Larter and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 67

Larter and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 67 (25 January 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/0297

Re:Peter Larter

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:25 January 2017

Place:Perth

The Tribunal affirms the decision under review.

.......[Sgd].................................................................

Mr D.J. Morris, Member

CATCHWORDS

COMPENSATION – Military Rehabilitation and Compensation Act 2004 – Myofascial strain of the cervical spine and cervical spondylosis – whether symptoms or signs aggravated by military service – whether liability exists under s 30 of Act – lack of medical evidence – no liability found – reviewable decision affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 – s 23(1) – s 23(3)(a) – s 27 – s 27(d) – s 30 – s 335(3)

Safety, Rehabilitation and Compensation Act 1988

Veterans’ Entitlements Act 1986 – s 196B(2) – s 196B(3)

CASES

Ogden Industries v Lucas [1967] HCA 30
Porter and Military Rehabilitation and Compensation Commission [2010] AATA 968
Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

Mr D.J. Morris, Member

25 January 2017

BACKGROUND DATES AND EVENTS

1. The Applicant, Mr Peter Larter, seeks review of a decision of the Veterans’ Review Board (VRB) of 9 December 2014 which affirmed a determination of the Military Rehabilitation and Compensation Commission (the Commission) dated 13 September 2011 to deny liability in respect of the conditions of myofascial strain of the cervical spine and cervical spondylosis under section 27(d) of the Military Rehabilitation and Compensation Act 2004 (MRCA).

2. Mr Larter is aged 46.  He enlisted in the Australian Regular Army in December 1996.  He was medically discharged from the Army on 29 July 2005.  He had peacetime service under the MRCA for the period 1 July 2004 to 29 July 2005.

3. On 14 April 1999 Mr Larter suffered an injury during training where he strained his neck. This led to a diagnosis of myofascial strain of cervical spine and cervical spondylosis conditions. These conditions were accepted as compensable injuries under the Safety, Rehabilitation and Compensation Act 1988 (SRCA).

4. Mr Larter made a claim to the Commission seeking liability for “aggravation of my neck” claimed to have been suffered on 16 August 2004 in a fall when on duty. The Commission denied liability on 13 September 2011. On 9 December 2014, the VRB decided to affirm the determination made by the Commission.  The VRB decided that the weight of medical evidence before it is more suggestive of natural deterioration in Mr Larter’s medical condition and concluded that it could not be reasonably satisfied that Mr Larter’s myofascial strain of the cervical spine and cervical spondylosis were contributed to in a material degree, or was aggravated by an incident on 16 August 2004.

5. Mr Larter is dissatisfied with the decision of the VRB and has applied for a review of the original decision by the Tribunal.

6. The hearing took place on 23 and 24 November 2016. Mr Larter represented himself.  The Commission was represented by counsel, Ms Blackford-Slack. Mr Larter gave evidence and was cross-examined.  Five other witnesses gave evidence. Three of the witnesses were former members of the Australian Army who were serving in 2004. The other two were medical witnesses.  One was Mr Larter’s general practitioner, Dr Graeme Hammond.  Dr Hammond is additionally an officer in the Australian Army Reserve and had been the Medical Officer at Campbell Barracks in 2004. The other medical witness was Mr Paul Taylor, CSC, orthopaedic surgeon, who examined Mr Larter.

7. The focus of the hearing was on an incident that Mr Larter said took place at Campbell Barracks on 16 August 2004. He was carrying a large, heavy box packed with communications equipment (known as an RTC), which was among the items being loaded for the deployment of soldiers on an exercise. The RTC required two people to carry it, because of its bulk and weight. The other person carrying it at the time was Mr Nick Barboutis.  Mr Barboutis was a witness at the hearing.

8. Mr Larter said that the two of them were carrying the RTC down a flight of stairs, Mr Larter walking backwards.  Close to the bottom of the stairs, Mr Larter lost his footing, dropped his end of the RTC, and fell. Mr Larter claims that he sustained an aggravation of his cervical spine condition as a result of this fall. 

   THE LAW

9. Section 27 of the MRCA defines what is a service injury and a service disease (and therefore compensable) for the purposes of the MRCA if one or more criteria apply.  Relevantly, subsection 27(d) states:

   the injury or disease:

   (i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

   (ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

   and in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

10. Section 30 of the MRCA deals with aggravations of signs and symptoms. Relevantly, it states:

    For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:

    (a)       the injury or disease:

    (i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

    (ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

    (b)in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

11. Both Mr Larter and the Respondent drew the Tribunal’s attention to a previous decision in Porter and Military Rehabilitation and Compensation Commission [2010] AATA 968 where Senior Member O’Loughlin and Member Shanahan said, at [8]-[9]:

    An aggravation of signs or symptoms of an injury or disease can be taken to have occurred if the pain or restrictions associated with the condition increase or intensify.  If those signs or symptoms are aggravated by relevant defence service without aggravation of the underlying condition, then ss 30 and 23(3) are the tests to be applied, without the need to prove a claim by reference to the SoP.

    If the aggravation of symptoms or signs is a manifestation of an aggravation of the underlying pathological condition, then ss 27 and 23(1) are the tests to be applied; with the need to prove a claim by reference to the SoP.

12. The ‘SoP’ referred to in this passage is the Statement of Principles determined under subsection 196B(2) or (3) of the Veterans’ Entitlements Act 1986.

13. It was common ground of the Applicant, Mr Larter, and counsel for the Commission that his claim does not fall within subsections 27(d) and 23(1) of the MRCA.

14. The Tribunal accepts these submissions of the parties.  Accordingly, the hearing and this decision is about whether the incident that Mr Larter says occurred on 16 August 2004 materially contributed to, or aggravated the signs or symptoms of, his underlying cervical spine condition.  This requires application of sections 23(3)(a) and 30 of the MRCA.

    Standard of Proof

15. There is a special statutory standard of proof provided for in the MRCA.  In regard to peacetime service, as is the case with Mr Larter’s service at the relevant time, the standard of proof is set out in section 335(3):

    Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.

16. Therefore, the Tribunal, putting itself in the shoes of the Commission as the original decision-maker, must decide whether it is reasonably satisfied that Mr Larter’s underlying condition was aggravated as a result of his service.

17. The courts and this Tribunal have considered what is meant by deciding something to the decision-maker’s “reasonable satisfaction” on several occasions.  In RepatriationCommission v Smith (1987) 15 FCR 327, speaking in the context of the Veterans’Entitlements Act 1986, Beaumont J (with whom Northrop and Spender JJ concurred) said:

    By contrast s 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Briginshaw v Briginshaw ... [1938] HCA 34; (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at p 362):  “...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

18. His Honour went on to say in Smith that the Tribunal must be concerned, in applying the “reasonable satisfaction” test to ask itself whether, on the facts of the case, it was persuaded on the civil standard. His Honour stressed that there is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand, and mere possibilities, even if they are real as distinct from fanciful, on the other.

19. In addition, in Ogden Industries v Lucas [1967] HCA 30, Windeyer J said at [29]:

    “Aggravation” means, I think, that an existing disease has been made worse, not that it has simply become worse.

    MATTERS TO REVIEW

    What condition does Mr Larter presently suffer from?

20. It was common ground, and supported by corroborative medical evidence, that Mr Larter suffers from cervical spondylosis and myofascial strain of the cervical spine.  The Commission accepted this existing condition.

    When was the clinical onset of this condition?

21. The Tribunal had evidence before it that Mr Larter fell while running on the beach during a training exercise and hurt his neck.  Liability was subsequently accepted under the SRCA for ‘myofascial strain of the cervical spine’ with a date of injury of 14 April 1999.  The Tribunal notes and accepts these facts.

    Was the condition resultant from warlike/non warlike service or peacetime service?

22. Both Mr Larter and the Respondent contended that his service was peacetime service.  On the facts, the Tribunal so finds.

    CONSIDERATION

23. The question before the Tribunal is: does the test in section 30 of the MRCA apply, where aggravation of the signs or symptoms of a disease have been contributed to materially by service, even though the condition itself has not been made permanently worse?

    The August 2004 incident

24. As outlined above, there was an incident at Campbell Barracks in August 2004 where Mr Larter fell while carrying an RTC. The Respondent described it as an “alleged” incident in the hearing and in submissions.

25. The Tribunal was told that an RTC is a chest containing communications equipment; it was heavy enough to require two people to carry it. 

26. Mr Nick Barboutis gave evidence. He was a member of the Special Air Regiment in 2004 and worked with Mr Larter at Campbell Barracks. He said on this particular August day, Mr Larter fell while they were both carrying an RTC down some stairs for a deployment of troops on an exercise. Mr Barboutis was carrying one end of the chest, walking forwards, and Mr Larter the other end, walking backwards. He said Mr Larter lost his footing near the bottom of the stairway, fell to the ground and told Mr Barboutis that his neck hurt.  Mr Barboutis helped him to the First Aid Post (RAP). Mr Barboutis said the doctors were only usually at the RAP in the morning and at the time they went there the front of the RAP was closed and so he helped Mr Larter around to the back, where there is an ambulance bay. It was common for people to use this entrance if the front was closed. Mr Barboutis called out to medics and left Mr Larter there. He then returned to his duties, loading equipment for the deployment. That afternoon he left on an eight week exercise.

27. Mr Gavin Hillman also gave evidence. In 2004 he was the Training Development Warrant Officer at Campbell Barracks. As such, he told the Tribunal he had a vested interest in the communications equipment. He said he was in the Sergeant’s Mess and heard that an RTC had been dropped. He did not know the circumstances and his main concern was that the communications equipment in the box was “good to go” with those being deployed. At the time, Mr Hillman used a paper day book to briefly record events, and an extract of two pages for 16 and 17 August 2004 had been subpoenaed and was before the Tribunal.

28. The extract referred to an RTC being dropped and the diary entry was adjacent to the 1200 hours mark on the diary page of Tuesday 17 August 2004.  Mr Hillman said to the Tribunal that if he had entered the details on that date, that would have been the date that the incident occurred.  Mr Hillman’s day book page for 16 August 2004 had no entries.

29. Mr Hillman gave evidence under cross-examination that he had discussed the incident with Mr Larter “three or four times” since 2004 in social contexts.  He said he did not remember the incident itself, only that the equipment had been dropped and he recalled being told by another person that one of the soldiers carrying the RTC had been taken to the RAP.  He said he believed that the incident took place on the date he recorded it, 17 August 2004.

30. Mr John Newton gave evidence that he had been at the back of the RAP on a day in August 2004 and remembered seeing a person he later came to know as Mr Larter being guided to the RAP by a colleague (who he now knows to be Mr Barboutis) with what appeared to be a crick in his neck, and later saw him leaving the RAP with what appeared to be an ice pack on his neck. 

31. Mr Newton said he did not know the Applicant well but had subsequently seen him on Anzac Day and sought assistance from Mr Larter when he was working as a volunteer pension officer assisting veterans with filling out forms for their own claims. He said Mr Larter had telephoned him and asked him if he remembered seeing him that day at the RAP and Mr Newton said he “vaguely remembered” that. Mr Newton was a patrol medic at the time and believed he was at the RAP doing medical re-certification at the time.

32. Mr Larter said in evidence that he saw Dr Hammond at the RAP, in passing, but not to talk to. He said he was given an ice pack by a medic and asked if he wanted pain medication but he declined, saying he had some at home. He said he went to a stand-by room and sat for around an hour before he drove home. He said he did not fill out an incident report nor report the event to a superior officer. He said he was not surprised that there was no consultation note of his attendance at the RAP because they were often not taken down in such circumstances.

    Evidence of Dr Hammond

33. Dr Graeme Hammond gave evidence. He joined the Army Reserve as a Medical Officer in 1996 and also has a civilian practice. He was the civilian doctor at Campbell Barracks from 2000, and has been deployed abroad in service. He currently holds the rank of Lieutenant-Colonel.

34. Dr Hammond said he has known Mr Larter since 2000 and is his general practitioner.  When asked if he provided treatment on 16 August 2004, Dr Hammond said he would have to check his notes.  He did not recall seeing the Applicant on that day.  He agreed that often incidents were not recorded at the RAP and this was a problem.  In cross-examination he agreed that if he had seen a person reporting pain, he would have recorded that in his notes of the consultation.  On being told that 16 August 2004 was a Monday, Dr Hammond said he would usually have been at the RAP from 8:00 am until between 11:30 am and noon.  He said the RAP was generally open between 8:00 am and 4:00 pm when the front reception area was manned but after 4 pm the front doors were closed and personnel attending it would go around the back to enter via the ambulance bay.

35. Dr Hammond gave evidence that he saw Mr Larter on 25 August 2004, 1 September 2004, 15 September 2004, 22 September 2004, 29 September 2004 and 3 November 2004. His notes of those consultations were before the Tribunal. None of those notes refer to the stairway fall. Dr Hammond gave evidence that he would definitely have made a note of the fall if the Applicant had mentioned it to him and especially if Mr Larter had felt it had contributed to his neck injury. He agreed that the first reference to the August 2004 incident was made by him on 11 April 2011 and that the reason he mentioned it in that report was because he had been made aware of Mr Larter’s fall while carrying the RTC by the self-reporting of the Applicant then.

    Evidence of Mr Taylor

36. The Tribunal heard evidence from Mr Paul Taylor, spinal surgeon.  He had prepared two reports for the Department of Veterans’ Affairs (DVA) in 2012 in relation to the Applicant, which were before the Tribunal.

37. In his medical letter to Dr Hammond dated 17 July 2012[1], Mr Taylor refers to Mr Larter sustaining a fall:

    He was involved in a significant parachuting accident at one stage, had another cervical strain/jolting type injury whilst running on the beach and also described an episode where he was carrying a heavy box down stairs when he missed his footing and jolted and jarred his neck which increased his headaches significantly as well.

    [1] Respondent’s Amended Statement of Facts, Issues and Contentions, “Attachment 2”, dated 23 December 2015.

38. In cross-examination, Mr Taylor said that in terms of the description of the fall, he was relying on the self-reporting by the Applicant.  Mr Taylor said in evidence he assumed that Dr Karina Powers had mentioned the August 2004 incident in her reports and, when it was put to him that as Dr Powers did not mention the August 2004 incident at all, would Mr Taylor’s view that he recorded it solely on the basis of self-reporting be correct, and he agreed with that proposition.

39. The Tribunal notes this is consistent with the July 2012 report in any event, where Mr Taylor makes clear that it was Mr Larter who described the episode to him.

40. He said that Mr Larter did not otherwise report the specific August 2004 incident to him because he would have recorded it in his notes.  He gave evidence about how different people experience pain differently and individuals have differing pain thresholds.  He said that in terms of Mr Larter’s ongoing pain, this may have been caused by continuing degeneration of his spinal condition.

41. When asked specifically whether he thought there was a change to the underlying pathology of the cervical spine, Mr Taylor said it was his professional opinion that there had been no such change, but there had been a change in the symptomatology.

42. Mr Taylor said the imaging showed no evidence of a substantial change other than minor arthritis and there was no new or significant pathology; in his opinion Mr Larter’s spinal condition was worsening but the underlying condition had not changed.

    Other evidence

1. The Tribunal had before it a Combined Impairment Assessment prepared by Dr Cardwell for the DVA and dated 7 July 2004 when he examined Mr Larter while he was on leave.  Dr Cardwell recorded in terms of Mr Larter’s cervical spondylosis that he had a “50%” restriction in range of movement of his cervical spine and that he was experiencing headaches: “duration is prolonged therefore severity level = F”.[2]

   [2] T14/46.

2. On 16 August 2005, Mr Larter was referred to Dr Karina Powers, occupational physician, for the purpose of her assessing his myofascial strain cervical spine condition.  Her report of 29 September 2005[3] was before the Tribunal.  In that report she provided a summary of the history of the condition as reported to her by Mr Larter.  That report does not mention the August 2004 fall.

   [3] T42/146-150.

3. Dr Hammond referred Mr Larter to see Mr Richard Vaughan, AM, general surgeon, at St John of God Hospital, Subiaco, in relation to his continuing back pain.  The referral form was before the Tribunal.[4] Dr Hammond referred to Mr Larter spending the last 10 years doing “fairly heavy work” but did not mention any recent trauma.  Dr Hammond’s referral is not dated but Mr Vaughan’s response to him on the same form, after seeing the Applicant, is dated 3 March 2005 and also makes no mention of the August 2004 fall.

   [4] Respondent’s Amended Statement of Facts, Issues and Contentions, “Attachment 1, page 10”, dated 23 December 2015.

4. Mr Vaughan referred Mr Larter to see Dr Geoffrey Gee, consultant in pain management.  The Tribunal had before it a medical letter from Dr Gee to Dr Vaughan dated 14 April 2005.[5]  Dr Gee refers to Mr Larter complaining of “chronic low back pain which is more to the right and sits over the mid lumbar area”. In his summary of Mr Larter’s medical conditions the only mention of cervical muscles is: “He has tenderness through his cervical muscles without significant reduction in range.”

   [5] T20/59.

5. It would seem to me that, as the reason that Mr Larter was seeing Dr Gee was in relation to his back pain, it would be likely that he would have mentioned a fall only a few months earlier, if he suspected it had contributed to his general condition. Given that Dr Gee did not refer to this in his letter to Mr Vaughan, but does discuss other historical medical conditions, I do not believe that the Applicant raised this fall with Dr Gee. There is also no evidence that Mr Larter raised the fall with Mr Vaughan.

6. On 6 December 2010, Mr Larter lodged a Claim for Compensation with the Department of Veterans’ Affairs, but in the information provided to complete this form, he did not mention the August 2004 fall.

7. Dr Johan Yin was asked to review an x-ray report dated 17 June 2011 and compare it with an x-ray report dated 5 July 2004 and advise whether, in his opinion, Mr Larter’s cervical spondylosis has been aggravated and specifically: if so, is it a natural progression of the original condition, or a worsening of the underlying pathology?

8. Dr Yin’s response dated 27 June 2011 was before the Tribunal and stated:

   The current x-ray is normal.  We have accepted cervical spondylosis on the basis of the radiologist’s report on 5/04/04.  The radiologist did find a stiffness of the neck when he had his x-ray on 17/06/11.  Based on this finding, the member’s condition is a natural progression of his disability.

   CONSIDERATION

9. The Respondent described the incident of August 2004 as an “alleged incident”. The Tribunal does not accept that characterisation. The evidence of Mr Barboutis was consistent with that of the Applicant. The evidence of Mr Hillman of what he had been told on in August 2004 by others corroborates that there was indeed a fall (although he said he had recorded it on the subsequent day). I find on the oral evidence at the hearing that there was an incident in August 2004. I note that the VRB also came to this conclusion.

10. I note that in closing submissions the Respondent urged the Tribunal to place greater weight on Mr Hillman’s evidence than that of the Applicant, Mr Barboutis and Mr Newton.  I was disturbed that the Respondent raised questions about the credibility of the evidence of Mr Barboutis and Mr Newton that were not first put substantively to them in cross-examination, which I felt was not consistent with the obligations of a model litigant. I did not accept this submission from the Respondent.  I had no reason to place lighter weight on the evidence from either of these witnesses, especially Mr Barboutis whose general account of the circumstances of the actual fall I found frank and consistent with what other facts were known.

11. Mr Larter wrote in a letter to the original decision-maker dated 12 April 2011[6] that on the day of the August 2004 incident:

    I was taken to the RAP at SAS and was treated by Dr Hammond.

    [6] T23/67-69.

12. In evidence before the VRB he recanted this evidence and said Dr Hammond was present but he did not provide treatment.  Before this hearing, Mr Larter changed his evidence yet again and said he saw Dr Hammond only “in passing” at the RAP. 

13. Dr Hammond himself gave evidence that he only worked in the morning on Mondays (when the incident apparently occurred) and that the RAP front office was manned 8:00 am to 4:00 pm on weekdays. All the evidence, including from Mr Larter, was that the front office of the RAP was closed when he went there with Mr Barboutis after his fall, so they went around to the back entrance through the ambulance bay. Logically it follows that Mr Larter must have attended the RAP sometime after 4:00 pm. Dr Hammond had no recollection of seeing Mr Larter that day. I find that this part of Mr Larter’s evidence is not plausible and that he did not see Dr Hammond that day at the RAP, even in passing. I suspect this is a failure of memory rather than a deliberate misleading, as he was seeing Dr Hammond regularly at the time for other reasons.

14. Mr Larter was asked in the hearing why he stated in a health questionnaire dated 22 February 2016 relating to an application for a position in WA Police that he had made no prior DVA claims when it was then put to him, and he conceded, that he had in fact made some 26 claims in relation to previous service-related injuries and conditions. He said he was told by the doctor when he filled out the form not to include these claims because she wanted him to be successful in joining the police force and that he did disclose them later verbally to the recruit team. The Respondent was clearly inviting the Tribunal to adopt a view about the Applicant in relation to this behaviour. I do not accept Mr Larter’s suggestion to the Tribunal that a medical practitioner employed by an agency for the purpose of assessing someone’s fitness and medical history to join that agency would have positively suggested that that person omit relevant details of that history. However, this is not a major point in my consideration because this hearing focussed on whether a pre-existing condition has been aggravated, which is the subject of this application. 

15. While I have found that Mr Larter did have a fall on duty in August 2004, the date of the fall itself is in dispute, and I am unable to make a finding about whether the incident occurred on 16 or 17 August 2004.  Mr Larter said he was given an ice-pack by a medic at the RAP. There was no note of any attendance at the RAP before the Tribunal. Nothing much turns on this, except to confirm there is no corroborative evidence of any treatment given to Mr Larter in connection with the fall, other than Mr Newton recalling he saw Mr Larter leaving the RAP with what he thought might have been an ice-pack, held to his neck. As mentioned, Mr Larter gave evidence that did not report the incident to his military superiors.

16. Mr Larter was seeing Dr Hammond regularly in August-September 2004 in relation to his existing condition and other medical challenges. The fact that Mr Larter attended on Dr Hammond on six occasions in the six weeks from mid-August and on not one of these occasions raised with him the fall with the RTC is significant. Especially significant is that the Applicant did not mention it when he saw Dr Hammond on 25 August 2004, a little over a week after his fall, when one would expect such an event to be fresh in his mind, and particularly if he thought, or suspected, that it had injured or aggravated the injury, in his neck.  Dr Hammond told the Tribunal that, if Mr Larter had raised the incident with him, he would have recorded it in his notes, and I accept this evidence.

17. Apart from Dr Hammond’s much later references about the August incident which he said in evidence were reliant on Mr Larter’s own reports to him, in only one of the other medical reports before the Tribunal was there any mention of the August 2004 incident. The exception was the report of Mr Taylor, and Mr Taylor told the Tribunal in his evidence that that was included solely because of the self-reporting of the Applicant.  While I appreciate that some of the reasons Mr Larter saw medical practitioners were unrelated to his spinal condition, I find it significant that there is no other contemporary mention whatsoever of the August fall, especially when he saw Dr Hammond very soon afterwards, and relatively frequently at that time.

18. On the basis of no contemporary medical reports or the Applicant raising it at the time with medical practitioners he consulted and not mentioning it until many years later, and on the professional and consistent medical evidence, including notably the radiological analysis by Dr Yin, that his neck condition is deteriorating because of underlying pathology and not owing to an aggravation, I cannot be reasonably satisfied on the evidence before me that the August 2004 incident materially contributed to, or aggravated, the signs and symptoms of Mr Larter’s underlying and pre-existing cervical spine condition.

19. On the basis of no contemporary medical reports or the Applicant raising it at the time with medical practitioners he consulted and not mentioning it until many years later, and on the professional and consistent medical evidence, including notably the radiological analysis by Dr Yin, that his neck condition is deteriorating because of underlying pathology and not owing to an aggravation, I cannot be reasonably satisfied on the evidence before me that the August 2004 incident materially contributed to, or aggravated, the signs and symptoms of Mr Larter’s underlying and pre-existing cervical spine condition.

20. Taking all these circumstances into account and with the signal absence of any corroborating medical evidence, at the time or subsequently, I find that I am not reasonably satisfied in terms required by section 335(3) of the MRCA that the August 2004 incident raises a connection between the pre-existing cervical spine condition of the Applicant and his military service. Mr Larter had chronic neck pain as recorded by Dr Cardwell in July 2004, and did not report an increase in his symptomatology or restriction in August 2004.

21. For completeness, although it was conceded by the parties at the commencement of the hearing, the Tribunal finds that sections 27(d) and 23(1) of the MRCA do not apply in this case.  Any increased symptomatology of Mr Larter’s conditions to a material degree was caused by the natural progression of his pre-existing conditions and not an aggravation.

22. The VRB decision of 9 December 2014 was therefore the correct decision.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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Administrative Assistant

Dated: 25 January 2017

Dates of hearing:	23-24 November 2016
Date final submissions received:	24 November 2016
Applicant:	In person
Counsel for the Respondent:	Ms K Blackford-Slack
Representative for the  Respondent:	Ms J Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers