Whitbourne and Repatriation Commission - [2001] AATA 7

DECISION AND REASONS FOR DECISION [2001] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N1998/1135

VETERANS' APPEALS DIVISION          )
           Re      GREGORY KENNETH WHITBOURNE
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date10 January 2001
PlaceSydney

Decision      The Tribunal determines: 1. that by consent that part of the decision under review as relates to osteoarthrosis of both knees is affirmed; and 2. that that part of the decision under review as it relates to post traumatic stress disorder, anxiety, chronic airflow limitation or respiratory incapacity and thoraco lumbar spondylosis be affirmed.
  …………………………….
  R N J Purvis
  Deputy President

catchwords
VETERANS' AFFAIRS – disability pension – osteoarthritis – lumbar spondylosis – whether hypothesis connection injury with service – whether Statement of principles in existence – whether hypothesis is reasonable – whether satisfaction beyond reasonable doubt as to the capacity not arising from war-caused injury
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel [1999] FCA 1273
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Re Barrett and Repatriation Commission (1999) 29 AAR 542

REASONS FOR DECISION

The Application:

This is an application for review of a decision made by a delegate of the Repatriation Commission ("the Respondent") on 12 December 1997, refusing a pension claim made by Mr Gregory Kenneth Whitbourne ("the Applicant") in respect of osteoarthrosis of both knees and lumbar spondylosis. A claim in respect of post-traumatic stress disorder, anxiety and chronic airflow limitation was refused, as they were not able to be confirmed. A claim in respect of prickly heat was accepted effective from 4 March 1997. The Veterans' Review Board on 15 July 1998 affirmed the Respondent's decision.
In its decision of 12 December 1997 the Respondent stated that:
"…
Post Traumatic Stress Disorder, Anxiety
Investigation of Post Traumatic Stress Disorder, Anxiety has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for post traumatic stress disorder, Anxiety is therefore refused.
Chronic Airflow Limitation
Investigation of Chronic Airflow Limitation has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for Chronic Airflow Limitation is therefore refused.
Osteoarthritis of both knees
Your contention
In your claim you have contended that osteoarthritis of both knees was due to heavy lifting and bending unaided whilst serving in Vietnam.

Trauma to a joint
In this case there is no history of trauma in the area of the left knee.
Prisoner of war
There was no service as a prisoner of war.
Other factors
The evidence before me indicates that the other factors that can contribute to osteoarthritis of both knees, contained in the Statement of Principles, do not apply in this case.
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of osteoarthritis of both knees. As a result I find that all the evidence does not raise a reasonable hypothesis connecting osteoarthritis of both knees and operational service. I am therefore unable to accept it as war caused.
Lumbar Spondylosis
Your Contention
In your claim you have contended that lumbar spondylosis was due to heavy lifting and bending unaided whilst serving in Vietnam.
Lumbar intervertebral disc prolapse
There is no history of a lumbar intervertebral disc prolapse
Trauma to the lumbar spine
In this case there is history of trauma to the lumbar spine.
…
Other factors
The evidence before me indicates that the other factors that can contribute to lumbar spondylosis, contained in the Statement of Principles, do not apply in this case.
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of lumbar spondylosis. As a result I find that all the evidence does not raise a reasonable hypothesis connecting lumbar spondylosis and operational service. I am therefore unable to accept it as war caused.
…" (T2, p3-4)

The Applicant in his application for review of the decision contended that the medical evidence placed before the Respondent "proves my claim that my disabilities were caused by my operational military service". In his initial application and with respect to the various disabilities claimed the Applicant stated that they were created by stress in a war zone, and heavy lifting and bending unaided while serving in Vietnam.
By consent of both parties so much of the decision under review as relates to osteoarthrosis of both knees is to be affirmed. Issues of impairment if they arise are to be remitted for decision by the primary decision maker.
The hearing
The Applicant was represented at the hearing by Mr Mark Vincent of counsel and the Respondent by Mr Peter Godwin, a departmental advocate.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T18. The following written material was also admitted as exhibits, namely:
Exhibit No.   Description
A        Applicant's statement of facts and contentions, dated 13 January 2000.
B        Report of Dr Collopy, dated 11 March 1999.
C        Report of Dr Collopy, dated 4 July 2000.
D        Report of Dr Miller, dated 11 March 1999.
E        Report of Dr Benanzio, dated 3 March 1999.
F         Report of Dr Hordern, dated 14 April 1999.
G        Report of Dr Baz, dated 16 December 1999.
H        Applicant's table of impairment ratings.
Respondent's amended statement of facts and contentions, dated 15 July 2000.
Report of Prof Sambrook, dated 20 December 1999.
Report of Prof Breslin, dated 2 March 2000.
Report of Dr Lewin, dated 10 January 2000.
Supplementary report of Dr Lewin, dated 7 June 2000.
Report of Dr Helme, dated 26 November 1997.
Report of Dr Burns, dated 4 December 1999.
Copy of transcript of Veterans' Review Board hearing of 15 July 1998.

Relevant legal principles to be applied

The Applicant had operational service in Vietnam from 19 December 1968 to 28 November 1969. The standard of proof is that specified in section 120 of the Veterans' Entitlements Act 1986 ("the Act") namely:
"Standard of Proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran…relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war caused disease…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1)…in respect of the incapacity of a person from injury or disease…related to service by the person the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease;
or
…
(c) as the case may be, if the Commission after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

Section 120A, entitled 'reasonableness of hypothesis to be assessed by reference to Statement of Principles', provides:

"(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) A Part II that relates to the operational service rendered by a veteran;
…

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person…with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a statement of principles determined under section 196B(2) or (11);
(b) a determination of the Commission under sub-section 180A(2);
that upholds the hypothesis.

…"

The course to be taken in aid of establishing whether or not there is an injury or disease related to service rendered by a person is explained as detailed in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, namely:
"…
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at that stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under 196B(2) or (11)…
3 If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could be said to be neither contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4 The tribunal must then proceed to consider under section 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
…"

In Repatriation Commission v Gosewinckel [1999] FCA 1273 at paragraph 26 it is stated:
"…Mere inaction on the part of the authority does no more than render 120(A) of the Act inapplicable. The hypothesis will then be considered on its merits in accordance with the principles laid down in Bushell v Repatriation Commission (1992) 175 CLR and in Byrnes v Repatriation Commission (1993) 177 CLR 564. It is only where the authority has formally declared that it will not make an SoP that the hypothesis will be taken not to be reasonable and, in consequence, the application would, of necessity, fail. Putting the minor qualification to one side, Deledio provides an authoritative exposition of the inter-relationship of sub-section 120(1) and 120(3) and 120A of the Act."

Thus, stated briefly, the course which the Tribunal is to take in a case such as the present is to ascertain:
1.        whether there is an hypothesis connecting the injury with service;
2.        whether there is in existence a Statement of Principles (SoP);
3.        if there is no existent SoP then the principles laid down in Bushell (supra) and in Byrnes (supra) are to be applied;
4.        if there is an SoP is the hypothesis that is raised reasonable? That is, does it contain one or more of the relevant factors?; and
5.        is there satisfaction beyond reasonable doubt as to the incapacity not arising from a war-caused injury or injuries? This latter question is one of fact.

The issues for determination

The issues for determination in this matter as raised by the parties in their respective statements of facts and contentions are:
1. The Applicant contends that he suffered a moderately severe chronic post traumatic stress disorder resulting from the impingement of a series of stressful experiences in Vietnam upon him. The Respondent contends that the Applicant does not suffer any incapacity from any psychiatric disease and therefore the Respondent is not liable to pay compensation under section 13(1)(b) of the Act.
2. The Applicant contends that there is clinical, spiro-metric and radiological evidence confirming that he has plural thickening with restrictive lung disease and some inerstitial peribronchial fibrosis, together with mild collapse of the right lower lobe of the lung. He suffered from an attack of a chest infection with pleurisy in 1977. At that time he was smoking 30 cigarettes a day and it is considered there is a reasonable hypothesis that this contention relates to war service.
The Respondent contends that the Applicant does not suffer any incapacity from any respiratory disease and therefore the Respondent is not liable to pay pension under section 13(1)(b) of the Act. The Respondent further contends that the Applicant's claimed condition of plural thickening with restrictive lung disease and interstital peribronchitis together with mild collapse of the lower lobe of the right lung, does not cause incapacity and therefore is not compensable.
3. The Applicant contends that he suffered repeated traumas to the thoracic and lumbar spine before the clinical worsening of thoracic spondylosis and lumber spondylosis. He experienced some discomfort in the regions of both shoulder blades at the thoraco-lumbar spine level and in the lumbar-sacral region before his operational service in Vietnam. This discomfort, it is said, was aggravated by bending, lifting or performing other strenuous activities in Vietnam.
The Respondent contends that the Applicant did not suffer thoraco-lumbar spondylosis prior to or during his operational service and the condition does not meet any factor in the applicable SoP. The Applicant's discomfort during operational service is not consistent with the internal damage to a spinal joint or disc at that time.

Relevant factual situation

The Applicant was born on 17 January 1947 and, prior to his enlistment on 7 February 1968, qualified as a fitter and turner. He said that when young he had problems with his back, it being sore after he played rugby league. This was when he was under sixteen years of age, and he experienced pain in his lower back and in his neck. It was more, he said, a discomfort and when he stopped playing sport it improved and became better. From time to time, depending on the nature of his work, his back condition was aggravated, and he experienced pain in his lower shoulders and neck. It was not crippling, he said, more a discomfort.
His physical examination report of 3 November 1967, that is at the time of his enlistment, noted that he then had a "foot almost flat" and a "very slight stoop".
A medical examination conducted on termination of his service on 18 December 1969 noted "prickly heat in Vietnam – now no disability. Sore eyes and inflamed. Eyes due to glare and dust in Vietnam." The Applicant was discharged in Sydney on 6 February 1970, having spent the period from 19 December 1968 to 28 December 1969 on operational duties in Vietnam.
The Applicant whilst in Vietnam was engaged as a mechanical and electrical engineer repairing the guns of tanks and small arms. Field guns were repaired, dismantled and reassembled. The Applicant said that there were shortages of parts and necessary equipment. There were no cranes or lifting equipment. He struggled to lift things by himself, things like heavy gear boxes and milling machinery. He was engaged in dismantling, which required him to work beneath vehicles in confined spaces and sometimes in a twisted position. Weights he was required to lift extended up to 50 kilograms. At times he said he had trouble with his back and legs and spoke to his commanding officer, as a result of which he was transferred to the instrument shop for a period of six to eight weeks. He was also involved in reassembly, again requiring him to work sometimes in confined areas. From time to time he experienced pain in his back and on about six occasions obtained relief when one of his fellow soldiers massaged his back. He experienced difficulty sometimes in getting comfortable.
He said that his discomfort affected the way that he did his job in that sometimes he just did not have the necessary strength. The pain that he had when doing his work was experienced two or three times a week. It could last a couple of days or be better the next day. In spite of the pain he continued with his work, sometimes obtaining assistance. Occasionally the pain was accentuated by the work and it then took longer to abate. Massaging helped a bit. He said the pain was more of a constant thing; "it was there" and "I was concerned that he could damage myself." The pain was much relieved when he went to the instrument shop where he repaired binoculars and like equipment. The instrument shop was air-conditioned, there was space, he could sit and his back did not ache and over the days it became better. After a few weeks his back did not hurt any more. The Applicant said that it was really in the first six months of his service in Vietnam when he was "gung-ho and did things I should not have done", that he was more aware of the pain in his back.
On his return to Australia the Applicant obtained employment with the Electricity Commission and so long as he did not try to lift things he said that his back was "alright". His "back was worse" in Vietnam than with the Electricity Commission, but he was not aware of any particular incident in Vietnam that might have caused injury to or aggravated the condition of his back. He said that after his discharge he learnt how to control any pain or discomfort by use of the drug Napsolan.
In a report of 14 April 1999, Dr Anthony Horden set out in detail the army service history of the Applicant. The evidence before the Tribunal is generally in accord with this detailed history and is adopted by it. Where the oral evidence supplements the case history the latter has been noted. The case history so given to Dr Horden, as here relevant, states:
"Army service
Mr Whitbourne told me that he had been called up at the age of 21, having been deferred for a year to continue his studies in mechanical engineering at the Technical College in Newcastle, NSW. At the time he enlisted on 7/2/68, he had already been married (on 7/11/67) and had an infant son, Brian, born in March 1968. Mr Whitbourne stated that he had performed his recruit training at Kapooka Army Base at Wagga Wagga. He said that he had been there for twelve weeks and that it had been "very physical and fairly abusive". He told me that he had been assigned to RAEME (The Royal Australian Electrical and Mechanical Engineers) and had been sent to Wodonga, NSW. Mr Whitbourne had said that his wife, Patricia, had come to join him and that they had lived there with their baby, Brian. The informant told me that he hadn't liked it very much. He explained that he was "never a military person" so that he hadn't cared for some of the training. He commented that he disliked the army "bullshit". He had been in Albury for six weeks, thereafter being transferred to Holsworthy, he informed me.
The informant stated that he had been attached to the artillery. He said that his wife had joined him at Holsworthy and that they had lived near Liverpool in a rented house. Thence he had been sent to Jungle Warfare School in Canungra, Mr Whitbourne told me. He said that this had been "very physical" but that he had found it interesting. He stated that the training had been good, i.e. he had felt and he still felt that it was important that a soldier knew how to look after himself. He had come through the training with no problems, Mr Whitbourne stated.
…
Subsequently he had returned to Holsworth, Mr Whitbourne told me, whilst his wife had gone to reside with her parents. He stated that he had been flown to Saigon (on 18.12.68) by Qantas.
…
His Qantas aircraft had landed in Saigon, he stated, whence he had gone by Caribou aircraft to Vung Tao, the Australian base in South Vietnam, where he had been assigned to a workshop, containing 25 soldiers of all trades. In that workshop guns, tanks, machinery and small arms had been repaired. It had been difficult to get appropriate parts, Mr Whitbourne stated. He told me that he had stayed in the workshop for the entire twelve months that he had spent in the army in South Vietnam. In response to my query, Mr Whitbourne said that he had not during this time, subjected to enemy action. [The Applicant was transferred to an air conditioned workshop].
His tasks in the workshop, Mr Whitbourne wrote in his letter of 4/3/99, had included repairing and cleaning out APCs (Armoured Personnel Carriers). He explained that the hulls of these vehicles were constructed of aluminium alloy and that the enemy had endeavoured to damage them by using "heavy" land mines. Mr Whitbourne stated that if the damage was not too substantial he and his mates had to repair it. He added that the workshop at which he had been stationed was also used as a holding area for APCs and for Centurion tanks which were too severely damaged to be repaired in Vietnam and which were therefore shipped back to Australia. Usually, Mr Whitbourne stated, blood, "quite messy sometimes", was caked on the interior of these vehicles, which also frequently contained damaged military equipment, such as webbing and water bottles. Cleaning was carried out with a high pressure water blaster. Furthermore the workshop was close to the hospital where "dust offs" would come in by day and night "causing an air of discomfort, hopelessness and anger".
As each unit had been responsible for its own security, certain tasks had had to be carried out, in addition to the usual hours of work, Mr Whitbourne stated. He said that these had been eight hours a day six and a half days a week with a full Sunday off every fourth week. On many occasions, however, he had "worked back" when some item had had to be finished. The additional tasks had consisted of patrols and pickets. Patrols had had to be carried out three or four nights a week, starting at 6pm, with two hours on and four hours off, finishing at 6am. In regard to pickets Mr Whitbourne's unit was responsible for performing searches of its outer perimeter during which those participating were exposed to danger from mines, booby traps and snipers. These picket duties were daytime exercises, in four of which Mr Whitbourne participated whilst he was in Vietnam. As the picket duties were in addition to normal working hours (if one was rostered on Sunday, it was bad luck) the situation for Mr Whitbourne was very stressful at times, particularly because he was responsible for repairing items on which the lives of soldiers depended.
With the stress of the patrols and the pickets, the long hours of work, the responsibility of carrying out safe reliable repairs, his overtiredness, his concern over the welfare of his wife and infant son in Australian and the blood in the APCs and tanks, Mr Whitbourne had found it difficult to sleep, he stated. Accordingly, he explained, he began to smoke more and to drink alcohol, not having consumed alcohol before serving in Vietnam. In addition, he wrote, he had found the "human side" of his work particularly distressing. He reported that he had to travel three or four times as an escort on a truck loaded with uneaten scraps of food which had had to be unloaded at a dump. Many serving Vietnamese had been there, Mr Whitbourne recalled. He commented that the Vietnamese had nearly pulled the truck apart to get at the food scraps, so that he had to fire his rifle in the air to defend it, though he hadn't had to shoot anyone. Firing his rifle to disperse the crowd was the sort of thing he had had to do in Australia to disperse seagulls at a rubbish tip, Mr Whitbourne stated. This activity had struck him particularly as an indictment of what he and his fellow soldiers were doing in Vietnam. "I guess with the garbage dump instances and the depressed state of the people it left me confused, unsettled and empty" he wrote. "On top of all this" he added "my wife and mother were sometimes abused by people from our local community while I was away". "With this, the continual protests, and the mistreatment of veterans on their return to Australia still leaves me bitter and angry" Mr Whitbourne's letter concluded.
…
Mr Whitbourne stated that he was "pissed off" when he came out of the army on 28/11/69. On returning home, he had discovered that some of the people with whom he had trained had made progress in the meantime. "The people I knew seemed to be foreign…I suppose I must have changed…", he commented.
Symptoms since leaving the army
After leaving the army at the end of November 1969, Mr Whitbourne…told me that he had returned to Vale's Point Power Station in order to complete his Engineering Certificate, but that he had been very unsettled for three years. He had not been comfortable when with his former colleagues and so, because of this, he had accepted a position as Technical Officer in the Papua and New Guinea Electricity Commission at Port Moresby, meanwhile being on leave from the Electricity Commission of NSW. Mr Whitbourne explained that he had worked and lived in Papua New Guinea from 1973 to 1978…He had returned to work for the Electricity Commission of NSW until he had started up his own business, which had been more of a challenge, Mr Whitbourne explained.
Mr Whitbourne told me that he had started to smoke cigarettes at the age of 14. He said that this practice had increased when he was in Vietnam. In that country also, he had started to drink Bacardi and Coke as well as beer, he informed me. He stated that in the course of his work he had a good deal of exposure to asbestos. Mr Whitbourne told me that after leaving the army, he had many recollections, sometimes of an intrusive nature, of Vietnamese individuals of all ages and both sexes coming to a garbage truck on which in Vietnam he had travelled as a sentry. As he had a wife and child, he told me, he had been appalled by the "onslaught" of Vietnamese women and children who had congregated around the truck which was getting rid of its load of food scraps and so forth on the mounds of garbage. Mr Whitbourne explained that it had appalled him that human beings would have to descend to this type of behaviour. Mr Whitbourne told me that his recollections were sometimes triggered off by images he had seen on the television. He said that the images had stressed and frustrated him. He told me that they sometimes brought tears to his eyes. He emphasised that he still had vivid memories of this experience. He commented that this memory might be a principal reason for his current desire to go and perform Aid work in the Solomons via the Salvation Army, church groups and so forth.
Mr Whitbourne went on to tell me that he did not like big crowds. He stated that he did not like to talk about the dumping of food scraps at the garbage area. Although he had used to go to clubs or public houses prior to joining the army, he had stopped doing this, he told me. He said that he had had a feeling of detachment from his colleagues and the people he had encountered in civilian life after leaving the army. In response to my query, Mr Whitbourne said that he frequently did not show his emotions. He confided that he worried a great deal about the future of people living in Third World countries. In response to my specific queries, Mr Whitbourne said that he had had no insomnia or no disturbing dreams. He told me that he was slow to anger and that he kept to himself a lot. He denied any impairment with his powers of concentration, but stated that he had been hypervigilant and had developed a startle reaction since leaving the army."

Medical assessments and findings in relation to each condition

The Applicant made claim for the relevant pension on 4 June 1997. In the claim his medical practitioner identified a number of disabilities described as post traumatic stress disorder, chronic airways disease of the lungs, heat rash, osteoarthrosis, lumbar-spine and knees, the medical names for which were stated by the Respondent as earlier indicated in these reasons.
The evidence placed before the Tribunal as to each such condition is briefly as follows. The disabilities are alleged to each relate to the Applicant's operational service. The claim is to be accepted if there is a reasonable hypothesis connecting the disability with his service. The factors that need to exist for a hypothesis to be considered reasonable are determined as set forth in relevant Statements of Principles. For a claim to be refused, the Tribunal must be satisfied beyond reasonable doubt that a factor does not exist.
Post traumatic stress disorder anxiety
The case history given by the Applicant to Dr Horden has been set forth above. In his evidence before the Tribunal the Applicant stated that when going to Vietnam he believed that his role was to help another country. He thought that it was his obligation to fight for his country and that he should be in Vietnam, as that was the law of his land. He reiterated the nature of the work in which he was engaged, the dismantling of machinery and the cleaning of weapon carriers that had been damaged, their occupants injured by land mines. He referred to steam cleaning the vehicles. He said that they were "shitty and dirty from where they had been and a bit unpleasant inside sometimes. Those who had been there must have been knocked around. There was personal webbing and blood they had spilt".
The Applicant made mention of accompanying garbage vehicles maintained by an outside contractor to a garbage location, a role he performed three or four times. He was armed at the time and there were women and children present. On one occasion he said "they got a bit aggro" and he fired over their heads to keep them quiet. "I was sickened to think that they were human beings. I felt threatened. I was near the back of the truck, they were milling around. Bullshit I suppose. I thought it was the right thing at the time." The Applicant said that it upset him. He felt sorry for them and thought of his wife, "who was at home at the time". "I wanted to just stop shooting, just give them something to eat – with the most modern helicopters flying around".
At times when working on the military equipment he said he thought of the abuse that his wife and mother-in-law were receiving at home as a consequence of his being in Vietnam. He visited a hospital and school and they were "just squalid". "We didn't help them. I went there initially to help. I thought so at first but seemed to be going the wrong way." The Applicant said that he did not tell anyone about these thoughts he had. Other than during the present case he used to keep them to himself, "but my wife knew".
When he first came back from Vietnam he looked at Australia with a different view. "We should not have been there. I have changed, they have not. I was very bitter".
Whilst in Vietnam the Applicant did not see anyone killed and in his cross-examination admitted that the only time that he thought that he might have been in danger was at the garbage dump when he discharged his rifle. "I probably over-reacted".
The SoP relating to this condition is Instrument Number 15 of 1994 as amended by 225 of 1995. (T18/79). The factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of that service are stated as:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.

Subject to clause 3 of the Instrument, at least one of these factors must be related to any service rendered by a person.

Post traumatic stress disorder is defined in the Instrument as a psychiatric condition meeting the following description:
"(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg unable to have loving feelings);
(vii) sense of foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv )hypervigilance;
(v) exaggerated startle response; and
(e) duration of disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month: and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

On 26 November 1997, Dr K Helme, a consultant psychiatrist, reported to the Respondent that he could find no evidence of a post traumatic stress disorder during his assessment of the Applicant. On 11 March 1999 Dr M G Miller, a consultant physician, reported:
"In my opinion Mr Whitbourne suffers from an anxiety disorder with many of the features of post traumatic stress disorder. There is also a history of mild but ongoing alcohol abuse which has resulted in a mild peripheral neuritis…there is no doubt that Mr Whitbourne suffered from stressors when he had to hose out and scrub out blood stained APCs in Vietnam. However, my specialist expertise does not allow me to give an opinion on the relationship between his claimed disability and war service."
(Exhibit D)
Dr Anthony Horden, psychiatrist, after taking the earlier detailed case history, gave his diagnosis as:
"Moderately severe chronic post traumatic stress disorder resulting from the impingement of a number of stressful experiences in Vietnam on an intelligent, sensitive, conscientious, young RAEME soldier with a wife and an infant son in Australia. Coded according to the American Psychiatric Association's Diagnostic and Statistical Manual, IV Edition, this diagnosis is 309.81".
(Exhibit F)
And prognosis as:
"In view of the chronicity of Mr Whitbourne's Post Traumatic Stress Disorder it is unlikely that his symptoms will now improve very much, even were he to receive psychiatric treatment. Over the years he has learned to live with his symptoms, though it must be significant that, largely due to his experiences he had in Vietnam, he now plans to sail to the Solomons with his wife to engage in aid work."
(Exhibit F)

Dr Robert Lewin, an adult, general and forensic psychiatrist, having examined the Applicant, obtained a service psychiatric, medical and substance abuse and background history and having read inter alia the reports of Doctors Miller and Hordern concluded that:
"…Mr Whitbourne presented as a somewhat weary gentleman who has some low-grade symptoms of distress. In general he reports that he has felt better since he retired recently.
I did not diagnose any current psychiatric illness in Mr Whitbourne's case. I note that he has been abusing alcohol. It is possible that there is a more severe alcohol related problem underlying his current difficulties. I have noted that he has recently experienced a number of life stressors. These relate to the relationship with his daughter and son-in-law on one hand and the decision to leave his business on the other. Mr Whitbourne has not seen a doctor about psychiatric symptoms at any stage and he is not taking any medical or psychological treatment.
I did not diagnose any psychiatric illness related to his period of service in Vietnam. In my opinion Mr Whitbourne is not suffering from any psychiatric illness at the present time…"
(Exhibit 4)
On 7 June 2000 Dr Lewin in a further report stated:
"…I was unable to diagnose an Alcohol Dependence Syndrome. He did not report clinical features of Alcohol Dependence. The hallmarks of tolerance and withdrawal were not reported in his history. I observed that he was drinking to excess and that his current pattern of intake of alcohol was not compatible with sustained good health.
The diagnosis of Alcohol abuse was made. I have insufficient clinical information to make the diagnosis of a more severe disorder, Alcohol Dependence. Alcohol abuse is not regarded as a psychiatric illness because it is generally an ephemeral condition.
It is my opinion that Mr Whitbourne's case satisfies diagnostic criteria for alcohol abuse at the present time. I commented about that I suspect that he has the more severe condition alcohol dependence although the clinical history was insufficient to meet this standard."
(Exhibit 5)
On behalf of the Applicant it was submitted that the hosing down of the APCs, the garbage dump and white mice incidents are suitable events to constitute the stressor required by the instrument. The Tribunal, it is said, should be satisfied on the evidence of Dr Horden that the Applicant is experiencing post traumatic stress disorder, even be it Dr Lewin found insufficient indicators. Thus it is submitted that the factor is raised taking into consideration the several incidents, the two most important being the hosing out of blood and the discharge of the weapon at the garbage dump.
Whilst there is evidence of the Applicant experiencing psychological disturbance on his return to Australia from Vietnam, Doctors Helme and Lewin reported no present psychiatric illness. For post traumatic stress disorder to be accepted it is necessary for the Applicant to satisfy the SoP earlier detailed. It is necessary for him to meet the pre-requisites of "experiencing a stressor" and "post traumatic stress disorder". The Applicant does not have symptoms of the disorder. The stressful experiences undergone during service, the cleaning of the APCs and the incident at the rubbish dump were not life threatening, were not on the evidence consistent with deep disturbance at the time, and did not present a situation of personal danger to the Applicant. There is not a feeling of intense fear, helplessness or horror required by the Principles.
The Tribunal is satisfied that the Applicant does not show a pattern of symptoms consistent with post traumatic stress disorder and the fact that he does not have flashbacks or intrusive thoughts of any stressful events confirms the view that he does not meet the definition of "experiencing a stressor". The evidence of Dr Lewin was to the effect that the Applicant was "a well rounded successful personality with a successful life experience" and that he is talking in a past tense when referring to his symptoms. There is no inability to recall, no evidence of physiological re-activity. The Applicant's evidence was to the effect that going on patrol was not something that he regarded as life threatening or that the people he was with regarded as life threatening.
The Tribunal is not satisfied, there being a relevant SoP, that the evidence contains or establishes one or more of the relevant factors.
Chronic airflow limitation or "respiratory incapacity"
The SoP that might relate to this condition is Instrument number 73 of 1997. However, the Applicant admits that this incapacity, that is the claim for respiratory incapacity, is not to be diagnosed as chronic airflow limitation as it does not meet the definition of that condition as it appears in the Instrument. Therefore that Instrument does not apply and there is no other applicable Instrument. Accordingly it is said, there are two choices. There is either nothing wrong with the Applicant at all or else it is some other condition, something occluding his lung as measured by effort and tolerance. It is submitted that the task of the Tribunal is to work out as best it can what label, what diagnosis should be put on that condition. It is not, it is said, "to hold against the Applicant if he cannot be shoe-horned into a particular Instrument in a diagnosis sense". The Instruments are an attempt to categorise very many of the incapacities but, it is submitted, they are not a code, they do not cover every illness or disease.
However, the evidence of an expert cannot be used to provide an alternative to the requirements of the SoP (Gosewinckel, supra, para 67).
In his evidence before the Tribunal the Applicant said that he was a regular smoker prior to his service but that in Vietnam, being a lot cheaper, he tended to smoke more cigarettes, up to a packet per day. It is probable that his usage increased to 30 cigarettes per day nearby to the time when he returned to Australia. Thereafter his use was about 20 to 25 cigarettes per day from the age of about 35 years. He said that he has had bouts of flu with a sore throat. He took time off work and it "was painful and hard to breathe". He consulted a local medical practitioner and was prescribed anti-biotics. The Applicant stated that he was first aware of a "respiratory problem" when he was about 35 years of age, about the time that he suffered from pleurisy. He was aware of a tightness in his chest, first seeing a medical practitioner in relation to this condition "early in my forties".
The Applicant admitted to working with asbestos during his apprenticeship and to a limited extent after his service in Vietnam.
On 11 September 1997 Dr Antonio Ambrogetti, a consultant physician specialising in respiratory medicine and sleep disorders reported:
"At present Mr Whitbourne does not have evidence of obstructive airway disease or lung impairment.
Mr Whitbourne is 50 years of age and is self-employed in an engineering business. He is a smoker of about 20 cigarettes per day from age 14 until the present time.
From age 15 to age 30 he had an average of 6 years exposure to asbestos while working in a power station. After that he has had only occasional exposure as a contractor.
He admits drinking 3 cans of beer per day. There is a family history of asthma in his father but not in the patient himself. He probably suffered from pleurisy in 1992 with residual blunting of the right costophrenic angle. He suffers from heat rash and has minor operations.
He admits to being short of breath on exertion, walking uphill and upstairs. He is able to carry out physical activity and sport such as rowing. He has no wheezing or shortness of breath. He sleeps on one pillow and there is no evidence of coronary artery problem.
On examination he is 180cm in height and 84kg in weight. Blood pressure was 120/80, heart sounds were dual and chest was clear. Abdomen was normal. Spirometry is enclosed.
I have explained that at the present time there is no evidence of respiratory impairment and I have encouraged him to stop smoking."
(T8, p37)
In his report of 11 March 1999 Dr Geoffrey Miller, consultant physician, stated that the Applicant had:
"…evidence of mild peripheral vascular disease and in my opinion he suffers from a restrictive lung disease associated with pleural fibrosis over the right lung and scarring with interstitial changes in both lower lobes and in my opinion there is some residual collapse of the right lower lobe of the lung".

Dr Miller continued:

"Mr Whitbourne claimed for the condition of "respiratory" as a war caused disability. This was diagnosed as chronic airways limitation, but although from a medical point of view he does have evidence of mild chronic obstructive airways disease, his radio of FeV1 to FVC does not satisfy the Statement of Principles for diagnosis of this condition.
In my opinion Mr Whitbourne suffers from a restrictive lung disease, this is confirmed by the spirometry and in particular by the reduction of his FVC to 76.6% of predicted normal.
There is radiological evidence of old pleurisy, together with some right lower lobe collapse with increased peri-bronchial markings. These have remained unchanged since 1992 and Mr Whitbourne told me that in 1997 or thereabouts he suffered an acute illness associated with fever, malaise and painful cough associated with pain in the right side on coughing. He was unwell for at least a week and I consider that he suffered from acute pleurisy associated with a chest infection at that time.
As he was smoking at least thirty cigarettes a day during this period and as his cigarette consumption increased considerably during his war service I consider that his smoking related to war service and contributed to his chest infection with pleurisy in 1977. In my opinion there is reasonable hypothesis linking the pleurisy and chest infection with war service."

Dr Miller concluded his report by stating:
"In my opinion he has only mild chronic airways limitation and this does not satisfy the Statement of Principles for chronic airways disease. However there is clinical, spirometric and radiological evidence confirming that he has pleural thickening with restrictive lung disease and some interstitial peri-bronchial fibrosis together with mild collapse of the right lower lobe of the lung. He suffered from an attack of a chest infection with pleurisy in 1977. At that time he was smoking thirty cigarettes a day and I consider there is a reasonable hypothesis that this relates to war service."
(Exhibit D)
Dr James Collopy, a diagnostic radiologist, reviewed a chest x-ray of 11 March 1999, and reported:
"There is extensive pleural shadowing in relation to the right lateral costophrenic angle which extends posteriorly to involve the posterior sulcus. There is no evidence of any other pleural shadowing and in particular there is no definite pleural plaque formation nor is there any pleural calcification. The appearances of the pleural shadowing at the right base are non-specific but would be consistent with scarring related to previous infection and is unaltered from 16.9.92. The appearances would be atypical for pleural disease related to asbestos exposure.
There is a minimal increase in interstitial shadowing in both lungs. This is a somewhat subjective observation but would be consistent with some degree of asthma and/or CAL. There is no evidence to indicate any pulmonary fibrosis related to asbestos exposure."
(Exhibit C)

Dr A B Breslin, a consultant thoracic physician, on the basis of the occupational, social and family history obtained by him, his examination and reading of the clinical notes of Doctors Miller, Collopy, Baz and Ambrogetti concluded that the Applicant did not have any airways disease.
"…He does not have any symptoms consistent with airways disease, he does not have chronic bronchitis, does not have empyzema and does not have any evidence of airflow limitation on his spirometry…
He has extremely mild asbestosis-induced pleural disease. There is a pleural plaque on the left and the pleural blunting of the right costophrenic angle could conceivably be due to his asbestos exposure while working in the power stations. Alternatively, the pleural changes there may be due to past infection. In any event, it can be stated categorically that neither pleural change is causing any disability and it is extremely unlikely that they ever will. He does not have any restriction and most certainly does not have restrictive lung disease…
Thus the only respiratory disease that he has is some very mild pleural disease that is most likely due to his past asbestos exposure and cannot be related to his Army service in any way…whether or not the pleurisy is indirectly related to his smoking via a respiratory infection I am not able to say for certain and I must say that it is possible. The pleural scarring that is there is not causing any disability and will not cause any disability and does not predispose him to any other abnormality and is not causing trapping of the underlying lung. It is not causing restrictive lung disease. Further it is quite possible that the pleural changes at the right base are due to his past asbestos exposure, certainly the plural plaque on the left is.
There is no evidence of pulmonary asbestosis.
No respiratory disease is causing any incapacity.
There was no event or occurrence on service that produced the pleural disease".
(Exhibit 3)
Acknowledging that the claim for respiratory incapacity does not meet the definition of chronic airways limitation in the Instrument, it is submitted nevertheless on behalf of the Applicant that the pleural fibrosis diagnosed by Dr Miller being the likely result of a past bout of pneumonia was contributed to by the Applicant's smoking history. Professor Breslin acknowledged the possibility of pneumonia and the predisposition that smoking gives to infection. A hypothesis, it is submitted, arises from the smoking history of the Applicant and past infection which may have itself related to smoking. More specifically the hypothesis raised by Dr Miller linking what has been called pleural fibrosis with the smoking history has been established. Smoking will, it is said, predispose to infection and the Applicant did suffer a severe infection in about 1977. The Applicant thus submits that all links in the chain of a hypothesis independent of an Instrument are raised. The only material tending to disprove the hypothesis is the evidence of Professor Breslin when he says that in his view it is more likely that the occlusion on the lung is an asbestos related disease even be it he recognises the possibility that it may have been due to infection.
The Respondent, in referring to the medical evidence placed before the tribunal, contends that the Applicant does not suffer any incapacity from any respiratory disease. The evidence of Dr Miller states that the Applicant suffers from pleural fibrosis due to pleurisy due to a chest infection contributed to by smoking. He has considerable calcification in the right lower lobe causing shortness of breath and, according to Dr Miller, it is "hard to believe if a man is a heavy smoker and is short of breath, particularly when he has calcification and shadowing in the right lower lobe" that there would be no respiratory impairment. It was considered by Dr Miller that the Applicant had chronic bronchitis, it being quite incredible if he did not so suffer, smoking as he has over a lengthy period of time. Having measured the Applicant's respiratory function Dr Miller concluded that the percentages would not satisfy the diagnostic criteria for chronic bronchitis and/or empyzema in the relevant SoP. Dr Collopy's report supported Dr Miller. Some pleural scarring and shadowing was apparent, consistent with scarring related to previous infection. Dr Ambrogetti reported no evidence of respiratory impairment and Professor Breslin, who is in charge of the respiratory unit at Concord Hospital, considered that the small pleural plaque on the left lung and the pleural thickening at the base of the right lung were asbestos related. The extensive experience of Professor Breslin with asbestos cases is supportive of his opinion that the x-ray changes noted are asbestos related and not incapacitating and the Applicant's lung function is normal.
The Tribunal is satisfied on the evidence before it that the Applicant does not suffer any incapacity from any respiratory disease. There being no incapacity the question as to whether one arose from a war caused injury does not arise. Chest x-rays at a detailed level were not the speciality of Dr Collopy. Respiratory function is not the prime speciality of Dr Miller. Professor Breslin, on the other hand, told the Tribunal that he looks at thousands of chest x-rays and that his expertise is with asbestos related disease. Professor Breslin stated that he saw every asbestos case in New South Wales and "is used to looking at x-rays and correlating what he sees on x-rays with the level of incapacity that people have". Professor Breslin's view that the consolidation identified by him was an asbestos related feature, is accepted by the Tribunal. Likewise his opinion that the Applicant has no incapacity from a respiratory point of view.
Thoraco lumbar spondylosis
The SoP relating to this condition is Instrument number 163 and 165 of 1996. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of the Applicant's relevant service are (T15):
(a) having been a prisoner of war; or
(b) contracting a significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; or
(c) suffering an intra-articular fracture in the lumbar spine before the clinical onset of lumbar spondylosis; or
(d) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis; or
(e) suffering a depositional joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; or
(f) suffering a trauma in the spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis; or
(g) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
(h) suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or
(j) suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical worsening of lumbar spondylosis; or
(k) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis.

It is noted that the definition of "trauma to the lumbar spine" in SoP 165 of 1996 is substantially the same definition as that in SoP 358 of 1995. The Respondent drew the Tribunal's attention to the fact that the explanatory notes for tabling SoP 358 of 1995 at paragraph 3 stated "the new definition reflects the fact that initial internal damage to the joint or disc and not overlying soft tissue injury is needed to increase the risk of lumbar spondylosis". The SoP for thoracic spondylosis and the corresponding tabling note are in identical terms.

Dr Benanzio, orthopaedic surgeon, having examined the Applicant, reported on 3 March 1999 so far as here relevant that:
"According to the history as given to me this patient developed discomfort and mid-thoracic and thoraco lumbar and lumbar sacral levels at a date he cannot remember, but it was definitely long before he joined the army in February 1968.
It is acceptable that the rather heavy activities as a mechanical and electrical engineer with the RAEME always caused a more or less degree of discomfort.
It was not until 10 years ago that he started to experience complaints in the neck, knees and ankles.
The x-rays as described above show initial degenerative changes in the thoracic and lumbar spine. There is minor left convex scoliosis at thoracic level….
From the history as given to me it appears that his duties required him to "undertake continuous heavy physical activity" with repetitive and persistent plection, extension, frequent manual lifting or carrying of loads…
It appears therefore that the patient suffered repeated traumas to the thoracic and lumbar spine before the clinical worsening of thoracic spondylosis…and suffered trauma to the lumbar spine before the clinical worsening of lumbar spondylosis…"
(Exhibit E)
Dr P M Sambrook, Professor of Rheumatology at Sydney University, diagnosed the Applicant as suffering from thoraco lumbar spondylosis and early osteoarthrosis of both knees. He said that he had:
"…reviewed the relevant statement of principles for lumbar spondylosis and although I generally agree with the history obtained by Dr Benianzio I would disagree that the heavy physical activity performed by Mr Whitbourne during his army service satisfies the definition of trauma. The episodes described by Mr Whitbourne are not discreet episodes with acute symptoms and signs lasting seven days. Although he may have had some low grade symptoms in his back prior to service it is doubtful that he had spondylosis at his age when serving and therefore there is no suggestion of aggravation in that since.
I have also reviewed the statement of principles for osteoarthrosis and agree with Dr Benanzio that Mr Whitbourne does not satisfy the SoP for any of the factors so listed there."
(Exhibit 2)
During the course of his evidence before the Tribunal, Prof. Sambrook stated that the pain in the back experienced by the Applicant in his youth did not mean that he had spondylosis at that age. The condition is uncommon before 30 or 40 years of age. The pain experienced by him in Vietnam could well have been pain by reason of soft tissue or muscle impairment, the same not implying fundamental damage to a relevant joint. Prof. Sambrook believed that the origin of the pain was a mechanical pain, not a structural lesion, the x-rays showing not much more development than consistent with his age. The pain, he said, was in his opinion on account of soft tissue affectation. During the course of his cross-examination he said that he based his report on the relevant SoP and had not changed his opinion. He considers the clinical onset began about 10 years ago, and in the Applicant's instance there had been an improvement over years and then an onset. The 1988 x-rays showed relatively minor changes to that time. He has no doubt that the Applicant experiences spondylosis at this time but is of the opinion that there is no relation between any incident during war service and the onset of spondylosis. He acknowledged that repetitive activity over a long period of time does seem to increase the risk of incurring the condition. He further recognised that the lifting of heavy objects would come within the phrase "force of an extraneous agent". However, Professor Sambrook recognised that the Applicant stated that the pain was worse after lifting, but that he could not recollect particular episodes that stood out amongst others. The pain he experienced was the same as that he experienced before service, although during his service the pain had increased in its frequency. He experienced pain when lifting beyond that which he had before service. Dr Sambrook said that the evidence available to him did not indicate that any episode of pain lasted any more than 7 days. He confirmed in his re-examination that the pain experienced by the Applicant was not such as to lead to spondylosis. It cannot be related to the SoP as it was not spondylosis. On behalf of the Applicant emphasis was placed on his bouts of recurrent pain whilst he was performing his duties in the workshop in Vietnam. The Applicant modified the manner in which he performed his work but pain and discomfort were aggravated by the tasks that he was called upon to perform. It took a number of weeks in the workshop for his back to settle down. When he was transferred to the air-conditioned location the pain and discomfort ceased. But, it was submitted that repeated bouts of incapacity can constitute the necessary trauma required by the SoP and that pain and discomfort did not need to be present constantly to equate the required duration. (Re Sandiford and Repatriation Commission (1998) 27 AAR 210; Re Barrett and Repatriation Commission (1999) 29 AAR 542).
It was noted on behalf of the Applicant that the Instrument requires signs and symptoms of trauma to last for seven days as a minimum. Signs and symptoms however, it was submitted, may ebb and flow. They could be worse on one occasion than another. Occurrences such as this could constitute an event trauma. The lifting engaged in by the Applicant constituted an extraneous physical or mechanical agent, the symptoms of which occurred within 24 hours, if not a shorter time, after the particular event. The Applicant recalled trying to lift things and suffering pain. The acute symptoms and signs of pain tenderness and altered mobility or range of movement of that part of the spine were apparent. The Applicant asked to be relieved of duties, stated that he had pain, that he sought a massage from another serviceman, and that he had difficulty in movement. Whilst Professor Sambrook predicated his opinion on a perceived fact that the Applicant did not recall a particular event in the nature of an accident, it was submitted that it was not necessary for such an event to be identified. The Applicant in this matter, it was said, was performing heavy duties and there were numerous occasions when his back was painful and caused him grief. As noted by Professor Sambrook, the back condition did seem to settle down after the period of service but reoccurred in more recent years. The Applicant does have spondylosis at this time. The question of diagnosis, it was submitted, is satisfied on the balance of probabilities.
On behalf of the Respondent reference was made to the definition of "trauma to the lumbar spine" in the relevant SoP, namely:
"An injury to the lumbar spine caused by the force of an extraneous mechanical or physical agent that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery) and there is evidence relating to the extent of injury and treatment such evidence may be considered".

The definition, it was submitted, contemplates a significant injury, and is consistent with the requirement that there be signs and symptoms of each of the three stipulated matters, this necessitating that there be an indication of or phenomenon evidencing each (see Harris v Repatriation Commission (2000) FCA 873 at paragraph 32). The requirement that the signs and symptoms must be acute, that is sharp or act keenly on the senses, implies that there would need to be significant manifestations of pain, of tenderness and of altered mobility. The opinion given by Professor Sambrook, that the x-rays documented in Dr Benanzio's report did not show much more than one would expect for the age at which the x-rays were taken, suggests that the origin of the pain was soft tissue in nature and that there was no internal damage to a joint or disc. Professor Sambrook was of the opinion that the onset of the spondylosis occurred after the service, the question of aggravation thus not arising. Reliance was also placed on the fact that the Applicant did not indicate any particular continuum of pain that he could relate to a particular activity or that it lasted more than 7 days. There was no history given of acute pain.
It was submitted on behalf of the Respondent that the account of pain given by the Applicant, its responding to massage and resolving within a few days, did not indicate a significant injury meeting the definition of "trauma to the lumbar spine" involving damage to a joint or disc. Accordingly it is not consistent with the SoP requirements. Dr Benanzio accepted that the Applicant had no specific accident. He postulated that the Applicant had a mild inflammatory condition in his spine which was aggravated by service. He considered that the factor "suffering a trauma to the spine before suffering the clinical worsening of lumbar spondylosis" therefore applied. It was a continuation of minor traumas which caused symptoms persisting, it was said, for more than 7 days. However, Dr Benanzio said that he did not know what caused the inflammatory condition, but considered that the Applicant's work during his service aggravated the inflammatory condition which later evolved into spondylosis. Dr Benanzio further stated that there was no evidence of acute lesions like fractures in the x-rays examined by him and that the type of activity engaged in by the Applicant did not cause a fracture. The inflammatory joint condition identified by Dr Benianzio was of unknown cause existing prior to service, aggravated by activities of lifting and bending, being a precursor to spondylosis. It was submitted on behalf of the Respondent that increased mechanical pain due to an inflammatory condition of unknown cause is not an injury to the spine or disc meeting the definition of "trauma to the lumbar spine" in the relevant SoP. It was submitted that the thoraco lumbar spondylosis was not war caused.
The Tribunal, on the basis of the evidence placed before it, is satisfied that a hypothesis connecting the spondylosis condition presently experienced by the Applicant with war service was raised. There is in existence a relevant SoP but the hypothesis raised does not contain one or more of the factors required to exist as a pre-requisite to the condition satisfying the SoP. The Tribunal is satisfied that the Applicant's spondylosis condition was, within the meaning of the principles earlier detailed, not war-caused.
Decision
The Tribunal has earlier in these reasons considered the evidence placed before it referable to each of the relevant three conditions presently experienced by the Applicant.
It has considered the material in the light of the principles relevant to a determination of the issues earlier identified and is satisfied that the decision under review as to each of such conditions should be affirmed.
The Tribunal thus determines:
1.that by consent that part of the decision under review as relates to osteoarthrosis of both knees is affirmed; and
2.that part of the decision under review as it relates to post traumatic stress disorder, anxiety, chronic airflow limitation or respiratory incapacity and thoraco lumbar spondylosis is affirmed.

I certify that the preceding sixty (59) paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  6 November 2000
Date of Decision  10 January 2001
Counsel for the Applicant               Mr M Vincent
Counsel for the Respondent          Mr P Godwin