Elliott and Repatriation Commission - [2001] AATA 399

DECISION AND REASONS FOR DECISION [2001] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL )

)N2000/257

VETERANS' APPEALS DIVISION )
          Re      LANCE GORDON ELLIOTT
  Applicant
          And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date14 May 2001
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 8 April 1999 as affirmed by the Veterans' Review Board on 3 December 1999 which rejected the claim of the Applicant, Mr Lance Gordon Elliott, that his osteoarthrosis of both knees was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Administrative Appeals Tribunal, on the application of the Applicant, did not proceed to determine whether peripheral neuropathy was war-caused, and accordingly, affirms the decision of the Repatriation Commission dated 8 April 1999, as affirmed by the Veterans' Review Board on 3 December 1999 rejecting the Applicant's claim that his peripheral neuropathy was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

.............................................. …….
Ms G Ettinger - Senior Member

CATCHWORDS
Veterans' Affairs – whether osteoarthritis of both knees war-caused – decision affirmed - claim for peripheral neuropathy withdrawn

LEGISLATION
Veterans Entitlements Act 1986 ss 9, 120(1) and (3) and 120A

CASE LAW
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McKenna [1998] FCA 787

STATEMENT OF PRINCIPLES
Statement of Principles Instrument No.41 of 1998 as amended by Instrument No.19 of 1999 concerning Osteoarthrosis

REASONS FOR DECISION

14 May 2001 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 8 April 1999 (T2), as affirmed by the Veterans' Review Board on 3 December 1999 (T14), which rejected the claim of the Applicant, Mr Lance Gordon Elliott, that his peripheral neuropathy and osteoarthrosis of both knees were war caused pursuant to the Veterans' Entitlements Act 1986.
BACKGROUND
By consent, the Tribunal considered Mr Elliott's claim on the papers and was assisted in this regard by the submissions prepared by Ms E Sadleir, solicitor, of the Veterans' Advocacy Service of the Legal Aid Commission on behalf of the Applicant and the submissions of the Respondent prepared by its advocate, Mr G Wright.
I further noted that Ms Sadleir advised the Tribunal in her written submissions on behalf of the Applicant, received by the Tribunal on 21 February 2001, that Mr Elliott was not pursuing his claim with respect to peripheral neuropathy. That part of the decision of the Repatriation Commission was therefore affirmed without further consideration.
ISSUES BEFORE THE TRIBUNAL
The issue before the Tribunal was:
· Whether Mr Elliott's osteoarthrosis of the knees was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

LEGISLATION

The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 120(1) and (3) and 120A. Section 9 provides:
"9 War-caused injuries or diseases
(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;
…"
As Mr Elliott had served on operational service between 24 October 1941 and 22 March 1946 during World War II, the standard of proof applicable to assess whether his osteoarthrosis of the knees was war-caused was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act.
"120 Standard of proof
(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.
…"
In the review of Mr Elliott's application, I was bound to apply section 120A of the Act because his application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)     the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)     the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:       See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
I noted that the relevant SoP at the time of both the Repatriation Commission decision on 8 April 1999, and the Veterans' Review Board on 3 December 1999 regarding osteoarthrosis was Instrument No.41 of 1998 as amended by Instrument No.19 of 1999. Osteoarthrosis is defined in the SoP as:
"… a heterogenous group of clinical joints disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:
(a)history of pain;
(b)impaired function;
(c)joint swelling; and
(d)stiffness,
attracting ICD-9-CM code 715."
The minimum factors required to relate the Applicant's osteoarthrosis with his war service are outlined in Factor 5 of the SoP. In Mr Elliott' case, two factors may have been relevant:
"(e)having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or
…
(h)suffering from permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint; or …"

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents"), supplementary T-Documents that were lodged by the Respondent on 5 February 2001, together with other material lodged by the parties with the Tribunal.
This included the reports: Professor P Sambrook, Rheumatologist, dated 12 May 2000, 25 January 2001 and 1 February 2001; Professor J McLeod, Physician, dated 4 September 2000 (concerning peripheral neuropathy); Dr I Davison, Orthopaedic Surgeon, dated 22 September 1986.
EVIDENCE OF THE APPLICANT - MR LANCE ELLIOTT
As the review of Mr Elliott's application was conducted on the papers by the consent of the parties, Mr Elliott was not required to give oral evidence before the Tribunal. Notwithstanding, the Tribunal had before it a number of applications and written statements completed by the Applicant.
Mr Elliott provided a statement in support of a claim for medical treatment and pension dated 17 September 1986 in which he initially claimed that his osteoarthritis in his hips and knees was related to his war service. He said that he first became aware of this arthritis in approximately 1960 as a result of his lumbar spondylosis. However, he added that he was first troubled by problems in his knees and hips in the mid 1950s. Of his condition at that time, Mr Elliott said that his symptoms included "Severe pain & at times extremely severe pain in both my knees & my hips".
As to how his war service contributed to his arthritis, Mr Elliott said that his:
"Severe lumbar region damage, (as outlined in my application of 1982) has extended to my hip bones, hip joints & knee joints causing me to use a walking stick & at times crutches."
Mr Elliott also detailed numerous consultations he had with various doctors concerning his arthritis, which he said commenced in the 1950s.
Mr Elliott said that after his initial claim to have his osteoarthrosis of the knees recognised as war-caused was rejected in 1986, he proceeded with both knee replacement operations privately with Dr P Holman of the Royal Prince Alfred Hospital in April 1987, and while it did reduce the pain in his knees, the operation did not improve his mobility.
In his application for a pension the subject of this review, which was before the Tribunal at T5/19, Mr Elliott claimed that the arthritis he suffered was as a result of his war service. When asked to provide details as to how his service, caused, contributed to or aggravated his arthritis, Mr Elliott recorded that:
"I did not have severe arthritis prior to war service. The arthritis caused me to have knee joint replacements at my expense."
As to the onset of the arthritis, Mr Elliott said that he first became aware of the disability "Early post war Late 1940's".
Mr Elliott attached an appendix to his application concerning his claim to have his arthritis recognised as war caused. In that appendix, Mr Elliott stated that he believed its origin was during his war service as a result of "years of tank training & tank driving". Specifically, Mr Elliott said at T5/29 that:
"For months & months, including winter months, we camped out on the Western & Northern plains of N.S.W. & the South Eastern corner of Qld. As a driver my knees could not escape the frozen ice covered mass of solid cold steel which was the drivers' compartment. There was just no escape for them – the knees were in full contact all the time. I had never had any sign of arthritis in my knees in my pre war days, but I have had plenty in my post war life."
Mr Elliott also said that the conditions he found himself in in New Guinea worsened his knees. He said that:
"Upon arrival in New Guinea & for the 16 months or more that I was there my knees were seldom dry due to the excessive & almost continuous tropical rain & this certainly compounded the problem."

EVIDENCE OF PROFESSOR P SAMBROOK – RHEUMATOLOGIST

Professor Sambrook, whose medical reports dated 12 May 2000, 25 January 2001, and 1 February 2001 were before the Tribunal, examined the Applicant on 8 May 2000 and recorded the following history:
"In regard to his knees, Mr Elliott did not recall injuring them … but rather thought the most likely connection was that for many months during winter he had been camped out on the Western and Northern plains of NSW and was therefore exposed to quite frozen conditions in the driver's compartment of his tank. He noted no signs of arthritis in his knees prior to his service in the armoured corps but was aware of them thereafter …
Mr Elliott could recall no other specific injuries to his knees apart from the fact that the driver's cabin of the tank was quite cramped and he would have to get in and out of the cabin in a hurry and would therefore bump his knees on literally hundreds of occasions."
Upon physical examination, Professor Sambrook confirmed the diagnosis of osteoarthrosis in both knees and noted that:
"In his knees he has had bilateral replacements [in 1986] and there was a small amount of effusion evident on the left side. The range of movement was consistent with his prosthetic surgery."
Professor Sambrook, in relation to whether Mr Elliott met the conditions for factor 5(h) of the SoP No.41 of 1998 in respect of ligamentous instability, opined as follows:
"I note that Mr Elliott was previously seen at Concord Hospital in 1983 whether (sic) the presence of bilateral genu varus (bowleggedness) was noted to be present, but although [it] is a form of malalignment it should be considered secondary to the arthritis not causative."
Professor Sambrook concluded in respect of factor 5(h) that "I do not think there is any evidence to suggest that Mr Elliott has a ligamentous instability in the knee as a consequence of osteoarthritis in his spine."
Notwithstanding, Professor Sambrook also considered whether Mr Elliott satisfied the requirement of factor 5(e) in so far as any malalignment of the joint was a consequence of his accepted condition of lumbar spondylosis. He observed that:
"The report from Concord in 1983 certainly records the presence of marked lumbar scoliosis, which is a form of malalignment, and it is possible that altered gait as a consequence of his back problems and scoliosis lead to a degree of malalignment in his knees. One would expect this to be somewhat asymmetrical, in other words more apparent in one knee than the other, but I have not seen his original x-rays to know whether this was indeed the case. No definite limp is recorded on the report from 1983."
However, Professor Sambrook maintained that:
"I would regard the above as a relatively unlikely hypothesis in the absence of radiological support to suggest asymmetry in the degree of change in his knees before surgery or any other clinical notes suggesting that he walked with an altered gait."
Professor Sambrook provided a further report dated 1 February 2001 upon the receipt of an x-ray report from 1974 which he said did not clarify any issues. He did note however that Dr Davison, in a report dated 22 September 1986, recorded that the:
"… degree of genu varum was more marked on the right as was the restriction of movement so that although osteoarthritis was present in both knees, her (sic) joint replacement was indicated on the right side because it was more advanced there."
Professor Sambrook continued:
"In other words, this indicates some asymmetry which, as noted in page 4 of my report of the 12th May 2000, makes the hypothesis of malalignment related to altered gait much more likely."

EVIDENCE OF DR I DAVISON – ORTHOPAEDIC SURGEON

Dr Davison, whose report dated 22 September 1986 was before the Tribunal in the supplementary T-documents, recorded Mr Elliott's complaints as follows:
"Mr Elliott has complained of pain and swelling related to both knees since the early 1960's, and both knees were frequently aspirated at that time to reduce the swelling. He was treated with anti-inflammatories and occasional injections of hydrocortisone. More recently, he complains of pain and crepitus in both joints, more marked on the right. There has been little in the way of swelling … He describes the pain in the knees as being constant, but worse with weight-bearing."
Upon his examination, Dr Davison noted that Mr Elliott suffered from "… bilateral genu varum, more marked on the right. The right knee is diffusely swollen, but there is no effusion … There is some varus/valgus rock on the right side associated with pain, but both knees are otherwise stable".
In his review of x-rays taken on 5 December 1985, Dr Davison noted "… bilateral three compartment osteoarthrosis, with osteophytes, narrowing, and sclerosis of the knees". He noted that further x-rays conducted on 22 July 1986 of the pelvis and lumbosacral spine revealed "… marked radiological changes and clinical signs of diffuse idiopathic skeletal hypertosis".
In conclusion, Dr Davison opined that Mr Elliott "… has advanced osteoarthrosis affecting both knees, particularly the right. His signs and symptoms would warrant a joint replacement on this side".
EVIDENCE OF DR G SMITH – DMO
Dr Smith provided a report to the Repatriation Department on 24 October 1986 in respect of Mr Elliott's claim to have his osteoarthrosis of both knees recognised as war-caused. He noted the history provided by the Applicant, and recorded:
"There is no evidence or claim of either major trauma to the knees or of recurrent minor trauma to the knees over a prolonged period of time."
Dr Smith also recorded that the Applicant had bilateral genu valgum, which he described as a "… congenital deformity which causes abnormal weight distribution through the knees & hence would be a major predisposing factor."
Dr Smith opined that there was no relationship between the Applicant's osteoarthrosis and his lumbar spondylosis stating specifically that "There was no mechanism whereby it could cause the condition."
Dr Smith concluded that there were a number of factors that caused Mr Elliott's osteoarthrosis including his age, constitutional factors, congenital abnormality and obesity, the latter he said was as a consequence of his "… post-war dietary intake which is veteran's personal habit".
REVIEW OF DR J WHITTY – ORTHOPAEDIC SURGEON
Dr Whitty reviewed the Applicant at Concord Hospital on 28 June 1983, and the details of his review in a report dated June 1983 were before the Tribunal at T4/18. Although Dr Whitty diagnosed the Applicant as suffering from lumbar spondylosis, he also recorded that the Applicant complained of pain in both knees. Upon examination, he concluded that:
"He has bilateral genu varus with clinically quite marked osteoarthritic changes in both knees."

CLINICAL NOTES/MEDICAL REPORT OF DR A PEPPER

I noted that in clinical notes provided by the Respondent, Dr Pepper, who examined the Applicant initially on 8 December 1982, recorded the history given by Mr Elliott as "Acute Pain started in Knees 1958" and diagnosed the Applicant as suffering osteoarthrosis of the right and left knee joints.
Dr Pepper also commented on x-rays conducted on the knees on 8 December 1982 and recorded that:
"Degen in all 3 Joint Compartments Calcific Density in R knee Joint – Prob. a loose FB inside a popliteal Cyst … Left Joint effusion".
Regarding the Applicant's knee complaints, he opined that:
"His knees may present as fair wear and tear but with some service component.
His present back/knee disability is a severe one."

MEDICAL HISTORY AND EXAMINATION - 28 JUNE 1983

I noted that in a medical history and record of examination dated 28 June 1983, the doctor there detailed that the Applicant had advised of his right and left knee problem which was evident between 1950 and 1963, but he also said that "… it is not connected in his opinion to his service".
The doctor added that Mr Elliott suffered from a "severe deformity knees - irreg joint outline joints enlarged bow legs varus def ++".
SUBMISSIONS AND CONCLUSIONS
I must take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Elliott's osteoarthrosis of both knees was war-caused within the terms of the legislation.
I noted that Mr Elliott served his country on operational service during World War II from 24 October 1941 to 22 March 1946. It was therefore appropriate in considering whether Mr Elliott's osteoarthrosis of the knees was war-caused, to apply the relevant SoP and the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
APPLICATION OF PRINCIPLES IN REPATRIATION COMMISSION v DELEDIO (1998) 83 FCR 82
The Full Federal Court in Repatriation Commission v Deledio (supra) held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1The 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.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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.
4The 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.

With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

I turned then to decide whether applying the principles set out above, the material before me raised a hypothesis connecting Mr Elliott's osteoarthrosis of the knees with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
It was undisputed from the medical evidence before the Tribunal, and I was satisfied that Mr Elliott suffers from osteoarthrosis in both knees, noting that the condition was confirmed in an x-ray of Mr Elliott's knees on 8 December 1982. In examining the x-rays, Dr Pepper recorded:
"Degen in all 3 Joint Compartments Calcific Density in R knee Joint – Prob. a loose FB inside a popliteal Cyst … Left Joint effusion".
I further noted that Dr Whitty, in his report dated June 1983, concluded that the Applicant not only suffered from lumbar spondylosis but that he:
"… has bilateral genu varus with clinically quite marked osteoarthritic changes in both knees."
I was also mindful of the Applicant's evidence that he underwent bilateral replacements of his knees, commencing with the right knee in April 1987, due to pain and restricted mobility he was suffering as a result of the osteoarthrosis in his knee joints.
Turning then to whether a hypothesis could be established connecting Mr Elliott's osteoarthrosis of the knees with his war service, I noted that Mr Wright submitted that although the Respondent was prepared to concede that Mr Elliott suffered from osteoarthrosis of the knees, it denied that the condition was causally related to his operational service, and argued that as a result, no hypothesis could be raised.
I noted that the Applicant suggested two ways in which his service contributed to his osteoarthrosis. In his first claim for a pension dated 17 September 1986 which was rejected, Mr Elliott said that his war service contributed to his arthritis because:
"Severe lumbar region damage, (as outlined in my application of 1982) has extended to my hip bones, hip joints & knee joints causing me to use a walking stick & at times crutches."
In his claim the subject of this application, I noted that Mr Elliott provided an alternative explanation when asked to provide details as to how his service, caused, contributed or aggravated his osteoarthrosis. He said that he believed its origin stemmed from "…years of tank training and tank driving", more specifically that:
"For months & months, including winter months, we camped out on the Western & Northern plains of N.S.W. & the South Eastern corner of Qld. As a driver my knees could not escape the frozen ice covered mass of solid cold steel which was the drivers' compartment. There was just no escape for them – the knees were in full contact all the time. I had never had any sign of arthritis in my knees in my pre war days, but I have had plenty in my post war life."
I also noted that Mr Elliott said that the conditions he found himself in in New Guinea worsened his knees:
"Upon arrival in New Guinea & for the 16 months or more that I was there my knees were seldom dry due to the excessive & almost continuous tropical rain & this certainly compounded the problem."
In coming to a decision whether a hypothesis could be found linking Mr Elliott's osteoarthrosis of his knees to his war service, and in the application of step 1 outlined in Repatriation Commission v Deledio (1998) 83 FCR 82, I had to consider all the material before me and determine whether it pointed to a hypothesis connecting Mr Elliott's osteoarthrosis of his knees with the circumstances of the particular service rendered by him. If no such hypothesis arose, then the application would have to fail.
I was also mindful that in applying steps 1, 2 and 3 of Deledio (supra), a determination of fact was not required by the Tribunal at this stage. Applying Step 1, I was not satisfied that a hypothesis could be raised connecting Mr Elliott's condition of his knees with the circumstances of his service from the claim that (1) Mr Elliott's osteoarthrosis originated from his years of tank training and tank driving; and (2) his osteoarthrosis was worsened by the fact that his knees were constantly wet due to the excessive and almost continuous tropical rain in Papua New Guinea.
Therefore, I find that the Applicant's application to have his osteoarthrosis of the knees recognised as war-caused as a result of his tank training and the wet conditions in Papua New Guinea must fail on the basis that the material does not point "… to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the [the Applicant]".
However, on the basis of the alternative claim raised by the Applicant in his initial claim, namely, that his accepted condition of lumbar spondylosis had affected his joints and caused osteoarthrosis of his knees, I was satisfied that a hypothesis could be raised connecting Mr Elliott's osteoarthrosis of the knees with the circumstances of his service.
As a hypothesis was raised connecting Mr Elliott's osteoarthrosis of both knees with his war service, consideration had to be given to whether there was an appropriate SoP which could be applied to Mr Elliott's circumstances and if so, whether a reasonable hypothesis could be raised.
As outlined above, the relevant SoP at the time of both the Repatriation Commission decision on 8 April 1999, and the Veterans' Review Board on 3 December 1999 regarding osteoarthrosis was Instrument No.41 of 1998 as amended by Instrument No.19 of 1999.
I also noted the comments of Mr Wright in his submissions dated 7 March 2001 that:
"… the Respondent noted that Instrument Number 19 of 1999 would also be theoretically applicable in the context of this matter, as it was in force as at the time of the primary decision (see the ratio of the decision in Repatriation Commission v Keeley (1999) 56 ALD 455).
In any event, the Respondent notes Instrument 19/99 amends Instrument 41/98 as far as the specific factor of "trauma", (which is not a factor relevant to the matter at hand.) Accordingly, Instrument Number 41 of 1998 is the only Instrument that will be relevant in the context of this matter."
I concurred with the Respondent that for the purposes of reaching the correct and preferable decision as to whether the Applicant's osteoarthrosis was war-caused, I was bound to apply Instrument No.41 of 1998.
Having established that there was an applicable SoP, I had also to decide whether the hypothesis was reasonable and consider whether the development of the Applicant's osteoarthrosis of the knees was consistent with the template in the SoP.
In Instrument No.41 of 1998, osteoarthrosis is defined as:
"… a heterogenous group of clinical joints disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics :
(a)history of pain;
(b)impaired function;
(c)joint swelling; and
(d)stiffness,
attracting ICD-9-CM code 715."
The minimum factors required to relate the Applicant's osteoarthrosis with his war service are outlined in Factor 5 of the SoP. In Mr Elliott's case, either factor 5(e) or (h) may have been relevant:
"(e)having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or
…
(h)suffering from permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint; or …"
I noted that the Repatriation Commission in its decision dated 8 April 1999 rejected the Applicant's contention that osteoarthrosis was war-caused as he "…did not have severe arthritis prior to service" on the following basis:
"Continuous heavy physical activity
For microtraumata [such as continuous heavy physical activity or using a pneumatic tool] to contribute to osteoarthritis both knees, there must be a history of at least ten years of such activities. As operational service was less than ten years, microtraumata during operational service has not contributed to osteoarthritis both knees.
Trauma to a joint
In this case there is no history of trauma, in the area of both knees.
Prisoner of war
There was no service as a prisoner of war.
Other factors
There is no history of internal derangement of the knee.
…
Aggravation of osteoarthrosis both knees by factors that are due to service can only be considered if this condition developed before the end of service covered by the Veterans' Entitlements Act. Osteoarthritis both knees developed after this service therefore I cannot take any possible aggravation into account.
…
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of osteoarthritis both knees. As a result I find that all the evidence does not raise a reasonable hypothesis connecting osteoarthritis both knees and operational service. I am therefore unable to accept it as war caused."

I further noted that the Veterans' Review Board in its decision dated 3 December 1999, evaluated the Applicant's evidence in light of the SoP concerning Osteoarthrosis. The Board noted that there was no record of any injury to the Applicant's knees in his Medical Examination prior to Discharge Form dated 13 March 1946, nor was there any medical evidence to indicate such an injury. The Board held that:
"having reviewed the whole of the material before it … the Board finds that none of the minimum factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran's osteoarthrosis of both knees was war-caused."

Ms Sadleir submitted for the Applicant that there was one relevant factor, which if satisfied, which would raise a reasonable hypothesis connecting Mr Elliott's osteoarthrosis of the knees with his war service, namely, factor 5(e) "…having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint".
Ms Sadleir submitted that according to the authority as set out in East v Repatriation Commission (1987) 16 FCR 517, it was sufficient that the hypothesis be "… supported by or pointed to by the facts" rather than be proved. In this respect, Ms Sadleir submitted that:
"The applicant incurred a severe back injury whilst on service. This injury has developed into lumbar spondylosis, a condition accepted by the Repatriation Commission. It is consistent with known scientific facts that the spondylosis could lead to altered weight bearing thereby placing undue pressure on the knees. Altered weight-bearing leads to asymmetrical deterioration of the joints and osteoarthritis."
She then directed my attention to the medical evidence of Professor Sambrook, who she said, considered whether Mr Elliott satisfied the requirement of factor 5(e) in so far as any malalignment of the joint was a consequence of his accepted condition of lumbar spondylosis. I noted that Professor Sambrook opined as follows:
"The report from Concord in 1983 certainly records the presence of marked lumbar scoliosis, which is a form of malalignment, and it is possible that altered gait as a consequence of his back problems and scoliosis lead to a degree of malalignment in his knees. One would expect this to be somewhat asymmetrical, in other words more apparent in one knee than the other, but I have not seen his original x-rays to know whether this was indeed the case. No definite limp is recorded on the report from 1983."
I was mindful that initially Professor Sambrook, in his report dated 12 May 2000, stated that:
"I would regard the above as a relatively unlikely hypothesis in the absence of radiological support to suggest asymmetry in the degree of change in his knees before surgery or any other clinical notes suggesting he walked with an altered gait."
Notwithstanding, when provided with an x-ray report from 1974 he found it not to be helpful. However, Professor Sambrook noted that Dr Davison opined as follows:
"… degree of genu varum was more marked on the right as was the restriction of movement so that although osteoarthritis was present in both knees, her (sic) joint replacement was indicated on the right side because it was more advanced there."
He then formed an opinion as follows:
"In other words, this indicates some asymmetry which, as noted in page 4 of my report of the 12th May 2000, makes the hypothesis of malalignment related to altered gait much more likely."
Mr Wright considered the arguments proposed by Professor Sambrook under two heads: radiological evidence and altered gait. In respect to the head radiological evidence, Mr Wright submitted that there was no radiological evidence demonstrating changes to the knee joints prior to surgery which was suggested by Professor Sambrook as a possibility. Referring to the medical evidence before the Tribunal, Mr Wright added:
"There is come suggestion that clinically, there was some minor difference in the right knee as compared to the left, in Dr Davison's report. However, it should firstly be noted that there seems to be some suggestion this relates to a cyst."
I was mindful also that the Applicant's Statement of Facts and Contentions dated 27 December 2000, stated at paragraph 5:
"The applicants (sic) evidence is that the degenerative changes in his left knee were more severe than in his right knee and surgery was indicated to replace the left knee."
In this respect, I noted also the comments of the Dr Pepper that:
"Calcific Density in R knee Joint – Prob. a loose FB inside a popliteal cyst … Left Joint effusion".
Mr Wright also submitted that the other medical examinations of Mr Elliott's knees did not reveal major differences between the right and left knee joint. In support of this argument, he directed my attention to the Medical History and Examination dated 28 June 1983, where the Doctor opined that Mr Elliott suffered from a "severe deformity knees - irreg joint outline joints enlarged bow legs varus def ++".
Mr Wright also argued that this position taken by Professor Sambrook regarding the pre x-ray condition of Mr Elliott was not supported by Dr Davison, particularly in light of his comments on the x-ray report taken on 5 December 1985, in which he recorded "… bilateral three compartment osteoarthrosis, with osteophytes, narrowing, and sclerosis of the knees".
Mr Wright said that this was consistent with the notation of Dr Pepper that the Applicant suffered degeneration in all three compartments of both knees.

I further noted that Dr Whitty, in his report dated June 1983, also documented the presence of "… bilateral genu varus with clinically quite marked osteoarthritic changes in both knees."
Mr Wright submitted in respect of the altered gait position adopted by Professor Sambrook, that there was no evidence of an altered gait, and if there was, that it was not causally related to his lumbar spondylosis. In this regard, Mr Wright submitted that:
"… it is the Respondent's submission that the Applicant suffered from bow leggedness (genu varum) a constitutional disorder, unconnected to the effects of any lumbar spondylosis, and there is no evidence to link the two.
The fact that scoliosis was present in the Applicant's spine … does not of itself prove that it was caused by or attributable to Lumbar Spondylosis, nor that it of itself would give rise to an altered gait".
Mr Wright added that Professor Sambrook, whilst raising the hypothesis as a possibility, did not explain how the scoliosis led to any altered gait.
I noted that Goldberg J in his decision Repatriation Commission v McKenna [1998] FCA 787 stated that:
"The fundamental and vitiating error into which the Tribunal fell was that it accepted that the hypothesis involved the step that the respondent's hypertension was related to his operational service and led in turn to the two diseases and accepted that the hypothesis was upheld by the relevant Statement of Principles without determining whether the relevant Statement of Principles upheld the proposition that hypertension was related to operational service. The Tribunal failed to ask, and answer, the question whether the whole of the hypothesis was upheld by relevant Statement of Principles."
The Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144 upheld the decision of Goldberg J. Their Honours held that:
"Having concluded that it was necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part of the relevant hypothesis, Goldberg J concluded that it was fatal to Mr McKenna's claim that "there was no Statement of Principles which upholds the hypothesis that there is a factor which exists which indicates that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service."
I am of course, bound by McKenna (supra), and find that for Mr Elliott to be successful in his claim to have his osteoarthrosis of the knees accepted as war-caused as a result of his lumbar spondylosis, the causal link between both conditions, and satisfaction of the relevant SoP with the circumstances of Mr Elliott's service would need to be established.
I also noted the submissions of Mr Wright that in the Medical History and Examination Report dated 28 June 1983, the doctor had recorded the presence of crepitus in Mr Elliott's shoulders. Mr Wright submitted that this notation raises "… the possibility of the Applicant's osteoarthrosis being widespread, and constitutional" rather than originating from any altered gait caused by his lumbar spondylosis.
Dr Smith opined that there was no relationship between the Applicant's osteoarthrosis and his lumbar spondylosis. He described the bilateral genu valgum as a "congenital deformity which causes abnormal weight distribution through the knees & hence would be a major predisposing factor." I further noted that Dr Smith stated specifically that "There was no mechanism whereby it could cause the condition".
As to whether the hypothesis was reasonable, Ms Sadleir submitted that Mr Elliott had "marked lumbar scoliosis" as noted by Professor Sambrook. She emphasised that Professor Sambrook had described this as a form of malalignment. On this basis, Ms Sadleir opined that it was possible that altered gait as a consequence of Mr Elliott's back problems and scoliosis led to a degree of malalignment in his knees.
I was mindful there was no actual evidence, medical or otherwise of an altered gait, and that, notwithstanding Dr Davison's comment regarding Mr Elliott's right knee, there was no evidence of asymmetry in the knees which were both operated within a short time of each other. I noted Ms Sadleir's submission that this did not mean altered gait did not exist, and that it was the presence of such asymmetry which supported the hypothesis of a malalignment contributing to the development of osteoarthritis of the knees.
I was also mindful that the diagnosis of osteoarthrosis of the knees being of degenerative origin was supported by other medical evidence before the Tribunal.
I noted further that Dr Smith said that there were a number of factors which caused Mr Elliott's osteoarthrosis including his age, constitutional factors, congenital abnormality and obesity.
I was mindful that to satisfy the template in the SoP Mr Elliott would have to have suffered from malalignment of the knee joints prior to the clinical onset of osteoarthrosis in those joints. In this regard, I preferred the submissions of the Respondent that:
"(a)there is no evidence that the Applicant's gait was effected (sic) as a result of his lumbar spondylosis, and certainly not prior to the clinical onset of osteoarthrosis of the knees;
(b)there is no evidence that the Applicant's osteoarthrosis generally was causally related to, directly or indirectly, the Applicant's lumbar spondylosis;
(c)that the Applicant suffered from constitutional genu varum, which is relevant if the Tribunal accepts there was an altered gait, and
(d)that there are other factors to take into account as far as the material before the Tribunal, in considering the hypothesis raised, but not pointed to, by Professor Sambrook."
I also preferred the submission of the Respondent that even with the report of Dr Davison, Professor Sambrook's opinion was still in the realm of "possibility" and not reasonable having regard to the whole of the material. Even the conjecture regarding whether Mr Elliott's knee problems involved asymmetry was simply that. There was a suggestion his right knee may have been more affected, (Dr Davison), however, I also noted that the Applicant's Statement of Facts and Contentions referred to the severity of the left knee. Notwithstanding, both knees were in fact, operated on in the same week. I accepted the submission of the Respondent that the hypothesis raised by Professor Sambrook was not reasonable having regard to the whole of the material and applying Repatriation Commission v Bey (1997) 79 FCR 364. I further preferred the submission of the Respondent that the hypothesis was left open but was not pointed to by the facts (East (supra)).
I find that Mr Elliott's condition was such that it did not fit the template in the relevant SoP, in particular factor 5(e). I found the hypothesis, on the basis of the evidence and forms completed by Mr Elliott, and the medical evidence, to be untenable.
I noted that he was a poor historian variously stating the date of origin of his condition. In this respect, I noted that he stated that he first became aware of his arthritis of the knees in the late 1940s (T5/22), and later in his evidence that it was in 1960, (Supplementary T-Documents page 8), claiming that it was as a result of his lumbar spondylosis (a condition accepted as war-caused). He also stated that he was first troubled by problems in his knees and hips in the mid 1950s (Supplementary T-Documents page 8).
I then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, including the medical evidence and the lack of evidence regarding any altered gait, or significant asymmetry, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Elliott's condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's osteoarthrosis of the knees cannot be found to have been war-caused.
Although Ms Sadleir did not raise whether any other factors may have been applicable to Mr Elliott, for the sake of completeness, I considered whether Mr Elliott satisfied factor 5(h) as considered by Professor Sambrook. I was mindful that factor 5(h) requires that the Applicant suffer from "… permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint".
Professor Sambrook, in commenting on whether Mr Elliott met the template in factor 5(h) of the SoP in respect of ligamentous instability, opined as follows:
"I note that Mr Elliott was previously seen at Concord Hospital in 1983 whether (sic) the presence of bilateral genu varus (bowleggedness) was noted to be present, but although [it] is a form of malalignment it should be considered as secondary to the arthritis not causative."
I was mindful that Dr Smith, in his report dated 24 October 1986, recorded that of the history related to him by the Applicant that:
"There is no evidence or claim of either major trauma to the knees or of recurrent minor trauma to the knees over a prolonged period of time".

I noted that Professor Sambrook's history taken accorded with that recorded by Dr Smith. Professor Sambrook stated:
"In regard to his knees, Mr Elliott did not recall injuring them … but rather thought the most likely connection was that for many months during winter he had been camped out on the Western and Northern plains of NSW and was therefore exposed to quite frozen conditions in the driver's compartment of his tank. He noted no signs of arthritis in his knees prior to his service in the armoured corps but was aware of them thereafter …
Mr Elliott could recall no other specific injuries to his knees apart from the fact that the driver's cabin of the tank was quite cramped and he would have to get in and out of the cabin in a hurry and would therefore bump his knees on literally hundreds of occasions."

Professor Sambrook concluded in respect of factor 5(h) that "I do not think there is any evidence to suggest that Mr Elliott has ligamentous instability in the knee as a consequence of osteoarthritis in his spine."
I took into account from the discussion above that a hypothesis had been raised connecting Mr Elliott's osteoarthrosis of the knees with his war service. However, in consideration of whether that hypothesis was reasonable, and whether Mr Elliott could satisfy the template with regard to factor 5(h), I was mindful that the only medical evidence before the Tribunal regarding ligamentous instability was that of Professor Sambrook. I accepted his opinion that Mr Elliott did not meet the minimum requirement of factor 5(h) of the relevant SoP and I was not satisfied that the hypothesis was tenable.
I then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, I was of the opinion the material concerning ligamentous instability did not raise a reasonable hypothesis connecting Mr Elliott's condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's condition cannot be said to have been war-caused. Therefore, the application must fail and the reviewable decision be affirmed.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 8 April 1999 as affirmed by the Veterans' Review Board on 3 December 1999 which rejected the claim of the Applicant Mr Lance Gordon Elliott, that his osteoarthrosis of both knees was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Administrative Appeals Tribunal, on the application of the Applicant, did not proceed to determine whether peripheral neuropathy was war-caused, and accordingly, affirms the decision of the Repatriation Commission dated 8 April 1999, as affirmed by the Veterans' Review Board on 3 December 1999 rejecting the Applicant's claim that his peripheral neuropathy was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  Decided on the Papers
Date of Written Submissions Received 7 March 2001
Date of Decision  14 May 2001
Solicitor for the Applicant         Mr E Sadleir
Solicitor for the Respondent    Mr G Wright