Ramsey and Repatriation Commission - [2002] AATA 581

DECISION AND REASONS FOR DECISION [2002] AATA 581

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/311

VETERANS' APPEALS DIVISION          )
           Re      HENRY ARCHIBALD RAMSEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date12 July 2002
PlaceAdelaide

Decision The Tribunal sets aside the decision under review in so far as the conditions of lumbar spondylosis and osteoarthrosis of the right wrist are concerned and in substitution therefor decides that these conditions are war-caused with a date of effect of 12 September 1997. In so far as the condition of pes planus is concerned, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – eligible war service – whether applicant's conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis are war caused – medical and documentary evidence considered – reasonable satisfaction.
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Kruger & Repatriation Commission [2000] AATA 641

Veterans' Entitlements Act 1986 ss.9, 120

REASONS FOR DECISION

12 July 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Henry Archibald Ramsey (the applicant) for review of a decision of a delegate of the respondent dated 6 January 1998 (T7/25-28) which was affirmed by the Veterans' Review Board on 6 July 1999 (T2/4-9). The decision refused an application by the applicant for disability pension and medical treatment for osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis (T5/18-23), determining that the applicant's disabilities were not related to his eligible war service.
The Tribunal received into evidence to documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T11) and supplementary T documents (T12-T41), together with eleven exhibits, ten lodged by the applicant (Exhibits A1-A10) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Dr Peter Byrne to give evidence on his behalf. The applicant was represented by Mr Graeme Hemsley, of counsel and the respondent was represented by Mr Greg Doube, a departmental advocate.
The issue before the Tribunal is whether the applicant's conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis are war caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
history of the application
The applicant was born on 31 October 1922 and served in the Royal Australian Air Force ("RAAF") during the Second World War and has eligible war service within Australia from 19 August 1941 to 18 October 1941.
On 12 December 1997, the applicant lodged a claim for disability pension and medical treatment, naming his disabilities as "right thigh, left foot, right wrist and ill health" (T5/18-23). This claim, interpreted to be for "osteoarthrosis of the right wrist, bilateral congenital pes planus, lumbar spondylosis and ill health" was rejected by the respondent, who determined that the applicant's conditions were not related to his eligible defence service (T7/25-28). This decision was affirmed upon review by the Veterans' Review Board which stated (inter alia) in its reasons for decision (T2/7-9):
"…
Lumbar Spondylosis
There is no dispute with the diagnosis of this condition and the Statement of Principles is Instrument 28 of 1999.
The only service-related causal factor indicated on the material before the Board is 5(g), suffering a trauma to the lumbar spine within 25 years immediately before the clinical onset of the condition.
…
There is no reference in any of the medical or other records to the veteran suffering an injury to his back. Prior to discharge he was medically examined and there is a reference to thigh pain and abdominal problems, but no back symptoms are mentioned.
For a trauma as defined to have occurred in the brief period of service, the Board is of the opinion that it would have been included in the history obtained from the veteran or those in command at the time of discharge, particularly as he was being medically discharged.
In addition, the condition of lumbar spondylosis would have had to have been present by 1966, and there is no medical evidence to support that contention.
…
Right Wrist
It would appear the veteran suffers osteoarthrosis of the right wrist and the relevant Statement of Principles for osteoarthrosis is instrument 42 of 1998 as amended by 19 of 1999.
Again, the only factor which would appear to be raised, is that referring to a trauma. … There is no mention of such an injury in the service documents, and, the statutory declaration of the veteran in 1952, indicates the injury was minor, and settled after a few days. Neither is there evidence that the osteoarthritic condition existed in 1966.
…
Pes Planus
Although the submission was that the veteran suffers acquired pes planus, that diagnosis is not supported by medical opinion. Even the letter submitted on behalf of the veteran, from Dr Markey, dated 21 September 1998, refers to the condition as a largely inherited condition. Consequently, we are satisfied the condition suffered is congenital pes planus and not acquired pes planus. The appropriate Statement of Principles is instrument number 305 of 1995.
…
The veteran has stated that he suffered blisters and a poisoned foot and could not continue marching because of those problems. However, the statement he made on 19 September 1941 (referred to a the hearing), makes reference to pain in the thigh on service, more troublesome at night, but stiff in the morning. He stated 'I was not able to complete my drill training because the leg became too painful to work on, and could not sleep at night with the pain'.
The Wing Commander's report of the same date confirms the leg pain interfering with the veteran's drill training course and goes on to state the veteran is not fit because of his feet. Whether that is a reference to flat feet is not clear. Notwithstanding that, the veteran enlisted on 19 August 1941 and stopped any training or marching, by 19 September 1941. It is unlikely there could have been any clinical worsening of any pes planus, and certainly there is no evidence of it.
…"
On 3 August 1999, the applicant lodged an application for review with this Tribunal (T1/3).
legislation
The applicable standard of proof is that contained in sub-section 120(4) of the Act, which is to the Tribunal's reasonable satisfaction. This means that the Tribunal must be satisfied that matters are more probable than not.
The parties contended that several statements of principles ("SoPs") were in issue, as set out below.
In relation to the applicant's claimed condition of osteoarthrosis of the right wrist, counsel for the applicant put before the Tribunal several SoPs for the Tribunal to consider (Exhibit A7):

the SoP in existence at the time of the original determination, namely instrument number 72 of 1995, as amended by instrument numbers 337 and 353 of 1995 concerning osteoarthrosis;
intervening SoPs, namely, instrument number 42 of 1998 as amended by instrument number 20 of 1999 concerning osteoarthrosis; and
the SoP currently in force, namely instrument number 82 of 2001 concerning osteoarthrosis.

in relation to the applicant's claimed condition of lumbar spondylosis, counsel for the applicant put before the Tribunal three different SoPs, namely (Exhibit A8):

the SoP in existence at time of original determination, namely, instrument number 166 of 1996 concerning lumbar spondylosis;
the intervening SoP, namely, instrument number 53 of 1998 concerning lumbar spondylosis; and
the current SoP, namely, instrument number 28 of 1999 concerning lumbar spondylosis.

In relation to the applicant's claimed condition of acquired pes planus, counsel for the applicant put before the Tribunal the following SoPs (Exhibit A10):

the SoP in existence at the time of the original determination, namely, instrument number 303 of 1995 concerning acquired pes planus; and
the current SoP, namely, instrument number 62 of 2001 concerning acquired pes planus and congenital pes planus.

In relation to the applicant's claim for "painful left foot", counsel for the applicant put forward the following SoPs (Exhibit A9):

the SoP in existence at the time of original determination, namely, instrument number 299 of 1995 concerning acquired hallux valgus; and
the current SoP, namely, instrument number 48 of 1998 concerning acquired hallux valgus.

As the applicant had only two months of eligible war service, the aggravation provisions in section 9(1)(e) of the Act do not apply in this case. Section 9(6) of the Act sets out that for section 9(1)(e) to apply, a veteran must have either operational service or eligible war service of six months or longer. This means that none of the provisions in the SoP related to "clinical worsening" apply in this case.
applicant's evidence
The applicant was born on 3 October 1922 and is currently 79 years of age. He is now retired. The applicant served in the RAAF during the Second World War, having enlisted for service in Adelaide on 19 August 1941 for the duration of the war and a period of twelve months thereafter. Prior to being accepted into the RAAF, he underwent a medical assessment, at which time he was assessed as medically fit. He stated that he was transported to the No. 1 Recruit Depot at Laverton Air Force Base on 19 August 1941. He was discharged on 18 October 1941, approximately two months later, as being medically unfit.
The applicant told the Tribunal that he left school at the age of 14 and before joining the RAAF he worked on his father's property on a voluntary basis. He stated that he had no difficulties with his work on the farm and also played cricket, tennis, table tennis and at school he had played a lot of football.
pes planus
The applicant stated that his service initially involved physical training, including marching. He stated that he marched for two weeks at ten hours per day or longer. The applicant stated that when he joined the RAAF it was winter in 1941 and he marched for the whole of the daylight time on the training area. As soon as he got out of bed, he would have breakfast and then move out onto the training/parade grounds. He stopped for about 20 minutes to eat lunch before commencing to march again for the rest of the day. The applicant stated: "I'd call it 'thrashing'". He stated that he had no difficulty with the marching except in the latter part of the two weeks, when he became sore-footed and weak on his left leg. He believed that his tight, ill-fitting boots caused his problems and the start of a poisoning (infection) on the side of his left big toe. The applicant stated that when he was first fitted for boots, he was treated in an abrupt manner and was basically told to accept the smaller boots or go without. When he complained about the boots he was told that there were no other larger boots available.
When it was put to the applicant during cross-examination that he was admitted to the hospital on 24 August 2001 (T12/37), four days after his arrival in Laverton, the applicant stated that this did not make sense to him in that he thought that he was marching for two weeks. He stated that his recollection did not correlate with the records.
The applicant stated that the pain became unbearable. He went into hospital during the latter part of the marching due to pains in his right thigh, left foot, and across his groin and stomach. The applicant stated that there was nothing wrong with his right thigh prior to his service except for slight scarring from an injury when he was thrown from a horse and his foot was still hooked in the stirrup at a young age. He told the Tribunal that he had been going home from school at twelve years of age when this incident happened and the injury required stitches.
The applicant told the Tribunal that after his first period in hospital he was given a test march in the showgrounds, the purpose of which was to see if he could go on with his squadron. He stated that he tried very hard but he fell to the ground with pain after half an hour. He was taken back to the unit and discharged. He stated that he still had the same boots but could have just been wearing his shoes at the showground.
The applicant stated during cross-examination that he had two horse-riding accidents, one occurring when he was eight or nine years old, when he broke his elbow, and another when he was ten or eleven years old and cut his thigh. The applicant stated that he had no effects from the first accident other than the broken elbow which healed. In relation to the second accident, the applicant stated that the cut on his leg was shallow, he had no reaction from it and he rode back to school eight miles away one week later. He stated that he had no other problems with his thigh and it was only when he joined the RAAF that he had problems with his leg.
The applicant was referred to his RAAF medical records (T12/38) where it was written in a note dated 2 September 1941: "Dragged by horse at age of 12 – lacn. upper R. thigh – several times has noticed pain in cold weather and severe exertion." He was further referred to a medical form dated 12 September 1941 (T12/39) which stated: "Complains of aching in R. hip region on frequent occasions since injury at age of 12 years." The applicant stated that such comments could be related to the fact that it was a colder climate at Laverton and he had had no problems in the warmer climate in which he lived before enlistment, even though he had been through nine winters by the time he joined the RAAF. The applicant agreed that therefore, his statement to the specialist at the RAAF hospital was incorrect. The applicant related these aches and pains with sleeping in hard and cold conditions or his fall at the steps.
osteoarthrosis of the right wrist
The applicant recounted to the Tribunal an incident which occurred whilst he was still at Laverton in or about August 1941. He was cranking a truck engine by hand when it backfired and his right wrist was injured when the crank-handle came down upon it with considerable force. The applicant stated that he was in a lot of pain and so went to see the RAAF doctor. He told the Tribunal that since it was the weekend, the RAAF doctor was not pleased to see him and the applicant could smell alcohol on him. The doctor just wrapped up the applicant's arm and told him to go back to camp. The applicant stated that he received no further treatment and he re-wrapped his arm occasionally.
The applicant stated that he could not be sure whether or not he took the bandaging off when he went to hospital on the second occasion and stated that he kept it continually bandaged when he was not in hospital. He could not remember if his wrist was attended to when he went into hospital for the second time. He thought that he would have mentioned it to the doctors in hospital but he was not sure what the exact procedure was. When it was pointed out to the applicant that there was no mention of the arm injury in his hospital or other service records, the applicant explained that when he was not in the hospital he did not want to be discharged, so he did not tell anyone. Even though it was continually bandaged when he was not in hospital, he wore long overalls so others would not see the bandaging. The applicant stated that at the time he wanted to prove to them that he could stay in the Forces, but during the marching he almost fell to the ground because of his leg and he was discharged anyway. When asked by the respondent why did he complain about stomach pains (1st hospital admission) and right thigh injury (2nd hospital admission) if he was worried about being discharged, the applicant stated that he avoided mentioning anything that could get him discharged, but his right thigh injury was interfering with his marching.
The applicant agreed that he injured his wrist and his back in between his two hospital visits, therefore when he was in hospital for the second time he had a bad back and wrist. It was put to the applicant that he went into hospital on the second occasion because of his leg and there was no mention of his back and wrist in his service documents. The applicant stated in reply to this that he could not account for that but that every time he went into hospital they checked his back and leg. The applicant stated that he mentioned his back in hospital but he did not mention his wrist as the doctor had bandaged it before he went in. He stated that he did not mention his wrist to them as he felt that the less problems he showed, the better his chances were to stay with the unit at the same station. He reiterated that he did mention it to the doctor in charge prior to admission and the doctor bandaged his wrist.
The applicant told the Tribunal that he was not able to use his right hand as it was very painful and after leaving the RAAF he continued to be unable to use it. He sought further treatment for his wrist and 14 days after he left the Forces, a doctor put it in plaster of paris for some time and when he went over to Nuriootpa Hospital, a Dr Schultz gave his arm a considerable massage treatment. However, he was not able to recover the use of his arm because of the pain and he then depended upon his left hand. He stated that this made life very awkward as he is right-hand dominant.
The applicant stated that when he made his first claim for injury to his wrist on 22 September 1950 (T25/61), he signed the form but did not write the statement above his signature, which included: "In 1939 I injured my right forearm just above the wrist. This healed, and has not caused any trouble since. No other wrist injury prior to enlistment in the RAAF." The applicant stated that during the crank handle incident he injured his wrist at the joint not above the wrist, and 1939 was two years before his service, a time when he did not suffer any injuries. The applicant told the Tribunal that his only arm injury prior to enlistment in the RAAF was the injury to his elbow when he fell off a horse at seven, eight or nine years of age.
The applicant was asked about further in the claim where, after describing the crank handle incident, the claim stated (T25/61-62):
"My wrist became rather swollen, and appeared to be a bad sprain. I attended SSQ, where my wrist was bandaged. I did not enter hospital because of this condition, but was admitted to No.1 RAAF Hospital a few days later because of an abdominal condition. I did not mention the wrist injury while in hospital, as it seemed to be improving satisfactorily. I did not receive any further treatment for my wrist during service."
The applicant stated that he did not know if his wrist was sprained or broken and it was swollen and painful. In relation to when he entered hospital, the applicant stated that he cannot remember dates but he remembered that he was admitted with leg and stomach problems at the same time. The applicant stated that the last two lines "did not correspond with his thoughts".
The applicant was shown a copy of the entry examination board record dated 21 July 1941 (T4/12) which contained a statement of the applicant at enlistment and the examination that followed. Question 5 stated: "Have you ever been injured or operated upon?" to which the answer typed in was "Yes. Lacerated R. thigh: No sequelae. 9 years in accident. Broken wrist 2 yrs. ago. Broken collerbone child. No sequelae." The applicant stated that this was a mistake as he had a broken arm not a broken wrist – he had broken his elbow two years prior when he fell off a horse.

The applicant agreed during cross-examination that he first claimed for a wrist injury with the Department in 1950 (T23/59), at which time his statement to the medical officer was as follows:
"First noticed following injury (backfire when cranking a truck) while in R.A.A.F. about 1941. Got worse after fell from truck on outstretched hand about 6 years ago. Then in P.O.P. for some weeks. Has got steadily worse since."
The applicant stated that he knew nothing about the falling from the truck in about 1944 – he said it made no sense at all. The applicant recalled that Dr Bundey in Cleve might have put the plaster on but he did not recall telling him about the truck incident. He stated that the only time that any plaster was put on his hand was not long after his discharge from the service. The applicant stated that he could recollect the wrist being x-rayed and the joint with a crack right through the centre. The applicant stated that he remembered having plaster of paris soon after leaving the Forces despite not mentioning it in the statement dated 22 September 1950 (T25/61-62). It was put to the applicant that there was also no mention in his statement of 22 September 1950 of falling out of the truck. The applicant stated that he had not gotten the two incidents mixed up.
The applicant stated that before commencing with the Forces there was nothing wrong with his wrist but his wrist got worse and worse after leaving the Forces. When asked why in the above statement (T25/61-62) he had stated that whilst in hospital his wrist "seemed to be improving satisfactorily", the applicant told the Tribunal that that did not make sense but that he had tried to cover his wrist problem up. He stated that he wore his long overalls even at the Melbourne showgrounds. The applicant agreed that he did not wear overalls in hospital and would be more likely to be wearing pyjamas and a dressing-gown but he insisted that he would have kept his wrist covered up. The applicant stated that his wrist was never "improving satisfactorily" – he stated that it has never recovered and has always been getting worse. When asked why he did not mention the fact that he had plaster of paris put on just after discharge when he did the statement in 1950 (T25/61-62), the applicant stated that at the time he did not think the plaster would be of much importance.
It was put to the applicant that he had stated in his 1950 statement (T25/62) that he saw Dr Jarvis in Cleve in 1946 in relation to his wrist condition but Dr Bundey in his letter to the respondent dated 14 October 1950 (T28/65) stated: "No reference is made in Dr Jarvis' case record of treatment of wrist condition". The applicant stated in reply to this: "I can't quite follow it". The applicant then stated that he could not recall seeing Dr Bundey at that time but could recall his wrist being put back in plaster of paris.
The applicant was referred to his first claim for pension in December 1941 (T14/46) and specifically a questionnaire he had filled out shortly after discharge, which went through the investigation of his claim, and there was lots of evidence regarding the problem in his right thigh but no mention of a wrist or back injury. The applicant stated that he could not account for that – it wasn't his writing on the form but he certainly signed it. The applicant stated that he might have been too ill at the time to read it properly. When it was put to the applicant that the pension documents mention a nervous disorder and a right thigh problem but no mention of back or wrist, the applicant stated that he well knew of his back and wrist problems and could see no reason why they were not written in. The applicant stated that at the time he was in a "pretty bad nervous state".
lumbar spondylosis
The applicant outlined to the Tribunal another incident which occurred during his defence service. He stated that whilst walking to the Army camp shower cubicles 50 yards away one morning at six o'clock, he slipped on some ice and fell onto his back on the steps. He told the Tribunal that he experienced quite a lot of pain and when he picked himself off the ground he felt that he had hurt himself rather badly. He could not recall anyone in particular being in the vicinity at the time he fell and he could not recall whether he mentioned the incident to anyone. He stated that he struggled back into the hut and lay down on his bed and stayed there all day. He stated that there was not much going on in the camp at the time as they were just calculating the shift of the unit to the showgrounds and packing up. He could not recall anyone inquiring about him because at the time things were "pretty slack".
The applicant stated that he might have gotten up in the afternoon or at lunch-time but he could not recall if he did so. He stated that he would have got someone to rub his back down for him with liniment but he could not specifically recall this. The applicant could not quite remember what happened on the next day and could not remember how long it was before he went into the hospital for the second time. The applicant stated that he did not report his back injury to first aid. The applicant stated that he wouldn't have thought he would have gone to breakfast but may have gone to lunch. He thought that he would have done this back injury before he hurt his wrist but could not recall if his wrist was bandaged on the way to the shower. When it was put to him that if he had injured his wrist afterwards, then he must have been undertaking normal duties whilst he had a back injury, the applicant stated that it was a pretty casual war time effort at the time. The applicant did not recall a back injury at the time he injured his wrist. He stated that he thought he would have told the doctors in hospital about his back injury. When it was put to him that the records only indicated a thigh problem the applicant stated that it appeared to him to be all the same thing, a combination of both and in hospital they examined and tested him all across that area.
The applicant stated that it was a bit hard to remember but he thought that he was then in hospital for seven to nine days on the second occasion but when counsel for the applicant suggested that he was only in hospital on the second occasion for a couple of days, he then recalled that on the first occasion that he was in hospital it was for seven to nine days and on the second occasion it was for only three days. When he was shown that the medical records suggested that he was in hospital for his hip and thigh, the applicant stated that this could have been true. He stated that he did say something about his back to the doctors from time to time whilst in hospital for the second time and they had taken x-rays of his back, leg and hip but did not give him any form of treatment. The applicant was not sure if he underwent physiotherapy but doctors were continually inspecting patients on the ward and a lot of testing of the movement of joints went on.
The applicant stated that there was a gap of about two weeks between when he slipped and when he left the RAAF. The applicant stated that his back continued to be sore and tender and he could not use it and it slowly became worse. The applicant told the Tribunal that he was transferred to Melbourne showgrounds to be discharged and he was there for one week or so, and then on the train trip from Melbourne back to Adelaide the jolting of the train was unbearable. He stated that the limitations on bending grew worse and the pain has continued over the years and he finds it particularly painful to bend, lift anything or walk. His back is also sore to touch.
The applicant was referred to his second claim in 1948 about his right thigh and in particular the fact that there was no mention of the injury to his back or back symptoms (T22/56). The applicant stated that he was amazed that the back injury was not mentioned and he stated that he always mentioned his wrist and back.
In relation to his August 1996 diagnosis of lumbar spondylosis, it was put to the applicant that at that time he made no mention of the slipping and falling incident. The applicant stated that he could not work out why this was not mentioned as he considered it to be an important cause of his problems. It was put to the applicant that the written reasons of the delegate dated 4 September 1996 (T40/102-111) first mentioned the necessity for satisfying the relevant SoP and the requirement of trauma to the spine, and it was only during the subsequent veterans' review board hearing that the applicant first mentioned falling on his back (T37/88-92). The applicant explained that he had not mentioned it before then for "no good reason really" except that he was more concerned with his foot problems and had received no attention from anyone and was on the verge of giving up.
The applicant stated that he first consulted Dr Byrne not very long ago and also consulted with Mr Rossiter, a podiatrist, fairly recently. He has also been seeing Mr Barry Jones, physiotherapist, for some years. Apart from that he had been seeing a GP, Dr Scragg, since 1998-1999. The applicant agreed that none of these people were aware firsthand of any of his service and that everything they knew was from the applicant and his service records. The applicant agreed that his memory is not as good as it was when he was younger.
evidence of mr peter d. byrne, general surgeon
In a report dated 16 July 2001, Mr Byrne stated, inter alia (Exhibit A2):
"SUMMARY
In summary, Mr Henry Archibald Ramsay presents with problems associated with his right wrist, lumbo-sacral spine, left foot. He served in the RAAF in WWII with several months in 1941. He sustained an acute injury to his right wrist in August of 1941 when a crank handle on a vehicle backfired. He incurred acute pain, was never properly investigated with x-rays and the injury was treated locally. Recent x-rays of the right wrist joint show a marked loss of joint space at the radiocarpal joint with appearance suggesting an old scaphoid injury. There are severe degenerative changes with cystic change in the small bones of the wrist and degenerative changes also at the second metacarpophalangeal joint.
I would assess that on the recent x-ray evidence that he has had an avascular necrosis (bone death) because of disrupted blood supply following a fracture of the scaphoid bone of the right wrist as a result of the incident of August 1941. Therefore, the current status of the right wrist joint can be directly related to his service in the RAAF.
He also incurred an injury to his back when he fell on some ice on steps at RAAF Laverton. He has since that time had low back pain. X-rays of the thoracicolumbar spine beginning in June 1988 show collapse of the bodies of the six and twelfth vertebrae suggesting old crush fractures. There has been progressive degeneration of the thoracic discs since that time.
A plan x-ray of the lumbar spine shows some disc degenerative change becoming more prominent recently.
On examination, he is consistently tender in the area of the lower lumbar spine, which is the site of his chronic long-term pain.
An MRI Scan of the lumbar spine has not been carried out to define accurately the status of his lumbar discs but on the basis of the history submitted, it would appear that he did incur a low back injury back in 1941.
With respect to his left foot, there is no mention of flat feet (pes planus) on the medical documentation. His feet are labelled "N" which generally means a normal or no abnormality.
He would appear to have had problems when marching and carrying out parade-ground work in what he describes as mal-fitting boots.
Ultimately, it was his feet, allegedly, which forced his retirement from the RAAF after some months on medical grounds in WWII.
He would have appeared to have undergone corrective surgery back in 1992 and 1993 but the exact detail of this is not known.
Recent x-rays of his left foot show evidence of extensive surgery to the big toe and the second and third toes.
On examination, he has marked deformity of the left foot with gross hallux valgus, bunions, over-riding toes and rigidity of the toe joints. There is distinct limitation in range of movement of the left ankle joint as well.
He has moderate flat feet on both sides but certainly the deformities of the left foot are significant and I would believe that although he may have had mild problems prior to enlistment in the RAAF (which he denies) his RAAF service combined with mal-fitting service boots have contributed significantly to his current and significant problems with his left foot."
Mr Byrne stated in his oral evidence that he saw the applicant and obtained the information as set out in the General History of his report (Exhibit A2). He stated that the applicant currently receives physiotherapy at the South Coast District Hospital for his back, right wrist and left foot.
osteoarthrosis of the right wrist
Mr Byrne stated that osteoarthrosis of the right wrist was the current diagnosis on the basis of x-rays ordered this year. Mr Byrne stated that the applicant had told him that his problems with his right wrist began when his wrist was struck by the crank handle and that this explanation was consistent with the x-ray evidence and the diagnosis of osteoarthrosis. Mr Byrne stated that the incident with the crank handle would have caused significant trauma to the applicant's right wrist and that this 1941 incident was a reasonable cause for the current status of his wrist. Mr Byrne further stated that one would have expected a person's wrist to be examined properly at an entry examination, particularly if the person had indicated that it had been broken two years prior. When referred to the SoPs concerning osteoarthrosis, Mr Byrne made the following comments:

SoP No.353 of 1995: Mr Byrne stated that in relation to factor 2(b)(vi), namely suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis, the applicant told him that his wrist became painful and swollen after the crank handle incident and he has had pain since then. However, the applicant did not give him an exact duration of the pain and swelling.
SoP No.82 of 2001: Mr Byrne stated that the definition of "trauma to the affected joint" in paragraph 8 of the SoP did not alter his opinion.

Mr Byrne stated during cross-examination that the applicant did not mention to him that his wrist had been in plaster of paris shortly after service, nor did he mention his first claim in 1941 or the following claims in 1948 and 1950. He stated that the applicant did not mention to him that his wrist was "useless" following the crank handle incident, nor that it was bandaged continuously, nor that he was admitted into hospital shortly after the incident. The applicant also did not mention that he was discharged basically because of his feet. When asked during cross-examination whether it seemed inconsistent to him that the applicant was supposedly hiding his wrist problem but being open about his foot problem, Mr Byrne replied: "Servicemen do funny things at times".
Mr Byrne stated that he was not aware that in his 1950 claim, the applicant mentioned that in 1944 he fell out of a truck and landed on his hand, broke his wrist and it was put in plaster. Mr Byrne agreed that the 1950 x-ray of the applicant's wrist (T26/63) only confirmed that there was an old fracture and he stated that this was not inconsistent with his finding that there may have been a second "chip" fracture adjacent to another fracture, and that the x-ray suggests a degree of bone death due to altered blood flow. Mr Byrne agreed that his opinion on the cause of the applicant's osteoarthrosis was based solely on what the applicant told him and was also consistent with a fracture of the right wrist in either 1939, 1944 or 1950. Mr Byrne stated that the x-ray report of 1950 (T26/63) supported previous trauma and agreed that the sclerosis and suggestion of an old flake fracture as mentioned in the 1950 report could indicate a second fracture of the wrist in a second incident.
Mr Byrne stated during cross-examination that the applicant told him that he was thrown from a horse at 9 years of age and he was not given a history of any second incident with a horse. Mr Byrne agreed during cross-examination that he had seen the applicant's RAAF entry medical questionnaire (T4/12), where it was recorded "Lacerated R. thigh … Broken wrist 2 yrs. ago. Broken collerbone…" but stated that the applicant had told him that he did not break his wrist but rather his elbow, and Mr Byrne thought that this was from the horse incident. Mr Byrne stated that the applicant must have denied the broken wrist two years before enlistment.
Mr Byrne stated that as fractures vary, if the applicant had broken his scaphoid bone, the diagnosis may have been difficult originally and the wrist could have been wrapped up and the person then carry on with duties, but it would still hurt. Alternatively a fracture could cause a lot of pain and swelling. Mr Byrne stated that it was only when one put the wrist in the scaphoid position that the fracture became obvious. Nowadays, there are better scans but back then, a fracture could be very easy to miss. Mr Byrne agreed during cross-examination that if the applicant was admitted to hospital for ten days for unrelated problems shortly after the wrist incident, then if the applicant was experiencing swelling and pain in his wrist it should have been picked up.
lumbar spondylosis
In relation to the lumbosacral spine, Mr Byrne stated that the diagnosis of lumbar spondylosis was correct as x-rays of the area were consistent with this condition. Mr Byrne gave the opinion that the applicant's fall on the ice on steps at Laverton in 1941 was consistent with the applicant's current diagnosis and x-ray results. The incident was consistent with trauma prior to the onset of changes and was a reasonable phenomenon to be a contributing factor in his current presentation. When shown the SoPs concerning Lumbar Spondylosis (Exhibit A8), Mr Byrne made the following comments:

SoP No.166 of 1996: Mr Byrne stated that in relation to the definition of "trauma to the lumbar spine" as set out in paragraph 7, the applicant's symptoms of continuous pain in the lower back and right hip since the fall on the ice were consistent with the definition.
SoP No.28 of 1999: Mr Byrne stated that in relation to the definition of "trauma to the lumbar spine" as set out in paragraph 8 of the SoP, the applicant had a trauma to the lumbar spine in 1941 but Mr Byrne did not know the exact duration of the applicant's immobility following the incident except that the applicant stated that he has been in pain since that time. Mr Byrne postulated that if the applicant had a 7-10 day period of pain and tenderness then that would satisfy the SoP.

Mr Byrne stated during cross-examination that he was not aware that shortly after the "slipping" incident the applicant was in hospital for investigation of his leg problems. Mr Byrne agreed that if the applicant had an injury of the severity required to cause lumbar spondylosis, then it was surprising that he did not mention the back injury whilst in hospital.
Mr Byrne was referred to the results of x-rays of the applicant's spine carried out over the years as mentioned in his report (Exhibit A2, page 3-4) and stated that the x-rays headed "B.1.", "B.3." and "C.1." were not of the applicant but all others were. Mr Byrne stated that the applicant has degeneration of the thoracic spine and the results of the x-rays C.2. and C.3. (Exhibit A2, pages 3-4) show progressive degenerative changes in the lumbar spine. When referred to "C.2.", an x-ray carried out on 12 October 1998, Mr Byrne stated that the result referred to scoliosis of the spine and "significant osteophytic lipping in the upper lumbar region". Mr Byrne stated that "osteophytic lipping" occurs as a result of wear and tear and commonly is referred to as chronic degenerative disease of the lumbar spine. Mr Byrne agreed that it was a reasonable x-ray for a man of 76 years of age and could reflect general wear and tear and age-related degeneration.

Mr Byrne stated that he was not able to say when the applicant developed lumbar spondylosis but that he would have had it for at least 10 to 15 years, but he could not be more accurate than that. He stated that if it was purely age-related degeneration, he would expect more degeneration further down the spine as well, but he was not saying that the changes were unrelated to age. In relation to the x-ray results of 4 January 2001 at C.3. (Exhibit A2, page 4), Mr Byrne stated that the narrowing of the L1-2 disc space with bridging osteophytes and marked general osteophyte formation suggested significant degeneration.
Mr Byrne was referred during cross-examination to the SoPs for lumbar spondylosis (Exhibit A8, Instrument No.28 of 1999) and in particular the definition of "trauma to the lumbar spine". Mr Byrne stated in relation to the various forms of medical treatment referred to in the definition, such as immobilising the area by splinting, steroid injections or surgery, that each of these treatments would be used for different problems in relation to the lumbar spine. Mr Byrne did not agree that these treatments indicated that the trauma to the lumbar spine had to be itself severe. He stated that splinting or traction is a classic first aid management tool to reduce symptoms from the amount of pressure on the spine, that steroid injections are used if there has been posterior facet joint wrenching, and that surgery is used for significant fractures. Mr Byrne stated during re-examination that the most common treatment for injury to the spine was simple bed rest.
Mr Byrne stated during re-examination that the x-ray indicating lumbar spondylosis was not inconsistent with an injury to the spine in 1941. Mr Byrne stated that it was consistent with an injury, bearing in mind that it would be a slightly unusual x-ray for age-related wear and tear for which one would expect the osteophytic lipping to be more even across the spine. The more recent x-ray in 2001 showed a localised phenomenon occurring. Mr Byrne stated that modern x-rays have taken a lot of the guesswork out of diagnosis and that such x-rays were not available after World War II.
pes planus
In relation to the applicant's left foot injury, Mr Byrne stated that the applicant's problem was originally diagnosed by the Department of Veterans' Affairs as congenital pes planus or "flat feet". He explained that this meant that the longitudinal arch of the sole of the foot was stretched, the tarsal bones becoming flattened. This meant that there was no visible arch when the foot was placed on the ground. Mr Byrne stated that it was difficult to say if the diagnosis of congenital pes planus was accurate, not having seen the applicant at a young age.
Mr Byrne told the Tribunal in relation to the applicant's foot problems that the range of footwear in 1941 was not as good and the applicant had had trouble finding boots that fit correctly and subsequently developed a bunion or swelling over the base of his big toe which became infected. The bunion was not relevant to the applicant's pes planus but it was relevant to the applicant's later development of the condition of hallux valgus. The applicant's foot problems were accentuated by marching and parading in boots. Mr Byrne agreed that the applicant did not mention the duration of his marching. Mr Byrne also agreed that the applicant's infection would have been painful and he would have sought treatment although there was no mention of this in his service records.
When it was put to Mr Byrne that on his entry examination record, the applicant's feet were considered to be "normal" (T4/12), Mr Byrne stated that flat feet was a condition for which the services were on the lookout and during World War II, flat feet were considered to be incompatible with service life. Mr Byrne stated that alongside the word "feet" on the entry examination record, the letter "N" would mean normal (T4/12).
Mr Byrne agreed that the applicant may have had mild problems with his feet prior to enlistment, which would not always be picked up at enlistment. He stated that in the condition of mobile pes planus, the foot retains its arch except when the foot is under stress and that marching may cause it to come to the fore. Mr Byrne stated that he has found before that at the enlistment medical flat feet have been categorised as "normal". Mr Byrne stated that during World War II lots of things were done in a hurry and that if there were no symptoms, it could be glossed over. However, during re-examination Mr Byrne agreed that there was no evidence to suggest that the applicant had any form of congenital or mobile pes planus and that the medical records stated that he had normal feet on entry.
In relation to the report of Dr Markey (T11/36), Mr Byrne disagreed with Dr Markey's opinion that from a medical point of view, it was very unlikely that the applicant would develop foot problems from such a brief period of service and that flat feet are largely inherited. Mr Byrne stated that children used to be given incorrect footwear and this caused problems and it was speculative whether or not the applicant might have had mild problems beforehand. Mr Byrne stated that if the applicant had an inherited disability in his feet or if he had mobile pes planus, then marching in malfitting boots would have made it worse.
In relation to an entry in his service medical card dated 12 September 1941 (T12/38) which read "The type of foot is not suitable for service", Mr Byrne stated that if the applicant had a bunion and flat feet at that time, he would have been declared unfit for service. Mr Byrne agreed that if the applicant had an infected foot and a bunion it would have been painful and a medical officer would have commented upon it.
During cross-examination, Mr Byrne stated that he found it difficult to get a consecutive history from the applicant and found the applicant to be erratic regarding his recall of details and somewhat vague when Mr Byrne attempted to find out the detail. Some details were remembered, others were not remembered. Mr Byrne stated that he did ring up the applicant's general practitioners and had before him statements from several general practitioners, a statement of the applicant's service from the RAAF, the respondent's statement of facts issues and contentions, the applicant's recruitment medical statement (T4) and the disabilities being claimed (T5). Mr Byrne was not aware that the applicant had claimed on a number of occasions and there were statements made by the applicant at those times, nor was he aware that the applicant was in hospital on two occasions during his war service. Mr Byrne agreed that he was dependant upon the history given to him by the applicant but also relied on some information from the applicant's general practitioners.
submissions of the applicant
Mr Hemsley submitted on behalf of the applicant that the date of the applicant's claim for disability pension was 12 December 1997 (T5) and that therefore the date of effect of any favourable decision would be 12 September 1997, all time limits being complied with.
Mr Hemsley stated that the applicant is a 79 year-old man who is showing the effects of his age regarding his memory. He has the conditions of osteoarthrosis of the right wrist, pes planus of the left foot and lumbar spondylosis.
In relation to the pes planus, Mr Hemsley submitted that although the respondent determined that the applicant had bilateral congenital pes planus (T7), it was uncertain if this was the appropriate diagnosis. Mr Hemsley further submitted that two SoPs were placed before the Tribunal, namely, Instrument No.62 of 2001 (acquired and congenital pes planus) and No.303 of 1995 (acquired pes planus only) (Exhibit A10). In relation to the latter SoP, Mr Hemsley submitted that factor 1(a), namely, suffering physical trauma which impairs the ligamentous or the bony structure of the affected foot immediately before the clinical onset of acquired pes planus, was satisfied.
Mr Hemsley submitted that it was not in dispute that the applicant suffered from flat feet and that it was possible that during his enlistment medical examination the doctor might have missed mild pes planus but the fact that the medical examination record showed "N" (meaning normal) made it more likely than not that there was no pre-existing condition of pes planus.
Mr Hemsley referred the Tribunal to the report of Mr Alan A. Rossiter, podiatrist (Exhibit A3) which stated: "Development of HAV (Hallux Abducto Valgus) is aided by the wearing of narrow illfitting shoes". Mr Hemsley submitted that there was no dispute that ill-fitting footwear could cause pes planus and that the real issue before the Tribunal was the extent of marching that the applicant did. It was submitted that whilst the respondent argued that the applicant could only have done two to three days of marching, and Mr Byrne conceded that two to three days of marching would not be sufficient to cause his problems, the applicant in his evidence stated that he experienced a longer period of marching than that.
In relation to the applicant's osteoarthrosis of the wrist, Mr Hemsley submitted that the applicant's oral evidence was that he was injured during the course of his service when a crank handle hit his wrist, he experienced pain and tenderness in the wrist and subsequently received treatment for it. Mr Hemsley submitted that despite the presence of apparently conflicting statements in the documents, it was for the Tribunal to determine if it accepts the applicant's evidence or the documentation or whether the applicant's evidence could sit consistently alongside the documentary evidence.
Mr Hemsley submitted that the applicant's evidence of the injury and symptoms following were sufficient to satisfy the definition of "trauma" in the relevant SoPs. Mr Hemsley submitted that Instrument No.353 of 1995 refers to the development of signs and symptoms within 24 hours and lasting for at least 10 days afterwards. Mr Hemsley further submitted that the decision of the Full Federal Court in Repatriation Commission v Gorton [2001] FCA 1194 meant that the SoP in place in between the respondent's original determination and the Tribunal hearing was not relevant (Instrument No.20 of 1999). Mr Hemsley submitted that there was no significant difference in this case between the definitions of "trauma" in the two relevant SoPs.
Mr Hemsley submitted that the applicant's entry records (T4/12) made a clear reference to a broken right wrist in the past, which the applicant denies. It was submitted that the respondent alleges that the clinical x-ray findings suggested a prior injury but Mr Hemsley submitted that those findings were a beacon to any medical practitioner and would have prompted a proper investigation if there were any problem in relation to the wrist. It was submitted that the words "No sequelae" found at the end of the list of injuries related to all conditions described.
In relation to the applicant's condition of lumbar spondylosis, Mr Hemsley submitted that this was a correct diagnosis and that the two SoPs in issue, namely Instrument No.166 of 1996 and Instrument No.28 of 1999 were expressed in very similar terms, the only difference being that to satisfy the definition of "trauma to the lumbar spine", in the 1996 SoP, the symptoms must last for at least seven days after the injury whereas in the 1999 SoP, the symptoms must last for at least ten days after the injury.
Mr Hemsley submitted that the applicant's evidence was sufficient to establish the existence of the acute symptoms and signs of pain and tenderness within the requisite 24 hours and lasting for at least seven to ten days after the injury. Mr Hemsley further submitted that the evidence of Mr Byrne supports this conclusion in that the applicant's x-ray results were consistent with an injury which could have occurred at the time and could be cumulative. Mr Hemsley submitted that if the Tribunal accepted the evidence of the applicant, then factor 5(f) of the revoked SoP No.166 of 1996, namely, suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis, or factor 5(g) of the current SoP No.28 of 1999, namely, suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis, would be satisfied.
submissions of the respondent
Mr Doube made submissions on behalf of the respondent. Mr Doube submitted that there was no dispute between the parties that the date of effect of a favourable determination was 12 September 1997. Mr Doube further submitted that the standard of proof in this matter is the balance of probabilities.
Mr Doube submitted that all three conditions in this matter, namely, pes planus, lumbar spondylosis and osteoarthrosis of the right wrist have SoPs from the time of the primary decision by the respondent which have been superceded by later SoPs. Mr Doube submitted that in light of the decision of the Full Federal Court in Gorton, the applicant had an accrued right to have the earlier SoP applied, however, he submitted that it did not make much difference in this case which SoP applied.
Mr Doube submitted that the applicant also may have had a pre-existing foot condition. In his medical entry form (T4/12) there is no area on the form to document any medical examination results but merely a requirement to look at the factors and assess how they are. Whilst the feet were noted to be "normal", Mr Byrne gave evidence that it was not unusual for someone to be passed as medically fit and then to have problems if they had, for example, mobile pes planus.
It was submitted by Mr Doube in relation to both the applicant's wrist and foot problems that there were pre-existing problems with these areas and that the best case that could be put would be that possibly there has been some further aggravation during his service of these pre-existing conditions. Mr Doube stated that as the applicant only served in the RAAF for 60 days, the aggravation and clinical worsening provisions of the Act (sub-sections 9(1)(e) and 9(6)(b)) do not apply.
It was submitted that the applicant arrived in Laverton on 20 August 1941 and on 24 August 1941 he entered hospital with attacks of colic/gastric pain, where he remained for nine days to 2 September 1941 (T4/16). This was clearly in relation to colic and epigastric pain which he had had for years. It was submitted that the applicant's evidence was that he commenced drill training for two weeks at Laverton and virtually straight away he had foot problems but that after going to hospital he did not undertaking any further marching. Therefore, the applicant could only have done four days of marching in total. Mr Doube referred the Tribunal to the statement given by the applicant to a medical practitioner in January 1942 (T16/49), not long after his discharge, when he first claimed his medical problems were war-caused. At the time, the medical practitioner had indicated "Further medical examination not indicated. … only did training for 5 days Aug 1941". In relation to the amount of time per day spent marching, Mr Doube submitted that as this was mid-winter in Laverton, it would not be possible for it to be 10 or more hours per day as asserted by the applicant as it would involve marching into the dark.
Mr Doube submitted that the applicant has claimed to have had pain since a horse-riding accident (T4/17) and that when he was in hospital between 24 August 1941 and 2 September 1941, he complained of aching pain in his right thigh. Mr Doube submitted that the injury the applicant suffered during the horse-riding accident in 1932 was giving him trouble at the time. Mr Doube referred the Tribunal to further documents at T12/38-40 relating to the applicant's problems with pain since the horse-riding accident. Mr Doube submitted that during his evidence the applicant had testified that he had had no problems with his thigh after the horse-riding accident and during his service, but the service medical records indicate that this was incorrect. Mr Doube submitted that it was the pain in the applicant's right leg and not pes planus that prevented the applicant from completing his drill course. Mr Doube referred the Tribunal to a record of fitness for service which stated (T4/16):
"On 9th September, 1941, he reported sick again at No.1 Hospital complaining of pain in his right leg which prevented him completing his Drill Course. …
…
On 12th September, 1941, he was seen by the Consultant Surgeon, Squadron Leader C. HEMBROW, who reports:-
'There is slight limitation of range of right hip joint; the type of foot is not suitable for service. …'"

Mr Doube submitted that the comment about the applicant's feet is virtually "by the way" and that the applicant's problem was of congenital mobile pes planus which showed up when the foot was put under stress.

Mr Doube submitted that the applicant was first admitted to hospital for colic although the applicant did mention pain in his right leg and right thigh and after being out of hospital for a week with no marching the applicant, by 9 September 1941, complained again of pain in his right leg. The applicant was then in hospital for ten days until 19 September 1941 (T12/41), during which time his right hip pain was investigated. His foot is also mentioned as not being suitable for service, which is consistent with congenital pes planus.
Mr Doube submitted that the issue of whether the pes planus is congenital or acquired has arisen. Mr Doube referred the Tribunal to the report of Dr Markey (T11/36), podiatrist, which stated that it was "quite unlikely that his foot problems are related to such a brief period of service". Mr Doube submitted that the standard here is the balance of probabilities, or in other words, more likely than not. In addition, although Dr Markey refers to the impact of incorrect footwear, this is only during "formative years". Mr Doube also referred the Tribunal to the report of Mr Byrne (Exhibit A2, page 7) and submitted that Mr Byrne clearly states that it is likely that the applicant had mild pes planus prior to enlistment but in his opinion the applicant's RAAF service aggravated this condition. Mr Doube submitted that in his oral evidence, Mr Byrne further stated that it was unlikely that such a short period of marching would cause pes planus but more possibly caused an aggravation of his condition. Mr Doube submitted that both specialists have indicated that it was a congenital problem in a mild form that has been aggravated and that aggravation cannot be asserted in this case.
Mr Doube submitted that it was likely that the applicant had mobile pes planus and although the applicant's medical examination found his feet to be normal, it was Mr Byrne's evidence that it was not uncommon for a person to get through the enlistment medical examination and once under stress and with ill-fitting boots, the congenital pes planus emerges. Mr Doube submitted that the evidence clearly points towards the applicant having congenital pes planus in a mild form which got worse during his service.
Mr Doube submitted that during the applicant's second hospital visit from 10 September 1941, when his right hip pain was investigated, he did not mention any symptoms or treatment for his back and wrist problems, and he was recommended for discharge on medical grounds on 19 September 1941.
Mr Doube submitted that the contemporary evidence does not support the applicant's contention that he suffered injuries to his back and wrist and had problems during his service with them. In relation to the applicant's back injury when he slipped on the way to the showers, Mr Doube submitted that this was alleged to have occurred between the applicant's two hospital visits. Mr Doube submitted that the applicant's evidence was that he went back to his bunk and lay down for the rest of the day, at a time when he was still a recruit undergoing training and had not yet been recommended for discharge. Mr Doube submitted that the applicant's evidence that no one inquired where he was for the rest of the day was not believable as others would have been doing their allocated duties and he had not been sent to see a medical officer. Mr Doube submitted that it was conceivable that after the applicant's second hospital visit he might not have been given duties but it was inconceivable that a new recruit could walk away from training and lie on his bunk without explaining his problem and having it investigated.

Mr Doube submitted that a couple of days later, during his second visit to the hospital, the applicant claimed to have mentioned his back problem and tests were carried out however there is no record of this. Mr Doube submitted that there is no mention of any back injury or back pain in any of the applicant's service records. Mr Doube submitted that during his evidence the applicant also stated that his back pain continued and was unbearable when he travelled to Adelaide for discharge, but he made no mention of his back condition at the time of discharge.
Mr Doube submitted that the applicant first claimed a pension in December 1941, but his diagnosis was only of an injury to his right thigh and there was no mention made at that time of back problems or an injury, at a time when his back was supposedly in unbearable pain. It was submitted that at the time of his second claim in 1948, there was also no mention of his back (T22/57). At the time of the claim he underwent a medical examination with the spine specifically examined, which was found to be "movements normal and no deformity" (T22/58). His third claim in August 1996 was the first time the diagnosis of lumbar spondylosis was mentioned (T39/94-101) but there was no mention in his claim form of an accident, injury or incident occurring when he slipped near the showers. Mr Doube submitted that when the applicant's claim for lumbar spondylosis was rejected on 4 September 1996 (T40/102) this was during the SoP regime and the letter explained the need for an incident of trauma. Mr Doube submitted that it was only subsequent to the applicant's claim and at the time of his appeal to the Veterans' Review Board that the story of the slipping incident emerged (T2/6).
Mr Doube submitted that the applicant's 1998 x-ray when he was 76 years old shows lumbar spondylosis consistent with wear and tear and degeneration with age. Mr Doube submitted that Mr Byrne was unable to say when the lumbar spondylosis arose but said it might have been 15 years ago, however this was just speculation. Mr Doube submitted that factor 5(g) of the most recent SoP concerning lumbar spondylosis, Instrument No.28 of 1999, required the applicant to have suffered a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis. Mr Doube submitted that there is essentially nothing in the documentary evidence showing that the applicant mentioned any back problems during his service.
Mr Doube submitted that the SoPs concerning lumbar spondylosis define "trauma" and stated that there must be an injury to the spine severe enough to cause the development of lumbar spondylosis. Mr Doube submitted that the SoPs indicate that it must be a significant form of injury in that they mention the sorts of treatment one might expect to undergo, for example, splinting, steroid injections or surgery.
In relation to the applicant's wrist condition, Mr Doube submitted that there has been a change in the applicant's stories as his claims have gone along. It was submitted that upon enlistment in 1941, the applicant made a statement about his medical history, listing that he had a lacerated right thigh nine years previously, a broken wrist two years prior and a broken collarbone as a child. It was submitted that at the time of enlistment the applicant was an 18 year-old who was able to tell his elbow from his wrist, and he had no reason to be misleading about his wrist at the time. Mr Doube submitted that if it was the case that the applicant had a pre-existing right wrist condition, then this may have meant he had an un-united fracture at the time of enlistment.
Mr Doube submitted that despite the applicant's claims that he injured his wrist badly, was in a lot of pain and saw a doctor who bandaged it and sent him back to camp, there is no documentary evidence of this. Mr Doube referred the Tribunal to the 1950 clinical report regarding the applicant's wrist, and in particular where it stated (T27/64): "Right wrist injured at Laverton in 1941 when cranking a truck engine – which back fired. Attended 1st aid post, and had a bandage from orderly, but did not see an M.O." Mr Doube pointed out that in his evidence, the applicant stated that he attended the hospital rather than a first aid post and that he saw the doctor in charge of the hospital, who had been called back to work and smelt of alcohol. However, this record states that he did not see a medical officer.
Mr Doube submitted that the applicant's evidence that his wrist was continually bandaged but kept hidden under his overalls to avoid detection and discharge did not make sense, considering that the applicant did complain about his hip pain, which resulted in his medical discharge. Mr Doube submitted that it was not plausible that whilst in hospital he did not mention his wrist and no doctor noticed it, considering that according to the applicant it was painful and "useless" and it was his dominant hand.
Mr Doube submitted that the applicant stated that his wrist was worse during his discharge, however, he did not mention his wrist at the time of discharge. Mr Doube submitted that there was no evidence that the applicant experienced significant trauma nor was there evidence of any treatment or complaint of any symptoms. Mr Doube submitted that if it was the case, as asserted by the applicant, that within 14 days of his service his wrist was in plaster of paris, then he would have had his wrist in plaster of paris at the time of his claim in December 1941 but there is no mention of any wrist or injury problems.
Mr Doube submitted that the applicant's wrist condition was first mentioned in his 1950 claim when he was 27 years of age, an age when his memory should have been quite good. Mr Doube referred the Tribunal to the applicant's statement (T23/59): "Got worse after fell from truck on outstretched hand about 6 years ago. Then in P.O.P. for some weeks. He got steadily worse since." Mr Doube referred the Tribunal to the applicant's 1950 x-ray results (T26/63) and submitted that Mr Byrne stated in his oral evidence that it was entirely consistent with fractures occurring in 1939, 1941 and 1944. It was submitted that the only evidence of the 1941 incident was the applicant's own evidence but there was other evidence of the 1939 and 1944 incidents, namely the applicant's statements at the time.
Mr Doube referred the Tribunal to the applicant's 1950 statutory declaration (T25/61) where the applicant referred to injuring his "right forearm just above the wrist" in 1939, but in oral evidence before the Tribunal, the applicant testified that nothing happened in 1939 and that the wrist and elbow had been confused in the horse-riding accident. Mr Doube referred to further in the applicant's statutory declaration which stated that the applicant injured his wrist a few days after enlistment, before his first hospital visit and that whilst in hospital for the abdominal condition, he did not mention the wrist because it "seemed to be improving satisfactorily". Mr Doube submitted that this is inconsistent with the applicant stating that his wrist was getting worse. Mr Doube stated that despite the applicant stating that he did not appreciate that it was his own statement, he still signed it. Mr Doube submitted that the applicant's statement also does not mention the plaster of paris on the wrist just after discharge.
Mr Doube submitted that the applicant in his statement states that he consulted Dr Jarvis amongst others in relation to his wrist, but in Dr Bundey's report dated 14 October 1950, Dr Bundey states that (T28/65): "No reference is made in Dr Jarvis' case record of treatment of wrist condition".
Mr Doube submitted that the applicant was an inconsistent and forgetful witness and invited the Tribunal to discount his evidence as being irrelevant and to instead rely upon the documentary evidence. Mr Doube submitted that there were many instances where the applicant's oral evidence was inconistent, for example, how old he was when the horse accident occurred, whether there was a 1939 incident, whether he broke his elbow at the time, whether there were one or two horse-riding accidents; whether he had ongoing problems following the horse-riding accidents; mentioning having had a broken wrist on his enlistment medical form but stating in evidence that it was the elbow; stating that the length of time spent marching was two weeks at 10 hours per day, but it could only have been for four days at the most; when his wrist was put in plaster of paris; when the wrist incident occurred, ie, in 1950 he stated that it occurred before the first hospital visit but before the Tribunal he stated it occurred between the hospital visits; and being treated for his wrist by Dr Jarvis.
Mr Doube stated that Mr Byrne was entirely reliant upon the applicant's statements to him and the small amount of documentation provided to him. He did not have the section 37 documents, the applicant's prior statements, the applicant's prior claims, hospital visits and investigations. He did not know about the 1944 incident involving the truck, about the applicant's wrist being put in plaster of paris two weeks after discharge, he did not know some of the x-rays were of another man and when asked to amend his report in light of the fact that some of the x-rays were incorrect, he refused to. Mr Doube submitted that Mr Byrne admitted that in a lot of his evidence he was speculating, but the documents point to particular scenarios which are more likely than other scenarios.
It was submitted that the evidence before the Tribunal points to the conclusion that the applicant had pre-existing congenital foot problems which became apparent when his feet were subjected to stresses and hence his foot problems were possibly aggravated by his war service. It was further submitted that whilst his right wrist may have been aggravated by the crank handle incident, he may have had an old fracture from 1939 which was further aggravated in 1944 after falling from the truck. Mr Doube reiterated that the aggravation and clinical worsening provisions did not apply in this case. In relation to the applicant's back condition, Mr Doube submitted that the story of his trauma to the back only arose in 1996, after the SoP regime and the necessity for there to have been a trauma to the lumbar spine was explained to him. The applicant's back condition was not mentioned at the time of discharge and at the time of his initial claims. Mr Doube submitted that based on the x-ray evidence and on the balance of probabilities, the back condition is attributable to wear and tear and age-related degeneration. He further submitted that the incident in 1941 slipping on the steps was not sufficient trauma to cause lumbar spondylosis.
In relation to the nature of the standard of proof, Mr Doube referred the Tribunal to the decision of Kruger & Repatriation Commission [2000] AATA 641 and submitted that given the standard of proof, the preponderance of the evidence in this case points to conditions not caused by the applicant's war service.
applicant's submissions in reply
By way of reply, Mr Hemsley submitted that there was no evidence to suggest that the applicant had a pre-existing condition of flat feet apart from that mentioned on the applicant's sick parade card (T12/38). Mr Hemsley submitted that the evidence of Mr Byrne was that on the balance of probabilities, it was more likely than not that there was no pre-existing condition.
Mr Hemsley submitted that despite the respondent stating that the applicant could only have marched for approximately 4 days prior to his hospital admission, the documentation (T12/41) states: "Since leaving hospital pain has troubled him whilst drilling mainly situated in R. thigh anteriorly -–worse on cold nights." Mr Hemsley submitted that this evidence suggests that there was a longer period of drilling of at least two weeks. Mr Hemsley stated that he did not accept the respondent's assertion that ten hours per day of marching was impossible but rather they were "trying to weed out the sheep from the goats".
Mr Hemsley submitted that the final paragraph of Mr Byrne's report (Exhibit A2, page 7), which reads: "He has moderate flat feet on both sides but certainly the deformities of the left foot are significant and I would believe that although he may have had mild problems prior to enlistment in the RAAF (which he denies) his RAAF service combined with mal-fitting service boots have contributed significantly to his current and significant problems with his left foot" could not be read as "likely to have congenital pes planus".
In relation to the applicant's wrist condition, Mr Hemsley submitted that the contention by the respondent that the applicant had a pre-existing fracture of the wrist was speculative and ridiculous. The applicant had admitted his prior medical conditions to the services and had played sports.
Mr Hemsley submitted that the respondent has misconceived the conditions of osteoarthrosis and lumbar spondylosis in that they manifest over time after injuries to the joint – each injury contributes to the development of osteoarthrosis or lumbar spondylosis. Mr Hemsley submitted that osteoarthrosis is not a condition of fracture but rather it arises after the event and therefore cannot be an aggravation. In the event of the veteran suffering an injury with the symptoms referred to in the SoP then that was enough. Mr Hemsley submitted that all the Tribunal is to look at is the injury and symptoms and the later development of osteoarthrosis. Mr Hemsley stated that it was sufficient if this was one of a number of incidents which caused osteoarthrosis.
Mr Hemsley further submitted that it was not fair to make inferences from the applicant's claim forms and contend that the applicant should have outlined all of his medical conditions from the start. Mr Hemsley submitted that many people have back problems and pain but this is not apparent until medical examination and diagnosis. Mr Hemsley submitted that the applicant should be given credit for mentioning his wrist problem from 1950 onwards.
Mr Hemsley referred the Tribunal to the statutory declaration signed by the applicant on 22 September 1950 (T25/61) and stated that this declaration does mention an injury to the right forearm above the wrist prior to his service and the crank handle incident during his service, and although what he says in the statutory declaration about the circumstances after the injury were inconsistent with his oral evidence, he did still mention an attendance and of having his wrist bandaged.
Mr Hemsley submitted that it was possible the applicant may not have wanted to broadcast his wrist problem and if he was in hospital for an abdominal condition, his wrist could escape notice, as any testing he underwent would not be likely to relate to the wrist.
Mr Hemsley referred the Tribunal to paragraphs 42 and 43 of the Gorton case which stated as follows:
"… The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which 'is in force': s120A(3); see s43 AAT Act. If the current SoP 'upholds' the claimant's hypothesis then the AAT moves, pursuant to s120(1), to consider whether it has been disproved beyond reasonable doubt.
43. If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s120(1)."
Mr Hemsley submitted that the starting point for the Tribunal is to examine the most recent SoP but if however, it is found that the current SoP is not met, then the applicant has an accrued right to have his claim determined in accordance with the SoP in place at the time of the original determination. Mr Hemsley submitted that it is for future cases to determine whether this accrued right also applies to any intervening SoP as well.
Mr Hemsley submitted that although Mr Byrne was criticised for not having all of the documentation, it is his task to carry out a medical investigation and if the presentation is consistent with the events put forward as having caused them, then he can form an opinion about that cause.
discussion and findings
In arriving at its decision the Tribunal has taken the evidence as a whole into consideration including the submissions of the parties. The Tribunal has had to consider the issue before it, namely, whether the applicant's conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus, and lumbar spondylosis are war caused within the meaning of section 9 of the Act. In considering the evidence before it, the Tribunal needs to be reasonably satisfied that on the balance of probabilities the disability is caused by eligible war service.
The factor which is not in dispute and the Tribunal so finds is that the applicant is an elderly man showing the effects of his age regarding his memory. It is also not disputed and the Tribunal accepts that he has the conditions of osteoarthrosis of the right wrist, congenital pes planus of the left foot and lumbar spondylosis.
The Tribunal is satisfied that the standard of proof applicable in considering the various SoPs is that in sub-section 120(4) of the Act, namely, that the Tribunal must be satisfied on the balance of probabilities that each of the applicant's conditions is related to his war service. In arriving at its decision the Tribunal in considering the SoPs has taken into account the views expressed by the Federal Court in both Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194.
It was never disputed that the applicant was a poor historian which was confirmed by Mr Byrne in his oral evidence. The Tribunal is mindful of the difficulty in cases such as this where records are either inaccurate or devoid of detail. This is more so as in the current matter where an applicant is expected to recall events of some sixty or more years ago. Whilst there are some details recorded there are also instances where inferences will necessarily be relied upon in the absence of actual factual information.
The Tribunal is satisfied that its assessment of the applicant due to any vagueness in his remembrance of factual detail and inconsistencies in his evidence are attributable to the passage of time.
The Tribunal now turns to consider each of the conditions which were rejected by the respondent as not being related to the applicant's eligible war service. The Tribunal is satisfied and so finds that the applicant served in the RAAF between 19 August 1941 and 18 October 1941 and that such service constitutes eligible war service. The Tribunal notes that the applicant was discharged on 18 October 1941 as "not likely to become an efficient airman on medical grounds" (T12).
As previously stated the Tribunal accepts that there is no dispute with the diagnosis of lumbar spondylosis. The two SoPs in issue, namely, Instrument No.166 of 1996 ("1996 SoP") and Instrument No.28 of 1999 ("1999 SoP") were expressed in very similar terms. The only difference between the two is that to satisfy the definition of "trauma to the lumbar spine" the 1996 SoP provides that the symptoms must last for at least seven days after the injury whereas the 1999 SoP requires symptoms for at least ten days after the injury. It was submitted for the applicant that there was sufficient evidence to establish the existence of the acute symptoms and signs of pain and tenderness within the requisite 24 hours and lasting for at least seven to ten days after the injury.
Dr Byrne first saw the applicant on 18 June 2001, some sixty years after his war service, and then on a further three occasions. This was after the hearing before the VRB and hence his views were never before the VRB for consideration. He stated that the x-rays he examined were consistent with the diagnosis of lumbar spondylosis and that the incident referred to by the applicant was in his view consistent with trauma prior to the onset of changes and was a reasonable phenomenon to be a contributing factor in the applicant's current presentation.

Dr Byrne stated that the applicant has degeneration of the thoracic spine and that x-rays show progressive degenerative changes in the lumbar spine which could reflect general wear and tear as well as age-related degeneration. He also stated that if the condition was purely age-related degeneration he would have expected more degeneration further down the spine as well. Mr Byrne further stated that the x-rays indicated that the lumbar spondylosis was not inconsistent with the injury to the spine in 1941. At the same time he stated that he was not saying that the changes were unrelated to age. He also stated that his conclusions were derived from what he had been told primarily by the applicant and information obtained from the applicant's general practitioners. He was unable to say when the lumbar spondylosis arose but hazarded a guess that it may have been some fifteen years ago but he stated that this was just speculation.
Mr Doube submitted that the applicant at no time during his war service mentioned any symptoms or treatment for his back. He further stated that the contemporary evidence does not support the applicant's contention. Whilst the applicant in his evidence before this Tribunal claimed that he mentioned his back problem and tests were carried out there is no record to substantiate this. In fact there is no mention of any back injury or back pain in any of the applicant's service records and that no mention of the back condition was made by the applicant at the time of his examination for discharge.
After discharge and since 1941 a number of pension claims have been made by the applicant including the need to undergo medical examination and at no time was any mention of a back problem made until a claim in August 1996 (T39/94-101). Whilst there was mention therein of the diagnosis of lumbar spondylosis there was no reference in the form of an accident or injury during his period of service. Such was indicated for the first time on appeal to the VRB.
The Tribunal in considering the submissions and the documentary evidence as well as the relevant SoP is mindful that the applicant failed to make mention of the slipping incident until the time of his VRB application in 1999. Notwithstanding this, Mr Byrne was emphatic in his evidence that the x-ray results indicating lumbar spondylosis were consistent with a trauma to the spine in 1941. Mr Byrne further stated that if it was purely age-related degeneration, he would have expected more degeneration further down the spine as well. The Tribunal accepts the evidence of the applicant in relation to the slipping incident and the symptoms he experienced afterwards and also the medical evidence of Mr Byrne and is satisfied and so finds that on the balance of probabilities the incident in 1941 was the cause of this condition. In arriving at this conclusion the Tribunal finds that the relevant SoP is satisfied.
In relation to the applicant's osteoarthrosis of the right wrist Mr Hemsley submitted that the applicant's evidence was that he was injured during the course of his service when a truck crank-handle hit his wrist for which he received treatment. The Tribunal notes the conflict between the applicant's oral evidence and that in the documents. The relevant SoP being Instrument No.353 of 1995 refers to the development of signs and symptoms within 24 hours and lasting for at least ten days afterwards. The applicant stated that this incident occurred on a weekend and he went and saw the RAAF doctor who just wrapped his arm and told him to return to camp. The applicant stated that he received no further treatment and he re-wrapped his arm occasionally.
When it was put to the applicant that there was no mention of the injury in his hospital or other service records, he explained he did not tell anyone at the hospital to avoid being discharged. As he wore long overalls the bandaging was hidden from others. He stated that at no time did he mention his wrist at the hospital as it had been previously bandaged by the RAAF doctor. He further stated that he did not mention his wrist as he felt that the less problems he showed, the better his chances were to stay with the unit. One of his records (T4/12) contained a statement that he had broken his wrist two years prior to enlistment. In his evidence he stated that this was wrong and that in fact he had broken his elbow when he fell off a horse.
The applicant stated that the wrist was in pain and soon after discharge he saw a doctor who placed it in plaster. He did not mention this in a statement in September 1950 (T25).
Mr Byrne stated that the explanation by the applicant as to the problems with his right wrist was consistent with the x-ray evidence and the diagnosis of osteoarthrosis. He further stated that the incident with the crank handle would have caused significant trauma to the applicant's right wrist and that this incident was a reasonable cause for the current status of the wrist. He also stated that the applicant did not give him an exact duration of the pain and swelling.
Mr Byrne also stated that the applicant omitted informing him of a number of details (as per paragraph 45) and when put to him he replied that "Servicemen do funny things at times'. He agreed in cross-examination that his opinion of the applicant's osteoarthrosis was based solely on what the applicant told him and was also consistent with a fracture of the right wrist in either 1939, 1944 or 1950. He further stated that the x-ray report of 1950 (T26) supported previous trauma and agreed that the sclerosis and suggestion of an old flake fracture could indicate a second fracture of the wrist in a second incident. Mr Byrne also agreed during cross-examination that if the applicant was admitted to hospital as stated for ten days for unrelated problems shortly after the wrist incident, then if the applicant was experiencing swelling and pain in his wrist, as alleged, it should have been picked up.
Mr Doube in his submissions referred to the inconsistencies in the applicant's evidence. These included a statement on enlistment referring to a broken wrist two years prior; that the applicant saw a doctor who bandaged it and sent him back to camp (no documentary evidence of this); in the 1950 report (T27) the applicant stated that he had his wrist bandaged by an orderly and that he did not see a medical officer; that whilst in hospital for other reasons he made no mention of his wrist nor was it noticed by any doctor; and he did not mention his wrist at the time of discharge.
Mr Doube also referred to the applicant's alleging that his wrist was worse during his discharge and yet no mention of it was made at the time of discharge. He further submitted that there was no evidence before the Tribunal that the applicant experienced significant trauma nor was there any evidence of any treatment or complaint of any symptoms. He also submitted that if it was the case that the applicant's wrist was in plaster within fourteen days of discharge, as asserted by him, then he would have had it in plaster at the time of a claim in December 1941. However, there is no mention of any wrist or injury problems.
In relation to the osteoarthrosis of the right wrist, the Tribunal is again faced with evidence that on the face appears to be inconsistent and in particular the applicant's failure to make known his pain and symptoms. Mr Byrne in his evidence stated that the applicant's explanation as to the symptoms with his right wrist was consistent with x-ray evidence and the diagnosis of osteoarthrosis. He further stated that such an incident as the applicant experienced with the crank handle would have caused significant trauma. He further stated that the incident was a reasonable cause for the current status of the wrist. Mr Byrne further stated that his opinion was based solely on what he had been told by the applicant but found such to be consistent with x-ray reports. When asked if he could explain the reason for the applicant omitting a number of details, his response was that "Servicemen do funny things at times". The Tribunal accepts the evidence of the applicant as to the crank handle incident and symptoms following from it as well as the medical evidence of Mr Byrne and finds that the causation of the applicant's osteoarthrosis of the right wrist was service-related. In arriving at this conclusion the Tribunal finds that the relevant SoP is satisfied.
In relation to the pes planus, it was not in dispute that the applicant suffered flat feet. Mr Hemsley in his submissions stated that whilst it was possible during the enlistment medical examination that mild pes planus might have been missed, the fact that the records showed "normal" made it more likely than not that there was no pre-existing condition of pes planus.
Mr Hemsley submitted that there was no dispute that ill-fitting footwear could cause pes planus and that in issue before the Tribunal was the extent of marching that the applicant did. The respondent argued that the applicant could only have done two to three days of marching, and Mr Byrne conceded that two to three days of marching would not be sufficient to cause the applicant his problems. In his evidence the applicant stated that he experienced a longer period of marching than that.
In relation to the diagnosis by the respondent of the applicant's problem being "congenital pes planus" or "flat feet", Mr Byrne in his evidence stated that it was difficult to say if this diagnosis was accurate, as he had not seen the applicant at a young age. He also stated that flat feet was a condition for which the services were on the lookout and that during World War II, flat feet were considered to be incompatible with service life. He agreed that there was no evidence to suggest that the applicant had any form of congenital or mobile pes planus and that the medical records stated that he had normal feet on entry. He further stated that if the applicant had a bunion and flat feet at the time, he would have been declared unfit for service. He also stated that if the applicant had an infected foot and a bunion it would have been painful and a medical officer would have commented upon it.
Mr Doube submitted that both Mr Byrne in his evidence and Dr Markey (T11) have indicated that the applicant's problem was congenital in a mild form that has been aggravated and that aggravation cannot legally be asserted in this case. He further submitted that the evidence clearly points towards the applicant having congenital pes planus in a mild form which got worse during his service.
As to the diagnosis of pes planus, Mr Byrne in this instance found difficulty in being satisfied as to the accuracy of this diagnosis. There is no evidence before him to suggest that the applicant had any form of congenital or mobile pes planus. In any event he agreed that the records of service clearly stated that the applicant had normal feet on entry. Notwithstanding this, the applicant appeared to experience symptoms of pain in his feet within four days of marching. Whilst his medical entry records showed his feet to be normal, the Tribunal on the evidence before it is of the view that the applicant would have had some mild form of pes planus that was not picked up at the time of entry which was then aggravated by marching. Unfortunately for the applicant the SoPs and the legislation are quite clear that for aggravation or clinical worsening of pes planus to be accepted, the veteran must have eligible war service of six months or longer. In the applicant's case, he had only two months of eligible war service and therefore he cannot utilise the clinical worsening provisions of the SoP. Hence the applicant's application for acceptance of acquired pes planus as a war-caused condition cannot succeed.
In so far as the date of effect in the event of a favourable determination for each condition, it was agreed between the parties as being 12 September 1997.
Accordingly for the reasons outlined herein, the Tribunal sets aside the decision under review in so far as the conditions of lumbar spondylosis and osteoarthrosis of the right wrist are concerned and in substitution therefor decides that these conditions are war-caused with a date of effect of 12 September 1997.
In so far as the condition of pes planus is concerned, the Tribunal affirms the decision of under review.
I certify that the 136 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  3 December 2001 – 5 December 2001
Date of Decision  12 July 2002
Counsel for the Applicant        Mr Graeme Hemsley
Solicitor for the Applicant         Bourne Lawyers
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    DVA