Jenkins and Repatriation Commission - [2001] AATA 24

DECISION AND REASONS FOR DECISION [2001] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/393

VETERANS' APPEALS DIVISION       )
           Re      JOHN EDWIN LANDERS JENKINS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor SD Hotop, Senior Member Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member

Date19 January 2001
PlacePerth

Decision The Tribunal sets aside the decisions under review and, in substitution therefor, decides that: (a) the applicant's generalised anxiety disorder is a war-caused disease, within the meaning of s9(1) of the Veterans' Entitlements Act 1986 ("the Act"); (b) the applicant's lumbar spondylosis is a war-caused disease, within the meaning of s9(1) of the Act, and a defence-caused disease, within the meaning of s70(5) of the Act; and (c) the applicant is entitled to the special rate of pension, pursuant to s24 of the Act; with effect from 22 April 1997.

........- (sgd SD Hotop) -.........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from 1959 to 1979 - applicant rendered operational services in Far East Strategic Reserve from March 1961 to March 1962 and in Vietnam from May 1965 to February 1969 - applicant rendered defence service from December 1972 to May 1979 - applicant sustained injuries in incident in 1961 during operational service - applicant sustained injuries in incident in 1978 during defence service - applicant's conditions of bilateral sensori-neural hearing loss, bilateral tinnitus and generalised anxiety disorder accepted by respondent as war-caused and disability pension paid to applicant at 70% of General Rate - applicant also suffers from lumbar spondylosis, cervical spondylosis, adhesive capsulitis of right shoulder and osteoarthrosis of both knees - whether those conditions war-caused or defence-caused - whether a reasonable hypothesis connecting each condition with circumstances of applicant's operational service - application of Statements of Principles - whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining each condition to be war-caused - whether Tribunal satisfied on balance of probabilities that each condition connected with circumstances of applicant's defence service - whether Tribunal reasonably satisfied that each condition defence-caused - whether applicant entitled to special rate of pension - whether applicant's incapacity from war-caused or defence-caused conditions is of such nature as of itself alone to render applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week - whether applicant prevented from continuing to undertake remunerative work by reason of incapacity from war-caused or defence-caused conditions alone - whether applicant thereby suffering loss of salary or wages that applicant would not be suffering if free of that incapacity.

Veterans' Entitlements Act 1986 ss9(1), 24, 70(5), 73, 120, 120A, 120B
Statements of Principles concerning Lumbar Spondylosis (Instruments Nos 165 and 166 of 1996)
Statements of Principles concerning Cervical Spondylosis (Instruments Nos 161 and 162 of 1996)
Statements of Principles concerning Adhesive Capsulitis of the Shoulder (Instruments Nos 69 and 70 of 1996)
Statements of Principles concerning Osteoarthrosis (Instrument No 71 of 1995 as amended by Instruments Nos 336 and 352 of 1995, and Instrument No 72 of 1995 as amended by Instruments Nos 337 and 353 of 1995)

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

January 2001 Associate Professor SD Hotop, Senior Member Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member

This is an application by John Edwin Landers Jenkins ("the applicant") for review of decisions of a delegate and senior delegate of the Repatriation Commission ("the respondent") dated 25 November 1997, 7 January 1998 and 12 February 1998, as affirmed by the Veterans' Review Board ("VRB") on 4 August 1998. The effect of those decisions was that the applicant's condition of generalised anxiety disorder was determined to be war-caused but his conditions of cervical spondylosis, lumbar intervertebral disc prolapse, capsulitis of the right shoulder and osteoarthrosis of both knees were determined not to be either war-caused or defence-caused, and the rate of disability pension payable to him under the Veterans' Entitlements Act 1986 ("the Act") was assessed at 70% of the General Rate, with effect from 22 April 1997.
At the hearing the applicant was represented by Mr A Vucak, solicitor, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents", comprising T1 –T17, pp 1 – 176) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits (marked A1 – A16) tendered by the applicant. Oral evidence was given by the applicant. There were no other witnesses.
The factual background
The relevant background facts as found by the Tribunal on the basis of the T documents, and about which there is no dispute between the parties, are as follows.
The applicant, who was born on 14 September 1939, served in the Royal Australian Navy from 21 May 1959 to 31 May 1979.
The applicant rendered "operational service", within the meaning of the Act, in the following periods:
24 March 1961 – 17 April 1961                }
22 April 1961 – 14 May 1961  }          Far East
24 June 1961 – 6 July 1961  }          Strategic Reserve
6 March 1962 - 19 March 1962                }
31 May 1965 – 22 June 1965                   }
20 December 1967 – 3 January 1968     }
17 January 1968 – 16 February 1968     }
27 March 1968 – 26 April 1968                }          Vietnam
21 May 1968 – 13 June 1968                   }
13 November 1968 – 28 November 1968}
8 February 1969 – 25 February 1969.     }

The applicant rendered "defence service", within the meaning of the Act, in the period from 7 December 1972 to 31 May 1979.

On 22 July 1997 the applicant lodged with the Department of Veterans' Affairs a Claim for Disability Pension in respect of disabilities described as "generalised anxiety disorder" and "orthopaedic problems".
On 25 November 1997 a delegate of the respondent refused the applicant's claim.
On 7 January 1998 a senior delegate of the respondent, pursuant to s 31 of the Act, reviewed the decision of 25 November 1997 and decided that the applicant's condition of generalised anxiety disorder was war-caused, and that he was entitled to disability pension at the rate of 50% of the General Rate, with effect from 22 April 1997.
On 12 February 1998 the senior delegate conducted a further review under s31 of the Act and decided that, having regard to the applicant's other accepted disabilities of bilateral sensori-neural hearing loss and bilateral tinnitus, the rate of disability pension payable to him be increased to 70% of the General Rate, with effect from 22 April 1997.
On 4 August 1998 the VRB affirmed the abovementioned decisions of the delegate and senior delegate of the respondent.
On 30 September 1998 the applicant applied to the Tribunal for review of the abovementioned decisions of the delegate and senior delegate of the respondent, as affirmed by the VRB.
The applicant's evidence
A Statement of Evidence of the applicant, dated 28 July 1999, was tendered in evidence (Exhibit A1). That statement is as follows:
"…
2. I served with the Royal Australian Navy from 1959 to 1979. During that time I rendered operational service in the Far East Strategic Reserve and in Vietnam.
3. I first joined the HMAS Queenborough in Sydney in 1960. I spent two years on this vessel which had been an old World War Two destroyer converted to a frigate in the 1950s.
4. During my time on the vessel I was involved with storing the vessel with provisions and meat and also with making issues from the storerooms and fridges to galleys and pantries. This involved lifting and carrying carcasses of beef, pork and lamb and heavy provision items throughout the ship. The storerooms and fridges were mostly below the waterline of the ship and therefore you had to climb up and down vertical and angled ladders while carrying the stores. As a junior member of the staff all the heavy stores work was done by myself with occasional assistance.
5. I spent a short time next on the HMAS Penguin and Harman.
6. In December 1963 I joined the HMAS Vampire. This had a crew of approximately 330. I spent two years aboard this vessel, firstly as acting leading hand and then later as leading hand. The ship carried much the same stores as the HMAS Queenborough and once again the storerooms were also all below the waterline, therefore I had to do a lot of climbing.
7. In August 1965 I joined the HMAS Moresby and was made a Petty Officer. I was very hard working and always wanted to impress my superior officers. My whole life revolved around making the grade and being consistent in all types of situations. I was rewarded by being made a Petty Officer.
8. From the HMAS Moresby I joined HMAS Cerberus and then HMAS Sydney. I joined HMAS Sydney in December 1967 as a Petty Officer and was promoted to Chief Petty Officer in February 1969 on the HMAS Sydney. I joined the HMAS Penguin in March 1969 and in December 1971 went back to the HMAS Melbourne (sic). I went back to the HMAS Penguin in January 1973. I was involved in stores work during all these periods as well as handling the meat supplies and I was also responsible for handling other heavy supplies. It was not uncommon to carry heavy weights such as 150-pound bags of potatoes up and down vertical and angled ladders.
9. In January 1975 I joined the HMAS Leeuwin as Canteen Manager. I was promoted to Warrant Officer in September 1976. I then spent some time at HMAS Platypus and HMAS Melbourne. My final period of service was spent at HMAS Platypus. I was discharged on 31 May 1979 as a Warrant Officer.
10. During my time in the service I became very ambitious and would not let anything stand in my way.
11. The lay-out of most of the vessels was very similar. You would always find the storerooms were serviced by vertical ladders because they were low down in the ship. The transferring of stores on the ship would usually take about one third of my day. I was also required for watch duty, particularly night watch.
12. I can clearly recall a specific incident when I was carrying a heavy load of onions and potatoes. Due to bad weather I ended up falling down the ladder and having the 150-pound bag of potatoes fall on top of me.
13. There were many occasions when I couldn't get myself into my hammock because my back was so sore. I quite often needed assistance to get into and out of it.
14. I recall that whenever you felt ill, you never went to sick bay. Sick bay was only for those seriously injured. If you went to sick bay, fellow seamen would think that you were weak and/or had some terrible incurable disease, and importantly, you might jeopardise your shore leave. If you weren't medically fit you would not be permitted to go ashore.
15. Even though there was always a sick bay, there was not always a medical officer on board.
16. I would often trade items that I had for aspirins or something to rub into my muscles. I would also not want to jeopardise my beer issue. If you were on medication, your beer issue would be stopped.
17. When I left the navy, I was supposedly medically fit. However, during my service I had had poor medical assistance.
18. I went to work as a Ship Chandler in Fremantle. I spent about two years with Ship Stores Australia and I then went to work for Bateman's Ship Stores. In 1984 that company was sold so I went to work for Sealanes.
19. I worked for Sealanes until 1989. I then went to work for Stateships. When they went under I went back to Sealanes.
20. I can recall having real problems with my back around 1982. In about 1983 I started to see a chiropractor. I saw him until about 1995 for my back and neck problems.
21. In 1995 I had an accident at work, but didn't even realise I had hurt myself. By this stage however, things were becoming far too much for me mentally. I could not cope any more at work.
22. I have taken pain relief such as panadeine regularly throughout my naval service and since my discharge.
23. I am very restricted in the things I can now do. I cannot bend over in the garden. I don't really have anything else to do.
24. I can't lift many things. I can't run quickly. I can't launch my dinghy and so I no longer use it. I mix with few friends and I find I cannot drive long distances.
25. I believe that the back, knee and shoulder conditions I now suffer have been caused from both the operational and defence service I undertook with the Royal Australian Navy.
26. I make this statement to the best of my knowledge and ability and am aware that if I have knowingly made any false or misleading statements that I shall be guilty of a criminal offence."

A statutory declaration by the applicant, dated 3 February 2000, was also tendered in evidence (Exhibit A7). That declaration states as follows:
"I served on HMAS Queenborough as an SA from 31st August 1960 until 3rd August 1962 and during that period HMAS Queenborough had two F.E.S. deployments 1961 and 1962. The 1961 deployment our first port back in Australia was Darwin on Thursday July 6th 1961. (sic)
Early in the passage from Singapore to Darwin 24th June 1961 to 6th July 1961 I had quite a bad fall while transferring stores which affected my back, knees, neck and hands etc. I did not report to the sick bay because I did not believe the injuries were bad enough. Some of my Departmental duties were changed around by the Department head so the heavy lifting was done by the Butcher or another member of the Victualling Team. I could not climb into my hammock so I was granted permission to sleep on a mess deck stretcher until my soreness and stiffness improved. I was a member of Ships sporting teams and because of my injuries could not play Rugby in Darwin or Cairns.
Other reasons for not reporting to the sick bay for injuries considered not severe was if unfit and under treatment it would affect your beer issue, leave and you also appeared a bludger to your shipmates and also in this instance I was due for seasonal long leave when the ship reached Sydney."

In his oral evidence the applicant said that, when he served on HMAS Queenborough in 1960–62, he was an Ordinary Seaman as he served as a Stores Assistant ("SA"). He said that in his branch of the ship there were 4 persons – a Petty Officer who was in charge, a leading hand, an ordinary seaman or able seaman, and a butcher. He said that his duties included carrying heavy bags of pumpkins and potatoes and trays of meat as well as other provisions along very narrow passageways, negotiating "breakwaters" (which were about 2 feet in height) which separated the ship's compartments, up and down vertical ladders and through narrow hatches, often while the ship was pitching and rolling in heavy seas. He said that on many occasions he fell over and hurt himself quite badly. He added that the "culture" on board the ship was not to go to the "sick bay" when injured (as explained in his abovementioned statement of evidence and statutory declaration).
The applicant recounted a specific incident which he said occurred on HMAS Queenborough during a voyage from Singapore to Darwin, the duration of which was from 24 June 1961 to 6 July 1961. He told the Tribunal that, as the butcher was lifting a heavy tray of meat up to him through a hatch, he was leaning over the hatch but was not strong enough to hold onto the meat and he fell down the hatch onto the butcher on the deck below, a distance of about 6 feet. He said that he landed on his neck and shoulders and was "quite badly knocked about". He said that he hurt his back and shoulders, skinned his shins, knees and hands, and had bruises "all over". He added that he could not lift himself up and, because he was also unable to get into his hammock, he was given permission to sleep on a stretcher on the floor. Asked when this incident occurred, the applicant said it was about a week before the ship reached Darwin on 6 July 1961. He said that he was unable to play rugby when they arrived at Darwin because he was unable to run and had trouble walking because of his sore back and sore legs and knees.
The applicant told the Tribunal that, as a result of the abovementioned incident, he was unable to perform his normal duties and, accordingly, the Petty Officer in charge rearranged the duties in his branch and he was placed on light duties. He said that, because of his back problems, he could not bend over to pick up and lift heavy objects and, although he was able to climb up and down ladders, he was unable to carry anything while doing so. He said that he was still not doing his full duties when they returned to Sydney on about 23 July 1961. He added that he then took a month's leave.
The applicant next told the Tribunal about an incident which he said occurred in early September 1978 when he was a Warrant Officer on HMAS Melbourne. He said that he, Petty Officer Kenyon and two others were transferring stores from one part of the ship to another and, when lowering a box down a hatch, he slipped over and the box fell onto him and he landed on his back on a "breakwater". He said that he was unable to stand up and the others thought he was badly hurt so they put him on a stretcher, lifted him up through the hatch and tried to get him to go to the sick bay, but he refused. He said, however, that about a fortnight later he eventually went to the sick bay because his back was still sore.
The applicant was also asked to clarify the circumstances of an incident in 1995 that was referred to by the VRB in its reasons for decision. He told the Tribunal that, when working for Sealanes in 1995, he was disembarking a tanker and was coming down a gangway to the pad at the bottom and misjudged the distance between the pad and the jetty and, as he stepped down, he "bashed" his foot on the jetty which caused him to jar his back. He said that he reported the matter to his employer and, about 5 or 6 days later, saw a doctor because his back was still sore, and he eventually received workers' compensation because of that incident. He said that, prior to that incident in 1995, he had been having problems with his back, his cervical spine, and his shoulder, and that he used to see a chiropractor in relation to his neck and back for many years commencing in 1982.
The applicant confirmed that he ceased work in 1997. Asked why he had to stop working, he said that he had problems with back pain which prevented him from bending over or lifting or driving long distances. Asked whether any other things limited his work capacity, he referred to his shoulders and to the fact that mentally he was "a bit off". He added that he was in pain most of the time and simple things like sitting down were hard for him. He said that in 1997 he could not do his work duties. Asked why, once again, he responded:
" Because I had a crook back, I couldn't – I was in pain all the time and I was filling myself up with pain killers, I was having trouble driving and all sorts of things".
(Transcript, p69)

Additional lay evidence

The applicant also tendered in evidence the following statutory declarations and statements by former colleagues.
A statutory declaration by Pastor Mervyn Harold Sparrowhawk, dated 26 May 1999, (Exhibit A10) states as follows:
"I was serving on the HMAS Queenborough as the ship's Butcher in 1960 when SAV 2 (Ordinary Seaman) JOHN JENKINS joined the vessel. In rank structure, I was his immediate superior. My work primarily was to prepare the meat as required for all the meals, and supply the Galley and Bakery with refrigerated and dry stores. All of these duties were carried out with the help of the SA – JOHN JENKINS.
The frozen boxes of meat, carcasses, dry supplies such as bags of potatoes and pumpkin were very heavy items to transfer up ships vertical ladders, and to lump along narrow gangways of the pitching and rolling vessel. We frequently dropped stores, or crashed to the deck in bad weather bruising and injuring ourselves. We never broke any bones, so the sick bay was rarely visited. Besides, no one wanted to be labelled a sick-bay jockey or a bludger.
What did not help matters much (and I want to say this as kindly as is possible) is that my SA JENKINS seemed to be a little more clumsy than most. He seemed to take time to find his 'sea legs'. He fell much more than I, and on one occasion through a hatchway down to the deck below while lumping stores and, much to my disgust, landed on top of me. He became a joke in the mess-deck – 'Jenkins has fallen over again'.
This young man sustained some rather painful injuries to his knees, back, arms, shoulder and hands from these multiple falls. Our department head would shuffle things around a little so that Jenkins could go on light duties for a few weeks. In fact he was so stiff and sore sometimes that he was unable to get up into his hammock. He would obtain, and be granted permission from the leading hand of the Mess to sleep on a stretcher on the deck. I left the Frigate in August 1961, which is a long time ago, but the events described above are still clear in my mind."

A statutory declaration by Derek Phillips, dated 11 June 1999, (Exhibit A11) states as follows:
" I have known John Jenkins since 1961, at which time I was drafted from HMAS VOYAGER to HMAS QUEENBOROUGH as POSV senior sailor in charge of Victualling Department. Jenkins was an ABSV and the most Junior Sailor in my department. His duties comprised some clerical work, but mainly he had to manually transfer victualling stores to the galleys, bakery etc. from the storerooms and fridges with some assistance from the butcher.
For your information, there was no standard packing of stores in the 50's and 60's. Consequently, many items were very heavy, others awkward sizes and in the main difficult to transfer. Further to this, QUEENBOROUGH was a small ship with steep ladders, narrow passages, all with combings, as well as other impediments to hinder the smooth transfer of stores. In addition, the ship was very often in rough seas and carrying out manoeuvres which further increased the difficulty of transferring stores.
On many occasions Jenkins had falls over 'Breakwaters', down hatches and ladders, and experienced items of stores falling on him in rough weather. Consequently, he injured his knees, back and neck etc. as well as cuts and abrasions.
On some occasions he could not carry out his duties because of pain and difficulty in carrying stores, particularly getting up and down ladders and in and out of hatches. As we were a very small branch on the ship we would handle this situation departmentally by using Jenkins on clerical and light duties with myself and the other member assisting the butcher with the transfer of stores. Sometimes this situation continued for two weeks or more.
Being a small branch, we could not afford to have any of our staff laid up in sick bay. Therefore it was normal routine to handle the situation within the department. Most departments on board small ships adopted this policy in those days.
It was the 'culture' of the time to brand sailors who frequented the sick bay as 'sick bay jockeys' and/or malingerers. To be branded on a small ship by one's peers and superiors was untenable.
Jenkins was a thoroughly conscientious Junior Sailor who worked very long hours in extremely difficult conditions and rarely complained despite the many injuries he sustained while carrying out his duties."

A statement by Peter J Flockhart, dated 28 July 1999, (Exhibit A9) is as follows:
"I have known John Jenkins for some 27 years since we first served together on HMAS VAMPIRE and subsequently at other shore establishments. We have maintained contact and I hold John in the highest regard.
Whilst serving on HMAS VAMPIRE John was my superior however we worked together as a team. It was our duty to provide provisions to the galleys in order that the crew of some 350 Officers and men could be provided three meals a day. These duties had to be carried out in all weather some of which was very rough together with ships movements caused by exercise manoeuvres.
Little planning was given in those days to making cases, drums and packages easy to handle regarding weight and ease with which to pass through water tight hatches and doors. Some of the packages we handled were in the order of 40–50 Kgs and very awkward. These had to be manhandled up ladders, through hatches and along narrow passages. There were many obstacles provided by various objects along the way. John and I had some pretty nasty accidents during the two years we served on 'VAMPIRE'. I can recall seeing John heavily bruised and cut from accidents caused by obstacles, heavy awkward objects and heavy ship movements. I often spoke to John about going to see the ships doctor for treatment however his stock saying 'she'll be right mate' was always the reply. There were times, I can recall, when John would not be able to perform his duties due to injury. These periods were sometimes hours or occasionally a day.
We would often talk during off duty moments about our career in the R.A.N. John was keen to do well and be seen by his superiors as an excellent member of the branch and the service. He had aspirations of becoming a Special Duty Officer and had completed papers to enable him to achieve this goal. He was most keen not to be seen as a 'slacker' and a 'sickbay jockey' as this could adversely affect his chances for promotion."

A statutory declaration by Kevin Kenyon, dated 10 November 1999, (Exhibit A6) states as follows:
"1. I first met JOHN JENKINS when he came to the HMAS Melbourne as a WOSV late in 1977 in charge of the department in which I was a POSV looking after provisions in the ship. He was a 'hands-on' department head and was involved in the day to day operation in all parts of the department. He was big on loyalty and training and expected his whole staff to follow his example and was always helping with the manual and transfer side of the stores operations although as a WOSV he could have let his subordinates do the heavy hard work.
2. I can recall one rather nasty mishap while we were transferring stores in early September 1978, on the day after his wife was unexpectedly admitted to hospital with complications while awaiting the birth of their son. There were about four of our department transferring heavy boxes from one deck to the next. WOSV Jenkins was on the lower deck helping to hold the box which was being slid down and he slipped over backwards landing flat on his back with the box landing on top of him with his head and neck over a breakwater for the hull and fire pump. We thought he was badly hurt because he was having trouble getting up and he had hurt his neck and back and was bleeding in a few spots. We lifted him out of the hatch into the flat above and stood him up and then I tried to convince him he required medical help. He told me he could handle it and that he was the Warrant Officer in charge of the department he would do as he thought fit. He was in pain and had trouble getting around for the next 2 or 3 weeks; I assisted him from his cabin to work, helped him up ladders and ashore, to meals and ablutions etc. He also spent much time in his cabin during the working day where he could be contacted by phone if the occasion arose.
3. This incident happened quite some time ago but is still quite clear in my memory."

A statement by Bart Liberatore, dated 24 August 1999, (Exhibit A8) is as follows:
"I was employed by Sealanes of 178 Marine Terrace for 22 years and was the Financial Controller Company Secretary until the 17th August 99. I have known John Jenkins … since 1984 when he was W.A. Manager of Bateman Shipstores.
Bateman Shipstores was sold and John was employed by Sealanes on 27/8/85 until 19/10/86 as a Shipping Sales Representative. John became the Australian registered ships representative for the company. With the America's Cup on Fremantle's doorstep, he was appointed as the America's Cup Syndicate Representative for the supply of stores to Syndicate Contenders and also continued to attend to his regular clients.
I am aware that during the period of the America's Cup, John complained of not being able to cope physically due to past injuries prior to employment with Sealanes. I believe he complained to staff from time to time of having falls and that he was also not coping with the work he was doing. John decided to take time out and resigned in October 86. After discussions with his previous Manager at Sealanes, he returned back to work for Sealanes on 5/1/87.
In 1989 he complained of having problems with being able to attend launch trips, where climbing pilots ladders was essential in order to get on board ships anchored offshore. With this problem and not being able to perform these duties under normal conditions, he left Sealanes on 8/6/89 and went to work for Stateships as a Purchasing Provider.
With the downturn and closing down of Stateships, he returned to Sealanes on 19/11/90 as a Shipping Representative, with similar clerical type of office work as he was previously carrying out without the need to attend launch trips. The position did not require the physical input he previously needed to contribute in order to carry out his duties. Even due to this he continued to complain of the same physical and stress -related problems he had previously complained of before his employment with Sealanes. On 27/2/97 he retired from Sealanes because of ill health and other personal problems.
In my opinion John was a very hard working, dedicated and honest employee of the company and was well respected by all his clients.
…".

The medical evidence

A report of Dr O Kay, Psychiatrist, dated 13 June 1997 (T10, pp 75–77) states that the applicant suffers from both major depression and a generalised anxiety disorder. In that report Dr Kay opines that the applicant's psychiatric symptoms began in 1965 while serving on HMAS Vampire off the coast of Vietnam "at a time of pronounced stress for him" and notes that he was first diagnosed with a psychiatric condition on HMAS Moresby in late 1965 and from then on there were "regular entries in his medical records relating to either an anxiety disorder, somatic symptoms relating to an anxiety disorder, or later, a depressive disorder". On 13 February 1998 Dr Kay certified as follows (Exhibit A2, p41):
"This is to certify that Mr Jenkins is continuing to consult me for ongoing treatment of his Anxiety Disorder. Despite being on anti-depressant medication, he continues to manifest some symptoms of his disorder. Mr Jenkins is not working and, in my opinion, is not working because of his war-caused disorders."

In a further report, dated 7 May 1998, (Exhibit A2, pp 39–40) Dr Kay stated:

"I am of the opinion that Mr Jenkins is incapable of working and this is largely because of his Anxiety Disorder."

Various reports of Mr P C Anderson, Rehabilitation Specialist, appear in the T documents and in Exhibit A2. A consolidated report prepared by Mr Anderson on 16 April 1999 (Exhibit A2, pp 27–30) states as follows:
"This Veteran served for 20 years in the Royal Australian Navy in the Supply Department in the Navy. He had sea service on HMAS Vampire from1963 to 1965 and on HMAS Sydney from 1967 to 1969 in which both periods of service were involving the Vietnam Campaign. He mentioned a number of incidents when moving stores on the ship and falling and sustaining trauma on a day to day basis by virtue of his activities, the circumstances of which are familiar to me. He had to give up his job as a ship's chandler, providing stores for ocean going ships, necessitating travelling out to the ship in Gage Roads.
He has the following abnormalities at the present time.
Cervical Spine
17th July 1997
The range of movement in the cervical spine is at three quarters of the normal range. He has extensive degenerative change at the 5/6th and 6/7th cervical levels with evidence of intervertebral disc bulging at the 4/5th cervical level to sustain a diagnosis of cervical spondylosis. His impairment for the cervical spine attracts a 5 point impairment rating under table 3.3.1.
Right Shoulder
10th July 1997
The range of movement in the right shoulder is at 75 degrees abduction and external rotation is 45 degrees. Internal rotation is 45 degrees ie. one quarter loss attracting a 10 point impairment rating under table 3.1.2. He also experiences pain and discomfort in the right shoulder. This shoulder condition may warrant arthroscopy and possible removal of bone from the acromion to cope with the current symptomatology. He has a diagnosis of capsulitis of the right shoulder.
This man was reviewed on the 11th May 1998 specifically on account of pain and stiffness in his left shoulder where the range of movement is at approximately three quarters of the normal range.
I recommended to John that he bent forwards and tried to swing his arm in a circle eliminating gravity to maintain mobility of the shoulder and to complement this activity by swimming or exercising in a heated pool. The use of an infra red heat lamp would also be useful to minimise his orthopaedic symptoms which appear to have deteriorated at the onset of the winter weather pattern.
In terms of medication he may need analgesics such as standard Panadeine tablets and anti-inflammatories to complement the recommendations of activity and the use of the heat lamp. In my experience using the heat lamp tends to minimise dependence upon medication and would be useful in that respect.
Right and left elbows
19th December 1997
This man was reviewed on the 19th January 1998 in relation to his elbow condition. He complained of discomfort in both the right and left elbows where there is a minor degree of muscle spasm and restriction of movement of more than 5 degrees on the right. The elbow pathology is identified as likely to be associated with his service on ships in a sea going role where minor injuries are sustained during the course of duties in keeping with other recommendations.
Lumbar spine
17th July 1997
He complains of pain and stiffness in the lumbar spine where forward flexion is one quarter of the normal range. Extension is zero. Rotation and lateral flexion are one half the normal range. The straight leg raising is restricted at 60 degrees on the right side and 70 degrees on the left.
X-rays
His x-rays and MRI scans and CT scans of the lumbar region of the spine reveal degenerative features at the 4/5th lumbar and L5/S1 segments.
Reviewing his CT scan taken on the 26th October 1995 he has an identifiable bulge in the epidural space on the right side at the L5/S1 level which is a causative factor in his clinical presentation at this time.
21st August 1997
John Jenkins came to see me again on the 21st August 1997 on account of a worsening of his spinal condition. He complained more of right sided sciatica at the present time and has altered sensation in both the inner and outer borders of his right foot suggesting involvement of either the 5th lumbar nerve root, the 1st sacral nerve root or both nerve roots.
The clinical assessment (21st August 1997) reveals forward flexion at one quarter of the normal range, extension is one quarter, lateral flexion to the right is one half and to the left one quarter. The straight leg raising is restricted in the right leg at approximately 50 degrees and 70 degrees on the left.
Altered sensation is noted over both the inner and outer borders of the right foot. The peripheral pulses appear to be normal. The deep reflexes and muscle power appear to be normal.
12th February 1999
This man has been reviewed again on account of his lumbar spondylosis. He still complains that he has a painful stiff spine, where the range of movement is at approximately one quarter of the normal range. I had the opportunity of reviewing his MRI scan today and this shows a dark shadow involving both the invertebral disc at the 4/5th lumbar level and L5/S1 levels indicating that both of these levels are unstable. There is however, only a minor degree of compression of the cauda equina in this man's case at the present time, so that the surgical option does not need to be exercised. The impairment rating in the lumbar spine, however, is significant and may attract a 30 point impairment rating under table 3.3.1 as opposed to the 20 point level recommended in July 1997.
What is significant, however, is that this man cannot work. In my judgement, his lumbar condition is associated with his service record and he should be given the benefit of the doubt and he should be placed on one of the higher rates of Veterans' pension, possibly the T&PI level. To delay making this decision is unfair on this man's expectations and is unreasonable. This man appears to have a degree of nerve root irritation, possibly associated with an intervertebral disc lesion in the lumbar spine.
I recommend that John carries out undertaking a simple exercise programme and is reviewed in the near future. It may be necessary to refer him for surgical treatment should his symptomatology not stabilise. As he is currently in receipt of a service pension it would seem to me that the best course of action would be to see an orthopaedic surgeon who has access to Hollywood Hospital, as he has entitlements for treatment under the DVA.
Right Knee
10th July 1997
16th February 1998
The right knee is swollen and there is 20 degrees loss of flexion in the knee and significant crepitus as the patella moves over the femur.
Left Knee
16th February 1998
10 July 1997
In the left knee there is 10 degrees loss of flexion with significant crepitus as the patella moves over the femur.
This man has osteoarthrosis of the right and left knees.
The impairment rating in his right and left knees is assessed under table 3.2.1 attracting a 30 point impairment rating.
In terms of this man's curriculum vitae, it is noted that he had documented evidence of cervical spondylosis in 1970 and documentation relating to his lumbar spine in September 1978.
In my judgement, cervical spondylosis, capsulitis of the right shoulder, lumbar spondylosis and osteoarthrosis of the right and left knee should be accepted disabilities under the Veterans' Entitlements Act. This man had a significant period of service at sea during the Vietnam Campaign and the working conditions on ships were unsatisfactory and likely to give rise to injuries, particularly as the ship pitches and rolls with the sailor falling to the deck under adverse circumstances on a day to day basis resulting in sequelae as identified at this consultation.
The multiple sites of orthopaedic impairment and the severity of the impairment, particularly in the cervical spine, right shoulder and right knee and also the lumbar spine are far in excess of the normal expectations in terms of civilians because of the problem of working in unsatisfactory ergonomic conditions on the ship and being subjected to minor trauma. Consequently, in my judgement, this man should have accepted disabilities for cervical spondylosis, capsulitis of the right and left shoulders, osteoarthrosis right and left elbows, lumbar spondylosis and osteoarthrosis of the right and left knees."

A report of Mr M C Tiller, Orthopaedic Surgeon, dated 15 June 1999, (Exhibit A2, pp 1- 3) states as follows:
"The following is a Medical Report in regard to the above gentleman, whom I first saw on the 18th August, 1994 complaining of stiffness, pain and swelling in regard to his right knee, which was the result of an injury suffered on the 12th July, 1994 when he slipped while climbing a gangway, twisting his right knee, ankle and foot. He told me at the time his right knee swelled, he had a painful right ankle and foot and this is exacerbated while working. He did mention in his past history that he had hurt his right knee as a child, but was not aware of any other specific injuries, although I don't doubt that he suffered trauma while a Member of the Royal Australian Navy for a period of 20 years.
He has seen me also as of the 17th February, 1997 in regard to lower back pain, with a history of a sensation that both lower legs tended to become 'numb' when sitting. This was also associated with intermittent right groin pain.
Reviewing his history on that occasion he stated that on 2nd July, 1995 he stepped off a boat gangway, misjudging the height of the step and jarring his back, producing low back pain, which continued.
At the time I noted he also had a diminished range of cervical spine movements, with a somewhat kyphotic thoracic spine.
In regard to lumbar spine tenderness at L4/5 and L5/S1 with a limited range of flexion to half the normal range, with right lower limb pain and a completely restricted range of extension of the lumbar spine.
Straight leg raising was restricted on the right, with an absent right ankle and knee jerk, and diminished power involving the right EHL and hamstrings i.e., L5 nerve root.
Hands – he was also noted to have bilateral 1st metacarpocarpal joint osteoarthritic changes.
Investigations – when I first reviewed the above gentleman I noted that indeed he had had x-rays of his cervical spine carried out on the 2nd August, 1982 when advanced degenerative changes were noted at the C5/6 level, with considerable disc space narrowing and prominent marginal osteophytes, causing intervertebral foraminal narrowing, especially on the right side. There were less severe degenerative changes at C4/5 and C6/7.
Further films of the 8th March, 1982 were related to a C.T. Scan of his head and I am unsure as to why this was carried out, but it may have been that he had referred pain to the skull, with headaches from his cervical spine area.
Further cervical spine films of the 25th January, 1989 again showed marked degenerative changes at C5/6 and C6/7 and minor degenerative changes at other levels.
A C.T. Scan of the cervical spine on the 29th May, 1992 again showed quite significant degenerative changes at C4/5, C5/6 and C6/7 these changes now showing quite significant foraminal narrowing, which might well have involved the C7 nerve root on either side.
Radiographs of his right knee were taken on the 18th July, 1994 showing osteoarthritic changes involving the intercondylar area of the knee and the patella. The right ankle showing no evidence of a fracture or dislocation.
Films of the lumbar spine dated 25th September, 1995 again showed degenerative changes involving the L4/5 level of some degree of severity.
A Lumbrosacral Spinal C.T. of 26th October, 1995 again showing changes present at L4/5, with some prolapse of material to the right of the midline.
Further films of the pelvis, lumbosacral spine and cervical spine were carried out on the 17th February, 1997 again showing similar changes.
An MRI of the lumbar spine on the 20th February, 1997 together with an MRI of the cervical spine showed evidence again of disc degenerative disease at L4/5 and L5/S1, and in regard to the cervical spine major changes at C5/6 and C6/7, and a small disc protrusion at C4/5.
The reason for adding these x-ray comments is that the above gentleman certainly had degenerative changes in his cervical spine and lumbar spine, prior to his presentation to me on 18 August, 1994 and the 17th February, 1997 although one would also have to accept the fact that this would not be unusual in a man of his age.
Again, having served in the Navy I am well aware of the fact that many of the sailors at sea were involved in injuries of varying severity from minor to severe and they would usually avoid attending the Sick Bay unless significantly injured, lest they were criticised by their Colleagues for being a 'Sick Bay Jockey' or avoiding their allotted commitment on a ship. As you can understand on a ship, most members of the ship have a specific commitment and if they are unavailable to carry out their commitment on that ship, then this poses significant problems. The patient has told me that in 1968 (sic) he fell down a hatch, landing heavily on his back, neck, shoulders and head, suffering at the time a back injury. He says he was severely injured enough to be taken out on a stretcher, and I gather this was recorded in his notes.
I did review photostat copies of 209zs. or Daily Medical Records. The patient complaining of right sided neck pain and right temporal headaches. His cervical spine films of the 26th May, 1970 showing evidence of changes already at C5 and C6.
I also note in 209z of the 18th September, 1978 that he presented as mentioned at that time with a fall down the ladder 2 weeks prior suffering an injury to his back on that occasion.
Certainly there seems to be an irregular attendance in regard to his cervical spine problems, while in the Navy, also a complaint in 1967 of problems relating to his right shoulder, when he was considered then to have chronic pain and stiffness to the right shoulder area and this was diagnosed as fibrositis.
It would seem to me that his cervical spondylosis has been associated with trauma in the past and it is interesting to note that on his X-rays of the 28th September, 1973 his cervical spine at that stage showed no abnormality, suggesting that with trauma, he then developed problems in regard to his cervical spine.
I did note though that his cervical spine films as registered on his 209z of the 26th May, 1970 did show some early changes at C5/6 – not significant, and the interpretation may well be that the changes were minor, in view of the discrepancy of the reports of the 28th September, 1973 and 26th May, 1970.
There is also no doubt that while working on a ship, injuries to the lumbar spine are not uncommon, with the rolling of a ship, especially in rough weather, personnel often being caught off balance while handling loads and in turn injuring their lumbar spine, as well as suffering injuries involving the rest of their musculoskeletal system."

A report of Mr M McKibbin, Chiropractor, dated 26 July 1999, (Exhibit A2, pp35–36) confirms that the applicant first attended his clinic in 1982 and last attended on 8 July 1995. In his report Mr McKibbin stated;
"This is to confirm that John Jenkins attended this clinic over a number of years for what he claimed were the after effects of service related injuries.
My impression was that John has chronic progressive degenerative structural changes accompanied by increasing biomechanical impairment. My role was one of attempting to moderate the symptoms arising from that.
…
John Jenkins has a chronically unstable spine with associated very tense and tender para-spinal soft tissue. According to his account a wide range of moderate everyday stresses can easily aggravate that tenderness to the point where he has marked discomfort in various regions of the spine.
…
I had no doubt that he had a genuine range of debilitating symptoms, I was under the impression that they arose from various, numerous mishaps while he was serving in the navy.
…".

The issues

The two main issues in this case are whether:
·the relevant conditions suffered by the applicant are war-caused, or defence-caused, injuries or diseases;
·the applicant is entitled to the "special rate of pension" pursuant to s 24 of the Act.

Are the conditions suffered by the applicant war-caused, or defence-caused, injuries or diseases?
the legislation

Section 9 of the Act relevantly 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;
…".
As regards defence-caused injuries or diseases, s70 of the Act relevantly provides:
"…
(5) For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service … of the member;
…
(d) the injury or disease from which the member died, or has become incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…".

The appropriate standards of proof to be applied in determining such matters are prescribed by s120 of the Act which relevantly provides:
"(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.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…".

Section 120A of the Act relevantly provides:
"…
(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) …;
that upholds the hypothesis.
…".
Section 120B of the Act relevantly provides:
"…
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) …;
that upholds the contention that the injury, disease or death of the person is, on the balance of possibilities, connected with that service.
…".

A Statement of Principles ("SoP") has been determined under subss 196B(2) and 196B(3) of the Act in relation to each of the relevant conditions said to be suffered by the applicant. The relevant provisions of each of those SoPs will be set out below in the context of the discussion of each of the applicant's claimed conditions. In the case of each condition the relevant SoP is that which was in force when the primary decision was made by the delegate of the respondent on 25 November 1997: Repatriation Commission v Keeley (2000) 98 FCR 108.
Findings on material questions of fact and consideration of issue
It is common ground that the applicant suffers from the following relevant conditions, namely, a lower back condition, a neck condition, a right shoulder condition, and a knee condition.
The Lower Back Condition

On the basis of the medical evidence before it, the Tribunal finds that the applicant suffers from the condition of lumbar spondylosis. The question is whether that condition is war-caused or defence-caused, within the meaning of the Act.
As regards the question whether the applicant's lumbar spondylosis is war-caused, in the case that it is connected with the circumstances of his operational service, the appropriate standard of proof to be applied by the Tribunal is that of reasonable hypothesis in accordance with subss 120(1) and 120(3), together with subs 120A(3), of the Act. In applying that standard of proof, the Tribunal will proceed in accordance with the 4–stage approach outlined by the Federal Court of Australia (Full Court) in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97–98.
First, does the material before the Tribunal point to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his operational service? The Tribunal finds that the applicant's evidence (which was uncontradicted and which the Tribunal accepts) and the statutory declaration of Pastor Sparrowhawk (Exhibit A10), together with the medical reports of Mr P C Anderson (Exhibit A2, pp 27–30), do point to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his operational service – specifically, the incident on board HMAS Queenborough at about the end of June 1961 when the applicant fell down a hatch landing on top of the butcher (Sparrowhawk), described in paragraph 15 above.
The relevant SoP concerning Lumbar Spondylosis which is applicable in this case is Instrument No 165 of 1996 which relevantly states:
"…
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:
…
(g) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
'relevant service' means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
'trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. …
…".

The next matter to be considered is whether the hypothesis referred to in paragraph 38 above is a reasonable one. That hypothesis will be reasonable if it fits, or is consistent with, the "template" in the abovementioned SoP. Clause 5 of that SoP lists various alternative minimum factors, at least one of which must exist and, according to clause 4, must be related to the applicant's operational service, before it can be said that a reasonable hypothesis has been raised connecting the applicant's lumbar spondylosis with the circumstances of that service. The relevant factor in the present case is that specified in para (g) of cl 5.
The factor specified in para (g) of cl 5 is:
"Suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis".

The phrase "trauma to the lumbar spine" is defined exhaustively in cl 7 (see paragraph 39 above). The applicant's oral evidence set out in paragraphs 15 and 16 above, and his statutory declaration of 3 February 2000 (Exhibit A7), raise the hypothesis that he suffered a "trauma to the lumbar spine", as defined in cl 7 of the SoP, when he fell down the hatch on HMAS Queenborough at about the end of June 1961 on the basis that:

·he injured his back in that fall and immediately developed "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement" of his lumbar spine in that he was unable to lift himself up after the fall and his back was so sore and stiff that he could not bend over or climb into his hammock and was accordingly given permission to sleep on a stretcher on the floor; and
·those acute symptoms and signs lasted for a period of at least one week immediately after the injury occurred in that he was still experiencing those symptoms after the ship arrived at Darwin about a week after the incident. According to the raised hypothesis, the applicant suffered the abovementioned trauma to the lumbar spine before the clinical onset of his lumbar spondylosis, there being no suggestion that he was suffering from lumbar spondylosis prior to the abovementioned incident on HMAS Queenborough at about the end of June 1961.

The Tribunal is of opinion, therefore, that the abovementioned raised hypothesis, connecting the applicant's lumbar spondylosis with the circumstances of his operational service, contains the factor specified in para (g) of cl 5 of the relevant SoP and, accordingly, that raised hypothesis is a reasonable one.
The final matter to be considered by the Tribunal is whether, for the purposes of s120(1) of the Act, it is satisfied beyond reasonable doubt that the applicant's lumbar spondylosis is not a war-caused disease within the meaning of s9 of the Act. The Tribunal will be so satisfied if it is satisfied beyond reasonable doubt that one or more of the raised facts necessary to support the abovementioned reasonable hypothesis does not, or do not, exist, or if it is satisfied beyond reasonable doubt that another fact which is inconsistent with that hypothesis does exist. In either case the Tribunal will be satisfied beyond reasonable doubt that the relevant hypothesis is not proved and that, accordingly, there is no sufficient ground, within the meaning of s120(1) of the Act, for deciding that the applicant's lumbar spondylosis was war-caused: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
The Tribunal accepts the applicant's evidence (which was uncontradicted) in relation to his sustaining a back injury in the incident when he fell down a hatch on HMAS Queenborough at about the end of June 1961 and in relation to the physical symptoms he experienced in his lumbar spine by reason of that injury, as set out in paragraphs 15–16 above. The Tribunal also accepts the applicant's explanation for his not attending the sick bay and seeking treatment for his back at the time – namely, that he wanted to avoid being stigmatised by his shipmates as a "sick bay jockey" or a "bludger" and did not want to show weakness to his shipmates or to jeopardise his beer issue and shore leave. The Tribunal is not satisfied beyond reasonable doubt that any of the raised facts necessary to support the reasonable hypothesis, as set out in paragraphs 41-42 above, does not exist; nor is the Tribunal satisfied beyond reasonable doubt that any fact exists which is inconsistent with that reasonable hypothesis.
On the material before, therefore, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's lumbar spondylosis "resulted from an occurrence that happened while the [applicant] was rendering operational service" or "arose out of, or was attributable to," the operational service rendered by the applicant, within the meaning of paras (a) and (b) of s9(1) of the Act. Accordingly, the Tribunal determines, in accordance with s120(1) of the Act, that the applicant's lumbar spondylosis is a war-caused disease, within the meaning of s9(1) of the Act.
Although that finding makes it unnecessary for the Tribunal to consider whether the applicant's lumbar spondylosis is a defence-caused disease, in the sense that it is connected with the circumstances of his defence service, the Tribunal will nevertheless also consider that matter and make a finding thereon. Section 120(4) of the Act requires that that matter be determined by the Tribunal "to its reasonable satisfaction" – that is, on the balance of probabilities or the civil standard of proof. In accordance with s120B(3) of the Act, the Tribunal will be reasonably satisfied that the applicant's lumbar spondylosis was defence-caused if the material before it raises a connection between that disease and the applicant's defence service and the relevant SoP, determined under s196B(3) of the Act, upholds the contention that that disease is, on the balance of probabilities, connected with that service.
The relevant SoP in relation to that issue is Instrument No 166 of 1996 which relevantly states:
"…
Basis for determining factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person's relevant service are:
…
(f) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
'relevant service' means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
'trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. …
…".

The relevant material before the Tribunal in relation to this matter is the applicant's evidence, and the corroborating statutory declaration of Kevin Kenyon, dated 10 November 1999, (Exhibit A6) concerning an incident which was said to have occurred on board HMAS Melbourne in early September 1978 when the applicant, Mr Kenyon and two others were lowering a box down a hatch. The applicant's evidence (which was uncontradicted and which the Tribunal accepts) was that he slipped over, the box fell onto him and he landed on his back on a "breakwater", following which he was unable to stand up and had to be stretchered-up through the hatch and, after initially refusing to go to the sick bay, he eventually did so about 2 weeks later because of the persistent soreness of his back (see paragraph 17 above). In his statutory declaration Mr Kenyon stated that, in that incident, the applicant hurt his neck and back and was "in pain and had trouble getting around for the next 2 or 3 weeks" and that, following that incident, he "assisted [the applicant] from his cabin to work, helped him up ladders and ashore, to meals, ablutions etc".
On the basis of that material, the Tribunal finds that, in the abovementioned incident, the applicant suffered a "trauma to the lumbar spine" (as defined in cl 7 of the SoP) in that he sustained an injury to his lumbar spine and he immediately developed "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement" of his lumbar spine, which symptoms and signs lasted for a period of at least 2 weeks immediately thereafter. As regards the date of clinical onset of the applicant's lumbar spondylosis, prior to his discharge from the Navy in May 1979, there was still no diagnosis of lumbar spondylosis and the presence of degenerative changes in his lumbar spine was not confirmed until September 1995, as reported by Mr Tiller on 15 June 1999 (Exhibit A2, p2) – although Mr Tiller expressed the opinion in that report that the applicant "certainly had degenerative changes in his … lumbar spine prior to his presentation … on 18 August 1994". On the basis of the material before it, the Tribunal is unable to make a finding as to the date of clinical onset of the applicant's lumbar spondylosis but the Tribunal is satisfied that the date of clinical onset was subsequent to the abovementioned incident in early September 1978.

Accordingly, the Tribunal finds that, in the abovementioned incident in early September 1978, the applicant suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis, within the meaning of cl 5(f) of the relevant SoP. As that incident occurred in the course of the applicant's defence service on HMAS Melbourne, his suffering the abovementioned trauma to his lumbar spine is, of course, related to his defence service, as required by cl 4 of the SoP.
In accordance with subss 120(4) and 120B(3) of the Act, therefore, the Tribunal is reasonably satisfied that the applicant's lumbar spondylosis "arose out of, or was attributable to," his defence service and, accordingly, finds that his lumbar spondylosis is not only a war-caused disease, within the meaning of s9(1) of the Act (see paragraph 45 above), but is also a defence-caused disease, within the meaning of s70(5)(a) of the Act.

The Neck Condition

On the basis of the medical evidence before it, the Tribunal finds that the applicant suffers from cervical spondylosis. The question is whether that condition is war-caused or defence-caused, within the meaning of the Act.
As regards the question whether the applicant's cervical spondylosis is war-caused, in the sense that it is connected with the circumstances of his operational service, the Tribunal accepts that the material before it, including the applicant's evidence, the statutory declaration of Derek Phillips (Exhibit A11) and the medical reports of Mr P C Anderson (Exhibit A2, pp27 – 30), points to a hypothesis connecting the applicant's cervical spondylosis with the circumstances of his operational service. The question whether that hypothesis is a reasonable one, however, is to be determined in accordance with the provisions of the relevant SoP.
The relevant SoP concerning Cervical Spondylosis is Instrument No 161 of 1996 which relevantly states:
"…
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis had been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of a person's relevant service are:
…
(g) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
'relevant service' means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
'trauma to the cervical spine' means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. …
…".

Clause 5 of that SoP lists various alternative minimum factors, at least one of which must exist and, according to cl 4, must be related to the applicant's operational service, before it can be said that a reasonable hypothesis has been raised connecting the applicant's cervical spondylosis with the circumstances of that service. The relevant factor in the present case is that specified in para (g) of cl 5.
The factor specified in para (g) of cl 5 is:
"suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis".

The phrase "trauma to the cervical spine" is defined exhaustively in cl 7 (see paragraph 54 above). In the Tribunal's opinion the raised hypothesis does not extend to the proposition that the applicant, in the course of his operational service, suffered an injury to his cervical spine that caused the development within 24 hours of "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement" of his cervical spine, which lasted for a period of at least one week immediately thereafter. The raised hypothesis does not, in the Tribunal's assessment, extend beyond the proposition that the applicant, in the course of his operational service, suffered periodic injuries or strains to his neck and experienced periodic neck pain or stiffness.

The opinion of the Tribunal is, therefore, that the raised hypothesis connecting the applicant's cervical spondylosis with the circumstances of his operational service does not contain the relevant minimum factor specified in para (g) of cl 5 of the relevant SoP – namely, "suffering a trauma to the cervical spine" (as defined in cl 7) – and is, accordingly, not a reasonable hypothesis. It necessarily follows, pursuant to s120(3) of the Act, that the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's cervical spondylosis is war-caused.
Accordingly, the Tribunal finds, in accordance with s 120(1) of the Act, that the applicant's cervical spondylosis is not a war-caused injury or a war-caused disease, within the meaning of s 9(1) of the Act.
Is the applicant's cervical spondylosis defence-caused, in the sense that it is connected with the circumstances of his defence service? The relevant SoP in relation to that issue is Instrument No 162 of 1966 which relevantly states:
" …
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person's relevant service are:
…
(f) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
(j) suffering a trauma to the cervical spine before the clinical worsening of cervical spondylosis.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(h) to 5(j) apply only to material contribution to, or aggravation of, cervical spondylosis where the person's cervical spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
…
'relevant service' means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
'trauma to the cervical spine' means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. …
…".

Both para (f) and para (j) of cl 5 of the SoP are potentially relevant to this issue because, on one view, the date of clinical onset of the applicant's cervical spondylosis was prior to his defence service which commenced on 7 December 1972 (see the report of Mr PC Anderson, dated 16 April 1999, (Exhibit A2, pp 27–30) who refers to "documented evidence of cervical spondylosis in 1970", namely, an x-ray report dated 26 May 1970); whereas, on another view, the applicant did not contract cervical spondylosis until some time after September 1973 (see the report of Mr M C Tiller, dated 15 June 1999, (Exhibit A2, pp 1–3) who notes that the x-ray report dated 26 May 1970 showed "some early changes at C5/6" but these were "not significant", whereas an x-ray report dated 28 September 1973 showed "no abnormality" in the applicant's cervical spine, thereby "suggesting that, with trauma, he then developed problems in regard to his cervical spine").
Both para (f) and para (j) of cl 5 of the SoP, however, require "suffering a trauma to the cervical spine" (as defined in cl 7) before the clinical onset, or clinical worsening, respectively, of cervical spondylosis. In the Tribunal's assessment, there is insufficient evidence or material before it to establish to its reasonable satisfaction that the applicant suffered a "trauma to the cervical spine" (as defined in cl 7 of the SoP) in connection with his defence service (including the incident of early September 1978 on HMAS Melbourne referred to in paragraph 17 above and in the statutory declaration of Kevin Kenyon (Exhibit A6)).
Accordingly, the Tribunal finds that neither the factor specified in para (f), nor the factor specified in para (j), of cl 5 of the SoP is satisfied in relation to the applicant's defence service. It necessarily follows, pursuant to subss 120(4) and 120B(3) of the Act, that the Tribunal cannot be reasonably satisfied that the applicant's cervical spondylosis "arose out of, or was attributable to," his defence service or "was contributed to in a material degree by, or was aggravated by", his defence service. The Tribunal finds, therefore, that the applicant's cervical spondylosis is not a defence-caused injury or a defence-caused disease, within the meaning of para (a) or para (d) of s70(5) of the Act.
The Right Shoulder Condition
On the basis of the medical report of Mr P C Anderson dated 16 April 1999 (Exhibit A2, pp 27–30), the Tribunal finds that the applicant suffers from the condition of adhesive capsulitis of the right shoulder.
As regards the issue whether the applicant's capsulitis of the right shoulder is war-caused or defence-caused, it was ultimately conceded by Mr Vucak (for the applicant) that that condition was neither war-caused nor defence-caused, within the meaning of, respectively, s9(1) and s70(5) of the Act. In the Tribunal's opinion, that concession was rightly made because, on the material before the Tribunal, the requirements of the relevant SoPs – namely, Instrument No 69 of 1996 and Instrument No 70 of 1996 – are clearly not satisfied because, among other reasons, there is simply no evidence regarding the time of clinical onset of the applicant's capsulitis condition. Accordingly, any raised hypothesis that the applicant's capsulitis condition is connected with the circumstances of his operational service cannot be regarded as reasonable; nor can the Tribunal be satisfied on the balance of probabilities that that condition is connected with the circumstances of the applicant's defence service.
The Tribunal finds, therefore, that the applicant's adhesive capsulitis of the right shoulder is not a war-caused injury or a war-caused disease, within the meaning of s9(1) of the Act; and, furthermore, is not a defence-caused injury or a defence-caused disease, within the meaning of s 70(5) of the Act.
The Knee Condition
On the basis of the medical evidence before it, the Tribunal finds that the applicant suffers from osteoarthrosis of both knees.
As regards the issue whether the applicant's osteoarthrosis of the knees is war-caused or defence-caused, it is fair to say that this matter was not strongly pressed by Mr Vucak (for the applicant), although he did not go so far as to concede that that condition was neither war-caused nor defence-caused, within the meaning of, respectively, s9(1) and s70(5) of the Act. In the Tribunal's opinion, however, such a concession would have been appropriate having regard to the evidence in this case because, on that evidence, the requirements of the relevant SoPs – namely, Instrument No 71 of 1995, as amended by Instruments Nos 336 and 352 of 1995, and Instrument No 72 of 1995, as amended by Instruments Nos 337 and 353 of 1995 – are not satisfied because, among other reasons, there is no hypothesis, let alone evidence, that the applicant suffered "swelling" or "altered mobility or range of movement" of his knees (for the purposes of the requirement of "suffering a trauma to the relevant joint" as defined in cl 6 of each SoP) during either his operational service or his defence service. Accordingly, any raised hypothesis that the applicant's osteoarthrosis of the knees is connected with the circumstances of his operational service cannot be regarded as reasonable; nor can the Tribunal be satisfied on the balance of probabilities that that condition is connected with the circumstances of the applicant's defence service.
The Tribunal finds, therefore, that the applicant's osteoarthrosis of both knees is not a war-caused injury or a war-caused disease within the meaning of s9(1) of the Act; and, furthermore, is not a defence-caused injury or a defence-caused disease, within the meaning of s70(5) of the Act.
Is the applicant entitled to the special rate of pension pursuant to s24 of the act?
the legislation
Section 24 of the Act relevantly provides:
"(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;
and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…".

Section 73 of the Act provides:

"(1) The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.

(2) For the purposes of the application of the provisions of Divisions 4 and 5 of Part II as provided in subsection (1):
(a) a reference in those provisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(b) a reference in those provisions to a war-caused disease shall be read as a reference to a defence-caused disease;
(c) a reference in those provisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force; and
(d) a reference in those provisions to Part II shall be read as a reference to Part IV."

By virtue of subss (5) and (9) of s 19 of the Act, the relevant "assessment period" during which the appropriate rate of the applicant's disability pension is to be assessed by the Tribunal commenced on 22 July 1997 – that is, the date on which his pension claim was lodged with the Department of Veterans' Affairs. In accordance with s120(4) of the Act, the Tribunal is required to determine this matter to its "reasonable satisfaction".
findings on material questions of fact and consideration of issue

It is common ground that the conditions prescribed by paras (aa), (aab), (a) and (d) of s24(1) of the Act are satisfied in the present case, and the Tribunal so finds. The questions for the Tribunal 's determination are, therefore, whether paras (b) and (c) of s24(1) are also satisfied in this case.
The condition prescribed by para (b) of s24(1) of the Act is that the veteran must be "totally and permanently incapacitated" in the sense that "the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week". The medical evidence before the Tribunal clearly supports the proposition that the applicant is incapable of undertaking any remunerative work. Dr O Kay, Psychiatrist, is his report dated 7 May 1998 (Exhibit A2, pp 39–40) opined that the applicant "is incapable of working and this is largely because of his Anxiety Disorder". Mr P C Anderson, Rehabilitation Specialist, in his consolidated report dated 16 April 1999 (Exhibit A2, pp 27–30) stated, the context of commenting on the applicant's incapacity by reason of his lumbar spondylosis, that "this man cannot work". On the basis of that medical evidence, the Tribunal finds that the applicant is "incapable of undertaking remunerative work for periods aggregating more than 8 hours per week", within the meaning of para (b) of s24(1) of the Act. The Tribunal also finds, on the basis of that medical evidence, that the applicant's incapacity from his war-caused diseases – namely, generalised anxiety disorder and lumbar spondylosis – is "of such a nature as, of itself alone, to render" the applicant so incapable.
Accordingly, the Tribunal determines that the condition prescribed by para (b) of s24(1) of the Act is satisfied in the present case.
The condition prescribed by para (c) of s24(1) of the Act comprises the following elements:
·the veteran was undertaking remunerative work;
·the veteran is prevented from continuing to undertake such remunerative work by reason of incapacity from the relevant war-caused injury or war-caused disease, or both, alone; and
·by reason of being so prevented, the veteran is suffering a loss of salary or wages, or of earnings on their own account, that they would not be suffering if they were free of that incapacity.

There is no dispute that the applicant was undertaking remunerative work at the relevant time – namely, his employment with Sealanes which he ceased on 27 February 1997.
As regards the second abovementioned element, the Tribunal accepts the applicant's evidence that it was his back pain that prevented him from continuing with his employment with Sealanes. The Tribunal also notes the opinions of Dr Kay and Mr Anderson (referred to in the preceding paragraph) regarding the contribution made by the applicant's war-caused diseases of generalised anxiety disorder and lumbar spondylosis to his inability to undertake work or to continue to work. The Tribunal further notes that the applicant also has other physical ailments which have been determined not to be war-caused or defence-caused – namely, cervical spondylosis, adhesive capsulitis of the right shoulder and osteoarthrosis of both knees. There is also some evidence that the applicant has additional physical ailments (which are not claimed to be service-related) in his left shoulder, left wrist, both thumbs, and both ankles, together with bilateral varicose veins and eczema and ulcer of the right lower leg (see T15, p139). The Tribunal finds, however, that the abovementioned non-war-caused, or non-defence-caused, conditions, either individually or collectively, did not play any causative role in preventing the applicant from continuing to undertake the remunerative work that he was undertaking at the relevant time. Instead, the Tribunal finds that it was the applicant's incapacity from his war-caused diseases of generalised anxiety disorder and lumbar spondylosis, alone, which prevented him from continuing to undertake that remunerative work.
Finally, there is nothing in the material to suggest – and Mr Ponnuthurai (for the respondent) did not contend – that, had the applicant not been suffering from his war-caused diseases of generalised anxiety disorder and lumbar spondylosis, he would not have continued to work for Sealanes or undertaken other suitable remunerative work. The applicant was aged only 57 years when he ceased employment, had consistently worked long hours and was described by Mr B Liberatore, the Financial Controller and Company Secretary of Sealanes, in his statement dated 24 August 1999 (Exhibit A8) as "a very hard working, dedicated and honest employee". The Tribunal is reasonably satisfied that the applicant, if he were free of the incapacity from his war-caused diseases of generalised anxiety disorder and lumbar spondylosis, alone, would have continued to work for Sealanes or would have undertaken other suitable remunerative employment. The Tribunal finds, therefore, that, by reason of the applicant's being prevented, by incapacity from those war-caused diseases alone, from continuing to undertake remunerative work that he was undertaking, he is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.
Accordingly, the Tribunal determines that the condition prescribed by para (c) of s24(1) of the Act is satisfied in the present case.
The Tribunal finds, therefore, that the applicant satisfies all the requirements prescribed by s24(1) of the Act and, accordingly, is entitled to the special rate of pension, pursuant to s24 of the Act.
The Tribunal also finds that, pursuant to s20(1) of the Act, the special rate of pension is payable to the applicant with effect from 22 April 1997 – that is, the date 3 months before his claim for disability pension was lodged with the Department of Veterans' Affairs.
Decision
For the above reasons the Tribunal sets aside the decisions under review and, in substitution therefor, decides that:
·the applicant's generalised anxiety disorder is a war-caused disease, within the meaning of s9(1) of the Act;
·the applicant's lumbar spondylosis is a war-caused disease, within the meaning of s9(1) of the Act, and a defence-caused disease, within the meaning of s70(5) of the Act; and
·the applicant is entitled to the special rate of pension, pursuant to s24 of the Act;

with effect from 22 April 1997.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Senior Member, Brigadier RDF Lloyd, Member, and Dr D Weerasooriya, Member
Signed:   -(sgd W.Treasure)-           .....................................................................................
  Associate
Date/s of Hearing  6 September 2000
Date of Decision  19 January 2001
Counsel for the Applicant        Mr A Vucak
Solicitor for the Applicant         Kott Gunning
Counsel for the Respondent    Mr C Ponnuthurai
Solicitor for the Respondent