at that time or can it – - -?---Not necessarily. I have seen quite a number of patients who have these changes and yet they have no symptoms from it.

We find that Mr Crockett gave Mr Hadley an incomplete and misleading history and that Mr Hadley's opinion as to the cause of Mr Crockett's current low back pain and stiffness and pain in the right thigh is unreliable for that reason.
Mr Crockett had told Mr Hadley about one car accident in which he had been involved in 1999 when he was knocked down by a car, injuring his left knee, but Mr Crockett had not mentioned to Mr Hadley that he had also been involved in two other car accidents on 28 July 1985 and 22 May 1986. After both those accidents Mr Crockett reported to doctors that he had suffered injuries including pain in his neck and back (R7 report of Mr Thompson, 10 October 1985, and report of Mr Grossberg, 7 August 1986). Those accidents were both sufficiently serious for Mr Crockett to have solicitors issue County Court proceedings on his behalf claiming damages for personal injuries. The summons in respect of the 1985 accident included in the particulars of injuries "musculo-ligamentous strain to the lower lumbar region". Mr Hadley in cross-examination (trans. p75) agreed that to give a valid opinion as to Mr Crockett's back and neck conditions he would need a history as to those two accidents.
Mr Dooley said that the 2001 X-ray report (attachment to R1) reflected disc degeneration commencing during adolescence, namely Scheuermann's disease (trans. p88). He said the X-ray showed (trans. pp88 and 89):
the changes associated with the deformities that have already been there [since adolescence] and then . . . degenerative changes . . . in the epiphysial joints [resulting from the adolescent changes].

Mr Dooley did not accept that the incident described by Mr Crockett would have caused anything other than soft tissue injuries. He said if there was an aggravation of symptoms it would have returned to the pre-injury state fairly quickly.

We prefer Mr Dooley's evidence on this issue, even though he too had an incomplete history. We note that Mr Dooley's opinion that Mr Crockett would have suffered no lasting change in the condition of his back i.e. no ongoing aggravation of his Scheuermann's disease as a result of the fall during service is supported by the statements recorded as prior history in the medical reports in R7 and by the documents headed "SUMMARY OF PLAINTIFF'S ANSWERS" in R7, as to each of those County Court actions. As to the accident on 28 July 1985 the document states:
(a)Prior to the collision the Plaintiff did not suffer from any infirmity, disability or incapacity but on the 22nd May 1986 he was involved in another motor vehicle collision in Bell Street, West Heidelberg.
(b)The Plaintiff was not confined to bed as a result of the collision. He was unable to engage in employment as a Driver for the Commonwealth of Australia for a period of two days following the accident. Prior to the accident, he would run on two to three occasions per week approximately five to six kilometres. He was unable to resume such jogging for a period of approximately two months subsequent to the collision. He returned to running although at a lesser frequency until the accident on the 22nd May 1986 and has not engaged in running since that date. Prior to the accident the Plaintiff had a vegetable garden and was a keen gardner [sic]. After the accident he was unable to engage in gardening for a period of approximately three to four months as this activity exacerbated his neck pain. He had returned to some gardening activities by the time the second accident but has not been able to engage in those activities since that date. His work as a Driver exacerbates his neck pain and he becomes extremely tired and sore by the end of the week. He therefore tries to avoid driving as much as possible on weekends and as a consequence his social activities such as visiting friends and relatives which he did frequently before the collision, have diminished. Watching television for long periods causes stiffness in his neck and lower back.
Mr Crockett in cross-examination and in answers to questions from the Tribunal suggested that he thought those proceedings had been commenced by the government department for which he was working as a driver. We find that evidence to be not credible. We find that Mr Crockett had not reported to doctors or to his solicitor that he had any symptoms prior to the car accidents in 1985 and 1986, referrable to aggravation of pre-existing Scheuermann's disease.
We are not satisfied on the balance of probabilities that Mr Crockett at the time of lodging his claim suffered from any aggravation of his Scheuermann's disease. If he suffered any symptoms referrable to his Scheuermann's disease we find that they reflect the natural development of degenerative changes resulting from that disease.
Accordingly we find that Mr Crockett does not suffer from lumbar spondylosis, as that term is understood by orthopaedic specialists, or from aggravation of Scheuermann's disease. No other possible diagnosis of Mr Crockett's claimed "General Pain in Back" was suggested by the evidence before the Tribunal.
On the evidence which we accept, we do not find on the balance of probabilities that the claimed symptom "General Pain in Back" is a symptom of a disease which might be war-caused within the meaning of the Act. The two diseases suggested by the evidence were lumbar spondylosis or aggravation of Scheuermann's disease. We are satisfied that Mr Crockett does not suffer from lumbar spondylosis or from aggravation of Scheuermann's disease.
The decision rejecting the claim to have lumbar spondylosis accepted as a war-caused disease, on the ground that the diagnosis could not be confirmed, will be affirmed.
CHRONIC BRONCHITIS
Mr Crockett's claim (T7), referred to "Breathing Problems Shortness of Breath." The Repatriation Commission described that condition as chronic airflow limitation and rejected the claim as the condition did not develop during service (T14). The VRB decided that Mr Crockett's respiratory function test did not indicate that he had chronic airflow limitation. The applicant's Statement of Facts and Contentions accepted that he does not have chronic airflow limitation but claimed on the basis of a report by Dr Hart, a respiratory physician (R10), that he does have chronic bronchitis. The applicant's solicitor sought to have the diagnosis "chronic airflow limitation" changed to "chronic bronchitis".
Dr Hart in his report dated 25 June 2001 (R10) stated:
Mr Crockett's lung function tests do not show chronic airflow limitation and the normal diffusing capacity excludes emphysema. I therefore believe that he does not have any form of chronic obstructive airways disease. …
Finally, the veteran does complain of coughing one to two teaspoons of clear coloured sputum each day and I believe this is most probably due to the presence of chronic bronchitis which is not associated with airways obstruction or causing any other limitation but which almost certainly relates to his cigarette smoking habit which commenced during his period of service and markedly increased during his operational service in Vietnam.
On the basis of the report of Dr Hart, the Tribunal finds that Mr Crockett's "breathing problems" do not constitute any form of chronic obstructive airways disease, but that Mr Crockett suffers from chronic bronchitis.
In his smoking statement (A3) Mr Crockett stated:
…
2.I was a non-smoker prior to service in the RAN, because I was 16 years of age and had just left school.
3.I smoked a couple of cigarettes during recruit training in Perth, but I did not commence smoking at this time, as I did not like smoking at all at this stage.
4.During my first trip to Vietnam I commenced smoking because of the stress and anxiety related to the knowledge that we were going into a war zone, and because we were involved with defence stations.
…
7.By 1969 I was a confirmed smoker, smoking up to 40 cigarettes per day. I continued smoking at that level until approximately 10 years after discharge. This was around 1984. By then I reduced my smoking as I was trying to give stop, but was still smoking 20-30 cigarettes per day on average.
8.I stopped smoking in 1988, because of breathing problems.
As to the first step in Deledio that evidence as to Mr Crockett's smoking history, taken together with Dr Hart's report appears to raise or point to a hypothesis connecting Mr Crockett's chronic bronchitis with the circumstances of his service.
As to the second step in Deledio, there is a SoP, No. 73 of 1997 covering "Chronic Bronchitis and Emphysema".
It provides that a hypothesis will be reasonable if it contains one of the factors in SoP No. 73 of 1997 that the RMA has determined must exist, and that it is related to the veteran's service. The third step in Deledio requires that the raised hypothesis be considered to see if it fits the template in the SoP. Mr Hyde relied on factor 5(a)(ii) in SoP No. 73 of 1997 which provides:
(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
…
(ii) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; …
The Tribunal must form an opinion as to the reasonableness of the hypothesis. Although proof of facts is not an issue at this stage of the Tribunal's decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis.
Mr Hyde submitted that there is material that supports the hypothesis. He pointed to Mr Crockett's evidence that he commenced smoking approximately a packet a day during his first trip to Vietnam in 1968, and became a confirmed smoker that year, smoking up to 40 a day and that he did not give up smoking until 1988, or perhaps 1984 as he said in re-examination. SoP No. 73 of 1997 defines a pack year as 7,300 cigarettes. The figures given by Mr Crockett in his statement and in his evidence provide material pointing to Mr Crockett having ten pack years of service related smoking.
The SoP also contains a requirement that there be material pointing to the clinical onset of chronic bronchitis having occurred within one year of the cessation of smoking. On 6 December 2001 Mr Crockett made a further short statement (A4) as follows:
1. I have suffered from chronic bronchitis since around 1980.
2. Since that time, I have suffered from a cough, which produces a small amount of sputum, usually clear or whitish in colour. The amount is approximately half an egg cup.

Mr Crockett's evidence was that the cough was not present before he started smoking, and that he has probably been coughing like this for more than ten years.

Mr Crockett's evidence at the hearing does raise factor 5(a)(ii) in the SoP. However the Tribunal must consider "the whole of the material before it" (s 120(3)). The whole of the material includes conflicting information provided by Mr Crockett at various times, both as to the starting and cessation dates of his smoking.
At the hearing Mr Crockett said he started smoking during his first voyage to Vietnam aboard HMAS Sydney in 1968. That accords with his smoking statement (A3), and the history he gave Dr Hart (R10), but is inconsistent with information he provided in his DVA smoking questionnaire (T8), to Dr McNeil (T16) and Dr Hamer (T6). The commencement of smoking is relevant because if the smoking habit started before operational service it may not be able to be characterised as service related for the purpose of the SoP (see clause 4 and definition of "relevant service" in the SoP).
Mr Crockett said that he commenced smoking during his first period of service aboard HMAS Sydney, 21 May to 13 June 1968, a period of operational service. Mr Crockett said he took up smoking, on the advice of other sailors, as a way of coping with the stress and anxiety he experienced on entry into a war zone. Cigarettes were cheap and easily obtained and he found that smoking calmed him down. Mr Crockett said that he smoked heavily for some years thereafter, 40 a day from 1969 for at least ten years, between 20 – 30 a day for some years and gradually reducing consumption until he quit smoking in the 1980s.
However Mr Crockett's evidence contradicts the smoking history he has given over the years to Navy and civilian doctors. Further, there are inconsistencies in the histories he has given different doctors at different times. Set out below is a summary of Mr Crockett's smoking history as recorded by various doctors at different times derived from the material before the Tribunal:
November 26, 1970 Navy medical examination (T4 page 5)    Gave up smoking 22/12 [22 months] ago
August 24, 1973      Navy outpatient record (T4 page 8)         Smoke – nil
September 21, 1982           Navy medical question-naire (T4 page 13)         Do you smoke tobacco? – no
January 24, 1991     Report of Dr Hamer, cardiologist (T5 p18 and T6 p19))           Smoker, ten years. Nil for 18 years. 20 per day
July 25,1996 Mr Crockett's smoking questionnaire submitted to DVA (T8 p27)      Started smoking in February 1966, 10 a day. Stopped smoking permanently six years ago. Smoking habit changed in 1966 – started smoking 20–30 a day
August 19, 1997      Report of J McNeil, Head, Department of Epidemiology & Preventive Medicine, Monash University (T16, page 66)           Took up smoking in training in Perth in 1966. Pattern of light smoking in 1967 until sailed to Vietnam in 1968 and smoking increased. Ceased about 1988.
April 10, 2001 (but taken from earlier records)   Clinical notes, Dr Mullen (Ex R8) Ex smoker 1976
June 25, 2001          Report of Dr Hart, Consultant Respiratory Physician (Ex R10)          Smoking lightly on training, at least 20 a day and later 40 a day on first of trips to Vietnam. Continued until approx. 1984 at 40 per day

In cross examination Mr Crockett said that after joining the Navy he had one year's training which concluded at Christmas 1966. He was questioned about the DVA questionnaire (T8) which asked, "Why did you start to smoke cigarettes on a regular basis?" His answer was, "Young and away from home, posted to the other side of the country with no friends or relatives but plenty of pressure from superiors to perform to military standards". Mr Crockett agreed with Mr Rudge that it was common for most sailors to smoke but said, unlike most sailors, while he was training at Leeuwin in Western Australia he was not smoking. Mr Crockett's said that, although he might have been smoking a couple of cigarettes on the weekends while in training, he did not consider himself to be smoking at that time. Asked why he restricted himself to smoking only on the weekends, Mr Crockett said " … well, I didn't enjoy it. I wasn't even doing the draw back, it was just a novelty" (trans. p51). After completion of his training, Mr Crockett served for more than 12 months in a number of ships before he sailed to Vietnam on HMAS Sydney in May 1968. In cross examination he said he was not smoking in the period prior to going to Vietnam.
The Tribunal finds Mr Crockett's evidence on this, as on other issues, to be unreliable. The answers he gave during the hearing were inconsistent with earlier versions of his smoking history, which he had provided to medical practitioners. Nevertheless the task of the Tribunal is not to find facts at step three of the Deledio process. Despite the difficulties presented by Mr Crockett's inconsistencies, there is evidence pointing to Mr Crockett commencing smoking as a habit (as distinct to having the odd cigarette at the weekends) while serving in HMAS Sydney on operational service.

Mr Crockett said that he continued to smoke after his discharge from the Navy but that as time passed, he began to think that his smoking was affecting his breathing, especially while he was jogging. He said (trans. p25):
I seemed to be knocking up quicker than what I should be. And then that cold sort of a burning feeling getting down through the chest. And I thought, that must be from smoking.

Mr Crockett said that although he did not consult a doctor about his breathing problems, he decided that he should give up smoking. His evidence was that at that time he had a dry cough. He started gradually cutting back on the number of cigarettes he smoked each day. Mr Crockett's evidence was that he had successfully given up smoking by 1984. He was asked by his Counsel why he was saying 1984 when his smoking statement (A3) refers to 1988 (trans. pp58-59):

Mr Hyde: Am I to understand you that that you think there's an alternate date for you finally giving up smoking to the one that you've got written there? [Mr Crockett's statement dated 30 August 2001 Exhibit A3]
Mr Crockett; Well I - I would leave it at '84 because I've – I'm only stabbing in the dark because I – I would give it up and then I would – have a few again and I would give it up and I would give it up for a few weeks and then – and then have a few. But I haven't touched any since the early '80s.

According to the various histories and statements before the Tribunal the earliest date that Mr Crockett has given, as to when he stopped smoking is February 1969 (Navy medical examination, (T4 page5)). The latest date is 1990 (DVA questionnaire T8). An analysis of the range of different dates given for cessation of smoking does not raise or point to any one date. Mr Crockett said in evidence and in the history he gave Dr Hart (R10), that he had stopped by about 1984. In every answer to questions about smoking that he gave before lodging his claim on 19 June 1996, so far as the evidence reveals, Mr Crockett indicated a cessation of smoking prior to 1980.
We have given consideration to the unsatisfactory state of the evidence as to Mr Crockett's smoking history. It seems to us to be a difficult question whether his evidence points to any particular period of time when he smoked. On the one hand, at step 3 of the Deledio process, the Tribunal should not embark on any findings of fact. On the other hand as the Full Bench of the Full Court said in Bey, at pp489-90, a hypothesis must be pointed to or supported and not merely left open as a possibility by the material before the Tribunal. The Court said:
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 s 120 (3) should be dispelled. This court restates 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 upon 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.
. . .
Whether material raises a "reasonable hypothesis" for the purposes of s 120 (3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the tribunal was entitled to discard Mr Hadley's evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent. Neither went further than to say that the suggested cause of the disease was a possibility. Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that. In our view the tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent's rheumatoid arthritis with his war service
We are inclined to the view that although Mr Crockett's recent statements and his evidence at the hearing raise the fact of Mr Crockett starting to smoke during operational service and continuing until 1984, as corrected at the hearing, the varying dates of cessation given at different times mean that the whole of the material before the Tribunal does not point to Mr Crockett continuing to smoke until 1984, although it does leave that as a possibility. It is well established that proof of facts is not in issue at step 3 of the Deledio process, but inconsistent material does create a problem. In some matters a veteran at a hearing explains the discrepancies in his smoking histories in a way which leads the Tribunal to be satisfied that the evidence as a whole does point to one date rather than another. In other matters, e.g. Re Paine and Repatriation Commission [2001] AATA 489, the whole of the evidence indicates that other evidence is more reliable than the evidence given by the veteran at a hearing and the remaining evidence therefore points in a certain direction. In this matter we have decided, not without some hesitation, that we should conclude that the whole of the material does include evidence pointing to Mr Crockett continuing to smoke until 1984.
For the raised hypothesis to be reasonable there must be material raising or pointing to each requirement of factor 5(a)(ii) in SoP No. 73 of 1997. Thus there must also be material pointing to the clinical onset of chronic bronchitis within one year of Mr Crockett stopping smoking. For the purposes of SoP No. 73 of 1997 'chronic bronchitis' is defined to mean:
a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;

The Tribunal finds, by reason of Dr Hart's report (R10), that Mr Crockett's chronic bronchitis is not accompanied by chronic airways obstruction or limitation.

Mr Crockett's smoking statement of 6 December 2001 (A4) states that he has had a cough productive of clear or whitish sputum of about half an egg cup since around 1980. At the hearing, however, Mr Crockett explained that he gave up smoking because of breathing problems and related burning feeling in his chest, often felt while jogging. He said (trans. p25):
I would be coughing all the time but it was just like a dry cough.

He also described his productive cough (trans. p26):

Mainly in the mornings, which is just coughing up that sort of – like phlegm or whatever you would call it. Yeah, just sputum. You know, it is – yeah, just a fair few times in the mornings and that. Well, sometimes through the day I can cough it up as well.
And how long has this been happening?---A long time, I suppose. I don't know. Probably more than 10 years, I suppose.
Okay. And you told the doctors about that?---I've mentioned it to them but – yeah, yeah, would have told the doctors but - - -
And do you remember the doctor saying anything to you about that, about what it might be or what you should do about it or what you can do about it?---I think he just said, you know – he just checked the throat and everything and said, you know, it is – that was it really. He said, "You know, your throat is all right".

During cross examination Mr Crockett was asked about his dry cough (trans. p55):
Mr Rudge: And you said you were coughing all the time, 'a dry cough", that was your evidence?
Mr Crockett: Yeah.
Mr Rudge: Is that correct?
Mr Crockett: Yes.
Mr Rudge: About what year is that?
Mr Crockett: Probably be the early 80s.
Mr Rudge: Right. So at that time you weren't producing phlegm?
Mr Crockett: No.
Dr Mullen, Mr Crockett's general practitioner, completed a medical impairment assessment (T11) on 5 August 1996, soon after Mr Crockett claimed a disability pension. In relation to Mr Crockett's disability due to chronic airflow limitation, the medical impairment assessment form asked "Does he have a chronic productive cough?" Dr Mullen answered "No". Mr Crockett gave the following answers to further cross examination (trans. p56):
Mr Rudge: So, in '96, would it be correct to say that you didn't have an ongoing cough which brought up phlegm?
Mr Crockett: No, I did have, yeah. …
Mr Rudge: But certainly you've just said not in the early '80s?
Mr Crockett: No. That was more dry back then.
The Tribunal has considered the whole of the evidence regarding Mr Crockett's coughing and production of sputum. Mr Crockett's evidence at the hearing contradicted his statement (A3). There is a reference to a productive cough in Dr Hart's report of 25 June 2001. That aside, there is no mention of a productive cough in other medico-legal reports or notes of treating doctors. There is Mr Crockett's own evidence that he had a dry cough in the early 1980s, but there is no evidence indicating when the productive cough commenced, other than his estimate of "more than 10 years, I suppose".
The term "clinical onset" is not defined in the SoP, but has been given consideration by this Tribunal and by the Federal Court. In Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998) the Tribunal dealt with the term by reference to medical evidence given in that matter and concluded at paragraph 23:
23. On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The concept was further considered by the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at paragraphs [62], [63] and [64] at p704 where Weinberg J said:
[62]   Mr Hanks submitted that the tribunal fell into a number of distinct errors at this stage of its reasoning. It is not necessary to set out the entirety of his argument in all its detail. It is sufficient to note that he criticised the tribunal's reasons for decision in so far as the tribunal determined in para 32 that there could be a "clinical onset" of a disease before the condition satisfied all of the requirements of the disease in the SoP, and before the symptoms had been present for 6 months. Mr Hanks submitted that if the existence of the disease is defined by the presence of the prescribed symptoms for a specified period, it is not possible to say that the presence of some of those symptoms for a shorter period meets the definition. According to the prescribed medical-scientific standard the symptoms only indicate the presence of the disease if they all persist for "more days than not for at least 6 months".
[63]   The tribunal in its reasons for decision at para 34 referred to evidence by Dr Wahr that the veteran's anxiety may have caused "clinically significant distress". That is one of the symptoms described in para (a) (v) of the SoP. The AAT concluded that the presence of the symptoms described in para (a) (ii) (A) of the SoP's definition of the disease, namely "restlessness or feeling keyed up or on edge", indicated the "clinical onset" of the disease by the end of the war.
[64]   The SoP requires the presence of a number of distinct symptoms, of which "clinically significant distress" and "restlessness or feeling keyed up or on edge" are only part. Unless the symptoms referred to in cl 4 (a) (i), at least three of (a) (ii) (A) – (F), and (a) (v) are all present, and the case does not fit within (a) (iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
The SoP in factor 5(a)(ii) requires material pointing to the clinical onset of chronic bronchitis within one year of cessation of smoking. The term "clinical onset" as used in the SoP, according to Weinberg J requires that the condition satisfy "all the requirements of the disease in the SoP". The requirements of chronic bronchitis in SoP No. 73 of 1997 include:
(i)excessive mucus production
(ii)sufficient to cause cough and sputum production with expectoration
(iii)for at least three months of each of at least two consecutive years
(iv)which is not attributable to other respiratory diseases
(v) attracting ICD code 491.
There is no evidence at all as to the duration (factor (iii) in the list in the preceding paragraph) of Mr Crockett's cough, excessive mucous production and expectoration.
We have concluded that the material before the Tribunal does not raise or point to the clinical onset of chronic bronchitis within one year of Mr Crockett's cessation of smoking. It leaves the date of clinical onset quite unknown. According to the treating doctor, Dr Mullen, it would seem to be after 5 August 1996 and maybe, applying Gosewinckel, not for two years after August 1996. Thus we conclude that the material before the Tribunal does not raise a reasonable hypothesis based on factor 5(a)(ii) in SoP No. 73 of 1997, connecting the condition with the circumstances of Mr Crockett's service.
At the hearing the Tribunal asked the parties' representatives what they understood to be the relevance of factor 5(b) in SoP No. 73 of 1997. Factor 5(b) provides:
(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;
It is evident that factor 5(b) is broader in application than factor 5(a)(ii), since it does not require clinical onset of chronic bronchitis within a year of cessation of smoking. The Repatriation Commission submitted that the introductory words to factor 5(a) "for chronic simple, chronic mucopurulent or asthmatic bronchitis only" indicate that factor 5(a) is intended to be the only applicable factor where the veteran's chronic bronchitis does not involve any significant irreversible airflow obstruction or diminished pulmonary gas exchange, as would be the case with emphysema. The SoP applies to both chronic bronchitis and emphysema. It provides definitions of both conditions which make it clear that a diagnosis of chronic bronchitis with pulmonary obstruction or of emphysema requires specific findings. The SoP further states that "The predominant functional assessment of chronic bronchitis and emphysema utilises pulmonary function testing to demonstrate pulmonary obstruction". It states, that 'for other than chronic simple, or chronic mucopurulent or asthmatic bronchitis" the diagnosis of chronic bronchitis and/or emphysema requires "evidence of significant irreversible chronic airflow obstruction or diminished pulmonary gas exchange in the lung" (clause 2(c)). The SoP, in the definition of chronic bronchitis states that there are four types of chronic bronchitis. The effect of clause 2(c) of the SoP is that the specified findings are required for a diagnosis of chronic bronchitis with pulmonary obstruction and for a diagnosis of emphysema.
Mr Rudge submitted, and we accept his submission, that the only factors which are to be recognised as raising a reasonable hypothesis in respect of chronic simple, chronic mucopurulent or asthmatic bronchitis are those in clause 5(a). Factor 5(b), which is no doubt easier to raise, is only applicable to chronic bronchitis with pulmonary obstruction and emphysema. A diagnosis of clinical onset of those two diseases can only be made, according to the SoP where pulmonary functional testing satisfies factors (i), (ii) and (iii) in paragraph 2(c) of the SoP.
The Tribunal is satisfied on the basis of Dr Hart's report (R10), which noted that Mr Crockett's coughing was not associated with airways obstruction or causing any other limitation, that Mr Crockett's chronic bronchitis is not chronic bronchitis with pulmonary obstruction. Accordingly, the Tribunal considers that factor 5(b) of SoP No. 73 of 1997 is not relevant.
We find that chronic bronchitis is not a war-caused disease.
The decision under review will be affirmed.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs J.R. Dwyer, Senior Member
Mr P.J. Lindsay, Senior Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  10 and 11 December 2001
Date of Decision  28 March 2002
Counsel for the Applicant        Mr D Hyde
Solicitor for the Applicant         De Marchi & Associates
Departmental Advocate           Mr K Rudge