Lemon and Repatriation Commission - [2001] AATA 763

DECISION AND REASONS FOR DECISION [2001] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1182

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE LEMON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member, Dr J D Campbell Member

Date6 September 2001
PlaceSydney
DecisionThe decision under review is set aside and the Tribunal substitutes the following decision:

The Applicant's disability of lumbar spondylosis is a war-caused disability.
The Applicant qualifies for payment of Disability Pension at the special rate.
The date of effect of this decision is 18 September 1998.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – Special Rate of pension - war caused disability - post traumatic stress disorder – deterioration of condition – lumbar spondylosis – trauma to the lumbar spine - bilateral sensori-neural hearing loss – reasonable hypothesis linking condition to operational service – standard of proof - Far East Strategic Reserve - restriction of thoracolumbar spinal movement – trauma to lumbar spine
Veterans' Entitlements Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), 120A(1), (3)
Statement of Principles concerning Lumbar Spondylosis, No 27 of 1999
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission [2000] FCA 873
Arnott v Repatriation Commission [2001] FCA 262
Harris v Repatriation Commission [2000] FCA 1687

REASONS FOR DECISION

6 September 2001 M J Sassella, Senior Member

History of the application

On 18 December 1998 the Applicant lodged a formal claim form with the DVA for a Disability Pension in respect of "right knee, right wrist and back pain" (T9). The Applicant was also requesting an increase in his Disability Pension due to the deterioration of his post-traumatic stress disorder ("PTSD") since the last determination. His accepted disabilities at that time were already bilateral sensori-neural hearing loss ("BSHL") and PTSD.
On 24 May 1999 the Applicant lodged a "claimant report – trauma" with the DVA in respect of lumbar spondylosis (T13). He stated that he had had an ongoing history of back pain since "the second injury in 1963." The Applicant had suffered injuries in June-July 1956, on 12 September 1963 and in mid-1965.
On 15 July 1999 the Repatriation Commission ("the Respondent") refused the claim in respect of chrondomalacia patellae of the right knee, fracture of the right wrist and lumbar spondylosis (T15). The Respondent further refused the application to increase Disability Pension. Pension was continued at 90% of the general rate.
On 7 October 1999 the Applicant lodged an application for review of the Respondent's decision with the Veterans' Review Board ("the VRB") (T16). The Applicant included a detailed statement with his application which will be examined later in these reasons.
On 15 November 1999 the Respondent wrote to the Applicant informing him that it had decided not to conduct a review of his application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T17).
The decision under review
On 4 May 2000 the VRB affirmed the Repatriation Commission decision in relation to lumbar spondylosis but set aside those decisions in relation to the right knee and right wrist (T18). The VRB found that chrondomalacia patellae of the right knee and fracture of the right wrist were war caused conditions with date of effect being 18 September 1998. The Applicant's Disability Pension was increased to 100% of the general rate from and including that date. In relation to lumbar spondylosis the VRB noted that the Applicant had "frankly conceded that his back had not been 100% before his eligible service." Apart from the incident when the Applicant jumped from a helicopter in Vietnam whilst under heavy fire, there had been no other traumas suffered. He had not reported his back condition whilst in Vietnam. The VRB found that there was no trauma to the spine suffered by the Applicant that was sufficient to satisfy the relevant SoP. The VRB was of the opinion that, while the Applicant may have suffered trauma to the lumbar spine, it was not of sufficient severity to satisfy the SoP definition. None of the minimum factors in the SoP were satisfied and therefore no reasonable hypothesis could be raised linking the Applicant's back condition and his war service.
On 31 July 2000 the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") (T1).
Relevant legislation and Statements of Principles
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), 120A(1), (3):
"6C Operational service - post World War 2 service in operational areas
(1)       Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
          (a)       a member who was allotted for duty in that area; or
          (b)       a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…"
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
          (a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…"
"9 War-caused injuries or diseases
(1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
          (a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
(e)       the injury suffered, or disease contracted, by the veteran:
(i)        was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war 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 eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
          ….
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(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.
(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.
…"
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
          …
(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.
…"

Also relevant is the Statement of Principles ("SoP") No 27 of 1999 concerning lumbar spondylosis:

"Kind of injury, disease or death
2. (a) This Statement of Principles is about lumbar spondylosis and death from lumbar spondylosis.
(b) For the purposes of this Statement of Principles, "lumbar spondylosis" means degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-CM code 721.3, 721.42 or 722.52.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out 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:
…
(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
(s) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(m) to 5(u) apply only to material contribution to, or aggravation of, lumbar spondylosis where the person's lumbar 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), 70(5)(d) or 70(5A)(d) of the Act refers.
…
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM 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 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies."

Background

The Applicant was born on 12 April 1938. He completed operational service in Far East Strategic Reserve from 1 September 1960 to 12 November 1961 and from 18 February 1968 to 4 February 1969 in Vietnam. The Applicant's eligible service dates from 7 December 1972 to 22 June 1976 (T15).
The Applicant now has the accepted conditions of BSHL, PTSD, chrondomalacia patellae of the right knee and fracture of the right wrist.
The following information is from the report of Dr Koller (T4).
The Applicant left school at the age of 17 in 1955. He was the youngest of eight brothers.
The Applicant joined the Army on 20 June 1955 and went to serve in Malaya in 1960-1961 (Exhibit R1) and to Vietnam in 1968. He was in the Army and Army Reserve for a total of 21 years. After leaving the Army the Applicant worked variously as a poultry worker, in an abattoir, as a fencer and then running his own turkey business.
The Applicant has been married for 38 years. He and his wife have two children.
Documentary medical and other evidence
On 16 February 1999 Dr Stenback completed a medical impairment assessment in respect of the Applicant's thoraco-lumbar spine condition (T10). He noted lower back pain in the right side when standing and a dull backache when walking. Dr Stenback noted a 25% restriction of thoracolumbar spinal movement.
On 31 May 1999 Dr Hopcroft, general orthopaedic surgeon, reported on the Applicant (T14). The Applicant recalled that, while stationed at Middle Head in 1956 he had fallen, severely injuring and bruising his back. He suffered another injury when working in a gym in 1963 and, again in 1963, whilst undertaking physical instruction, he had again injured his back. In 1965 he again hurt his back when he lifted a gun barrel from a truck. This report confirmed a diagnosis of lumbar spondylosis, and he stated that the Applicant "has commenced to develop bilateral sciatica, almost certainly arising from the accumulated effects of the injuries he has suffered."
Attached to the Applicant's application for review to the VRB was a lengthy statement in support of his case, dated 4 October 1999 (T15). He stated that he reported to the Battery Commander that both knee and back injuries occurred on 13 May 1968 in Vietnam when they occurred. The Applicant further stated that there was pain and loss of mobility for days, but he "kept his mouth shut", thinking that it was a minor injury. He then referred to the opinion of Paul Ekman, physiotherapist, who stated that "the degeneration of the spine appears to be the result of an injury in the area of the L4/5."
On 20 December 2000 Professor Sambrook reported on the Applicant (Exhibit A1). He took a more detailed history of the Applicant's back injuries. Back pain first developed in 1956 when he was struck by the breech of a gun. He was knocked backwards and fell across the legs of the gun. The pain lasted one to two weeks. In 1963 he strained his lumbar spine during weight training. The Applicant was in hospital for four days and suffered occasional pain thereafter. The next incident was in 1965 when the Applicant was unloading a gun barrel. The barrel slipped, pulling him forwards. The resultant pain lasted one to two weeks. The Applicant also recalled feeling pain in his back when jumping from a helicopter in Vietnam. The final episode was in 1973 when he tripped over the trail of a gun, severely injuring his back. Professor Sambrook was of the opinion that the incidents of 1956, 1963 and 1965 were of sufficient severity to trigger lumbar spondylosis. The history meets the requirements of the test in regard to factor 5(s) of the SoP. Professor Sambrook noted that a consistent history of back trouble was recorded in the Applicant's service file. He assessed the Applicant as having an impairment rating of 10 points for the lumbar spine, 10 points for the right knee and 15 for the right wrist.
On 20 and 21 December 2000 the Applicant was assessed at the Vocational Capacity Centre (Exhibit R2). The Applicant's disability was found to be consistent with his symptoms and that intensive occupational rehabilitation was required to assist him in finding an appropriate category of work.
In yet another assessment by the Vocational Capacity Centre on 20 December 2000 (Exhibit R3). A detailed history of the Applicant's personal, PTSD and service history was taken and Mr Defina, the assessor, found that the Applicant's "aggressive demeanour and presentation would prevent him from obtaining employment." However it was also found that the Applicant could work for 20 hours or more a week in a position that did not require interpersonal contact.
On 20 January 2001 Dr Roldan provided a further report on the Applicant (Exhibit R1). He took a detailed history of the Applicant's Vietnam experiences. The Applicant was responsible for artillery fire, but could not be certain that he killed enemy soldiers. On a number of occasions he was under mortar and rifle fire. Once he was in a fire support base that was attacked by North Vietnamese troops. The Applicant suffered flashback episodes in the 1980s. He also saw two young girls shot dead by machine gun fire when they emerged from a hole in the ground. The Applicant recalls this image frequently. On another occasion he and a battery commander drove a prisoner to an army base where the prisoner was later killed. He also once pulled a dead North Vietnamese soldier from a "spider hole". Dr Roldan noted emotional detachment, difficulties expressing positive emotions, social withdrawal and reactivity when reminded of distressing events. The Applicant and his wife sleep in separate rooms because of his restlessness. He also reported the Applicant's hypervigilance. Dr Roldan diagnosed "PTSD – chronic" and stated:
"It is my opinion that the combined effects of his moderately severe [PTSD] and his alleged physical problems may be of sufficient severity to prevent Mr Lemon from obtaining employment in the open labour market."

On 21 February 2001 Ms Lawlor from the Vocational Capacity Centre provided a vocational assessment on the Applicant (Exhibit R2). The Applicant was found not to be suitable for employment where he would have contact with the public. He was also not suitable for sedentary positions. It was found that he would be suitable for only a limited number of positions, three of which were mentioned - postal delivery officer, meter reader or parking inspector. This was emphasised in the Job Match Report of 21 February 2001 (Exhibit R5).
Hearing and appearances
The Tribunal convened a hearing on 12 July 2001. Ms Anastasia Toliopoulos from the Legal Aid Commission of NSW represented the Applicant. Ms Melinda Doggett from the DVA represented the Respondent.
Documentary evidence

The Tribunal had before it the following documentary evidence which was given the following exhibit numbers:

Exhibit TD1 – Section 37 Statement and associated documents provided by the DVA, 28 August 2000.

Exhibit A1 – Report by Professor P N Sambrook, rheumatologist, 20 December 2000.

Exhibit A2 – Applicant's statement of facts and contentions, 19 February 2001.

Exhibit A3 – Applicant's chronology of injuries.

Exhibit A4 – Report by Dr M Burns, occupational physician, 15 November 2000.

Exhibit A5 – Applicant's own medical records (provided to the Tribunal on 30 August 2001 as the result of an undertaking to the Tribunal by the Applicant).

Exhibit R1 – Report by Dr F Roldan, psychologist, 20 January 2001.

Exhibit R2 – Report by Ms Lawlor on employment potential, 21 February 2001.

Exhibit R3 – Report by Ms Lawlor on functional capacity, undated.

Exhibit R4 – Vocational assessment by Mr Defina, 20 December 2000.

Exhibit R5 – Job match report, 21 February 2001.

Exhibit R6 – Respondent's statement of facts and contentions, 9 July 2001.

Exhibit R7 – VRB transcript (provided to the Tribunal on 25 July 2001 as the result of an undertaking to the Tribunal by the Respondent).

Findings on material questions of fact with reference to the evidence and other materials in support of those findings

The parties announced at the start of the hearing that they had reached agreement on a number of issues otherwise before the Tribunal for decision. The expectation had been that the Respondent's and the VRB's rejection of lumbar spondylosis as a war-caused condition would be in contention and, if that condition were to be an accepted disability, then the availability of a special rate Disability Pension would be in issue. The parties had agreed, however, that the only live issue is the war-caused nature of the Applicant's lumbar spondylosis. The Respondent was prepared to pay the pension at special rate if this disability becomes accepted. The Tribunal is not, of course, bound by such inter-party agreements but it will take them into account in deciding on how it will dispose of the application.
The Tribunal finds that the Applicant rendered operational service between 1 September 1960 and 12 November 1961 and from 18 February 1968 until 4 February 1969. He also rendered eligible service from 7 December 1972 until 22 June 1976 (T15).
The standard of proof in relation to operational service is the reasonable hypothesis standard (s 120(1), (3) of the Act).
The Tribunal finds that the Applicant lodged a valid claim in respect of his lumbar spondylosis on 18 December 1998 (T9).
The relevant SoP is SoP 27/1999 concerning lumbar spondylosis.
The Tribunal observes that the full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the Tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant.
The Applicant's disease is lumbar spondylosis as diagnosed by Dr Hopcroft (T14) and Professor Sambrook (Exhibit A1). The hypothesis connecting the Applicant's operational service to that disease is that during operational service in Vietnam he had to jump four feet from a hovering helicopter onto the ground while carrying a 35-40 kg pack and a radio aerial of some weight. On the hypothesis put forward he landed badly, striking a rock or branch, and injured his knees and back in the process. The Tribunal finds that there is sufficient material before it for it to agree that this hypothesis has arisen.
The second step is to ascertain whether there is a relevant SoP in force. The Tribunal has already found that SoP 27/1999 concerning lumbar spondylosis applies.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the Applicant's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission [2000] FCA 873 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

Again, in Arnott v Repatriation Commission [2001] FCA 262 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

There was considerable argument in the hearing about the application of step three in this case. As the Tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the Applicant, in the opinion of the Tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP. The SoP contains the following elements:
The Applicant must be said to suffer from lumbar spondylosis (SoP paragraph 2(b)).

The Applicant must have suffered a trauma to his lumbar spine related to his operational service before the clinical onset of lumbar spondylosis (SoP factor 5(h), paragraph 4, and definition of "trauma to the lumbar spine" in paragraph 8).

Alternatively, the Applicant must have suffered a trauma to the lumbar spine related to his operational service before the clinical worsening of lumbar spondylosis, the lumbar spondylosis not having arisen out of operational service (SoP factor 5(s) and paragraphs 4, 6 and 8).

The Applicant must be said to suffer from lumbar spondylosis (SoP paragraph 2(b)).

This part of the SoP is reflected in the Applicant's hypothesis. The Applicant's description of the condition in the claim form was "back pain" (T9). However, by the time he reached the review process the condition had been diagnosed as lumbar spondylosis (Dr Hopcroft, T14; Professor Sambrook, Exhibit A1; the Respondent, T15; the VRB, T18).
The Applicant must have suffered a trauma to his lumbar spine related to his operational service before the clinical onset of lumbar spondylosis (SoP factor 5(h), paragraph 4, and definition of "trauma to the lumbar spine" in paragraph 8).
On behalf of the Applicant it was argued that the episode in Vietnam on 13 May 1968 aggravated a pre-existing condition of lumbar spondylosis. The Respondent suggested that a preferable hypothesis might be that the Applicant's fall in Vietnam predated the clinical onset of his lumbar spondylosis. Ms Toliopoulos for the Applicant did not object when the Tribunal expressed its view that this was very possibly a preferable hypothesis. There is no onus of proof on the Applicant. The onus on the Tribunal is to consider the whole of the material put to it and assess the hypothesis that one would normally expect to be advanced by the Applicant. The Tribunal will act here as if this element was advanced by the Applicant.
That takes us to whether the Applicant's hypothesis supports there having been a "trauma to the lumbar spine". To mesh with the SoP requirements the following elements must all be present:

A discrete injury to the lumbar spine – the Tribunal notes that the Applicant proposes a discrete injury at the time he jumped from the helicopter. In oral evidence he said he felt or heard a "crack" in his back at the time.

Within 24 hours there must be the development of acute symptoms and signs of pain and tenderness.

Within 24 hours there must be either altered mobility or range of movement of the lumbar spine. It is questionable whether these must be acute.

The acute symptoms and signs must last for a period of at least seven days following their onset unless medical intervention occurred. In that case the medical intervention must have involved splinting of the lumbar spine, or injection of corticosteroids or local anaesthetics into the lumbar spine or surgery to the lumbar spine.

The Applicant's version of events in Exhibit A3 was as follows.

"DATE           13-5-68   Battery Commander's Assistant.
WHERE        Fire Support Base ("FSB") 'Coral' SVN.
INCIDENT     Injury to back and both knees during occupation of FSB Coral.
REPORTED 13-5-68 Maj Gavin Andrews BC next morning. Lt Col Bennett CO 1 RAR remarked on me limping. I told him I hurt my back and knees getting out of that bloody helicopter yesterday, but I was OK.
DIAGNOSIS None. We were heavily hit on the night 13-14 with heavy casualties and the medics had their hands full   We were hit again the next night along with FSB Balmoral and I kept out of the road. About a week later sprung a medic and got some horse linament. Soreness persisted for weeks, operation ended six weeks later. By then I had learnt to live with it.
AFTER          Continued pain and soreness in the short term 2-3 weeks, then easing off over a period of time to just bloody annoying when least expected. Have had lower back pain and problems since. Probably aggravated by a fall whilst instructing on the gun park at North Head mid 73 … and continued instructing on artillery pieces."

In his oral evidence at the hearing the Applicant had more to say. At the time the troops were being set down at FSB Coral the ground had not been cleared and the helicopters could not land. Hostile forces were in the vicinity and were taking pot shots. The helicopters hovered about four feet above ground and the fully laden troops jumped out. As the Applicant hit the ground his legs gave way. He hit a rock or branch and hurt his knees and back. He said that the forces were "clobbered" both that night and the next. The Applicant felt pain on impact and the pain remained for weeks. The Applicant had the limp already referred to. He spent nights in the command post under a ground sheet. He was in pain but pressed on and did his job. When he obtained the horse liniment he applied it on both knees, across his lower back and down the right side. He took no painkillers. As noted above, he grew used to the pain and it would reduce. However, the pain returned if he "tripped or something". The Applicant described a spirit of morale in the regiment that meant that, as far as possible, a soldier would continue to fight despite injuries.
The medical report dated 22 May 1969 reads, "Left knee is very sore – back of knee and behind knee cap. On examination has crepitus. Refer orthopaedic specialist." (T3, folio 20). The Applicant was unable to say why the report did not address his back in addition to his knee(s). He rejected a Tribunal query as to whether the knee pain immediately after the jump may have been more intense than the back pain.
In cross-examination a number of records were in question. One was a medical board report dated 7 April 1976 (T3, folio 31) in which the writer records a "History of low back pain (now resolved)". In T3 at folio 22 an orthopaedic specialist reports on seeing the Applicant in June 1969. There is no reference to a sore back. Squatting is normal. The Applicant had taken no time off duty. The Applicant suggested that injuries were regularly hidden by soldiers. They did not want to be sent home. They also did not want a reputation as "whingers". The Applicant explained that a soldier with an injured back would be sent home. A soldier with an injured leg would remain in Vietnam, which was the Applicant's preference.
In T3 at folio 26 the discharge history questionnaire refers to a back injury in 1963 in Wagga which "recurs occasionally". Knee injuries are also recorded. There is no mention of a back injury in 1968. The Applicant's recollection was that he had mentioned intermittent back pain that was "not that bad".
In T3 at folio 28 in a record of a medical examination dated 18 December 1975 the examiner records "Suffered back strain 1964 with slight recurrence but not for many years. O.E. Spinal movements full, free and painless." There is a similar assessment at folio 29 (7 April 1976).
In his claim form (T9) the Applicant claims in respect of back pain and explains the condition as "due to aggravation after knee injury". He claimed also for his right knee and wrote, "Being under enemy fire left a helicopter landing heavy on both knees."
Dr Hitchen's report dated 28 November 1998 (T11) records that Dr Stenback, the Applicant's general practitioner, referred him to Dr Hitchen "for an opinion on his right knee pain". The back is not mentioned.
In T13 the Applicant completed a questionnaire for DVA on his lumbar spondylosis and related trauma. The date was 24 May 1999. He emphasises an event in 1963, rather than the 1968 event in Vietnam, as the source of a problem, "ongoing history of back pain since the second injury in 1963". The Applicant explained to the Tribunal that he did not mention the Vietnam jump incident because he assumed the Respondent had the regimental medical report on the incident in its possession.
The VRB in its reasons (T18) interprets the Applicant as attributing the great part of his problems to his knee injury. The VRB records the Applicant as saying that his back had not been 100% before his eligible service. The report by Dr Hopcroft (T14) supported this. The Applicant insisted that he had told the VRB a great deal about his back pain. The VRB transcript was not available at the hearing. The Respondent's representative undertook to provide it as soon as she could obtain it. The Respondent sent a copy to the Tribunal on 25 July 2001 (Exhibit R7). The Tribunal's perusal of that transcript led the Tribunal to the following observations. The Applicant and the VRB did tend to concentrate on the Applicant's knee disabilities to a greater extent than the spinal disability. However, the situation as regards the lumbar spine was fully considered and all relevant facts were ventilated. It should be remembered that at the VRB there were more issues in contention. There was full argument as regards the knees, back and assessment. There was even some attention paid to the Applicant's wrist.
The Applicant gave evidence to the Tribunal that he fell flat to the ground after leaving the helicopter. He got up and walked about 80-100 metres. He dug "his hole", an indent about six feet four inches by two feet by six to 18 inches. He moved to a nearby rubber plantation after three or four days. He carried a kit of 15 to 20 kg but no large gun.
In oral evidence the Applicant said his back "hurt like bloody hell" when he hit the ground. He had to adopt means of removing his boots and socks without bending. He removed his socks using his toes. In later days he wore no socks and refrained from lacing his boots. He told Tribunal Member, Dr Campbell, that the pain lasted a week to a fortnight. It was really sore but he grew accustomed to it. It never melted away altogether. The soreness would return whenever the back was strained – even a reach could bring it on. However, eventually the Applicant was able to operate without considering the back.
The Applicant's account is that he jumped four feet from the helicopter, that he landed and fell on his knees, striking a rock or branch. He injured his knee and back. The pain was intense. He reported it the next day. He was observed to limp. He eventually reported to a doctor and was furnished with linament and offered medications. True it may be that the Respondent has raised a considerable number of factors designed to cast doubt on the Applicant's version of events. That material, however, relates more to the inquiry to occur under step four.
The Applicant has posited that within 24 hours of the injury there were acute symptoms and signs of pain and tenderness in accordance with the SoP. To understand what is required in this regard it is necessary to consider several cases. In Harris (supra) Finn J said at paragraph 31 that the injury must have caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. He refers to the Shorter Oxford English Dictionary ("SOED") definitions of "sign" and "symptom", both of which must be "acute". The SOED defines "acute" as sharp or acting keenly on the senses. The SOED defines a "sign" as "A token or indication (visible or otherwise) of some fact, quality, etc.". A "symptom" is "A (bodily or mental) phenomenon, circumstance, or change of condition arising from and accompanying a disease or affection and constituting an indication or evidence of it; a characteristic sign of some particular disease." Finn J says in paragraph 32, "there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility, etc."
This analysis was confirmed by the full Federal Court in Harris v Repatriation Commission [2000] FCA 1687, paragraph 51. That decision goes further in distinguishing between signs and symptoms in paragraph 52. Quoting from Butterworths Medical Dictionary (2nd ed, 1978) the Court says a symptom is "The consciousness of a disturbance of a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, e.g shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs."
A sign is "Objective evidence of a disease or deformity". The Court proceeds to state in paragraphs 53 and 54:
"53 Once regard is had to these uncontroversial medical usages, it is apparent that the definition in SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alteration lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what his Honour described as the 'balance' between the two clauses, the first of which required the 'development' of what, for practical purposes, are objective symptoms 'within 24 hours', and the second of which required that they 'last for a period of at least one week immediately after the injury occurs'. In our opinion, the requirement that symptoms, once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to 'altered mobility or range of movement'. It is unlikely that the provision relating to medical intervention was intended to apply only to cases of altered mobility or range of movement where intervention occurred within 24 hours. That, however, would be the consequence of the appellant's construction of the definition.
"54 We have not overlooked the fact that SoP No 27 of 1999 [the SoP relevant in the instant case – Tribunal] introduced an amended definition which more or less accords with the appellant's construction of SoP No 105 of 1995. As we understood Mr De Marchi's submissions, he did not suggest that the amended definition materially assists on the question of construction of the earlier definition. In any event, we do not think that it does assist. There is authority that amending legislation can be taken into account in the interpretation of prior legislation, at least to avoid a result that would render the amending legislation unnecessary or futile: Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70, at 86, per Dixon J; Hunter Resources Ltd v Melville (1988) 164 CLR 234, at 254-255, per Dawson J; cf Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, at 382, per Gummow J. This is not such a case. On the contrary, the amending SoP would be futile if the appellant's construction of the earlier SoP were to be adopted."

The full Federal Court in Arnott v Repatriation Commission (supra) also considered the meaning of "acute". The lead judgment by Merkel J at paragraph 30 says, "The Macquarie Dictionary definitions of 'severe' connote, relevantly, a pain that is extreme or harsh. Thus, although the difference in degree may not be substantial, an 'acute' pain does not necessarily equate with a 'severe' pain." In the next paragraph he writes, "as the AAT addressed only the question of whether the pain was 'sudden' and 'severe' it failed to address the question of whether the pain was 'acute', as defined in Harris, which was the question required to be addressed in stage three in Deledio … the AAT also erred in law in incorrectly requiring that, for a pain to be 'acute' it must be 'severe'." The Tribunal takes this to be an injunction to give full consideration to Finn J's comments that acute means sharp or acting keenly on the senses. This connotes perhaps some suddenness of onset. Certainly that was the interpretation put to the Tribunal by Ms Doggett.
While the full Court decision in Harris (supra) is instructive as regards the meanings of the terms "sign" and "symptom", it is instructive also in what it has to say about the SoP in issue in the instant case, SoP 27/1999 which, the Court suggests, carries a meaning different from the SoP being dealt with in Harris (supra). The full Court had the following comments:
"13 It will be recalled that the primary Judge held that the SoP applicable to the present case was No 105 of 1995 (as amended). Insofar as relevant to the present proceedings, that SoP provided as follows:
…
`trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery) and there is evidence relating to the extent of injury and treatment, such evidence may be considered; (Emphasis added.)"
"14 There was only one relevant difference between SoP No 105 of 1995 and the SoP in fact applied by the AAT (SoP No 52 of 1998). The latter referred to 'altered mobility or range of movement of that part of the spine' in the definition of 'trauma to the lumbar spine', while SoP No 105 of 1995 referred to 'altered mobility or range of movement of the joint'.
"15 There was a dispute between the parties to the present appeal as to the correct construction of the bolded words in the definition of 'trauma to the lumbar spine' in SoP no 105 of 1995 (reproduced in [13] above). The Commission contended that the words 'acute symptoms and signs of' qualified the phrase 'altered mobility or range of movement of the joint'. On the Commission's view, there could be no trauma of the lumbar spine unless the injury caused acute symptoms and signs of altered mobility or range of movement of the joint. On the appellant's view, trauma of the lumbar spine could occur whenever there was altered mobility or range of movement of the joint regardless of whether the alterations were accompanied by acute symptoms and signs.
"16 It should be noted that that a subsequent SoP, No 27 of 1999 (gazetted on 3 March 1999), substituted a new definition of 'trauma to the lumbar spine' which put the position beyond doubt. The definition was as follows:
'"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred....'
…
"54 We have not overlooked the fact that SoP No 27 of 1999 introduced an amended definition which more or less accords with the appellant's construction of SoP No 105 of 1995."

Their Honours, admittedly in obiter dicta, have decided that the definition under consideration in Mr Lemon's case permits there to be "trauma of the lumbar spine" where there are (i) acute symptoms and signs of pain and tenderness lasting for a period of at least seven days and (ii) altered mobility or range of movement of the lumbar spine, not necessarily for a period of seven days. The more recent definition abolishes some ambiguity in the earlier definition. The required effects on mobility or range of movement of the lumbar spine do not necessarily have to persist for at least seven days and do not necessarily have to be accompanied by acute signs and symptoms.
The Respondent observed that the Applicant's history is that he engaged in physical activity soon after he jumped from the aircraft and injured himself. The injury could not be significant, as required by Finn J in Harris (supra), if the Applicant could proceed to walk 80 to 100 metres and dig his "hole", as he said in evidence he had done. He also said he did some exercises he had learned as a physical training instructor that are beneficial to the spine. Again, this is a level of activity inconsistent with a significant injury.
It is difficult not to engage in a fact finding exercise in step three of Deledio (supra). There is an account given by the Applicant. There is a rebuttal by the Respondent wherein the Respondent refers to evidence before the Tribunal. However, the Tribunal takes the correct approach to be to have regard in the main to the Applicant's version in step three and see whether that meets the SoP template.
In that regard the Tribunal has already noted that the Applicant has described a discrete injury to the lumbar spine. The Tribunal observes that the Applicant has described the onset of severe and sudden lumbar pain. The Applicant says this occurred immediately he hit the ground and certainly within the 24 hour time requirement. His description of the problems he experienced would involve tenderness. He has experienced, on his account, symptoms of pain and tenderness. The signs of these phenomena, again on his account, would be the observed fact of his walking the next day with a limp and being seen to do so. Such an observable phenomenon is consistent also with an altered range of movement of the lumbar spine. It was the Applicant's evidence that this state of affairs continued for two or three weeks, that is in excess of the seven days required in the SoP.
The Applicant's injury has to be related to relevant service (SoP, paragraph 4). The Applicant's version of events suggests that the injury occurred in the context of operational service in Vietnam.
The Tribunal finds that step three of Deledio (supra) is satisfied. The Applicant's hypothesis reflects the requirements in SoP 27/1999.
Alternatively, the Applicant must have suffered a trauma to the lumbar spine related to his operational service before the clinical worsening of lumbar spondylosis, the lumbar spondylosis not having arisen out of operational service (SoP factor 5(s) and paragraphs 4, 6 and 8).
In view of the finding in respect of SoP factor 5(h) there is no requirement to examine this alternative. The Applicant had argued that he had experienced back injuries in 1956, 1963 and 1965 (Exhibit A3) and he told doctors in the Army that the Vietnam incident aggravated the occasional pain that he had from these incidents. However, apart from Professor Sambrook's opinion (Exhibit A1) that the incidents in 1956, 1963 and 1965 were of sufficient severity to trigger lumbar spondylosis, there was never a diagnosis of lumbar spondylosis and an x-ray taken on 20 April 1965 (T3, folio 24) demonstrated nothing abnormal as detected. While this would not necessarily be fatal for the Applicant in step three of Deledio (supra), it would be very likely a problem at step four.
The Tribunal's finding that step three has been satisfied means that the hypothesis raised by the Applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by Ms Doggett come into play. The Tribunal will assess these to ascertain whether they serve to satisfy the Tribunal beyond reasonable doubt that the Applicant's lumbar spondylosis was not war-caused.

There are numerous medical notes and reports dating from 1969 and including reports prepared for the present proceedings where there is little if any mention of lumbar spine problems affecting the Applicant. In addition to those mentioned above in these reasons (paragraphs 44-50 above) there are reports by Dr Koller (T4) and Dr Hopcroft (T14). The Respondent used this material to cast doubt on the severity of any original injury to the Applicant's lumbar spine during operational service and on the continuing effects of any such injury. The Applicant suggested that this was not quite correct and that he had medical records that refute it. He agreed to provide these to the Tribunal and they arrived on 30 August 2001 (Exhibit A5). They do not show, however, that the Applicant commenced to agitate his lumbar condition with doctors or paramedics until late 1998. They do show some lumbar spine problems, however, in 1967. The Tribunal found these matters of interest and they no doubt help explain why the Respondent elected to resist the Applicant's claim in respect of lumbar spondylosis. However, the Tribunal reads the evidence as suggesting that the Applicant experienced both lumbar and knee injuries when he hit the ground in May 1968 in Vietnam. As he said in his evidence, after a short period the Applicant learned to live with his lumbar disability. It would seem that as time passed he found it easier to adjust to that pain and to avoid exacerbating it than it was to deal with the knee pain. From a lay perspective this may not be surprising. It is difficult for a person to ignore a painful knee which is unavoidably irritated each time the person is mobile, whereas it may be possible to minimise the effect of a lumbar problem by means of exercise and adjustment of posture. The Tribunal noted the Applicant's credible explanation for citing his knee problem as the sole cause of difficulties while in Vietnam, ie a soldier could be sent home for a back problem but not for a leg problem.

That introduces the second issue raised against the Applicant, the apparent lack of physical impediment immediately after he fell from the helicopter. It will be recalled that he carried a heavy kit some 80 yards, that he dug a hole and that he walked to a rubber plantation several days later. The Applicant put this down to his belief that his injuries were mild compared to injuries inflicted by the enemy on other soldiers at the time, the regiment being under fire at the time. Service morale was extremely high in this group and no one wanted to let his mates down or be seen as a whinger. Watching the Applicant's demeanour as he gave his evidence it was easy to accept that he adopted a stoical approach to getting the immediate job despite his injury and pain. The Tribunal is cognisant of the situation the Applicant and the other troops were in at FSB Coral. They landed in the midst of the enemy regular army. They lost their gun to the enemy. They were sustaining casualties. He was able to explain credibly to the Tribunal how he did simple acts such as dealing with boots and socks so as to minimise his pain.

While the Tribunal can understand why the Respondent advanced arguments as to these apparent discrepancies in the Applicant's story as apparently corroborated by documentary evidence, the Tribunal has decided that this material is insufficient to prove beyond reasonable doubt that the Applicant's lumbar spondylosis was not war-caused.
Conclusion
The Tribunal has found that the Applicant's disability of lumbar spondylosis is a war-caused disability. The Tribunal has been informed that the Respondent is prepared to pay the Applicant a Disability Pension at the special rate if such a finding is made. There was no evidence before the Tribunal as to how sustainable a decision that is. The Tribunal could substitute a decision with a different effect if not satisfied as to the correctness of that decision. However, there is nothing before the Tribunal that suggests that it ought to interfere with that decision. The Tribunal will therefore find that the Applicant qualifies for payment at the special rate.
Decision
The decision under review is set aside and the Tribunal substitutes the following decision:
The Applicant's disability of lumbar spondylosis is a war-caused disability.

The Applicant qualifies for payment of Disability Pension at the special rate.

The date of effect of this decision is 18 September 1998.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  12 July 2001
Date of Decision  6 September 2001
Representative for the Applicant              Mr Halstead
Representative for the Respondent        Ms S Breuer