Revill and Repatriation Commission
[2001] AATA 385
•9 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 385
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/47
VETERANS' APPEALS DIVISION )
Re KEITH REVILL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date9 May 2001
PlaceCanberra
Decision The decision under review is affirmed.
...................(Sgd).....................
M J Sassella
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – whether lumbar spondylosis war-caused – whether veteran was allotted for duty in an operational area
LEGISLATION
Veterans' Entitlements Act 1986, s 5B(2)(a), s 6C, s 120(1), (3).
Veterans' Affairs Legislation Amendment Act 1990
AUTHORITIES
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Bey (1997) 79 FCR 364
Mason v Repatriation Commission [2000] FCA 1409
Re Bonnes and Repatriation Commission (1987) 13 ALD
Re Eastman and Repatriation Commission (1992) 28 ALD 253
Re Savage and Repatriation Commission (1997) AAT 12370, 5 November 1997.
REASONS FOR DECISION
9 May 2001 M J Sassella, Senior Member
History of application
On 23 December 1998 Mr Keith Revill (the "applicant") lodged an application for medical treatment and pension for incapacity with the Repatriation Commission (the "respondent") in respect of lumbar spondylosis. He claimed that this condition was related to service as the result of an injury to his back sustained in Vietnam sometime in September/October 1971.
On 24 March 1999 the respondent refused the applicant's claim and decided that the applicant's lumbar spondylosis was not caused by his relevant service.
On 12 April 1999 the applicant lodged with the Veterans' Review Board (the "VRB") an application for review of the decision of the respondent dated 24 March 1999.
On 15 May 1999 the respondent notified the applicant that it had decided not to conduct a review pursuant to section 31 of the Veterans' Entitlements Act 1986 (the "Act").
On 10 January 2000 the VRB decided to affirm the decision of the respondent dated 24 March 1999. The VRB accepted the applicant's account of the incident which led to the injury to his back, which involved falling from a truck, over-balancing and falling onto some crates. The VRB also accepted that the veteran sought treatment for this injury. On consideration of the relevant Statement of Principles (Instrument No. 52 of 1998), the VRB decided that none of the minimum factors set out in the Instrument had been raised by the available evidence. The VRB was of the opinion that the evidence did not give rise to a reasonable hypothesis within the meaning of subsection 120(3) of the Act. It followed that the VRB was satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there was "no sufficient ground for determining that the veteran's lumbar spondylosis was war-caused or defence-caused."
On 15 February 2000 the applicant lodged with the tribunal an application for review of the VRB decision dated 10 January 2000 (T1).
The tribunal hearing took place on 13 November 2000. Mr Paul Crabb represented the applicant and Mr Jim Marsh represented the respondent. Oral evidence was heard from the applicant and Dr Scott, occupational physician. The tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975. Also taken into evidence were: a statement by the applicant of 26 April 2000 (Exhibit A1); report by Dr Scott of 19 July 2000 (Exhibit A2); letter from Defence Personnel Executive to the Applicant of 4 May 1998 (Exhibit A3) report by Dr Jackson of 15 June 2000 (Exhibit R1); report by Mr Piper, historian, of 28 June 2000 (Exhibit R2); clinical notes of Mr Cousin and Dr Hislop (Exhibit R3); RAAAF service medical records (Exhibit R4); and Explanatory Notes for Tabling of Instrument No 358 of 1995 Amendment to Statement of Principles concerning Lumbar Spondylosis.
BackgroundThe applicant was born on 19 February 1938 and was educated in Canowindra, New South Wales. He worked as a trainee motor and machinery mechanic at a local garage until he joined the airforce on 20 November 1956. He then spent a number of years posted at RAAF Glenbrook, where he trained, and volunteered himself for overseas service, including an attachment in Ubon, Thailand, on 27 March 1963. He remained on operational service in Ubon until 26 September 1963. In 1966 the applicant was posted to Headquarters Support Command in Melbourne but spent most of his time with the Air Movement Control Office in Sydney. He received a number of other postings. The applicant's chief duties were in the stores area, and his trade classification was as a Supply Clerk (Exhibit A1).
During the applicant's time in Sydney he was required at times to travel outside of Australia organising charter aircraft which were operated concurrently with Qantas Airways. He coordinated aircraft movements for passenger manifesting and cargo loading. Because of the arrangement that existed between Qantas and the Australian Government, the aircraft the applicant was responsible for were "basically RAAF aircraft". The applicant was involved with preparing the aircraft for passengers and loading, including seating arrangements and dispatch of the aircraft. When the aircraft returned the applicant was responsible for receipt of the aircraft, immigration and quarantine clearances, unloading of passengers and freight. Because of some disciplinary problems that Qantas had encountered with certain Defence personnel, the applicant, among others, was involved in travelling with a number of the aircraft to Saigon where he would supervise unloading and loading, and their return. The applicant estimates having completed approximately 40-45 return trips to Vietnam in the period September/October 1967 and at the end of 1971 (Exhibit A1).
There are no official documents evidencing these flights. The applicant's unofficial logs and some of his service clothing were found to be missing during a residential move in 1972. It should be noted at this point that one of the respondent's contentions in this matter is that there is no evidence that the applicant was allotted for service, or that he belonged to a unit that was allotted for service, in relation to these flights. The respondent contends that because the applicant was not allotted for duty in an operational area the tribunal can not proceed to consider the question of the applicant's injury being related to operational service.
By the time of January 1972, the applicant was appointed to a post within the office of the Senior Equipment Staff Officer, Department of Air, Canberra. He was promoted to Warrant Officer at the end of 1974 and was then posted to No. 1 Stores Depot, Melbourne with responsibility for electronic data processing. In August or September 1976 the applicant declined an offer to accept a short service commission as a Supply Officer for family reasons. He was released from the RAAF on 24 December 1976.
IssuesThere are two issues in this matter. First, as already foreshadowed, the tribunal must consider whether the applicant was a member of the Defence Force who rendered continuous full-time service in an operational area and who was allotted for duty in that area or was a member of a unit of the Defence Force that was allotted for duty in that area. If it is decided that the applicant was so allotted and is then taken to have rendered operational service in the operational area, the tribunal then must consider if the applicant's lumbar spondylosis is related to his relevant service.
ServiceThe Act requires that for a claim to be accepted the disability must be related to operational and/or eligible defence service. The applicant served between 27 March 1963 and 26 September 1963 in Ubon, Thailand, which the parties agree was operational service. He also rendered eligible defence service between 7 December 1972 and 24 December 1976. However, there is disagreement as to whether the applicant had operational service in Vietnam between January 1967 and January 1972. The applicant claims that during approximately 40 trips to Vietnam between 16 January 1967 and on 10 January 1972, he had operational service.
Statement of PrinciplesThe tribunal must have regard to any relevant Statement of Principles ("SoPs") issued by the Repatriation Medical Authority in relation to lumbar spondylosis (s 120A). The SoP states what factors must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with service. The evidence must meet at least one of the factors set out in the SoP for that condition (section 120A of the Act) before it can be said that the condition is related to service.
The relevant Statement of Principles ("SoP") in this matter is Instrument No 27 of 1999. Paragraph 2(b) of that Instrument defines "lumbar spondylosis" as "degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression …". The relevant factor relied upon by the applicant, which needs to be related to the applicant's service, is factor 5(h), which requires "suffering from a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". A "trauma to the lumbar spine" is defined by paragraph 8 as follows:
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anasthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
Applicant's evidence
In July 1970 the applicant was posted to Movement Co-Ordination Centre based in Sydney and the RAAF Base Richmond, Air Movements Centre. There he was responsible for movement of passengers and freight. On a service in September or October 1971, the applicant was Loadmaster (trainee) for the movement of air cargo between Richmond, Darwin, Butterworth to Vung Tau and then return to Richmond. The applicant was supervised as a trainee. He recalls sustaining an injury on that service that he now considers "has been the cause of the subsequent onset of the degenerative disease, lumbar spondylosis, in the lower region of my back … . (Exhibit A1)." In a statement dated 28 April 2000, the applicant described the injury as follows:
As I recall, after arriving in Vung Tau and whilst oversighting the unloading of the aircraft being carried out by local air movements personnel, I moved from the aircraft's loading ramp onto the tabletop of a vehicle that had been positioned to receive part of the load. During the course of transferring a Lycoming engine used in the Chinook helicopters, from the aircraft onto the vehicle's tabletop, I had a temporary lapse of concentration and stepped backwards out of the way of the oncoming engine. In doing so, I overbalanced and fell from the tabletop on to the hardstanding below. I fell from a height of approximately 1200 mm, hitting the ground in an upright position before overbalancing and falling backwards over some cases that had been placed alongside the vehicles earlier. On impact, I experienced a jarring sensation through the length of my body and an immediate severe burning pain in the region of the small of my back, as well as sustaining a minor cut and abrasions to my left shoulder.
This was then followed by pain in the upper part of his back where the applicant had fallen heavily over the corners of some stacked crates (T7, p.29).
In oral evidence, the applicant said that following the fall he was helped to his feet but he realised he had some difficulty in standing unassisted. The people that assisted the applicant put him into a vehicle and took him to the Vung Tau Medical Section. The applicant recalled that he was still in "intense pain" at the Medical Section. He was given pain relieving tablets (T7, p.30). The cuts and abrasions were dressed. The applicant remained at the Medical Section for a few hours and, after being told to rest "just to see how things developed", he was taken to the transit quarters at Vung Tau.
Because of some technical trouble with the aircraft on which the applicant was due to return to Australia, he had to remain in Vung Tau for two days. Upon his return to Australia, the applicant went on post-operative leave which gave him, he said in oral evidence, "something like around five or six days from the day I arrived back to the day I actually had to report which I assume was the following Monday back to work". The applicant had bed rest and continued to take the medication supplied to him in Vung Tau. The applicant recalled in oral evidence some discomfort lasting three to four weeks after the incident. It gradually improved until it became "a thing of the past." The applicant recalled that after about "a month or six weeks I was virtually back in full duties again."
The applicant chose not to take the matter further with the RAAF as he relied on the advice given to him in Vietnam that the injury would mend in time (Exhibit A1). He made the decision that "any record of the injury could be detrimental to my medical category and interfere with any future classification to flying duties or promotion I might receive and therefore, effect my livelihood" (Exhibit A1, third page).
The applicant gave evidence that he started to feel back pain again in the 1980s. He sought treatment from physiotherapists, including Mr Cousin, and his general practitioner, Dr Hislop. He is now taking anti-inflammatory medication for his back. The applicant has experienced difficulties obtaining employment suited to his qualifications (as a clerk) because of back pain. He has experienced "extreme difficulty in remaining seated in the one position for extended periods" (Exhibit A1, fourth page). Employers, the applicant reports, have been reluctant to take him on because of his condition. The applicant has offered his time as a volunteer to assist veterans in entitlements matters, especially in preparing claims and appeals. His ability to enjoy golf, bushwalking and gardening, has also been curtailed by back pain, as has been any activity which requires sitting for long periods such as the theatre or cinema.
It was clear that the applicant has gone to considerable efforts to obtain records from a number of organisations in order to prove that the flights occurred and that he had been allotted for service in an operational area. The tribunal also heard evidence of the applicant being awarded the Vietnam Logistics and Support Medal, he thought, in 1994. He also applied for the Australian Active Service Medal (AASM), which was granted to him in 1998 with a Vietnam clasp. In evidence was a letter to the applicant from the Defence Personnel Executive dated 4 May 1998 which confirmed the applicant's award of the AASM 1945-75 with the clasp "VIETNAM" (Exhibit A3).
The respondent produced a report by Mr Piper, historian, dated 28 June 2000 (Exhibit R2). Mr Piper reported that he could find no evidence to support the applicant's claim that the flights occurred. However, he suggested pursuing the matter further with friends of the applicant and other ex-RAAF personnel.
In cross-examination the applicant admitted that he retained no paperwork to record the flights he took to Vietnam during the relevant period. The applicant also admitted that he kept up his booster shots "continuously all the time." However, the service medical records showed that in 1966 the applicant had received immunisations, which would require more immunisations three years later in 1969. However, there is no record of this having been done. The applicant replied that the RAAF did not necessarily record these processes. Also, the applicant claims to have misplaced his immunisation details along with his log book.
The respondent put to the applicant that he had arrived back in Richmond from Vietnam five days after the injury. The applicant agreed that it was a maximum of five days.
The respondent also drew the applicant's attention to an entry in Dr Hislop's clinical notes dated 4 May 1994. The notes show that Dr Hislop has been treating the applicant since 1983 but that the first mention of back pain treatment was in early May 1994 (Exhibit R3, p.7). Furthermore, Mr Cousin's clinical notes contain reference to a 10 year history of "intermittent problems lumbar spine, minor injuries" (Exhibit R3, p.3). The respondent put to the applicant that the history he gave Mr Cousin was of a minor injury with no mention of any major back injury. The applicant was "sure" he "would have done".
Medical evidenceThe applicant's service medical records were in evidence (Exhibit R4). In a medical examination record dated 27 April 1973 a tick was placed beside the category for the applicant's back and spinal system, in the column for normal (Exhibit R4, p.46; see also same result for examination record from 11 November 1976, p.59). The applicant could not recall the examination in 1973.
In a history questionnaire, also contained in the applicant's service medical records, dated 23 December 1974, the applicant crossed "no" in answer to whether he had had any knee, back or joint injury. In oral evidence the applicant said that in 1974 he did not recall his back giving him any problems and did not see the back problem as "significant" any more.
In his report dated 19 July 2000, Dr Scott, occupational physician, outlined the applicant's symptoms (Exhibit A2). These include constant backache, which varies in intensity and some leg pain. The applicant finds bending difficult, he avoids lifting and can not sit for any longer than 30 to 60 minutes or stand for any longer than 60 minutes at a time. His sleep is affected. In Dr Scott's opinion, the applicant has lumbar spondylosis according to the definition in the relevant SoP. He believes that the trauma occurred in September or October 1971. The trauma caused pain which led to the "clinical onset" of lumbar spondylosis in subsequent years as progressive degenerative changes developed, leading to the applicant's current state. Under the Guide to the Assessment of the Rate of Pension (the "GARP"), Dr Scott assessed the applicant as having a 20% loss of function, aged adjusted to 18%. His prognosis is for a progression of the lumbar spondylosis with age.
In oral evidence, Dr Scott was asked whether an x-ray report for the applicant dated 15 July 1996 fit the definition for lumbar spondylosis contained in the SoP. The report, contained in the clinical notes of Dr Hislop (Exhibit R3, p.15) is as follows:
At L4/5, there is a grade 1 forward slip of L4. This is associated with slight disc space narrowing and advanced degenerative changes in posterior joints. There is no evidence of a stress fracture or other cause of this slip. At other levels, some mild degenerative changes are present but disc spaces are generally well preserved.
Dr Scott agreed that the report was consistent with the definition. He also said it fit with the history that the applicant had given him in relation to the injury with the consequent pain and treatment. The grade 1 forward slip of the L4 was termed spondylolisthesis. Dr Scott said that this could either be "a congenital slippage which was aggravated by the injury or else it could have been a slip that was caused by the injury, and as a result of whichever one of those it was, advanced degenerative changes carried on at that level."
The cross-examination of Dr Scott focused upon the witness's professional qualifications. It was put to Dr Scott that as an occupational physician his primary area of speciality was not degenerative diseases of the bones and joints but that rather an orthopaedic surgeon would be so qualified. Dr Scott said that this would depend on the specialty of the orthopaedic surgeon, that he had an experience and understanding of musculoskeletal conditions and that the applicant's condition was a "general common condition that I meet with pretty well everyday in terms of muscoloskeletal medicines as it affects people in their work."
In his report dated 15 June 2000, Dr Jackson, orthopaedic surgeon, also outlined the applicant's history and symptomatology (Exhibit R1). He reported clinical presentation of lumbar spondylosis, but without the benefit of x-ray films which were not available to Dr Jackson. He reported that the applicant continues to experience symptomatology consistent with lumbar spondylosis but with symptoms "not entirely consistent with the injury he describes" (Exhibit R1, p.8). Dr Jackson said that his injury would have caused a soft tissue injury, probably a contusion or soft tissue musculoligamentous strain. However, according to Dr Jackson the applicant's symptomatology did not suggest underlying bony or discogenic damage.
In answer to a question about the history of the incident as being consistent with the applicant's current condition, Dr Jackson was of the view that it was not so consistent but rather was "constitutionally based".
Dr Jackson did not think that the applicant satisfied any of the factors in Instrument No 27 of 1999 or the definition of "trauma to the lumbar spine". His assessment of the applicant's condition under the GARP was as follows (Exhibit R1, p.8):
Table 3.3.1:Mr Revill's impairment is 20%. He has a loss of approximately one-half of the normal range of movement of his thoracolumbar spine.
Table 3.3.2: He has a 10% impairment rating.
Table 3.6.1:Age related for a 20% impairment would reduce to 18%, on the basis that Mr Revill is currently 61 years of age.
Relevant legislation
The sections of the Act relevant to the question of allotment for service are as follows:
6C Operational service—post World War 2 service in operational areas
(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
(2) …
(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:
(a)if the member was in Australia on the day ( relevant day ) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
(4) If, while rendering continuous full-time service in an operational area, a member of the Defence Force has:
(a) returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces; or
(b) returned to Australia on emergency or other leave granted on compassionate grounds; or
(c) returned to Australia on duty; or
(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force;
only so much of the period of service of the member within Australia after his or her return and while the member:
(e) continued to be allotted for duty in an operational area; or(f) continued to be a member of a unit of the Defence Force allotted for duty in an operational area;
as does not exceed 14 days is taken, for the purposes of subsection (1), to be a period when the member was rendering continuous full-time service in the operational area.
A reference in the Act to a person who has been "allotted for duty" is defined by section 5B to refer to duties that were carried out in specified operational areas described in Schedule 2 of the Act and to allotment by "written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act" (section 5B(2)(a) ).
The standard of proof in respect of a claim for disability or death arising out of operational service is as set out in sections 120(1) and 120(3) of the Act. That is, the tribunal needs to be satisfied that the claimed condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The applicant's claim will fail if the material before the tribunal does not raise a reasonable hypothesis to connect the condition which caused the veteran's death with the circumstances of service.
Representatives' submissionsThe respondent's representative, Mr Marsh, submitted that the tribunal needed to deal with the question of eligibility for entitlements in relation to operational service. The VRB, submitted Mr Marsh, applied an incorrect standard of proof to the question of allotment. The VRB, he said, "considered whether it could be satisfied beyond reasonable doubt that operational service was not rendered. The standard of course is reasonable satisfaction, always has been, on a preliminary question such as that." This means that the tribunal might not be reasonably satisfied that the applicant rendered operational service in Vietnam during the relevant period. Mr Marsh said that there is no evidence as to the applicant's allotment for service in connection with Vietnam. The criteria for awarding return from active service badges, for example, do not go to supporting the existence of allotment under section 5B of the Act. Mr Marsh directed the tribunal's attention to the Explanatory Memorandum for the Veterans' Affairs Legislation Amendment Act 1990 (the "Amendment Act"), which amended the Act in response to the Federal Court decisions of Repatriation Commission v Doessel (1990) 95 ALR 704 and Repatriation Commission v Davis (1990) 94 ALR 621. Doessel and Davis had held that "allotted" meant simply "posted" or "assigned". Section 5B is now to be read in the light of those amendments. Part of the Explanatory Memorandum to the Bill introducing the Amendment Act, reads as follows:
[the construction by Doessel and Davis] if not reversed, would result in an unintended extension of the benefits under the Act to all service personnel who were in an operational area during a relevant period irrespective of the duration of that service, of the purpose of their presence in the area, of the actual duties undertaken during that period and of the fact that the Defence Force, apart from posting them to that area, had not formally allotted them for service in that area.
The concept of "allotment for duty" is a special one which was developed to cater for and identify service which attracted Repatriation benefits. It has been developed in respect of service undertaken in response to the war-like situations that have arisen since World War II …
… . The proposed amendments are intended to overcome the Federal Court decisions by clarifying that the "allotment" process (past and present) is, firstly, a distinct administrative arrangement, separate from the normal "posting" process which governs the movement of Defence Force personnel and, secondly, an administrative arrangement for the specific purpose of determining whether a person's service was sufficiently hazardous to entitle the person to benefits under the Principal Act.There is no evidence, submitted Mr Marsh, that the applicant's unit was allotted. He said that this would be "obvious" because of the "nature of the unit". The Movement Control where the applicant was posted was not allotted for Vietnam because it did not go there as a unit. As for individual allotment, the question returns to the need for a statutory instrument from the Defence Force in relation to the applicant and there is no evidence before the tribunal that one exists.
Mr Marsh also submitted that the tribunal should not rely on section 119(1)(h) of the Act to deal with an evidentiary gap of this nature. Section 119(1)(h) allows the tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including those attributable to the passage of time and the absence of deficiency in relevant official records. Mr Marsh referred the tribunal to the recent Federal Court decision of Mason v Repatriation Commission [2000] FCA 1409. The tribunal notes that in that decision Weinberg J cited with approval the following passage from Repatriation Commission v Bey (1997) 79 FCR 364 at 373-4, where Northrop, Sundberg, Marshall and Merkel JJ said:
The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law: Collins v Repatriation Tribunal (1980) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumer v Immigration Review Tribunal (1992) 36 FCR 544 at 555-556. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - "without limiting the generality of the foregoing". Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.
As to the award of the medals mentioned above to the applicant, such as the AASM, the respondent submitted that the criteria for their award is "distinctly different to the clear and specific terms of the allotment requirement in section 5B." The letter from Defence Personnel Executive (Exhibit A3) did not refer to allotment.
The representative for the applicant, Mr Crabb, conceded that the tribunal did not have evidence that the applicant was allotted for duty. However, he submitted that the tribunal also did not have evidence that the applicant was not allotted for duty. He relied on the decision of the respondent, the VRB and evidence from the applicant of having received certain medals. Mr Crabb pointed to the applicant's evidence that the Director of Movement Transport would have issued a direction that the applicant be either allocated to Qantas or to the C-130 aircraft. Mr Crabb also relied on Mr Piper's findings (R2), where he asked: "would it be unusual for someone in the mustering to make flights to Vietnam as a freight handler or escort?"
Mr Crabb submitted that there is ample evidence that the applicant was in Vietnam when he alleges he was there and that it was not unusual for someone like him to be there at the time.
Findings on material questions of fact with reference to the evidence or other material on which the findings are basedThe tribunal found Mr Revill to be a credible witness and does not disbelieve his evidence of having been in Vietnam during the relevant period. There is no difficulty accepting the applicant's submission that it would not have been unusual for the applicant to have been in Vietnam during the relevant period. His recollection of his experience there was vivid.
However, in relation to the flights themselves there is only the applicant's evidence that they occurred. Although the tribunal is prepared to accept that Mr Revill was in Vietnam there is, as the respondent submitted, scarce evidence on which to establish when he was there. But this deficiency might be remedied by the application of section 119(1)(h), particularly with regard to the passage of time and the applicant's own evidence that he has lost his own records of the flights.
Even if section 119(1)(h) were able to remedy that deficiency, the tribunal is confronted with the problem of allotment for service. The tribunal accepts the respondent's submission that section 119(1)(h) should not be used to remedy the absence of evidence as essential as allotment. Section 5B(2), read in conjunction with section 6C, is clear in its meaning that allotment is established by way of a "written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act." The applicant was unable to produce such a written instrument. The award of the relevant medals did not assist the tribunal in this regard, since the criteria for the award of those medals differ from the requirements for the award of the relevant entitlement, see Re Eastman and Repatriation Commission (1992) 28 ALD 253. It is clear that allotment is an essential prerequisite to eligibility under the Act: Re Bonnes and Repatriation Commission (1987) 13 ALD 117; Re Savage and Repatriation Commission (1997) AAT 12370, 5 November 1997.
It is unfortunate that the previous decisions in this matter have proceeded upon an erroneous assumption as to the applicant's eligibility, only to concentrate then on the question of connection between the injury and service.
ConclusionThe tribunal can not proceed to consider the connection between the applicant's lumbar spondylosis and any relevant service, as the alleged service relied upon by the applicant has not been made out in the form of allotment for service in an operational area. If such evidence were obtained, the tribunal would be able to consider whether a connection can be established. At present, however, the requirements of the Act in section 5B(2) and 6C have not been met.
DecisionThe decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed: James Enderbury .....................................................................................
AssociateDate/s of Hearing 13 November 2000
Date of Decision 9 May 2001
Counsel for the Applicant Mr Paul Crabb
Solicitor for the Applicant Snedden Hall & Gallop
Counsel for the Respondent Mr Jim Marsh
Solicitor for the Respondent DVA Legal
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