Graham and Repatriation Commission (Veterans' entitlements)
[2019] AATA 1568
•28 June 2019
Graham and Repatriation Commission (Veterans' entitlements) [2019] AATA 1568 (28 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/6140
Re:Suzanne Graham
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:28 June 2019
Place:Sydney
The determination of the Veterans’ Review Board dated 19 August 2015 that affirmed a determination of the Respondent dated 4 September 2013 is set aside and, in substitution a determination is made that the Applicant’s claimed lumbar spondylosis and osteoarthritis of the hips were Defence-caused and related to her military service whereas the Applicant’s claimed conditions of cervical and thoracic spondylosis are not so related.
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Senior Member M J McGrowdie
CATCHWORDS
VETERANS’ AFFAIRS – Army service for approximately 11 years – claim for cervical, thoracic and lumbar spondylosis and osteoarthritis of the hips – being overweight/obese claimed to have been related to these conditions – where being overweight/obese was connected to service – being engaged in activities involving extreme forward flexion claimed to be related to the lumbar spondylosis and connected to service – decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act1986 (Cth) ss 120B, 196B
CASES
Kattenberg v Repatriation Commission [2002] FCA 412
Knight v Repatriation Commission [2010] FCR 1134SECONDARY MATERIALS
Statement of Principles concerning Cervical Spondylosis, No. 67 of 2014
Statement of Principles concerning Lumbar Spondylosis, No. 63 of 2014
Statement of Principles concerning Osteoarthritis, No. 14 of 2010
Statement of Principles concerning Thoracic Spondylosis, No. 65 of 2014REASONS FOR DECISION
Senior Member M J McGrowdie
28 June 2019
INTRODUCTION
The Applicant, Suzanne Graham, served in the Australian Regular Army (“the Army”) from 1979 to 1990 and seeks a review of a decision of the Veterans’ Review Board which affirmed that the claimed conditions in relation to cervical, thoracic and lumbar spondylosis, and osteoarthritis of the hips, were not related to her military service.
She was 17 years old when she joined the Army and was engaged in a variety of office-based roles. After basic training, she was engaged in numerous physical activities including sports, training and marches. She was required to lift files and pay boxes, which was at times a regular activity.
The Applicant claims that her lumbar spondylosis was related to the cumulative effects of engaging in activities involving extreme forward flexion. She also claims that weight problems and her cervical, thoracic and lumbar spine spondylosis, as well as osteoarthritis of the hips, were related to her service.
When the Applicant joined the service she weighed 67 kg and was recorded as 165 cm in height. She had come straight from living at home with her parents to Army barracks on enlistment, and began dining in the mess. Her weight rapidly rose and she generally remained overweight for the balance of her service even though she moved into married quarters in January 1987 and became responsible for her own cooking.
There is no real issue that the Applicant was overweight for most of her 11 year service. Being overweight can be sufficient for osteoarthritis of the hips in accordance with the statutory instrument (Statement of Principles) (“SOP”) made by the Repatriation Medical Authority in respect of that condition (Statement of Principles concerning Osteoarthritis No. 14 of 2010). However, in respect of the cervical, thoracic and lumbar spondylosis the relevant instruments applicable require for the person to be in the obese category and not just overweight for a required period (see Statement of Principles concerning Cervical Spondylosis, No. 67 of 2014; Statement of Principles concerning Thoracic Spondylosis, No. 65 of 2014; Statement of Principles concerning Lumbar Spondylosis, No. 63 of 2014).
In each case it is necessary also that there be a causal connection between the condition and Army service.
ISSUES
The issues to be determined are whether:-
(a)the Applicant was overweight in respect of the condition of osteoarthritis of the hips and, if so, was the claimed condition connected with her being overweight and was this connected with her service;
(b)in a similar way, with respect to the conditions of cervical, thoracic and lumbar spondylosis, was the Applicant obese for the requisite period and, if so, were these conditions connected with the Applicant being obese and was this connected with her service; and
(c)in respect of lumbar spondylosis only, did the Applicant engage in activities involving extreme forward flexion to the extent required and for the necessary period and, if so, was the condition connected to performing those activities and was it connected with her service.
The relevance of activities involving extreme forward flexion to the lumbar spondylosis condition is that such activities are identified in the SOP for lumbar spondylosis but this factor does not appear in the SOPs for the other conditions claimed.
BACKGROUND
Oral evidence was given in the proceedings by the Applicant, Dr Breit, Dr Volker and Dr Harrex.
In addition to the Applicant’s oral evidence, there were five written statements respectively dated 18 April 2016 and August 2015 (three), and 15 December 2016 as well as a Statutory Declaration dated 7 June 2014 from the Applicant. Further, the Applicant compiled a weight chart which contains her recorded weight levels during service as well as estimates of her weight post-service, up to the time she had gastric banding surgery in December 2012. The Applicant’s Statutory Declaration explains how she arrived at estimates of her weight in certain periods. All of these documents became Exhibit A4.
The document dated 15 December 2016 identifies activities which the Applicant asserts are consistent with satisfying the factor concerning activities involving extreme forward flexion contained in the SOP for lumbar spondylosis.
OSTEOARTHRITIS OF THE HIPS
The SOP for osteoarthritis (No. 14 of 2010, which, although since amended, makes no relevant changes) sets out that the Repatriation Medical Authority is of the view that it is more probable than not that osteoarthritis can be related to relevant services if one of the factors contained in paragraph 6 applies. Factor 6(n)(i) which applies to osteoarthritis of a joint of the lower limb was accepted by the parties as being the relevant factor in this matter with regard to the Applicant’s hip condition and which applies to “being overweight for at least 10 years before onset.”
The parties were agreed that the date of clinical onset was 3 July 2007 when an X-ray was done. Accordingly, if there is a period of 10 years before clinical onset the factor can be satisfied. Whilst there is general agreement that the Applicant was generally overweight for most of her 11 year service and would satisfy the 10 year requirement, the Respondent submitted that although there was a temporal connection, there was not a causal connection to her service. The Respondent relied on the oral evidence of Dr Breit that the claimed osteoarthritis of the hips was largely constitutional and that that was supported by the literature.
Dr Breit prepared two medical reports for the Respondent being reports of 22 February 2017 and 29 August 2017.
Dr Harrex also gave evidence. He provided a report dated 23 August 2016. Dr Harrex has had considerable experience in relation to service matters and the application of the SOPs.
In his report of 23 August 2016, Dr Harrex expressed the opinion that there is evidence that being overweight for this period of 10 years contributed to osteoarthritis of her hips. This does not, of course, address the question of whether being overweight was related to her service in the Army but I will come to that shortly.
Being overweight is defined in the SOP for the purpose of osteoarthritis as “an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 25 or greater”. When the Applicant joined the Army, her recorded weight on enlistment was 67 kilograms with a BMI of 24.6. This appears on the weight chart in Dr Harrex’s report and was prepared upon his review of the Applicant’s Army Military Records. By 12 November 1979 the Applicant’s weight had increased to 77 kilograms with a BMI of 28.3.
Dr Breit in his evidence said it was a matter of calories in and calories out. The Applicant generally ate in the mess which was self-service of mixed food. True it is that the Applicant was exercising but coming from home with a diet of “meat and three vegetables”, the mess provided for an abundance of food that until then had not been available to the Applicant, then only 17 or 18 years old.
Further and in an atmosphere of camaraderie, she would sometimes share take-out foods such as pizza or fried chicken. Also, she would join service members in the bar and, with little history of drinking in the past, would try to be part of things by having beer in the warmer weather or alternatively have a liqueur with milk added.
In March 1980 the Applicant was put in hospital for a short period on a strict diet and medication to reduce appetite. Apart from this occasion which had a very short term effect, the Applicant’s weight problems appear to have received relatively little attention. On four or so occasions the Applicant’s weight slipped into the obese category during her service. At some other times she came close to it.
At most the Applicant may have been in the obese category for a total of about three years out of her 11 year service.
In a report dated 8 July 2015, Associate Professor Sheridan stated that “Her military service as well as her … (conditions)… caused her to gain weight…” and he agreed with the opinion expressed by the Applicant’s general practitioner, Dr Ng, that the Applicant’s Army service was significant in a causative sense to her conditions.
In respect of the osteoarthritis of the hips, I am satisfied that it was likely that the Applicant was overweight in the relevant sense for a period of 10 years prior to clinical onset and being overweight was, in a causative sense, related to her service.
In terms of her service, the Applicant was exposed to an eating environment which, in a sense, “encouraged” calorific intake which in the Applicant’s case was not sufficiently compensated by being involved in continuous hard physical training as active service persons might be. In my view, the Applicant’s rapid weight gain which followed her enlistment and her continuously being well overweight despite a short period of remission following a brief hospital stay, should have signalled the need for a more aggressive approach to her weight problem by the service, including a restricted diet programme. Things may now have changed but at the time, not a good deal was done to assist the Applicant.
It might be said that the abundance, extensive array and availability of food in the mess without any real restrictions being placed on the Applicant contributed in a causative sense to her weight gain. The food provided could sustain the most active of service persons.
Dr Volker, a dietician, prepared a report dated 2 June 2016 at the request of the Applicant. She also gave oral evidence. Dr Volker was familiar with the Army catering which comprised an extensive and wide range of foods including desserts and if there was a balance between calorie intake and calorie output through exercise all would be well. She also commented that to keep some foods moist, a higher fat content may have been present in those foods.
As Dr Volker is not a medical specialist, it is appropriate to look at the medical evidence in regard to the consideration of being overweight to the Applicant’s conditions are concerned. However, Dr Volker gives her insight into the foods available to the Applicant.
To some degree, the Applicant’s ability to exercise was hampered by a left ankle injury in November 1980 which was a sprain which became chronic. This has been a previously accepted condition. Whilst the Applicant could exercise, her exercise ability was restricted and impacted upon. The Applicant would tend to go at her own pace and whilst a gym or a pool might be available, it was the case that she exercised less and had difficulty participating in sporting activities.
In determining whether being overweight is related to a condition, there is a two-step process. Firstly, was being overweight connected to the particular condition and second, was being overweight causally connected to the Applicant’s service on the facts of the case (Knight v Repatriation Commission [2010] FCA 1134; 52 AAR 547 at [58]). See also Veterans’ Entitlements Act1986 (Cth), sections 120B(3) and 196B(14)(d).
In my view, despite the opinion of Dr Breit, the balance of the medical evidence supports the conclusion that there is a connection between being overweight and osteoarthritis of the hips. It also appears as a factor in the relevant SOP.
With regard to there being a connection to the Applicant’s service in the Army, I consider that there is such a connection. Relevant, in my view, is the abundance of food, the absence of measures to put the Applicant on a calorie restricted diet over an extended period to balance against the Applicant’s physical exercise output and such restrictions she may have had on her physical activity.
Accordingly, I accept the Applicant’s condition of osteoarthritis of the hips as a service condition.
CERVICAL, THORACIC AND LUMBAR SPONDYLOSIS IN RELATION TO WEIGHT
In relation to the conditions in respect of the cervical, thoracic and lumbar spine, the relevant factor in the respective SOPs for each of those conditions is “being obese for at least ten years within the 23 years before the clinical event of (the condition)”. There is no dispute that the date of clinical onset for cervical spondylosis is 7 July 2009 with X-ray confirmation of the condition. For the thoracic spine, it is 18 May 2010, confirmed by X-ray. For the lumbar spine, it is certainly by 18 May 2000 in accordance with an X-ray report, and possibly 26 July 1993 when a CT was done.
The evidence suggests that the Applicant was in the obese category for perhaps three years or so of her 11 service until she left the Army on 19 August 1990. According to the military records she weighed 69.5 kg with a recorded height of 167 cm. Even allowing for some variance, this put the Applicant in the category of being overweight but not obese.
The Applicant argues that for the purposes of the relevant SOPs, being obese after the Applicant left the Army could be taken into account in respect of the 10 year period if it could be related back to her service. The Applicant also argues that the 10 year period does not have to be continuous but can be cumulative.
In submissions, the Applicant referred to the Federal Court case of Kattenberg v Repatriation Commission [2002] FCA 412 and an advisory note issued by the then Department of Veterans’ Affairs handed up at the hearing in support of those arguments.
In the present case, there are no available clinical records of the Applicant’s weight for much of the period after her Army service. The Applicant has given estimates of her weight based upon photos and her recollection of dress sizes. This is set out in her Statutory Declaration and she also gave evidence to that effect. Leaving to one side the Applicant’s submissions in relation to the 10 year period, I am not satisfied that the evidence available is sufficiently reliable to be satisfied that it was likely that the Applicant fell into the obese category in respect of the factors that such was the case over a 10 year period cumulative or otherwise.
Certainly, when the Applicant left the Army because she had a young child to look after, she was overweight and likely to have remained so until she had the gastric banding surgery which would correlate with obesity at that time. Nonetheless the evidence in my view falls short of showing that it was likely that the Applicant was obese for 10 years.
The fact that the Applicant only sometimes tipped into the obese category whilst she was in the Army does not give rise to any presumption that the Applicant was likely to be obese, as opposed to being overweight, for the requisite period of time.
Accordingly, my conclusion is that the claims for cervical, thoracic and lumbar spondylosis upon the obesity factor are not made out.
LUMBAR SPONDYLOSIS AND EXTREME FORWARD FLEXION
There remains the Applicant’s claim for the lumbar spine condition based on the factor in the relevant SOP of “6.(m) Extreme forward flexion of the lumbar spine for a cumulative total of at least 1500 hours before clinical onset of lumbar spondylosis”.
In the present context this would essentially relate to the Applicant’s period of service of some 11 years in the Army and would equate to approximately 40 minutes per day in forward flexion.
Extreme forward flexion is defined in the paragraph 9 to mean “being in a posture involving greater than 90 degrees of trunk flexion”.
It is known that the Applicant underwent basic training following her enlistment and thereafter participated in exercise and physical training and sports. The Applicant’s ability to participate in active activities was somewhat hampered by her ankle injury from November 1980. She often had to bend to pick up bundles of files and at times had to lift and carry pay-boxes. Also, she had to bend at the desk during classroom and other activities. There was also rifle and weapons training requiring her to bend. Morning training involved sit-ups, touching toes and the like. There was also bed making.
All of these types of activities and more are set out in some detail In the Applicant’s document dated 15 December 2016 (part of Exhibit 4). The Applicant also described her activities in a document dated August 2015 (also part of Exhibit 4). Further, the Applicant gave oral evidence in regard to her activities and was cross-examined.
The Respondent says that to the extent that the Applicant engaged in activities that involved forward flexion, they were for brief moments only. Also, the Respondent suggests that such activities never lead to the Applicant making a medical complaint during her service and that predominantly the complaints of back pain leading to back surgery in 2002 and subsequent insertion of a nerve stimulator.
However, the Applicant did complain to her general practitioner about 6 months following leaving the Army and had a CT scan of the lumbar spine on 26 July 1993. Osteoarthritic changes were evident.
In his report dated 22 February 2017, Dr Breit states that:-
“Some people are more susceptible than others to spondylosis and the question is whether one could consider her lumbar spine to be related to going ……, carrying files and doing PT exercises…On the balance of probabilities I would consider there has been an effect and that there is a relationship with her time in the Army.”
Whilst not directed specifically to forward flexion, Dr Breit comments on the relationship between physical activity and lumbar spondylosis. Dr Breit could neither accept the Applicant’s claim in relation to forward flexion.
The Applicant’s back complaints were not the result of an acute injury but rather an accumulation of wear and tear from certain activities acting on a vulnerable back. Associate Professor Sheridan considered that the spondylosis of the lumbar spine was related to the Applicant’s service. The Applicant’s general practitioner, Dr Ng, also supports that view.
Dr Harrex considered the impact of load carrying but this is not particularly relevant to the present claim.
On balance, I would accept her evidence in regard to activities involving forward flexion and accept that her condition of lumbar spondylosis was related to the activities undertaken and performed by her during a relatively long period of service at an age which might be considered to have made a lasting impact on her lumbar spine.
Further, I consider that such activities were part of her service with the Army and therefore related to her service. Exercise and activity might generally be considered to be a beneficial thing and some individuals, such as the Applicant, may have a susceptibility to developing low back problems as a result.
Accepting the Applicant’s evidence as I do in regard to her physical activities involving forward flexion, it is likely, in my view, that the time engaged in extreme forward flexion would have exceeded the required number of hours over the length of her service.
Accordingly, I accept the Applicant’s claim in relation to the lumbar spine upon the basis extreme forward flexion of at least 1500 hours during her service and before the clinical onset of lumbar spondylosis.
DECISION
The determination of the Veterans’ Review Board dated 19 August 2015 that affirmed a determination of the Respondent dated 4 September 2013 is set aside and, in substitution a determination is made that the Applicant’s claimed lumbar spondylosis and osteoarthritis of the hips were Defence-caused and related to her military service whereas the Applicant’s claimed conditions of cervical and thoracic spondylosis are not so related.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
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Associate
Dated: 28 June 2019
Date(s) of hearing:
5, 6 March and 9 May 2018
Counsel for the Applicant: T Saunders, Barrister
Solicitors for the Applicant: A Peterson, Kemp & Co Lawyers
Solicitors for the Respondent: M Scriva, Sparke Helmore
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