Offord and Repatriation Commission - [2002] AATA 513

DECISION AND REASONS FOR DECISION [2002] AATA 513

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/78

VETERANS DIVISION      )
           Re       Graham Ellis OFFORD
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member

Date26 June 2002
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the Veterans' Review Board of 15 January 1999 and in substitution therefor decides that the applicant's minor osteoarthrosis of the right knee is war-caused, with effect from 23 October 1996.
  ….........(sgd R D Fayle)........................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether applicant's diagnosed disorder, minor osteoarthrosis of the right knee is war-caused or caused by eligible defence service – no supporting service medical records of trauma – whether applicant experienced a trauma to the affected joint – Statement of Principles – ss120, 120A and 120B of Veterans' Entitlements Act 1986.
Repatriation Commission v Deledio (1998) 49 ALD 193,
Repatriation Commission v Bey (1997) 149 ALR 721
Creyke and Sutherland, Veterans' Entitlements Law, Federation Press, 2000, p434.

REASONS FOR DECISION

26 June 2002 Mr R D Fayle, Senior Member

On 9 March 1999, Mr Graham Ellis Offord ("the applicant") applied to this Tribunal to review the decision of the Veterans' Review Board ("the VRB") of 15 January 1999 which affirmed the decision of a delegate of the Repatriation Commission ("the respondent") that the applicant's "minor osteoarthrosis of the right knee" was neither caused by the applicant's operational service nor the applicant's eligible defence service.
At the hearing the applicant was represented by Mr China Hammal, a voluntary advocate with the Australian Navy in Vietnam Veterans' Welfare Association. Mr Carl Ponnuthurai, a departmental advocate, represented the respondent. The Tribunal had before it documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, including two additional documents provided at the hearing. The following exhibits were taken into evidence:
A1      five pages of the applicant's service record (incomplete);
A2      a photocopy of an original photograph showing applicant with a plaster cast on his lower right leg;
A3a & A3b     photocopies of two pages of outpatient's records relating to foot injury, 25 August 1971.
A4      Guidelines used by respondent's assessors in relation to the criteria set out in Statement of Principles, instrument number 81 of 2001, Factors 5(k) and (y).
A5      Handwritten notes made by the applicant consisting of a covering note and seven additional folios.
The applicant gave evidence. The evidence generally and that of the applicant at the hearing is summarised below.
The Evidence
The applicant joined the Royal Australian Navy on 22 February 1957, a few months short of his 18th birthday. The medical record at enlistment (T6) passed the applicant as "fit for service (as a) seaman". The applicant had noted, against the question "6. Have you had a broken bone or been seriously injured including head injury?" – "Broken bone in foot". The applicant's then further note, in answer to the question "If so, state nature and date –" is indecipherable. Apart from that there is nothing unusual or exceptional about the report. Indeed, there is no comment made in respect to this reported prior injury.
The applicant injured his right knee whilst taking part in a Services rugby match on 5 September 1962. The Daily Medical Record of the following day, 6 September 1962, shows a diagnosis of "Traumatic effusion R knee". It describes the circumstances of the injury and notes "Moderate effusion. No signs of bony or cartl damage". It notes further: "Firm bandage. Minimum standing. Keep raised." The Surgeon Commander RN signed the record (T6, p21). The medical records show that on 7 September 1962, the applicant's condition was "satisfactory" and for treatment to continue (T6, p.20). On 10 September 1962, the medical record shows "improving". The report indicates further that quadriceps exercises and crepe bandage were prescribed. On 25 September 1962 the applicant was noted still to have some effusion on his right knee (T6, p.18). This report too was by the Surgeon Commander. However, on 26 September 1962, as the applicant's condition was not improving, he was referred to Balmoral Naval Hospital (NSW) for further treatment (T6, p23). On admission, the Surgeon Commander noted that the knee was swollen above the patella and that flexion was limited to about 900. The applicant remained in hospital until 4 October 1962 when reported as "fit for discharge". His treatment was recorded as "physiotherapy quadriceps drill, pressure bandage when not doing physio and aspiration with injection of 25 mgm hydrocortisone". It is noted that the applicant, a physical training instructor ("PTI"), underwent his regular medical examination during service. None of those report any abnormality in relation to his knees, although in October 1971 he complained of "pain in feet relieved by using supports". The applicant was recommended "category A" except in respect of the October 1971 examination, which recommended "Fit for course 86/74".
The applicant was injured on 25 September 1965 whilst serving aboard the HMAS Sydney, taking part in a boxing match. The medical record of that date describes the injury occurring "whilst sparring in the gymnasium twisted heavily away from opponent, on his Rt foot, and in doing so heard a definite crack of a bone in his Rt foot" (T6, p.92). The subsequent x-ray shows a fracture of the head of the 5th metatarsal bone. The injury was encased in a plaster cast from just below the right knee to the applicant's toe (A2). Treatment included dispensing Codeine four hourly, for pain.
The applicant gave extensive evidence in relation to this incident. He said that his right knee gave way and he fell to the right onto the metal deck used as a boxing ring. He said that he also suffered pain to his right knee, which was blurred by the pain in his foot at the time. The applicant said that he was taken to sickbay and examined by a Leading Sick Berth Attendant (not a Medical Orderly) and treated. He remained there for 10 days with his foot in plaster and elevated, for both his foot fracture and, he said, his knee pain – he said his knee was also swollen at the time. The applicant recalls that he was on "light duties" for a couple of weeks after the plaster cast was removed and during that time the other two PTIs took on extra duties because he was unable to preform his at that time.
The applicant said that from the time of his knee injury in 1962, when doing strenuous physical activities he wore a right knee guard, supplied by the Navy. He said that he also wore the guard when the knee gave him pain although not exercising. His evidence is that he found the guard somewhat restricting and preferred not to wear it. He said that he wore it as a precaution because he felt that his right knee was "weak". He believes that it was this inherent weakness that caused him to fall during the sparring match in September 1965 and fracture his foot. He said that his duties as a PTI involved him in continual weight training, physical exercises such as squatting and gymnastics and partaking in numerous and frequent sporting activities. He said that he has a fairly unique record of having represented the Navy in 12 sports – boxing, swimming, being a member of the gymnastics display team, also rugby union, Australian rules, hockey, water polo, badminton, basketball, soccer, golf and volley-ball teams (Ex. A5). He said that he suffered numerous injuries which were not reported and for which he treated himself (Ex. A5). The applicant's duties as a PTI when on shore base included supervising and participating in "dog watch sport" which was voluntary sport beginning around 4.30pm. He also told the Tribunal that whilst on board Navy vessels he was required to assist with the loading of stores, which involved heavy lifting and carrying. He said that these happened about 20 times a year and involved two together carrying 50lb bags of potatoes and onions etc. He said that frequently after these various activities he would get pain medication (Panadol) from sickbay for knee pain, although his knee was not medically examined, during service, after the 1962 injury. His only treatment for the knee was self-administered analgesics, rest and use of the knee guard, supplied by the Navy.
The applicant was critical of the service Medical Records (Ex.A5), pointing out what he believed to be several errors, omissions and shortcomings. In some respects his criticism is that he was not aware that his medical record might provide significant evidence in future should he experience a disability that he believed to be service related. He said this fact was never explained and no one told him the importance of recording every medically related problem, whether treated or not, at the time of his discharge medical. For that reason he did not report many of these instances and many of those when he was treated are not on record either. And it was only recently when he obtained a copy of the service medical records that he discovered the errors etc. For this reason he said that the records which do exist should not be regarded as complete or even reliable. Be that as it may, in the opinion of the Tribunal, because the applicant said that he did not seek medical attention for his alleged chronic knee problem but rather relied on self-medication and the knee guard, none of the claimed errors or omissions are germane to the matter before the Tribunal. The only relevant aspect is that there is no record of the Navy providing the knee guards at regular intervals – a fact accepted by the Tribunal. As will be seen later, the Tribunal also accepts this evidence without qualification.
The applicant also told the Tribunal that as a PTI he needed to be seen as a person who would not give in to injury or to admit to carrying an injury and would carry on without complaint if at all possible. He said that there were occasions between 1962 and his discharge in 1977 when his knee prevented him from undertaking specific activities. He said these are not on the record because his immediate supervisors never directed him to have any further examination of his right knee and therefore the problem was never again investigated whilst in service.
In answer to a question put to him by Mr Ponnuthurai, the applicant said that he was wearing his right knee guard when injured whilst sparring in September 1965 and suffered the injury to his right foot.
The applicant's medical discharge report is at T6, page29 and dated 8 December 1976. The applicant said that he completed the answers to those questions. The following page (p.30) records the results of the medical examination that day. The applicant's responses to the various questions are such that he did not then suffer any disabilities although he had suffered the following disabilities during service:
"Concussion July 64 – June 73
Perforated ear (L) Oct 58 – May 65 – Mar 66
Eyes pterygia L & R Dec 66
Strained back May 64
Foot broken (L) Sept 65
Knee (R) twisted Sept 62 (L) May 65 – Mar 66
Knuckles (L) Oct 63 (L) May 67 broken 5th
Ankles twisted (L) Apr 58 – Nov 70 (R) Mar 65 – Sep 74"

There is no mention by the applicant of any chronic or ongoing right knee disability despite the applicant having completed a fairly extensive list of injuries. In answer to the question as to whether he "suffered from any disabilities which you consider to be due to or aggravated by service?" – he answered "No". The examining Medical Officer reported "Lower extremities" as "normal".

The applicant was asked about the record of left knee disability in May 1965 and March 1966, which he recorded (above). He told the Tribunal that he could not now recall this or these incidents – which is not surprising since they occurred over 36 years ago. All that can be inferred is that those injuries were not so significant that the applicant retained a clear recollection of the occasion of injury/disability.
In response to questions put to him by Mr Ponnuthurai, the applicant said that during his service he had basic fitness, and especially during his last 14 years of service he maintained a fitness level for his role as a PTI. However, during the mid-1970s he said that he was forced to give away playing rugby because of his knee problems. His further evidence is that when at the shore-based HMAS Leeuwin (WA) and Cerebus (NSW), as PTI he was engaged in daily rigorous exercises including weights (up to 125 lb squats and 60 lb bench presses) and kneeling, about twice each day for 40 minutes each time. He described these activities as including the weight exercises variously according to the particular class being instructed. He said that he also did a 2-mile run each day and a 10-mile run once a month. He served on the HMAS Duchess for about 12 months prior to his discharge. However, he said that his (right) knee did not "get sorer until age started catching up with me", a reference which the Tribunal takes to be of more recent times and possibly some 18 to 20 years since the applicant's discharge from the Navy.
Following the making of the claim to which this application relates, the applicant was referred in March 1997 for x-rays of both knees. The radiologist reported on 13 March 1997:
"There is extremely minimal spurring of the tibial spines on the right, but no significant degenerative changes are seen here or in the left knee. Incidental note is made of a small sclerotic bone island, and a minor cortical irregularity of the medial femoral condyle on the right. Both are unlikely to be of any significance. No significant focal bony lesion are seen and there is no joint effusion." (T7, p.53)
On 3 April 1997, Dr Yin reported the diagnosis as "minor OA of the right knee. Please investigate to see if there is any history of trauma." (T7, p.56) The Tribunal understands that "OA" stands for osteoarthrosis.
In October 1997, Mr Peter Anderson, orthopaedic surgeon, examined the applicant and reported on 29 October 1997, for the purpose of the claim then before the respondent (T7, p.94). He followed up that report with a further report of 10 November 1998 (T8, p.116). Mr Anderson's record of the applicant's relevant history is brief. In his first report Mr Anderson notes the 1962 injury to the applicant's right knee and the attendant hospitalisation. He makes a general reference, without particularity, to the applicant's demanding physical role with the Navy and that "[t]here is a possibility that under these circumstances he may have aggravated his disability", no doubt a reference to the 1962 right knee injury. Mr Anderson makes no reference in his earlier report to any trauma to the right knee although he reported that the movement of the right knee appeared to be limited to 20 degrees flex, the ligament system appears stable and crepitus was noted in the patella-femoral joint during examination. The earlier report also discusses "x-rays of the knee" without indicating which and whether they included the x-ray taken in March 1997 (T7, p.53) referred to above. Mr Anderson was not called to give evidence. It would appear that the latter report (T8) was commissioned when it was realised that the 1962 injury was not related to either operational or eligible defence service. The latter report attempts to do that by reference to an episode "while boxing with a member of the Army in transit to Vietnam [aboard HMAS Sydney]. In the opinion of the Tribunal, Mr Anderson's reports are not helpful and his opinions relating to impairment rating pursuant to the "Veterans' tables" are not relevant to the matter at hand – that of determining pursuant to s120 of the Veterans' Entitlements Act 1986 whether the applicant's diagnosed disability/injury to his right knee is war-caused or defence caused.
It is not in dispute that the applicant has rendered both operational service and defence service for the purpose of the Act. The relevant dates are set out in the respondent's statement of Facts and Contentions. Suffice it to say that the applicant was engaged in neither operational nor defence service (as those terms are defined in the Act) when he suffered the injury to his right knee on 5 September 1962. It is also not in dispute that when the applicant fractured his right foot on 25 September 1965 he was engaged in deemed allotted operational service aboard the HMAS Sydney in Vietnamese waters. And it is not disputed that the applicant has eligible defence service from 7 December 1972 to the date of his discharge on 23 February 1977.
The Relevant Legislation
The relevant provisions of the Veterans' Entitlements Act 1986 ('the Act") are contained in sections 120, 120A and 120B since this is a matter for determination having regard to the Repatriation Medical Authority's Statement of Principles ("SoP") relating to the diagnosis of Osteoarthrosis. The relevant SoPs are set out in the Table below, "reasonable hypothesis" and "reasonable satisfaction" in this instance referring respectively to operational service and eligible defence service:
Date   Reasonable hypothesis   Reasonable satisfaction
30 June 1997 71 of 1995 (amended by 336 and 352 of 1995)        72 of 1995 (amended by 337 and 353 of 1995)
16 April 2002   81 of 2001      82 of 2001

It is common ground that Instruments 81 of 2001 and 82 of 2001 are the most favourable in terms of the applicant's claim in this matter. For that reason only those instruments have been considered in these reasons.

VETERANS' ENTITLEMENTS ACT 1986
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,… 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 …., as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(2) [not relevant]
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, …, 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) …;

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 … 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.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) …; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section [not relevant]
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) [not relevant]

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;

as the case may be.
120B Reasonable satisfaction to be assessed in certain cases 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 eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120(4) is relevant to these claims.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.

(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person; as the case may be.

Submissions

Mr Hammal for the applicant submitted, by way of introduction and summary that the applicant's injury/accident on board HMAS Sydney in September 1965 resulted in treatment not only to the fractured right foot but also to the applicant's injured right knee. In regard to the latter it was submitted that the applicant's evidence is that he felt pain in his right knee immediately upon landing heavily when his right foot was fractured. He submitted that the lack of record of any treatment to the right knee is not surprising since it was his fractured foot that was the focus of treatment and more likely than not the medication treatment for pain to the right foot would have masked the pain in the right knee. In this respect he submitted for the applicant that the Service Records are not complete. He further submitted that the applicant continued to suffer chronic right knee pain from 1962, which he self-treated with analgesics and the Navy supplied knee-guard.
Mr Hammal submitted that the Tribunal should accept the applicant's evidence that the traumatic incident in September 1965, which resulted in a fracture to the right foot as recorded, also caused injury to or aggravated the applicant's right knee condition. Mr Hammal made reference to the relevant SoPs and in particular submitted that Factor 5(j) of Instrument No.81 of 2001 (Reasonable Hypothesis) and that at least one of Factors 5 (j), (k), (w), (x) and (y) of Instrument No.82 of 2001 (Reasonable Satisfaction), is met. The Tribunal deals firstly with the question of defence service causation. The relevant provisions including definitions, in of Instrument 82 of 2001 (Reasonable satisfaction) are set out below:
Instrument No.82 of 2001
Revocation and Determination
Of Statement of Principles
concerning
OSTEOARTHROSIS
ICD-10-AM CODES: M15, M16, M17, M18, M19
Veterans' Entitlements Act 1986
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about osteoarthrosis and death
from osteoarthrosis.
(b) For the purposes of this Statement of Principles, "osteoarthrosis"
means a clinical joint disorder associated with progressive loss of
articular cartilage, sclerosis of the underlying bone, proliferation
of bone and cartilage at the joint margins, and inflammation of the
synovium, as well as a history of pain, impaired function and
stiffness, attracting ICD-10-AM code M15, M16, M17, M18 or
M19.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation
Medical Authority is of the view that it is more probable than not that Page 2 of 7 of Instrument No.82 of 2001
osteoarthrosis and death from osteoarthrosis can be related to
relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, 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 exist before it can be said that, on the balance of
probabilities, osteoarthrosis or death from osteoarthrosis is connected
with the circumstances of a person's relevant service are:
(a) – (h) …; or
(j) for osteoarthrosis of a hip or knee joint lifting loads of at least 35
kg while weight bearing to a cumulative total of 168 000 kg
within any 10 year period, before the clinical onset of
osteoarthrosis in that joint, and where such physical activity has
ceased, the clinical onset of osteoarthrosis has occurred within the
25 years immediately following such activity; or
(k) for osteoarthrosis of a knee joint, kneeling or squatting for at least
one hour each day on more days than not for at least two years
before the clinical onset of osteoarthrosis in that joint, and where
such physical activity has ceased, the clinical onset of
osteoarthrosis has occurred within the 25 years immediately
following such activity; or
(m) – (v) ..
(w) suffering a trauma to the affected joint within the 25 years
immediately before the clinical worsening of osteoarthrosis in that
joint; or
(x) for osteoarthrosis of a hip or knee joint lifting loads of at least 35
kg while weight bearing to a cumulative total of 168 000 kg
within any 10 year period, before the clinical worsening of
osteoarthrosis in that joint, and where such physical activity has
ceased, the clinical worsening of osteoarthrosis has occurred
within the 25 years immediately following such activity; or
(y) for osteoarthrosis of a knee joint, kneeling or squatting for at least
one hour each day on more days than not for at least two years
before the clinical worsening of osteoarthrosis in that joint, and
where such physical activity has ceased, the clinical worsening of
osteoarthrosis has occurred within the 25 years immediately
following such activity; or
(z) ....
…
Other definitions
8. For the purposes of this Statement of Principles:
"ICD-10-AM code" means a number assigned to a particular kind of
injury or disease in The International Statistical Classification of
Diseases and Related Health Problems, 10th revision, Australian
Modification (ICD-10-AM), Second Edition, effective date of 1 July
2000, copyrighted by the National Centre for Classification in Health,
Sydney, NSW, and having ISBN 1 86487 271 3;
…
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
…
"trauma to the affected joint" means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar
external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;
…
Mr Ponnuthurai, for the respondent, agreed that there was a possibility that the applicant suffered pain in the right knee as a result of the September 1965 incident and it may well have been masked by the medication then taken for pain arising from the fractured right foot. Mr Ponnuthurai referred the Tribunal to the discussion relating to Repatriation Commission v Deledio (1998) 49 ALD 193, at page 434 of Creyke and Sutherland, Veterans' Entitlements Law, Federation Press, 2000. This passage directs the course that the Tribunal must take in a case such as the present, in applying the provisions of s120A or, as in the present analysis, s120B in the light of s120 of the Act. He further submitted that Repatriation Commission v Bey (1997) 149 ALR 721 at 730, is authority for the proposition that the material/ evidence before the Tribunal must point to the fulfilment of the relevant SoP factors/criteria. In relation to whether the evidence supported a finding that Factors 5(j), 5(k), 5(x) and 5(y) of SoP 82 of 2001, relating to defence service, Mr Ponnuthurai submitted that the Tribunal simply does not have sufficient evidence to be satisfied to its reasonable satisfaction that those quantitative measures have been met. He no doubt based that conclusion on the respondent's guidelines in relation to the calculations to estimate the accumulation of weight lifted for the purpose of the SoP (Ex. A4). In the Tribunal's opinion, the evidence referred to above in paragraphs 8 and 14, do not provide a basis for a reasonable estimation for the purposes of SoP 82/2001 Factors 5(j), (k), (x) or (y). Neither was there any submission by the applicant in that regard.
In relation to the applicant's eligible defence service, the Tribunal is of the opinion that the material before it points to an hypothesis connecting the applicant's "minor osteoarthrosis of the right knee" with the circumstances of the applicant's eligible defence service. That is, having regard to the duties of the applicant during his eligible defence service period, an hypothesis is open in that that service connects his minor osteoarthrosis of the right knee with those circumstances of his eligible defence service. However, the relevant question, having regard to the material before the Tribunal, is whether this is a reasonable hypothesis, that is, in terms of s120(4) whether the Tribunal is reasonably satisfied on the evidence before it that the applicant's minor osteoarthrosis of the right knee is defence-caused. And that question must be considered having regard to the relevant SoP (82/2001). In that respect, the evidence is that the clinical onset of the applicant's minor osteoarthrosis of the right knee, did not occur until after the x-ray taken on 13 March 1997 (T7, p.53) although Dr Yin diagnosed the condition on 3 April 1997 (T7, p56). That then leaves as the only remaining relevant question, in terms of eligible defence service, whether Factor 5(w) is, on the evidence before the Tribunal, satisfied. Factor 5(w) states:
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis … is connected with the circumstances of a person's relevant service are:
…
(w)suffering a trauma to the affected joint within the 25 years immediately before the clinical worsening of osteoarthrosis in that joint; or
…
If it is accepted that the applicant suffered a trauma to his right knee when he fractured his right foot on 25 September 1965, then for the applicant to satisfy Factor 5(w) of SoP 82 of 2001, that trauma, must at the very minimum have occurred within 25 years of the clinical onset, let alone clinical worsening of the applicant's minor osteoarthrosis of the right knee. Given that the clinical onset was, at earliest, April 1997 (on the evidence), the relevant trauma experienced by the applicant is well before 25 years prior to that date, indeed it is approximately 32 years before. For those reasons, in the opinion of the Tribunal, the applicant's minor osteoarthrosis of the right knee is not defence caused.
s120 and the applicant's operational service
The Tribunal is of the opinion, based on all the material before it, that that material points to an hypothesis connecting the applicant's minor osteoarthrosis of the right knee with the circumstances of the applicant's particular service in the Navy.
The question of whether the hypothesis referred to in the preceding paragraph is a reasonable one, in terms of s120 of the Act, must be considered, pursuant to s120A, in the light of the relevant SoP, instrument 81 of 2001. In the opinion of the Tribunal, the hypothesis would be reasonable should factors 5(j), (x) or (y) connect the applicant's minor osteoarthrosis of the right knee with his operational service. Those factors state:
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 osteoarthrosis or
death from osteoarthrosis with the circumstances of a person's relevant
service are:
(a) – (h) …;or
(j) suffering a trauma to the affected joint before the clinical onset of
osteoarthrosis in that joint; or
(k) – (w) …; or
(x) suffering a trauma to the affected joint before the clinical
worsening of osteoarthrosis in that joint; or
(y) for osteoarthrosis of a hip or knee joint lifting loads of at least 25
kg while weight bearing to a cumulative total of 120 000 kg
within any 10 year period, before the clinical worsening of
osteoarthrosis in that joint; or
(z) …
Other definitions
8. For the purposes of this Statement of Principles:
…
"trauma to the affected joint" means a discrete joint injury that causes
the development, within 24 hours of the injury being sustained, of
symptoms and signs of pain, and tenderness, and either altered mobility
or range of movement of the joint. These 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 that joint has occurred, where that
medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar
external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;
…
Having reached that stage, according to the decision in Repatriation Commission v Deledio, the Tribunal must now consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the applicant's present incapacity from his minor osteoarthrosis of the right knee did not arise from a war-caused injury. If the Tribunal is not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal is required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved (see Deledio, 49 ALD at 206).
Therefore, in terms of SoP 81 of 2001, the evidence must support, as a minimum, at least one of the factors referred to above. In relation to factor 5(j), it raises the question of whether the evidence connects the applicant's minor osteoarthrosis of the right knee with his operational service in that he suffered a trauma to his right knee before the clinical onset of osteoarthrosis in that joint? The expression "trauma to the affected joint" as used in factor 5(k) in SoP 81 of 2001 is defined in paragraph 8 (above). The only relevant evidence in this respect relates to the fracture injury to the applicant's right foot as a result of the boxing incident on 25 September 1965. There is no documented evidence that the applicant also injured his right knee, although his evidence is that he recalls it being swollen at the time and because of the medication and treatment for his fractured right foot, the focus at the time was on the right foot injury. It was submitted that any pain then suffered would have been masked by the pain analgesics taken for the fractured foot. Also, in the opinion of the Tribunal, the fact that the applicant was confined to sickbay aboard HMAS Sydney for 10 days with his foot in plaster and immobilised suggests that such treatment would have been compatible with a concurrent same leg knee injury of the kind described by the applicant. That is, those circumstances resulted in resting the right knee as well as the foot. Further, the applicant's evidence is that he was on light duties (that is, no physical exertion as a PTI) for a couple of weeks following his time in sickbay.
The Tribunal accepts the applicant to be a witness of truth. It also accepts that the applicant's recollection of the actual pain in his right knee at the time, resulting from the twisting movement causing the fall and fracture to the foot, would be blurred by the passage of time and the pain medication then being administered. It may also have been blurred because of the knee guard. In the opinion of the Tribunal, it is more likely than not that on 25 September 1965, the applicant suffered a discrete injury to his right knee which may well have been susceptible to traumatic injury because of past history. The Tribunal accepts the applicant's evidence in relation to his knee condition at the time as pointing to development within 24 hours of the incident on 25 September 1965, of symptoms and signs of pain, and tenderness as well as possible altered mobility (which was not tested due to his confinement to sickbay bed rest) or range of movement in his right knee. In the opinion of the Tribunal the applicant's evidence supports a finding of fact that the 10 day immobilisation of the right knee, immediately following the incident, indirectly as a result of the immobilisation of the applicant's right foot, together with the analgesics for pain, were sufficient to meet the relevant criteria of the applicant having suffered a "trauma to the affected joint before the clinical onset of osteoarthrosis in that joint". The matter of the clinical onset of osteoarthrosis is discussed above (see also, Dr Yin's report T7, p.56).

For the above reason the Tribunal is not satisfied beyond reasonable doubt that the applicant's incapacity arising from his minor osteoarthrosis of the right knee was not war-caused and for that reason alone, the applicant's claim must succeed.
Whilst it is therefore unnecessary for the Tribunal to consider the other two factors of SoP 81/2001, factors 5(x) and (y), it does so briefly for the sake of completeness. Firstly, in the opinion of the Tribunal factor 5(x), "suffering a trauma to the affected joint before the clinical worsening of osteoarthrosis in that joint", cannot apply because clinical onset did not occur until probably just prior to April 1997 for reasons discussed above and the relevant trauma was some 32 years previously. And in the Tribunal's opinion, as already discussed, there is insufficient evidence to support a finding in relation to the quantitative aspects of factor 5(y). In any event, the applicant's service embraced 249 days of operational service only, (that is, well short of the required cumulative period in factor 5(y)), all of which were at sea and the evidence indicates that in a cumulative sense, the weight lifting and presses occurred whilst on shore bases were most significant.
Mr Ponnuthurai submitted that should the Tribunal find in favour of the applicant then in terms of the Act, the date of effect is 23 October 1996, that is, three months prior to the date of lodgement of the claim since all requests for reconsideration and review were within time.
Decision
For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the Veterans' Review Board of 15 January 1999 and in substitution therefor decides that the applicant's minor osteoarthrosis of the right knee is war-caused, with effect from 23 October 1996.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         ..........(sgd V Wong).....................................
  Associate
Date/s of Hearing  16 April 2002
Date of Decision  26 June 2002
Advocate for the Applicant      Mr R C Hammal
Advocate for the Respondent Mr C Ponnuthurai