Marshall and Repatriation Commission - [2000] AATA 951

DECISION AND REASONS FOR DECISION [2000] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1161

VETERANS' APPEALS DIVISION     )
         Re      GRAHAM JOHN MARSHALL
  Applicant
         And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member

Date1 November 2000
PlaceSydney

Decision        The Tribunal varies the claimed condition of the Applicant Mr Graham John Marshall of "recurrent miscarriages with different spouses" to be properly characterised as "spermatogenic disorder." The Tribunal then sets aside the decision of the Respondent Repatriation Commission dated 19 August 1996 as affirmed by the Veteran's Review Board on 22 June 1998. In substitution for the decision set aside, the Tribunal finds that the Applicant's spermatogenic disorder was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Tribunal affirms those parts of the decision of the Respondent dated 3 September 1996 as affirmed by the Veterans' Review Board on 22 June 1998, with the exception of the assessment of pension. The matter is remitted to the Repatriation Commission for assessment of the rate of pension.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' Appeals - whether condition resulting in "recurrent miscarriages with different spouses" was injury or disease pursuant to the legislation – condition characterised as spermatogenic disorder – held to be war-caused

LEGISLATION
Veterans Entitlements Act 1986 ss 5D, 9, 120(1), 120(3), 120(4) and 120A

CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Comcare v Mooi (1996) 69 FCR 439
Owens v Repatriation Commission (1995) 59 FCR 559
Re Fowler and Repatriation Commission (AAT 6063, 15 June 1990)
Repatriation Commission v Cooke (1998) 160 ALR 17

REASONS FOR DECISION

1 November 2000 Ms G Ettinger Senior Member Dr M E C Thorpe Member

The decision before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 19 August 1996 (T2), as affirmed by the Veterans' Review Board on 22 June 1998 (T20), to refuse the claim of the Applicant, Mr Graham John Marshall, that his condition resulting in "recurrent miscarriages with different spouses" was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act") because a diagnosis could not be confirmed.
The Tribunal noted by way of completeness that the Veterans' Review Board also set aside the decision of the Repatriation Commission of 3 September 1996 (T17), in relation to dermatolysis and varied the diagnosis to keratoderma of the heels, affirming the entitlement decision relating to keratoderma of the heels. Mr Marshall did not pursue his application with regard to keratoderma of the heels before this Tribunal, but sought to have his assessment for pension increased to 60%.
If the Applicant were successful, the earliest date of effect related to the decision of the Repatriation Commission of 19 August 1996 was 26 March 1995, and the earliest date of effect for the decision of the Repatriation Commission of 3 September 1996 was 12 January 1995.
The Applicant, Mr Marshall, was represented by Ms Toliopoulos, advocate of the Veterans' Advocacy Service of Legal Aid New South Wales and the Respondent Repatriation Commission, by Mr J Marsh, its senior advocate.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:
·Whether the Applicant's condition as claimed, resulting in "recurrent miscarriages with different spouses" could be characterised as "spermatogenic disorder," and
·Whether the Applicant's condition resulting as claimed, in "recurrent miscarriages with different spouses" could be characterised as an injury or disease within the terms of section 5D of the Veterans' Entitlements Act 1986 ("the Act"); and if so,
·Whether it was war-caused pursuant to section 9 of the Act.

LEGISLATION

The relevant legislation in this matter is the Veterans' Entitlements Act 1986, particularly sections 5D, 9, 24, 120(1) and 120(3). They follow, as appropriate:
"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;
…"
The standard of proof for the operational service given to his country by the Applicant between 13 August 1969 and 27 October 1970 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act.
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…..
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…"

PRELIMINARY ARGUMENTS

Ms Toliopoulos who appeared for Mr Marshall, opened the case by seeking to amend the diagnosis of "recurrent miscarriages with different spouses" to "spermatogenic disorder" as diagnosed by Dr Lionel Jacobs in his report of 20 August 1999 (Exhibit A2).
The Tribunal found that the standard of proof to apply when characterising the diagnosis was the balance of probabilities test, as outlined by the Full Federal Court in the matter of Repatriation Commission v Cooke (1998) 160 ALR 17. Their Honours in Cooke (supra), held that:
"In our opinion, the appeal should be allowed. We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between the disease and the service. That standard applies only to a "determination" that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120(1) as revealed in the language in which it is expressed … [emphasis added]
In our respectful opinion Lee J was correct in Ferriday … when he said, at 529:
"Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120(1) are facts to be established to the reasonable satisfaction of the Commission."
…"
In respect of the above, the Tribunal accepted the submissions of the Respondent that:
"… the Full Court found that the identification of the disease, and establishing the proper diagnosis for it, in effect operates as a condition precedent to the application of the reasonable hypothesis test in section 120(1). Unless there is first a diagnosis properly established, section 120(1) has no work to do because, as the Full Court explained, it first assumes the presence of the disease … [and] that issue must be determined on the civil standard."
The Tribunal agreed that unless there was an identifiable injury or disease, there was no basis for considering whether the condition claimed was war-caused pursuant to section 120 of the Act.
Therefore in reviewing Mr Marshall's application, the first step was to consider whether his claimed condition could be characterised as an injury, disease or incapacity pursuant to section 5D of the Act.
Section 5D of the Act provides:
"(1)     In this Act, unless the contrary intention appears:
          …
          disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effects of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2)
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury
…

(2)In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;

is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note: for war-caused injury and war-caused disease see section 9
…"

The Tribunal was mindful also that it was bound to apply section 120A of the Act where the veteran's application, as in this case, was lodged after 1 June 1994. Hence, any relevant Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Veterans' Act applied.
In the instant case, however, the Tribunal noted that the Repatriation Medical Authority had not issued a Statement of Principles concerning any conditions that resulted in "recurrent miscarriages with different spouses," nor "spermatogenic disorder," nor had the Authority given notice of intending to so. Therefore, the Tribunal was mindful that in circumstances where there exists no applicable SoP, the approach to be followed in applying sections 120(1) and 120(3) of the Act was that outlined by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408. In Bushell (supra), the High Court held at 414-6 that:
"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge …
But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion …
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents, and the following exhibits:
ITEM DATE NAME
Statement of Graham John Marshall      2 February 2000      Exhibit A1
Medical report of Dr L Jacobs       20 August 1999       Exhibit A2
Unsigned letters to Dr A Joannou regarding Mrs C Shipman 30 September 1985 and 9 October 1995   Exhibit A3
Royal Commission on the "Use and Effects of Chemical Agents on Australian Personnel in Vietnam" – Final Report, Volume 1: Part 4, pages 234-5        July 1985      Exhibit A4
Medical Report of Dr P McCullagh24 May 1999 Exhibit A5
IARC Monographs, Supplement 7, pages 196-97 and 220-221  Exhibit A6
IARC Monographs, Volume 53, pages 156-157 and 220-221            Exhibit A7
IARC Monographs Volume 15 pages 125-126              Exhibit A8
Lerda D. & Rizzi R. "Study of Reproductive Function in Persons Occupationally Exposed to 2,4- Dichlorophenoxyacetic Acid"        1990   Exhibit A9
Stellman S., Stellman J. & Sommer J. "Health and Reproductive Outcomes Among American Legionnaires in Relation to Combat and Herbicide Exposure in Vietnam"    1987   Exhibit A10
T-Documents  Exhibit R1
Royal Commission on the "Use and Effects of Chemical Agents on Australian Personnel in Vietnam" - Final Report, Volume 8, pages 12 – 14, 16 – 19 and 38 July 1985      Exhibit R2

Oral evidence was given by the Applicant, Graham John Marshall, his wife, Cheryl Vera Marshall and Dr P McCullagh, Researcher/Physician.
EVIDENCE OF THE APPLICANT, MR GRAHAM JOHN MARSHALL
Mr Marshall whose date of birth 12 February 1948, told the Tribunal he was trained as an electrical fitter/electrician, but had not yet worked independently as a tradesman when he enlisted in early 1969, and was sent to Vietnam in August 1969. His primary function there for the initial 12 months was in connection with maintenance of the power station at Nui Dat.
Mr Marshall said that later he was also involved with the Tactical Area of Responsibility ("TAOR"), which patrolled a few kilometres outside the perimeter of the camp. Mr Marshall said that he believed he "picked up something over there from defoliants or pesticides….. you are sweating all the time, you are going through vegetation, you're rolling round, crawling round in… red dust and mud all the time where these fire support bases are….". He said that he drank the local water, and was exposed to chemicals and defoliants which were in constant use, but was never sprayed directly. Mr Marshall agreed in cross-examination that his exposure, potential or actual, to chemicals was not as great as for soldiers who did extensive patrols in the bush. He did say, however, that his exposure was to more places than soldiers who were with battalions.
Mr Marshall said that after he came back from Vietnam, he felt very inadequate about doing electrical work because the army work had been very basic. He drove a taxi for approximately six months and then travelled with a friend and lived in South Africa for some two years, regaining his confidence and working as an electrician.
Mr Marshall also gave evidence of his various relationships and the history of the respective women's conceptions. He said that he was first involved with Ms M., to whom he was engaged. Both he and Ms M. were 18 years old when in 1966 she became pregnant and had a medical termination at approximately 12 /13 weeks.
He said that on his return from Vietnam, he had a relationship with a woman called Ms I., who did not have any children at that time. She too became pregnant, and had a spontaneous abortion at 12 weeks in approximately 1974/5. They tried again unsuccessfully to have children, and split after about two years. Ms I. subsequently had two children in another relationship. He said that no tests were done because they did not consider it, but reported that the doctor involved had said that there was no particular reason evident.
Mr Marshall's next partner Ms J., was in her late twenties or early thirties, and the relationship lasted from approximately 1976 to 1982/3. He said that she had two children aged eight or nine when he met her. Some 12-18 months after he met her, they decided to have a child together. However she had a spontaneous abortion at "end of the first trimester". A subsequent pregnancy terminated spontaneously at approximately six weeks.
Mr Marshall said that no tests were done until after his present wife, Mrs C. Marshall, whom he met in approximately 1984/5 became pregnant and had a spontaneous abortion at 10-12 weeks. Mrs Marshall already had three children when she became involved with Mr Marshall. He said they were unable to have further children even though many attempts were made. Mr Marshall said that they consulted a doctor and through tests found that fundamentally all was normal, but "something was low". The Tribunal noted the report of Ms F Curdie-Evans dated 18 June 1998 at (T19) in which she documented that Mrs Marshall's spontaneous abortion occurred at 14 weeks, and also that Mrs Marshall had told her tests conducted indicated a presence of abnormal cells. It appeared from the evidence that sperm counts of Mr Marshall were carried out in the mid 1980s and not repeated until 1996.
Mr Marshall gave evidence of how he considered that his relationships were marred by his alcoholism due to his experiences in Vietnam. He indicated how that and his inability to have children, for which he blamed his exposure to chemicals in Vietnam, upset him greatly.
EVIDENCE OF THE APPLICANT'S WIFE, MRS C MARSHALL
Mrs Marshall, an enrolled nurse and wife of the Applicant, whose date of birth was 14 May 1946, gave oral evidence before the Tribunal. She referred to the reports of Ms M Curdie-Evans and said that she had not mentioned abnormal cells to Ms Curdie-Evans. Mrs Marshall said that no reason could be found for the spontaneous abortion she had undergone. She said that she had been told that nothing was wrong. She had never suffered one before, and no tests were carried out on the foetus. She said that she had conceived her three children from another relationship and carried them to full term without problems. With Mr Marshall she had tried without success from the time of the spontaneous abortion until age 41 to conceive again.

The Tribunal noted at Exhibit A3 that it was documented on 30 September 1985, that the Applicant's wife was eight to nine weeks pregnant with her general condition described as "good". On 9 October 1985, it was recorded by a doctor that Mrs Cheryl Marshall was admitted to hospital suffering from "…what appeared to be an inevitable miscarriage. This progressed to an incomplete miscarriage … I found no significant abnormality to account for the miscarriage."
MEDICAL EVIDENCE

The Tribunal had before it a number of medical reports, which are reviewed below.
evidence of dr p mccullagh physician researcher

Dr McCullagh whose report of 24 May 1999 headed "Report on the Medical History of Grahame (sic) Marshall" was before the Tribunal as Exhibit A5, gave oral evidence. The Tribunal has reviewed his rather extensive evidence which spanned over 50 pages of transcript, and rather than attempting to summarise these, has highlighted the most salient points below.
The Tribunal noted that Dr McCullagh gave his qualifications as having trained in medicine, a research PhD in immunology and research in areas such as foetal maternal interactions, and the immunological compatibility between the female and the foetus. He stated that he did not practice in human infertility. Dr McCullagh said he had participated in research associated with chemicals in relation to teratology, but not in relation to the chemicals used in Vietnam. Dr McCullagh said that he knew about the chemicals used in Vietnam through his reading of the report of Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam, Final Report, July 1985 prepared by Justice Phillip Evatt ("the Evatt Royal Commission").
Dr McCullagh opined that Mr Marshall would have been exposed to spraying in Vietnam because insecticide fogging took place every night and defoliation was undertaken for security reasons. He referred to studies carried out years after the war in Vietnam which showed residual chemicals in fish. He also said that studies had also been done on vegetables.
When asked whether Mr Marshall's contention that the inability of his partners to carry a child to full term after his time in Vietnam was as a result of his exposure to herbicides and pesticides was valid, he answered: "I think it is highly probable."
Dr McCullagh said that:
"… in Mr Marshall's case it would be hard to conceive of – no pun intended – a case – a more clear cut case where the obstetric events have – are just related to the father. The fact that you have three other partners all of whom have proven their fertility and capacity to go through to term with other partners yet have been unable to do so with Mr Marshall, is, to my mind, incredibly a strong case and I suspect you will find that most obstetrics people would say a very clear case … have to say this appears to be very clearly related to the male participant."
When asked: "What do you consider to be the correct diagnosis of Mr Marshall's problem?" Dr McCullagh replied: "… the series of events that he has had would be highly consistent with some lethal abnormality …"
Mr McCullagh when questioned said he had seen Dr Jacobs' report and considered it a fair report. He agreed that Dr Jacobs' characterisation of Mr Marshall's condition as spermatogenic disorder was "as good a name as any."
Mr Marsh questioned Dr McCullagh about the reports in evidence before the Tribunal, including the report of the Evatt Royal Commission.
Dr McCullagh was asked about the two tests undertaken in relation to Mr Marshall which did not show up problems with his sperm. In reply Dr McCullagh said that:
" A normal test means that the individual is producing an adequate number – what is regarded as an adequate number of sperm, that the sperm have apparently normal morphology, that is they have heads and tails, that they have apparently normal motility, that is they are moving around a fair bit. It tells you nothing at all about what will happen when that sperm impregnates an egg."
Dr McCullagh was asked whether he agreed with the opinion of Dr D Kerle, urological surgeon who examined the Applicant on 4 April 1996 and opined that: "although there is some evidence in the literature of dioxin exposure causing adverse reproductive outcomes in animals this has not been established in humans." Dr McCullagh stated that:
" I would disagree…the article which I have quoted referred to environment research very clearly associates spouse – abortion in spouses with Vietnam service. Now what the basis for that association is whether it is dioxin, whether it is hetrachlor (sic)… but the association is quite well documented in that article I have quoted which comes from a very reputable source, Columbia University."
The Tribunal noted the study referred to by Dr McCullagh was the study undertaken by Stellman S., Stellman J. & Sommer J. "Health and Reproductive Outcomes Among American Legionnaires in Relation to Combat and Herbicide Exposure in Vietnam" (1988) 47 Environmental Research 150 –174 ("the Stellman Study").
Mr Marsh asked Dr McCullagh:
"So in the face of two normal sperm counts, no examination of the patient, no examination of any of the partners but based solely on the history of miscarriages you are happy to conclude that there is a problem?"
Dr McCullagh replied:
" I am happy to conclude there is a problem which is highly likely – almost impossible to concede in the situation where the problem does not reside in the – with Mr Marshall rather than any of the spouses."
Mr Marsh drew Dr McCullagh's attention to the report of the Evatt Royal Commission Chapter 7 of Volume 8 of the Final Report pages 18/19 where at 19 the Commission had concluded: "No excess of birth defects or other untoward outcomes were found amongst the USA group most heavily exposed to agent orange, the ranch handlers themselves." Dr McCullagh commented on the age of the document and said that the document published by the Australian Institute of Health and Welfare stated this was not the case.
Dr Thorpe asked Dr McCullagh: "I don't think it is an unfair question. Is it possible that the Applicant could have spermatogenic dysfunction irrespective of having gone to Vietnam?" Dr McCullagh replied: ".. yes it is – ideally I mean if the Applicant had had a pregnancy which went through – or had to go through before he went to Vietnam that would really make the case vivid."
The Tribunal noted that Dr McCullagh concluded his report at Exhibit A5 with the following statement:
"In conclusion then, I consider that there exists mutually supportive epidemiological evidence and theoretical biological reasons to support the hypothesis that Mr Marshall's period of service in Vietnam exposed him to one or more pesticides which led to the development of a mutation in germ cell precursors. A consequence of this has been the failure of any foetuses carrying this mutation successfully to negotiate pregnancy."

report of dr d kerle, urological surgeon

Dr Kerle, whose undated report was before the Tribunal at T12, examined the Applicant on 4 April 1996. He noted in his report, the Applicant's observations about the inability of his partners to carry a pregnancy to full term:
"In the face of a normal physical examination, normal erectile function and normal seminal analysis perameters,(sic) Graeme (sic) is claiming that his exposure to agent orange has caused infertility."
Dr Kerle arranged for the Applicant to undergo a seminal fluid examination, the results of which were essentially normal. He recorded that:
"A recent seminal analysis on 4.4.96 shows normal volume and normal total sperm count of 53 million per ml. Eighty percent of the spermatozoa have normal morphology and 50% are motile. There is some reduction of the "rapidly progressive fraction" from 25 to 5% but otherwise seminal analysis perameters (sic) are normal. The serum testosterone is at the lower limit of normal at 11 nmol/L but both the follicle stimulating hormone and serum luteinising hormone are within the normal range."

Dr Kerle further noted that:
"It is unclear to me whether Graeme (sic) was in fact exposed to agent orange in Vietnam. In addition, although there is some evidence in the literature of dioxin exposure causing adverse reproductive outcomes in animals, this has not been established in humans."
Following his examination of the Applicant, Dr Kerle concluded that:
"In summary therefore there is a total lack of objective evidence that Graeme (sic) is either infertile or carries any inate (sic) or acquired defect that may produce spontaneous abortion of his offspring."

evidence of dr l jacobs urologist

Dr Jacobs whose report of 20 August 1999 was before the Tribunal as Exhibit A2, stated his qualifications in his report, including relevantly, his particular interest in male impotence and infertility.
Dr Jacobs referred to the tests and reports of Dr Kerle in 1996, Dr Whitten and Dr McCullagh. He opined:
"Regarding spermatogenetic disorder. The sperm analysis carried out by Dr Kerle in 1996 reported at (sic) total sperm count of 53 million per/ml of which 50% were motile but showing some reduction in motility. No quantity of the sperm has recorded but nevertheless the report would be acceptable as a normal analysis. However the comments of Dr Whitton (sic) in the report of Dr Peter McCullagh states that a normal analysis does not rule out the possibility of abnormalities of the sperm. "These could include a lethal dominant developmental mutation or one of the many translocations or an inversion involving the centromere or loss of whole or part of a chromosome "aneuploidy"." In view of this comment the diagnosis of spermatogenic disorder cannot be ruled out and is therefore a very possible entity. I can think of no other diagnosis more appropriate to Mr Marshall's problem and if these mutations have in fact occurred then it would be most likely that they did so during the period of his operational service. I know of no way that this can be proved or disapproved but it would seem to be a reasonable hypothesis. I do not however know what degree of exposure to herbicides would be sufficient to cause these changes in the internal nature of the sperm."
Dr Jacobs concluded his report by opining that:
" I feel that the new evidence and details which have been provided in Dr Peter McCullagh's report makes it reasonable to accept the hypophysis (sic) that Mr Marshall's exposure to pesticides or Agent Orange during his Vietnam war service is related to his inability to have sired a normal child."

evidence of professor r norman, obstetrics and gynaecology

Professor Norman who is Head of the Reproductive Medicine Unit at the University of Adelaide prepared a report dated 5 April 2000 based on reports regarding Mr Marshall and his claim before the Tribunal.
In his opinions on whether Mr Marshall suffered a known disease that predisposed to miscarriage in his partners, Professor Norman discussed traditionally known factors leading to spontaneous abortion, stating that :
"…It would be impossible to ascribe any significant condition in Mr. Marshall which might contribute to recurrent miscarriage without complete information of the clinical, genetic and lifestyle factors surrounding his previous and current partners… the fact that normal sperm counts in 1986 and 1996 are recorded suggest that there is no macroscopic pathology of the semen."
In his assessment of whether there was a connection between exposure of men to toxic chemicals and miscarriage in their partners, he referred in particular to the Stellman Study, a study of 6,810 randomly selected men who had served in the armed forces of the USA in South East Asia during the Vietnam war and elsewhere. He opined: "I do not think the data from Stellman's paper makes a strong case for miscarriage being a feature of exposure to chemicals among Vietnam veterans …"
Referring to available literature, Professor Norman opined: "In my view there is insufficient data in the literature to categorically back up the allegation that toxic chemicals and herbicides predispose to miscarriages in the male partner's relationship."
He added: "While Dr McCullagh's scholarly and reasonable paper was most valuable to me, I believe any claims to chemical exposure being important in this case are speculative."
The Tribunal noted that Dr McCullagh commented on Professor Norman's report in a letter to Ms Toliopoulos of 29 May 2000. Dr McCullagh stated that he did not disagree with any of Professor Norman's contentions insofar as they related to spontaneous abortion in general but believed it necessary to focus on details related more specifically to Mr Marshall.
Dr McCullagh, in commenting on Professor Norman's report, calculated the risk related to three and four successive losses of pregnancy and opined that this provided some indication of the unlikelihood that the series of events in Mr Marshall's case could be regarded as consistent with the 'usual' rates of spontaneous pregnancy loss.
When commenting on whether the series of spontaneous abortions in Mr Marshall's partners could satisfactorily be accounted for by maternal factors, Dr McCullagh acknowledged that most of the literature dealt with the subject from the woman's side. He said however: "I propose that a case history such as Mr Marshall's would, on first principles, lead one to query whether there could be male contributants to spontaneous abortion even if there was not a single report relating to such factors in the literature."
Dr McCullagh also referred to a study of the health of Vietnam veterans' children entitled Morbidity of Vietnam Veterans Volume 3. Australian Institute of Health and Welfare, 1999. He stated that:
"… it is clear the most likely mechanism to account for these congenital abnormalities in veterans' children is the occurrence of some form of chromosomal damage to the germ cells of veterans fathering affected children… (As a rule of thumb, severe chromosomal changes are unlikely to be compatible with successful completion of pregnancy. Less severe ones may be associated with birth of a child affected by an abnormality)."

evidence of dr w whitten, reproductive biologist

As outlined in his report dated 24 May 1999, Dr McCullagh contacted Dr Whitten "to obtain a specialized embryological opinion on the biological feasibility that exposure of the male to pesticides could lead to spontaneous miscarriage…" in the partner. The Tribunal noted that Dr Whitten is a Fellow of the Australian Academy of Science and a former recipient of the Marshall medal, an award of the United Kingdom Society for the Study of Fertility. Dr Whitten's comments were recorded in the body of Dr McCullagh's report and were as follows:
"I suggest that the failure of any of the three spouses to carry fetuses sired by GM is not inconsistent with an induced mutation or some chromosomal rearrangement. These could be: A lethal dominant developmental mutation, one of the many translocations, an inversion involving the centromere or loss of whole or part of a chromosome (aneuploidy). These changes would not be present in the lymphocyte chromosomes of GM. They may not even be obvious after testicular biopsy because they could affect only a single clone of the germline. The remaining sperm may be normal but infertile. A minority of the sperm could be fertile but carry the genetic defect. Doing a testicular biopsy would be an unwarranted invasion."

evidence of dr s sillar, urological surgeon

Dr Sillar, whose report dated 16 October 1995 was before the Tribunal at T8, said that while he had not examined the Applicant to determine whether the exposure to Agent Orange was responsible for "recurrent miscarriage (sic) with different spouses", it would:
"… not only require seeing Mr. Marshall on numerous occasions, doing extensive investigations into Agent Orange, but also seeing his different spouses in order to prove or not prove that the cause for the miscarriages was due to the female partner."
Dr Sillar's report was of limited value to the Tribunal as he had not examined the Applicant. His description of the steps necessary to determine whether Agent Orange was responsible for the "recurrent miscarriage (sic) with different spouses", was noted.
evidence of dr c knight, general practitioner
Dr Knight, in providing a medical assessment of the Applicant in support of his claim for a pension at T6/43, provisionally diagnosed the Applicant's claimed condition of "recurrent miscarriages with different spouses" which the Applicant said was caused by exposure to Agent Orange, as "spermatogenesis dysfunction". The Tribunal noted that this provisional diagnosis was made on 20 June 1995.
RESEARCH EVIDENCE
The Tribunal also considered a number of research reports before it at Exhibits A4, A6-10 and R2.
Excerpts from the Royal Commission on the "Use and Effects of Chemical Agents on Australian Personnel in Vietnam" - Final Report were before the Tribunal at Exhibit A4 and Exhibit R2. Exhibit A4, which comprised of pages 234-5 of Volume IV, detailed the Senate Committee's findings and conclusions about the exposure of Australian Troops to herbicides and pesticides. The Tribunal noted that the Committee found that:
"… it is unlikely that the majority of Australian troops were directly or indirectly exposed to herbicides used by U.S. forces, namely Agent Orange …
It is also accepted that all Vietnam veterans would have been exposed to harmful chemicals, including potentially mutagenic and carcinogenic chemicals, during that part of their lives spent outside Vietnam."

Exhibit R2 comprised of pages 12-14, 16-19 and 38 of Volume 8 of the Evatt Royal Commission and outlined the approach taken by the Royal Commission to ascertain Australian troop exposure to chemical agents in Vietnam. The Evatt Royal Commission concluded at pages 13-14 that:
"(i)Contrary to popular belief, only a very limited number of Australian servicemen were ever directly exposed to 'colour-coded' herbicides such as Agent Orange; even the most direct likely exposure would not have produced an absorbed toxic dose of the most toxic substance;
(ii)all servicemen were indirectly exposed in one way or another but the dose level resulting from such indirect exposure or exposures is so minute that it may, without doubt, be ignored;
…
13)In short, the Commission concludes that the exposure of Australians to chemical agents did not produce dosage levels which would be likely to cause any long-term health effects."
As to health effects, reproductive outcomes and birth defects alleged from exposure to Agent Orange, the Evatt Royal Commission found at 19 that:
"No excess of birth defects or other untoward outcomes were found amongst the US group most heavily exposed to Agent Orange, the Ranch Handers themselves …
No reliable study shows any association between exposure of the father to chemicals and untoward birth outcomes."

The Evatt Royal Commission also recorded at page 38 that "Veterans and their wives are no more at risk of having abnormal offspring than anyone else."
Exhibit A6 comprised of pages 196 to 197 and 220 to 221 of Supplement 7 of the IARC Monographs and examined the carcinogenicity of dieldrin and hexachlorocyclohexanes to humans and animals.
Exhibit A7 comprised of pages 156 to 157 and 220 to 221 of Volume 53 of the IARC Monographs and involved genetic and related effects of chlordane exposure and the testing of 50 workers from three pesticide plants in Brazil who were either directly or indirectly exposed to DDT.
Exhibit A8 comprised of pages 125 to 126 of Volume 15 of the IARC Monographs and considered the mutagenicity of 2,4- Dichlorophenoxyacetic Acid.
Exhibit A9 was the results of a study by D Lerda and R Rizzi, "Study of Reproductive Function in Persons Occupationally Exposed to 2,4- Dichlorophenoxyacetic Acid (2,4-D)". The study involved the testing of the reproductive function of 32 male farm sprayers who were exposed to 2,4-D.

Exhibit A10 was a study by S Stellman, J Stellman and J Sommer entitled "Health and Reproductive Outcomes Among American Legionnaires in Relation to Combat and Herbicide Exposure in Vietnam". It examined 6,810 men who had either served in the US forces in South-East Asia during the Vietnam War or elsewhere during the same period.
SUBMISSIONS AND CONCLUSIONS
In coming to a decision, the Tribunal had to take into account all the evidence both written and oral, the legislation and case law to make the correct and preferable decision, and decide whether Mr Marshall's condition of "recurrent miscarriages with different spouses" as claimed, was war-caused within the terms of section 9 of the Act.
It was uncontroverted and the Tribunal accepted the data that Mr Marshall served on operational service from 13 August 1969 to 27 August 1970. The earliest date of effect for the matter related to the decision of the Repatriation Commission of 19 August 1996 was 26 March 1995 and the earliest date of effect for the decision of the Repatriation Commission of 3 September 1996 was 12 January 1995.
WHETHER MR MARSHALL'S 'RECURRENT MISCARRIAGES WITH DIFFERENT SPOUSES' COULD BE CHARACTERISED AS 'SPERMATOGENIC DISORDER'
The Tribunal considered the evidence and submissions before it of the spontaneous abortions which had occurred in the cases of Mr Marshall's second, third and fourth partners, the fourth being his current wife Mrs C Marshall, noting that each had been in the relationship for a considerable time.
The Tribunal noted that Dr Jacobs, a urologist with a particular interest in male impotence and infertility supported the diagnosis of spermatogenic disorder. He opined as follows;
"Regarding spermatogenetic disorder. The sperm analysis carried out by Dr Kerle in 1996 reported at (sic) total sperm count of 53 million per/ml of which 50% were motile but showing some reduction in motility. No quantity of the sperm has recorded but nevertheless the report would be acceptable as a normal analysis. However the comments of Dr Whitton (sic) in the report of Dr Peter McCullagh states that a normal analysis does not rule out the possibility of abnormalities of the sperm. "These could include a lethal dominant developmental mutation or one of the many translocations or an inversion involving the centromere or loss of whole or part of a chromosome "aneuploidy"." In view of this comment the diagnosis of spermatogenic disorder cannot be ruled out and is therefore a very possible entity. I can think of no other diagnosis more appropriate to Mr Marshall's problem and if these mutations have in fact occurred then it would be most likely that they did so during the period of his operational service. I know of no way that this can be proved or disapproved but it would seem to be a reasonable hypothesis. I do not however know what degree of exposure to herbicides would be sufficient to cause these changes in the internal nature of the sperm." [Emphasis added]
The Tribunal noted that Dr McCullagh discussed Dr Whitten's opinions regarding Mr Marshall's situation. Dr Whitten was reported as saying:
"I suggest that the failure of any of the three spouses to carry fetuses sired by GM is not inconsistent with an induced mutation or some chromosomal rearrangement. These could be: A lethal dominant developmental mutation, one of the many translocations, an inversion involving the centromere or loss of whole or part of a chromosome (aneuploidy)…"
Dr McCullagh said that he agreed with Dr Jacobs that Mr Marshall had a spermatogenic disorder. His reports indicated to the Tribunal that he accepted the Applicant suffered such disorder as a result of his exposure to chemicals in Vietnam. Dr McCullagh, referring to the tests of Mr Marshall's sperm which were carried out, opined that adequate sperm did not indicate what DNA changes had occurred nor what would occur on impregnation.
The Tribunal noted also Professor Norman's opinion which did not support Mr Marshall's case. Professor Norman said, referring to the Stellman Study :
"I do not think the data from Stellman's paper makes a strong case for miscarriage being a feature of exposure to chemicals among Vietnam veterans …"

Referring to other available literature, Professor Norman opined:
"In my view there is insufficient data in the literature to categorically back up the allegation that toxic chemicals and herbicides predispose to miscarriages in the male partner's relationship."
And
"While Dr McCullagh's scholarly and reasonable paper was most valuable to me, I believe any claims to chemical exposure being important in this case are speculative."
The Tribunal noted that Dr Knight, in providing a medical assessment of the Applicant in support of his claim for a pension at T6/43, provisionally diagnosed the Applicant's claimed condition of "recurrent miscarriages with different spouses" as "spermatogenesis dysfunction".
As to the nature of a spermatogenic disorder, the Tribunal consulted a number of medical dictionaries to ascertain the definition of "spermatogenic". The Butterworths Medical Dictionary, Second Edition, 1978, defined "spermatogenic" as "1. Relating or belonging to spermatogenesis. 2. Forming spermatozoa." The term "spermatogenesis" was defined in the same dictionary as "The formation and development of spermatozoa."
Similarly, the Stedman's Medical Dictionary, 26th Edition, defined "spermatogenic" as "Relating to spermatogenesis; sperm-producing" and "spermatogenesis" as "The entire process by which spermatogonial stem cells divide and differentiate into spermatozoa."
Mosby's Medical, Nursing and Allied Health Dictionary, Fourth Edition, gave a more descriptive definition of spermatogenesis, namely "the process of development of spermatozoa, including the first stage, called spermatogenesis, in which spermatogonia become spermatocytes that develop into spermatids, and the second stage, called spermiogenesis, in which the spermatids become spermatozoa."
In considering the definitions noted above, the Tribunal held that a reference to a "spermatogenic disorder" referred to problems or difficulties associated with the formation and development of sperm.
There were a number of research reports before the Tribunal as listed above. Excerpts from the report of the Evatt Royal Commission were before the Tribunal at Exhibit A4 and Exhibit R2. Exhibit A4, which comprised of pages 234-5 of Volume IV, detailed the Senate Committees findings and conclusions about the exposure of Australian Troops to herbicides and pesticides. The Tribunal noted that the Committee found that:
"… it is unlikely that the majority of Australian troops were directly or indirectly exposed to herbicides used by U.S. forces, namely Agent Orange …
It is also accepted that all Vietnam veterans would have been exposed to harmful chemicals, including potentially mutagenic and carcinogenic chemicals, during that part of their lives spent outside Vietnam."

The Evatt Royal Commission also recorded at page 38 that "Veterans and their wives are no more at risk of having abnormal offspring than anyone else."
The Tribunal noted the submissions of the parties, with regard to Mr Marshall's condition. The Tribunal was mindful of the history given regarding the four aborted pregnancies of three women who each were in sequence in longer term relationships with Mr Marshall, and who each bore children of other relationships. The Tribunal relied on the civil standard of proof as propounded in Repatriation Commission v Cooke (supra) and discussed above. The Tribunal decided on the basis of the medical evidence before it, including competing reports, preferring in particular the evidence of Doctors Jacobs, Knight and McCullagh, in support of the contention that Mr Marshall's condition of "recurrent miscarriages with different spouses" should on the balance of probabilities correctly be characterised as "spermatogenic disorder."
WHETHER MR MARSHALL'S SPERMATOGENIC DISORDER WAS AN INJURY OR DISEASE PURSUANT TO SECTION 5D OF THE VETERANS' ENTITLEMENTS ACT 1986
The Tribunal then moved to consider whether Mr Marshall's diagnosis of spermatogenic disorder which the Tribunal accepted, was an injury or disease pursuant to section 5D of the Act.
Section 5D of the Act provides:
"(1)     In this Act, unless the contrary intention appears:
          …
          disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(e)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(f)the aggravation of such an ailment, disorder, defect or morbid condition; or
(g)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effects of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(c)the aggravation of a physical or mental injury.
…"
The Tribunal looked to the definition of injury noting that there did not appear to be a physical or mental injury in this case, and turned to the definition of disease, which at section 5D(1)(a) was defined as "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)…" The Tribunal noted that Drummond J, had in Comcare v Mooi (1996) 69 FCR 439 heard pursuant to the Safety Compensation and Rehabilitation Act 1988, stated:
" 'Disease' in ordinary usage, when used with reference to physical or mental conditions, connotes a disturbance of the normal functions. Dictionary meanings of 'disease' include 'a morbid condition of the body, or of some organ or part; illness; sickness; ailment (The Macquarie Dictionary) and 'a condition of the body, or of some part or organ of the body, in which its functions are disturbed or deranged' (The Shorter Oxford English Dictionary).
Medical dictionaries give the following meanings of 'disease'.
'In general, a departure from the normal state of health. More specifically, a disease is the sum total of the reactions, physical and mental, made by a person to a noxious agent entering his body from without or arising within (such as a micro organism or a poison), an injury, a congenital or hereditary defect, a metabolic disorder,….
…Only conditions involving a disturbance of the normal functions of body or mind are within the term 'disease', as defined, and thus 'injuries' for the purpose of s 14(1) of the Act."
Mr Marsh submitted that the definition of disease had been amended to contain additional restrictions after the decision in Re Fowler and Repatriation Commission (AAT 6063, 15 June 1990).The restriction, he said was with regard to the scope of "disease", now excluding "a temporary departure from the normal physiological state that results from normal physiological stress or the temporary effect of extraneous agents." Mr Marsh submitted that the Explanatory Memorandum to the Bill which introduced the restriction stated that: "The amended definition is intended to prevent conditions which are not medically defined as a disease being regarded as such for the purposes of the Act."
The Tribunal noted the submissions made, and the legislation as well as the statements of Drummond J in Mooi (supra), and found that Mr Marshall's condition met the definition in section 5D(1)(a) of the Act in that he was suffering a physical ailment or disorder, namely spermatogenic disorder which had, on the balance of probabilities, caused recurrent miscarriages in the thee partners with whom he had had long term relationships after his operational service. There was no indication on the balance of probabilities that Mr Marshall's spermatogenic disorder was a temporary departure from his normal physiological state.
Having decided that Mr Marshall's condition of spermatogenic disorder was a disease pursuant to section 5D of the Act, the Tribunal moved to consider whether it could be found to be war-caused pursuant to section 9 of the Act. As there was no relevant SoP which could be applied, the Tribunal moved to consider the principles in Bushell v Repatriation Commission (1992) 175 CLR 408.
APPLICATION OF PRINCIPLES IN BUSHELL V REPATRIATION COMMISSION (1992) 175 CLR 408
The Tribunal was mindful that the High Court in Bushell (supra) outlined the approach to be adopted by decision-makers in applying sections 120(1) and 120(3) of the Act. In the absence of a relevant SoP, this was the approach to be followed. In Bushell (supra), the High Court held at 414-6 that:
"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge …
But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion …
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis."

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

The Tribunal turned then to decide whether applying the principles set out in Bushell (supra), the material before it raised an hypothesis connecting Mr Marshall's condition of spermatogenic disorder with his war service.
The facts as recited in Mr Marshall's evidence and uncontroverted, were that he drank local water and was exposed to certain chemicals during his operational service in Vietnam. The evidence before the Tribunal which it accepted, was that following his return, Mr Marshall had relationships with three different women none of whom were able to carry a child to full term during their relationship with Mr Marshall. Mr Marshall's evidence was that he was with Ms I. for over a year, and that she was not able to carry a child to full term while they were in that relationship. He said that Ms I. subsequently had two children born of another relationship. His next relationship was with Ms J. who brought to it, two children of a former relationship. Although they were together for six or seven years, Ms J. could not bring a pregnancy to full term with Mr Marshall, and had, on one occasion, a spontaneous abortion at approximately 12 weeks. Mrs C. Marshall, the Applicant's present wife, had three children from a former relationship, and has since she met Mr Marshall in 1984/5, been unable to bring a pregnancy to full term. She too suffered a spontaneous abortion at approximately 12 weeks of pregnancy. None of the three women has a child fathered by Mr Marshall, and Mr Marshall has no natural live children.
The Tribunal noted that at the age of 18 before his service in Vietnam, Mr Marshall and his equally aged then partner, Ms M., experienced a pregnancy which they chose, because of their youth at the time, to have terminated medically. One cannot therefore ascertain whether Ms M. would have borne his child to full term.
The Tribunal noted that all the pregnancies which aborted spontaneously were ones which came into being after Mr Marshall's service in Vietnam and his experiences with drinking local contaminated water and being exposed to insecticides and pesticides as described.
The Tribunal has already found that Mr Marshall has a spermatogenic disorder, and finds therefore that an hypothesis was raised linking Mr Marshall's spermatogenic disorder to his service in Vietnam.
The Tribunal moved then to consider whether that hypothesis was reasonable. As discussed earlier in these reasons, the RMA has not issued a SoP which related to Mr Marshall's condition. The Tribunal was therefore bound by the guidance of the High Court in Bushell (supra) in applying section 120(1) and (3) to review of Mr Marshall's application. The Tribunal was mindful in coming to a decision regarding whether a reasonable hypothesis had been raised to find the connection between Mr Marshall's condition with his war service, that it was not a matter of proving anything or weighing up the numbers of medical reports against each other.
The Tribunal noted however the support of Doctors McCullagh, Whitten, and Jacobs, well qualified to opine in relation to Mr Marshall's problems, who considered that the Applicant's problems arose as a result of his exposure to chemicals in Vietnam. There were, of course, studies and reports before the Tribunal which stated that further testing would have to be carried out (Dr Knight), or that the writer could not be "absolutely certain" of the connection between the claimed exposure in Vietnam and Mr Marshall's claim regarding spermatogenic disorder (Professor Norman). Referring to available literature, Professor Norman opined: "In my view there is insufficient data in the literature to categorically back up the allegation that toxic chemicals and herbicides predispose to miscarriages in the male partner's relationship." "Absolutely certain" was of course not the test.
Therefore, having considered all the medical evidence as well as the evidence of the Applicant, the Tribunal was satisfied from the material before it, that a reasonable hypothesis had been raised to find the connection between Mr Marshall's condition and his war service. The hypothesis connecting Mr Marshall's condition to his war service was clearly not fanciful or incredible or indeed too remote to meet the test.

The Tribunal then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before the Tribunal it was of the opinion the material raised a reasonable hypothesis connecting Mr Marshall's condition with his operational service.
The Tribunal also found in applying section 120(1) of the Act that it could not be convinced beyond reasonable doubt that Mr Marshall's condition was not war-caused. His application thus had to succeed with the Tribunal making a finding that his condition of spermatogenic disorder was war-caused pursuant to section 9 of the Act.
DECISION
The Tribunal varies the claimed condition of the Applicant Mr Graham John Marshall of "recurrent miscarriages with different spouses" to be properly characterised as "spermatogenic disorder." The Tribunal then sets aside the decision of the Respondent Repatriation Commission dated 19 August 1996 as affirmed by the Veteran's Review Board on 22 June 1998. In substitution for the decision set aside, the Tribunal finds that the Applicant's spermatogenic disorder was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Tribunal affirms those parts of the decision of the Respondent dated 3 September 1996 as affirmed by the Veterans' Review Board on 22 June 1998, with the exception of the assessment of pension.
The matter is remitted to the Repatriation Commission for assessment of the rate of pension.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger and Member Thorpe
Signed:         .....................................................................................
     Associate
Date/s of Hearing  3 February 2000; Closing Submissions 29 August 2000
Date of Decision  1 November 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Ms A Toliopoulos
Counsel for the Respondent    N/A
Advocate for the Respondent Mr J Marsh