Hampton and Repatriation Commission - [2000] AATA 1117

DECISION AND REASONS FOR DECISION [2000] AATA 1117

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/869

VETERANS'     APPEALS     DIVISION     )
           Re      THOMAS ALBERT HAMPTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Dr C. Re, Member

Date19 December 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – Loss of Teeth – whether suffering from dental caries in the affected tooth at the time of the clinical onset of loss of teeth – whether consuming only fluoride-free drinking water in the absence of fluoride supplementation for a continuous period of at least two years within the five years immediately before the clinical onset of dental caries – whether inability to maintain oral hygiene whilst consuming a diet containing fermentable dietary carbohydrates for a continuous period of at least 90 days within the one year immediately before the clinical onset of dental caries.
Words and Phrases
Veterans' Entitlements Act 1986, ss. 9, 120, 120A, 196B
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) CLR 564
Vietnam Veterans' Association of Australia NSW Branch Inc v Alex Cohen and Others (Unreported FCA (1996) NG 111)
Repatriation Commission v Bey (1997) 149 ALR 721
Re Jenkin and Repatriation Commission (Unreported AAT decision : 20 February 1997)
Repatriation Commission v Deledio (1998) 49 ALD 193 : 22 April 1998
Repatriation Commission v Cooke (1998) 1717 FCA : 23 December 1998
Repatriation Commission v Gosewinckel (1999) 1273 FCA : 14 September 1999
Arnott v Repatriation Commission (Unreported : VG 399 of 1999, 19 September 2000)
Repatriation Commission v McKenna FFC : Unreported : 29 March 1999
Statement of Principles Instrument No. 366 of 1995 (Dental Caries)
Statement of Principles Instrument No. 374 of 1995 (Loss of Teeth)

REASONS FOR DECISION

19 December 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Dr C. Re, Member
Introduction

This is an application by Mr Thomas Albert Hampton, for review of the decision of the respondent dated 7 August 1996, affirmed by the Veterans' Review Board on 14 July 1999, that Dental Caries is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Representation
At the hearing before this Tribunal Mr Hampton was represented by his solicitor, Mr D. De Marchi, and Ms R. Casamento, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Other material, to some of which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
During the hearing evidence was given by:

The applicant Mr Hampton;
Dr J.A. Vochala; and
Dr F. Widdop

Issue

The issue before the Tribunal in these proceedings is whether Dental Caries is war-caused within the meaning of section 9 of the Act. Should the Tribunal decide in the affirmative, it will be necessary for Mr Hampton's degree of incapacity from all of his war-caused disabilities to be assessed for the purposes of payment of pension.
Matters Not In Dispute
Several matters relevant to these proceedings are not in dispute:

That Mr Hampton was born on 15 May 1915;
That he served in the Royal Australian Air Force from 26 March 1942 to 31 January 1946;
That as he served overseas, the whole of his Air Force service qualifies as operational service within the meaning of the Act;
That he has the following disabilities accepted as war-caused:
·Bilateral Sensorineural Hearing Loss;
·Ingrown Toenail of the Left Foot;
·Ingrown Toenail of the Right Foot;
·Osteoarthrosis of the Right Wrist;
·Post Traumatic Stress Disorder; and
·Un-united Fracture of Right Scaphoid.

It is the Tribunal's understanding that Mr Hampton has abandoned claims made in respect of Ischaemic Heart Disease and Cerebrovascular Accident.
Causation
By virtue of section 9 of the Act, a disease or injury is war-caused if it in effect:

resulted from an occurrence on operational service;
arose out of or was attributable to eligible war-service;
resulted from an accident while travelling to or from duty;
was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war-service; or
was contributed to in a material degree or aggravated by eligible war service.

Standard of proof – Diagnosis

The issue of diagnosis of a claimed condition is to be determined on the balance of probabilities (Repatriation Commission v Cooke (1998) 1717 FCA, 23 December 1998; Repatriation Commission v Gosewinckel (1999) 1273 FCA, 14 September 1999).
Standard of Proof – Whether Connection Between Operational Service and Claimed Disability
The standard of proof to be applied in determining whether there is a connection between service and a claimed disability is that specified in subsection 120(1) and (3) of the Act, as modified by section 120A. Subsections 120(1) and (3) state as follows:
"120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(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."

Application of Subsections 120(1) and (3) of the Act – Methodology

In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in s 120(3) of the Act that "the material raise a reasonable hypothesis." The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Byrnes (supra) and said at p.730:
"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."

Statements of Principles (SoP's)

Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr Hampton's claim was made on 15 May 1996, section 120A applies to his claim. Subsection 120A(3) states as follows:
"(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."
Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") 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 operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:
(c)the factors that must as a minimum exist; and
(d)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.

As observed by the respondent, the SoP's referred to in section 120A are binding on decision-makers at all levels (see Re Jenkin and Repatriation Commission : Unreported AAT decision 20 February 1997 (V1996/145); and Vietnam Veterans' Association of Australia NSW Branch Inc v Alex Cohen and Others : Unreported FC (1996) NG 111 (Tamberlin J)).
Also as observed by the respondent, this matter is affected by the decision of Deledio v Repatriation Commission (1998) 49 ALD 193. According to the Federal Court in Deledio, SoP's are designed to do no more than deal with the reasonableness of the medical and scientific components of a hypothesis (p. 204). Accordingly, a hypothesis will be upheld by the relevant SoP if the hypothesis is "consistent with" the SoP, in the sense that the hypothesis includes a factor prescribed by the SoP (p. 206). The existence of the relevant factor is determined by applying the standard of proof in subsections 120(1) and (3) (p. 206). Accordingly, if there is material before the Tribunal pointing to the existence of the factor, rather than leaving it open as a possibility (East v Repatriation Commission (1987) 74 ALR 518, Noble v Repatriation Commission (unreported decision of Beaumont, Branson and Merkel JJ, 3 November 1997), Repatriation Commission v Bey (unreported decision of Northrop, Nicholson, Sundberg, Marshall and Merkell JJ dated 21 November 1997), Connors v Repatriation Commission (unreported decision of Kenny J dated 13 June 2000, reference [2000] FCA 783)), then, if the hypothesis is reasonable, the factor is taken to exist unless the contrary is proved beyond reasonable doubt.
Application of SoP's – Methodology
In Repatriation Commission v Deledio (1998) 49 ALD 193 : 22/4/98 the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. 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 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by 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."

Relevant SoP's

In a Statement of Facts and Contentions lodged with the Tribunal prior to commencement of the hearing Mr De Marchi stated in part as follows:
"The Applicant is not proceeding with Ischaemic Heart Disease, nor cerebralvascular accident, as he is at this stage not able to meet the Statements of Principles for these conditions.
However, the applicant is pursing (sic) his claim for Dental Problems as it is clear that the extractions of his teeth on service was an occurrence pursuant to Section 9(1)(a) of the Veterans' Entitlements Act 1986. See attached report of Dr Vochala, Dental Surgeon.
He is now required to replace the missing teeth in the lower jaw and seeks acceptance of that condition.
The Statement of Principles for Dental Caries is not applicable in this case, and it is submitted that this case is to be determined according to the normal principles of a "reasonable hypothesis"."
In a written submission the respondent addressed Mr De Marchi's assertion that SoP No. 366 of 1995 (Dental Caries) is not applicable. In doing so the respondent stated:
"3.The general thrust of the Applicant's submission as the Respondent understands it is that, the Tribunal being satisfied on the facts of the matter before it that the relevant subsection of section 9 is met (in this case subsection (a)), it follows that the veteran has a war-caused injury or disease for the purposes of Part II of the Act. The submission appears to proceed as follows:

The veteran has operational service
There was an occurrence (in this case, the extraction of a tooth) during operational service
Therefore the veteran suffered a war-caused injury (in this case, loss of teeth).
4.The submission appears to involve an assertion that, section 9 being satisfied, the need to establish a causal link by way of reasonable hypothesis under sections 120 and 120A is avoided. In particular, the approach contended for in the Applicant's submission appears to assert that section 9 can be used exclusively of the Statements of Principle in determining causation.
5.The Respondent submits that the Applicant's assertions with regard to the operation and effect of section 9 fundamentally misconceive the purpose of the section, and furthermore are plainly inconsistent with the approach of the Act to claims for pension in respect of war-caused injuries/diseases, which has received authoritative judicial interpretation in cases like Deledio.
6.The Respondent submits that, in the same way that section 8 deals with war-caused death, the purpose of section 9 of the Act is to set out the various heads of liability under which an injury/disease may be said to be linked with a veteran's operational or eligible service. These sections may be said to establish a causal threshold in terms of liability, but are not conclusive of liability in and of themselves. As such, these sections neither displace nor render otiose the legislative provisions in respect of reasonable hypothesis, or the Statements of Principle. The existence of the system of SoPs requires both satisfaction of the specified factor or factors and the existence of a causal relationship (section 9) for there to be reasonable satisfaction or a reasonable hypothesis of a link to the veteran's eligible or operational service, respectively (see, for example, clauses 2 and 3 of the Loss of Teeth SoP which specify the requirement for a causal connection between the factor relied upon and service).
7.The scope of section 9 was recently dealt with succinctly by Sundberg J in Arnott v Repatriation Commission (unreported, VG 399 of 1999, 19 September 2000). His Honour said:
Had the Tribunal upheld the hypothesis, it would doubtless have described the causal relationship as within section 9(1)(a) or 9(1)(b). But since it did not uphold it, that was the end of the claim, and there was no point in going to s 9. (emphasis added).
The Respondent respectfully submits that his Honour correctly identifies the scope of section 9; that is, the Tribunal may be satisfied of the existence of the (threshold) causal connection set out in section 9 but may nevertheless determine that there is no liability in respect of the claim on the basis that, whilst a hypothesis is raised or pointed to by material before the Tribunal, that hypothesis is not upheld by the relevant SoP.
8.On the basis of the foregoing, the Respondent submits that the correct approach in this matter is for the Tribunal to determine the question of entitlement on the basis of the evidence adduced at hearing on 1 November 200 (sic) in respect of the factors contained in the Loss of Teeth Statement of Principle."

In a written response to the respondent's submission Mr De Marchi stated:
"The Applicant contends that where S9(I)(a) is satisfied and the occurrence on service is the claimed condition, viz "loss of teeth", there is no need for the applicant to satisfy the additional Statement of Principles for "dental caries".
Dental Caries is defined in the Statement of Principles and it is submitted that the evidence of the Applicant and the expert witnesses established that the tooth was affected by dental caries prior to extraction."
The Tribunal agrees with the observations expressed in paragraph 6 and 7 of the respondent's submission, and finds accordingly.
In paragraph 1, SoP No. 374 of 1995 (Loss of Teeth) sets out several alternative factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting loss of teeth with the circumstances of operational service rendered by veterans. The Tribunal notes that the factor set out in paragraph 1(a) of the SoP, upon which Mr De Marchi relied, is as follows:
"1(a)suffering from dental caries in the affected tooth at the time of clinical onset of loss of teeth."

SoP No. 366 of 1995, which concerns dental caries, and which, having regard for Repatriation Commission v McKenna FFC Unreported : 29 March 1999 the Tribunal follows, likewise sets out in paragraph 1 several alternative factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting dental caries with the circumstances of operational service rendered by veterans.
It was Mr De Marchi's submission that in the event of the Tribunal applying SoP No. 366 of 1995, Mr Hampton would rely upon the factors set out in paragraph 1(b) and 1(d) thereof. Those factors are as follows:
"1(b)consuming only fluoride-free drinking-water in the absence of fluoride supplementation for a continuous period of at least two years within the five years immediately before the clinical onset of dental caries; or
1(d)inability to maintain oral hygiene whilst consuming a diet containing fermentable dietary carbohydrates for a continuous period of at least 90 days within the one year immediately before the clinical onset of dental caries."
SoP No. 366 of 1995 further provides several definitions which are relevant to the factors set out in paragraph 1(b) and (d). They are as follows:
"4."consuming only fluoride-free drinking-water" means drinking distilled or rain water only, and excludes the consumption of drinking-water from any other source.
"fluoride supplementation" means the supply of fluoride for oral consumption in liquid or tablet form.
"dental caries" means localised destruction of calcified tissue initiated on the tooth surface by decalcification of the enamel of the teeth, followed by enzymatic lysis of organic structures, leading to cavity formation which may penetrate the enamel and dentine to reach the pulp of the tooth, attracting ICD code 521.0.
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 22235 5.
"oral hygiene" means the personal maintenance of cleanliness of the teeth and oral structures by tooth brushing, gum tissue stimulation, gum massage or mouthwash.
"fermentable dietary carbohydrates" means foods containing the added sugars sucrose, fructose, galactose or glucose which can be converted by oral bacteria, through a fermentation process, to acids which are destructive to tooth tissue."

Evidence – Mr Hampton

Mr Hampton was 26 years of age when he was enlisted into the Air Force in March 1942.
At the time of his enlistment he was seeing his dentist on a regular basis.
While he was not able to recall with any certainty whether he had any teeth extracted prior to his enlistment, nevertheless he does recall having teeth missing from his bottom jaw at that time. Just how many teeth were missing from his bottom right hand jaw at that time he could not say.
Mr Hampton said that as a youth he brushed his teeth each morning and night, but that because the family could not afford the cost of toothpaste he had to use salt.
When asked about the type of food that he ate as a youth Mr Hampton stated that he consumed bread with a lot of jam and some butter. He rarely ate sweet biscuits but occasionally he would eat home-made cake.
Mr Hampton stated that as a youth he drank tea with a little sugar.
As far as desserts were concerned, Mr Hampton said that while he would sometimes have puddings or custard, sweets usually comprised stewed fruit.
Mr Hampton said that before he was posted overseas the Air Force dentists did some work on his teeth.
During his evidence Mr Hampton's attention was drawn to his Air Force Dental Treatment Card (T4), which records that between the date of his enlistment in 1942 and his final treatment in 1944 before proceeding overseas, he had one tooth extracted.
It was Mr Hampton's evidence that before he was posted overseas he was able to clean his teeth. Indeed, he stated that during that period there was never a time when he was unable to clean his teeth for days or weeks at a time. He explained, however, that while overseas he frequently ran out of toothpaste and that, consequently, there were occasions when he was not able to maintain the level of hygiene that he would have liked.
Evidence – Dr Vochala
Dr J.A. Vochala, who practices as a Dental Surgeon, examined Mr Hampton on 30 November 1999.
In a written report dated 10 January 2000 (Exhibit A1), Dr Vochala stated in part as follows:
"I examined Mr Hampton on November 30, 1999. Whilst he is partially edentulous he has good oral health for a gentleman of his age.
He is unclear as to specific dental problems caused by his war service. He reports that although he has not had recent extractions and the teeth he is missing were removed during his war service it is only recently that he needs to replace the missing teeth in his lower jaw.
I am unable to identify any factors in the Statement of Principles concerning Dental Caries that could have Mr Hampton's oral condition accepted as being war-caused."
During his oral evidence Dr Vochala was shown a report provided by Dr F. Widdop, a Dental Surgeon, dated 30 October 2000 (Exhibit R1). In that report Dr Widdop relevantly stated as follows:
"3.I have examined the service Dental Treatment Card of Mr Thomas Albert Hampton and provide the following interpretation of the notations on that card regarding the dental treatment received by Mr Hampton during service:
20/04/42"mod" = "mesio-occluso distal": large amalgam filling
29/06/42amalgam filling, silicate cement filling
27/07/42silicate cement filling
14/01/43chemical treatment (silver nitrate)
18/01/43amalgam filling
20/01/43inlay pattern (impression of tooth taken for gold filling)
23/01/43inlay inserted
20/05/43examination and record of further dental work to be done
21/05/43amalgam filling
08/10/43alteration to treatment plan of 20/05/43
11/10/43extraction (earmarked from examination on 08/10/43)
17/10/44silicate cement filling
09/11/44amalgam filling (replacement)
14/11/44amalgam filling
30/11/443 amalgam fillings
4.I note that the state of Mr Hampton's teeth on enlistment was charted on 27 March 1942. This initial charting contains the following information:
6 teeth missing
10 teeth already filled
4 teeth identified for treatment, 3 of which had been previously filled.
5.I note further that the tooth which was extracted on service was a tooth on which dental work had been performed prior to enlistment. Further, I am able to say that whilst this tooth was originally earmarked for filling at the examination on 20 May 1943, when the treatment plan was reviewed by a different dentist on 8 October 1943 it appears to have been determined that the tooth should be extracted. This same dentist subsequently extracted the tooth on 11 October 1943.
6.I am able to say that in my experience the work performed on Mr Hampton's teeth during service was standard dental treatment for the time and not indicative of any major dental problems. I note that the final entry on the card on 30/11/44 is "FIT", which indicates that Mr Hampton was regarded as dentally fit as of that date."
When asked why, on 8 October 1943 the dental officer would at that time have determined that the tooth (referred to in paragraph 5 of Dr Widdop's report) should be extracted, Dr Vochala gave it as his view that the dental officer "probably didn't think it was restorable". When further asked whether the state of the tooth indicated the presence of dental caries, Dr Vochala stated:
"It could be dental decay. It could be that the tooth was broken. It could be that there was an infection in the tooth from having dental decay or filling or the tooth broken."
Addressing factor 1(b) of SoP No. 366 of 1995 concerning dental caries, Dr Vochala said he had no idea whether fluoride supplementation was made to the water in the areas in which Mr Hampton served while in the Air Force. As far as within Australia was concerned, the doctor stated that fluoridation first occurred in the 1960s.
As to factor 1(d) of the SoP, when asked whether he could give an example of the sort of diet that would contain fermentable dietary carbohydrates, Dr Vochala stated:
"Practically anything that we eat that has got sugar in it is a fermental dietary carbohydrate and biscuits, any sort of preserved foods that are sweets, those sorts of things would all have fermentable carbohydrate in them."
Turning to SoP No. 374 of 1995 concerning loss of teeth, Dr Vochala's view was that factor 1(a) could be applicable to Mr Hampton in that he was suffering from dental decay in the infected tooth at the time of the clinical onset of loss of teeth.
Given that the tooth in question had already been filled and earmarked for further filling (see paragraph 5 of Dr Widdop's report), Dr Vochala's view was as follows:
"I would say that it basically is suffering from dental decay or has the potential to suddenly – or it has got the potential that it is going to decay further if it is not restored and filled at that stage and if it is not filled at that stage it would probably go on and start having problems with respect to item C where it can have dental pulp disease which would be a pulp abscess and that often would lead to the tooth being extracted."
When asked whether, assuming Mr Hampton consumed only fluoride-free drinking-water in the absence of fluoride supplementation, factor 1(b) of SoP No. 366 of 1995 concerning dental caries was met, Dr Vochala gave it as his view that this was probably so.
As to factor 1(d) of SoP No. 366 of 1995, it was Dr Vochala's view, assuming the dietary element was satisfied, that the factor was met:
"Definitely if the tooth had been earmarked for treatment and he couldn't look after it and it needed work and it wasn't done for five months he would be unable to look after it."
In cross-examination Dr Vochala agreed that dental caries is essentially a lifestyle disease due to issues of diet and oral hygiene. He further agreed that the average state of dental health in the civilian community at about the time Mr Hampton enlisted in the Air Force was generally poor and that the number of extractions and fillings performed around that time was markedly above what is regarded as common today.
Given Mr Hampton's Air Force Dental Treatment Card which indicates the state of his oral health prior to and on enlistment, it was Dr Vochala's opinion that although the amount of attention needed upon enlistment "was not too much", nevertheless his dental state prior to enlistment "probably wasn't good at that stage".
Evidence – Dr Widdop
During his oral evidence Dr Widdop stated that he believed the content of his written report (paragraph 39 above) was correct. He then went on to explain the meaning to be attributed to each of the entries made on Mr Hampton's Air Force Dental Treatment Record Card. Having done so Dr Widdop stated his opinion of Mr Hampton's oral health both before and after enlistment:
"I would say that Mr Hampton had pretty much the pattern of dental health/disease that was apparent in people of his then age at that time, mid 40s. He presented initially into the service with a number of teeth missing, six in all. Several teeth, 10 in all, would have been previously filled and some that were identified as still needing treatment by virtue of a filling. His oral hygiene seems to have been pretty good at the time and throughout. He in fact was a recipient of treatment in the service on a regular basis at several locations during the subsequent two and a half years or so."
When asked what factors are likely to lead to dental caries in one person as opposed to another, Dr Widdop stated:
"Well, dental caries is certainly a lifestyle condition that relates to a number of factors. The principal amongst those would be dietary factors. Oral hygiene comes into it. These days of course access to a fluoridated water supply which was not the case in the 40s, possibly also the priority that an individual gives to the retention of teeth and again in the 40s that was at a much lower level than it would be today and matched with that you would have to say the capability of the dental profession to be able to deliver the goods as far as providing appropriate treatments. Again this is stepped up considerably today and today's standards are not those by which we need to charge those of the 40s."
Dr Widdop gave it as his view that, having regard for the attitude of the dental profession to the retention of teeth, the absence of fluoridation and diet, the state of Mr Hampton's teeth prior to his enlistment was about average for his age.
As to the tooth that was extracted while Mr Hampton was serving in the Air Force, Dr Widdop's opinion was that dental caries may well have accounted for the loss of the tooth. He added, however, that there were other possibilities. In this connection the evidence of Dr Widdop appeared to suggest that one such possibility may have been that the tooth in question was broken and regarded as beyond repair.
When asked whether, in respect of the factor set out in paragraph 1(d) of SoP No. 366 of 1995, he was aware of any evidence of Mr Hampton having been unable to maintain oral hygiene for a period of 90 days, within the meaning of "oral hygiene" as defined in the SoP, Dr Widdop stated that he had no such evidence. Indeed, it was his view that the evidence before him pointed to the contrary, given that examination of the Dental Treatment Record Card reveals that Mr Hampton's oral hygiene was good.
"Clinical Problems of War"
During the hearing the respondent invited the Tribunal's attention to a text "Clinical Problems of War" by Allan S. Walker MD, Ch.M, FRACP, Canberra War Memorial. Chapter 54 discusses the history of dental surgery in each of the three Services. In so far as the Royal Australian Air Force is concerned, the document states in part as follows:
"The Royal Australian Air Force Dental Service was posed with a difficulty of considerable magnitude in its work, that of the movement and scattering of units to a degree which was not experienced by the army. For example, in 1943, 45 per cent of the R.A.A.F. units had a strength of less than 250 and 27 per cent were between 250 and 500. On the mainland of Australia, however, most of the units were mainly at fixed stations. Further, the proportion of technicians in the air force gave rise to considerable movement from unit to unit. Units in forward areas rarely came out of the line to rest, and their treatment had to be given in their forward location. Training in the R.A.A.F. required a complex organisation involving technical trades, and training in aircrew duties and other specialised procedures, and here too dental attention had to be fitted into the training pattern and programme. The aim of the dental service was to make men dentally fit in base areas and to keep them fit in forward areas.
In the important and extensive work in base areas large centres were established, such as those at the Melbourne Showgrounds and at transit and embarkation depots. At initial training centres of various types large teams of dental officers and mechanics and other personnel were made available, with the object of making the men dentally fit by the time they were ready to be posted to operational units. At embarkation depots it was necessary to deal with men going overseas, or to New Guinea, so that the required dental work could be completed before their embarkation. This principle of achieving dental fitness during the vital preparatory periods, so important in an air force, was fulfilled as far as possible. Mobile dental sections were used with advantage in New Guinea, in Australia and in England to extend the range of dental services."

The Tribunal notes that the document further records the availability of mobile dental sections in New Guinea and the provision of dental services by the Royal Australian Navy at Morotai.
Whether Material Points to a Hypothesis Connecting Loss of Teeth with Circumstances of Mr Hampton's Service

It is our view that the material before us points to a hypothesis connecting Mr Hampton's loss of teeth with the circumstances of the particular service rendered by him.
Whether the Hypothesis is Reasonable
While the material before us points to a hypothesis, we have formed the opinion that the hypothesis is not a reasonable one. That is to say the hypothesis does not contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service as required by sections 196B(2)(d) and (e) of the Act. That being so, Mr Hampton's claim must fail.
As we have indicated, it was Mr De Marchi's submission that in the event of the Tribunal applying SoP No. 366 of 1995 concerning dental caries, then Mr Hamilton would rely upon the factors set out in paragraph 1(b) and (d) thereof (see paragraph 25 above).
There is no dispute, and the Tribunal is satisfied on the balance of probabilities, that the appropriate diagnosis for Mr Hampton's condition is partial edentulousness.
However, as stipulated in paragraph 3 of the SoP, the factor set out in paragraph 1(b) must be related to any service rendered by a person. As was noted by Dr Widdop, the tooth which was extracted on service was a tooth on which dental work had been performed prior to enlistment, with Dr Vochala's opinion being that the decision made on 8 October 1943 to extract was probably made on the basis that the tooth was not considered restorable.
In any event, as was correctly observed by the respondent, the evidence before the Tribunal was that the consumption of fluoride-free drinking water by Mr Hampton was not related to any service rendered by him, but rather it was a situation that applied to everyone, civilian and servicemen alike. Fluoride supplementation did not commence in Australia until sometime in the 1960s.
Turning to the factor set out in paragraph 1(d) of the SoP, while there appears to have been occasions both prior to and after enlistment when Mr Hampton was not able to maintain the level of dental hygiene that he would have liked, the evidence, however, does not support an assertion that he was unable to maintain oral hygiene whilst consuming a diet containing fermentable dietary carbohydrates for a continuous period of at least 90 days, within the one year immediately before the clinical onset of dental caries. Indeed, quite apart from the question of diet, the evidence before the Tribunal indicates that clinical onset of dental caries occurred well before Mr Hampton's enlistment in 1942.
Decision
For the reasons stated the decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Dr C. Re, Member
Signed: .....................................................................................
  Personal Assistant
Date/s of Hearing  1/11/00
Date of Decision  19/12/00
Counsel for the Applicant        Mr D. De Marchi
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Ms R. Casamento
Solicitor for the Respondent    Department of Veterans' Affairs