Pendock and Repatriation Commission (Veterans' entitlements)
[2020] AATA 781
•8 April 2020
Pendock and Repatriation Commission (Veterans' entitlements) [2020] AATA 781 (8 April 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2019/0496 & 2019/3038
Re:Stephen Pendock
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:8 April 2020
Place:Melbourne
The Tribunal affirms the decisions under review.
..................[sgd]......................................................
Dr Stewart Fenwick, Senior Member
Catchwords
VETERANS ENTITLEMENTS – disability pension – alcohol use disorder – substance use disorder – major depressive disorder with suicidal ideation – spondylolisthesis – spondylolysis – whether standard of proof consistent with relevant Statements of Principles met – decisions under review affirmed
Legislation
Veteran’s Entitlements Act 1986
Cases
Roncevich v Repatriation Commission (2005) 222 CLR 115
Secondary Materials
Statement of Principles concerning depressive disorder (No. 84 of 2015)
Statement of Principles concerning spondylolisthesis and spondylolysis (Balance of Probabilities) (No. 25 of 2017)
Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017)Statement of Principles concerning substance use disorder (Balance of Probabilities) (No. 60 of 2017)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
8 April 2020
BACKGROUND
Mr Pendock applied for the review of decisions of the Repatriation Commission (Respondent) arising from a claim dated 3 July 2017 for disability pension entitlements for several conditions said to arise from his service in the defence force.
His claim was considered by a delegate of the Respondent and in a decision dated 8 January 2018, Mr Pendock’s claim was affirmed in part and rejected in part. The Respondent accepted the disability of lumbar spondylosis.
The Veteran’s Review Board (VRB), in two separate decisions, ultimately affirmed the Commission’s decision:
(a)Tribunal application 2019/0496 dated 29 January 2019 seeks review of the decision of the VRB dated 29 October 2018 affirming a decision to reject the diagnosed conditions of alcohol use disorder, substance use disorder, and major depressive disorder with bouts of suicidal ideation; and
(b)Tribunal application 2019/3038 dated 24 May 2019 seeks review of a decision of the VRB dated 1 March 2019 affirming the decision to reject the diagnosed conditions of spondylolisthesis and spondylolysis.
Mr Pendock is 63 years old and served in the Australian Army between 22 April 1981 and 9 August 1994. He was discharged as a result of marijuana use. He served as an engineer, ultimately qualifying as a bricklayer. Following discharge Mr Pendock worked in the construction industry.
In addition to the accepted claim noted above, Mr Pendock has a history of other accepted claims for medical conditions arising from his military service, some claims being determined prior to the end of his service. These include a knee fracture, hearing loss, disruption of posterior cruciate ligament, proptosis, and a sinus condition.
Mr Pendock was represented in his dealings with the Tribunal and at the hearing by an advocate. A Statement of Facts and Contentions (SFC) was lodged on his behalf, as was a document titled Notes on Authorities relied on by the Applicant. A signed statement from Mr Pendock was received into evidence (Exhibit A1) accompanied by a number of attachments being: further statements of the Applicant (SP1 and 2); a chronology (SP3); a statement by another ex-serviceman (SP4); and copies of medical records (SP5-10).
The Respondent lodged ‘T’ documents in respect of each application: those in application 2019/0496 will be referred to as ‘T-A’; those in application 2019/3038 will be referred to as ‘T-B’. At the hearing the Respondent tendered: Mr Pendock’s personnel management file (Exhibit R1); the Applicant’s Central Medical Record (Exhibit R2); GP medical records (Exhibit R4); and medical reports of Dr Ivan Astori (Exhibit R5). Additional exhibits were tendered in relation to a further application which was resolved during the course of the hearing.
Mr Pendock, who lives interstate from the hearing venue, was granted leave to appear by telephone at the hearing. The request for appearance by telephone was based on medical grounds, although no specific medical evidence was produced to support the request. At the commencement of the hearing I was informed by the Applicant’s advocate that Mr Pendock preferred, on medical grounds, not to give evidence at all. I note that Mr Pendock has submitted in a statement (Ex A1, SP3, [6]) that his consulting psychiatrist Dr Janis Carter made this suggestion, and he personally has found the review processes to be overwhelming.[1] I was also informed that Mr Pendock would answer questions should I wish to put any to him.
[1] This statement appears to have been provided for the purposes of the VRB stage review.
I considered that the hearing should proceed in the absence of evidence from the Applicant on the basis that he was represented and, ultimately, neither the Tribunal nor either of the parties called upon Mr Pendock at the hearing. Evidence was given by Dr Astori in relation to Mr Pendock’s spine conditions.
LEGISLATION
Liability for payments to members of the defence forces from defence-caused injury or disease arises under s 70 of the Veteran’s Entitlements Act 1986 (the Act). Pursuant to s 70(5)(a) an injury or disease shall be taken to be defence caused if it was ‘attributable’ to any defence service of the member.
The applicable standard of proof is found in s 120(4) of the Act, which provides that in the making of any determination in respect of a claim, the matter must be decided to the reasonable satisfaction of the decision maker. Further, under s 120(B)(3), reasonable satisfaction may only be determined if there is in force a Statement of Principles in respect of the injury or disease ‘that upholds the contention that the injury, disease … is, on the balance of probabilities, connected with that service’.
A Statement of Principles (SoP) may be determined by the Repatriation Medical Authority under s 196B(3) or (12) of the Act. The relevant instruments to these applications are:
(a)Statement of Principles concerning depressive disorder (No. 84 of 2015);
(b)Statement of Principles concerning spondylolisthesis and spondylolysis (Balance of Probabilities) (No. 25 of 2017);
(c)Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017); and
(d)Statement of Principles concerning substance use disorder (Balance of Probabilities) (No. 60 of 2017).
EVIDENCE
Chronology
Mr Pendock’s pre-service employment history comprises the following (T-A18): PMG telegraph boy (one year); apprentice painter (four years); farmhand (three months); storeman in New Zealand (16 months); general duties with Queensland wheat board (two months); painter in New Zealand (six months); and unemployed (four months). He earned the civilian trade qualification of painter and decorator (T-A18).
I set out here an outline of key events, based primarily on the chronology submitted on Mr Pendock’s behalf (Ex A1, SP3). I include this to provide context for the medical evidence and the consideration of the issues.
Date
Event
22/04/1981
Army enlistment
27/2/1983
Back injury (sports) (Ex A1 [6]); treatment report [partially illegible] (Ex A1, SP6/Ex R2, p 157)
24/3/1983
Back injury (sports) Ex A1 [7]); treatment report [partially illegible] (Ex A1, SP 7/Ex R2, p 158); radiology report (‘No fracture or other abnormality’) (Ex A1, SP7/Ex R2, p 160)
1984
Relationship breakdown (Ex A1, SP1 [7]-[10])
21/6/1984
DUI offence (Exhibit R1, p 106)
19/9/1984
DUI offence (Exhibit R1, p 55)
14/11/1984
Notice of Intention to Order Discharge (Exhibit R1, p 59)
29/11/1984
Military offence (Exhibit R1, pp 61-62)
6/12/84
Warning ‘unsuitable as a soldier’ (Exhibit R1, p 63)
7/12/1984
Diagnosed ‘Alcoholic Problems’, 1st Military Hospital (Ex R2, p 126)
12/12/1984
Patient Referral and Report (‘There is no psychiatric disorder’) (Ex R2, p 122); history of alcohol use taken and referral made to community alcohol and drug service (Ex R2, p 119)
25/9/1986
Motor vehicle accident (Ex A1, SP1 [16]/Ex R2, p 109 [dated 24/11/1986])
4/4/1988
DUI and unlicensed driving offences (Ex R1, pp 91-97)
29/7/1988
Explanation for ‘no further action’ taken on show cause for retention (Ex R1, p 114)
11/9/1989
Back injury (sport) (Ex A1, SP1[29]/Ex R2, p 98)
10/11/1990
Military offence (Ex R1, pp 164-171)
11/12/1990
Back injury (work) (Ex A1, SP1[29]/Ex R2, p 60)
24/9/1992
Military offence (on 26/7/1992) (Ex R1, p 199)
10/2/1994
Election to be discharged (Ex R1, p 205)
31/3/1994
Military offence (Ex R1, pp 214-249)
13/7/1994
Back injury (work) (Ex A1, [23]/Ex R2, pp 7-10)
7/06/1994
Discharged from Army (Exhibit R1, p 250)
In his statement Mr Pendock describes his work as an Engineer in the Army as ‘very physically demanding’, and included lifting ‘vastly overweight’ equipment and materials (Ex A1, [8]). He states that this led him to consume ‘lots of drinks, and smoke marijuana’ to relieve his back pain.
There is limited evidence before the Tribunal as to the nature of Mr Pendock’s civilian work life, including in particular his career in construction after the Army. In his statement Mr Pendock asserts that he had ‘no further back injuries’ after leaving the Army, and that the arrangement of work and provision of machinery prevented any need to carry heavy loads, or do the manual work he previously did in the Army (Ex A1, [26]-[27]).
With respect to his alcohol consumption prior to the Army, Mr Pendock states that he would attend the pub regularly, but not always, and consumed probably eight to nine beers some nights, less on others, and more on Fridays (Ex A1, SP1 [2]). The inpatient record cited above includes a summary of Mr Pendock’s history of alcohol use and notes: drinking alcohol since age 14; ‘heavy drinker since age 20 years’; DUI conviction and imprisonment about that time; 12 months ago [i.e. 1983] several amnesic episodes, ‘DT’s’; now becomes aggressive when drunk; drinks 12 cans of beer a night during the week and more on weekends (Ex R2, p 119).
Mr Pendock states that he commenced drinking at lunchtimes for the first time upon joining the Army (Ex A1, SP1 [4]-[5]). He states that he spent most of his lunchtimes at the enlisted men’s club and ‘drank way too much’. When alcohol service at lunchtimes stopped, possibly in September 1983, he and a large group of others attended a local pub instead.
I understand the references in the chronology above to civilian and military offences to be relevant in so far as Mr Pendock himself asserts that alcohol consumption, in particular, was a disruptive factor in his personal and work life (Ex A1, [10]). The military offences involved insubordination and assault.
Mr Pendock states that he participated in the recommended follow-up referral to the community alcohol and drug service after his period as an inpatient and diagnosis of an alcohol problem (Ex A1, [13]). He further states that he did not seek medical help outside of the Army for, as I understand his statement, largely cultural reasons around the nature of military service (Ex A1, [14]).
Medical evidence
Depression and substance abuse
Dr Janis Carter, consultant psychiatrist, in her report dated 23 November 2017 (T-A16) diagnosed the following conditions relating to these applications: major depressive disorder with bouts of suicidal ideation; alcohol use disorder; and substance use disorder (marijuana) ‘which he uses for pain’. Dr Carter reports that the substance use arises from chronic pain due to the requirement to lift heavy weights while in the Army. She records marijuana use (not daily) and drinking ten units of alcohol per day. Date of onset is described as ‘about 1991’, ten years after joining the military.
In a subsequent report, dated 7 August 2018 (T-A20, pp 197-199), Dr Carter elaborates on the dates of onset. She states that the onset of the major depressive disorder was in 1991, following an incident lifting rocks. Dr Carter states that back pain limited his work capacity leading to bullying. While there is no more specific date of onset given other than a single year, in support of this diagnosis Dr Carter cites: a back injury on 11 December 1990; being called ‘sick, lame and lazy’, and this bullying ‘increased the depression’; and being charged with a disciplinary offence on 10 November 1990, with a hearing convened in February 1991.
Dr Carter assessed onset of alcohol use disorder as December 1983:
After enlistment in April 1981 he attended training and had no issue with alcohol. The culture of the Army was to drink heavily. He drank prior to enlistment but did not have a pathological habit. Prior to September 1983, the Other Ranks Club served alcohol at lunchtime and he and his peers would drink there. After they stopped serving alcohol the men would go to the Alderley Arms to drink at lunchtime …
More detail is provided in relation to specific incidents during the course of his service including: DUI charges; disciplinary offences; and voluntary admission for treatment in December 1984. In relation to substance use disorder, Dr Carter considers date of onset as 1991, observing that marijuana use was noted in 1994 prior to discharge. She states its use as being for the control of back pain arising from military service, citing again the incident of lifting rocks in 1990, as well as a football injury in 1988, and deployment to the Solomon Islands in 1992.
Back condition
Prior to separation from the Army, Mr Pendock had a number of medical claims assessed. The report of Mark Cohen dated 22 February 1994 (Ex A1, SP3) appears to describe the outcome of a radiological examination. It states:
LUMBAR SACRAL SPINE
There is no evidence of a spondylolysis or spondylolisthesis.
There is no obvious disc pathology or other degenerative change.
The vertebrae and their appendages present normal radiological features.
SUMMARY
No obvious disc pathology or other lumbar-sacral abnormality.
A radiology report of Dr David Simpson dated 7 July 2017 (T-B8, pp 53-55) comments:
Bilateral pars defects of L5 associated with a grade 1 spondylolisthesis of L5 on S1. Mild bilateral L5/S1 foraminal narrowing and distortion particularly on the left due to the spondylolisthesis and subsequent uncoverage of the disc. Exiting left L5 nerve root therefore may be irritated. Right L5 nerve root probably escapes without significant mechanical compromise. No significant disc bulge or signs of neural compromise are seen elsewhere. Moderate multilevel facet joint degeneration as described.
Mr Pendock’s spine conditions were assessed by Dr Astori, orthopaedic surgeon, in a report dated 4 December 2018 (Ex R5/T-B18). Dr Astori noted the use of marijuana ‘on regular occasions … partly for pain relief due to pain related to his low back and right knee conditions’. It is also noted that Mr Pendock describes himself as an alcoholic and drinks ‘12 to 15 alcohol beverages per day’. Dr Astori records that Mr Pendock also takes Mersyndol [an analgesic containing codeine] for his back and knee, a maximum of two per day, but he ‘can go without’.
Dr Astori diagnosed spondylosis and spondylitic grade 1 spondylolisthesis, noting that radiology confirms that spondylosis affects both pars of the L5 vertebral arch. He added further: ‘Therefore, the spondylolisthesis that has occurred is directly related to the pars defect rather than any degenerative change which has occurred …’. Dr Astori concluded the spondylolytic lesions ‘are likely post-traumatic’. He states clinical date of onset as consistent with Mr Pendock’s report that he complained of lower back pain related to service activities in 1983 ‘following a number of work and rugby union related traumas’.
Dr Astori states it is not possible to give a date for onset of spondylolytic spondylolisthesis. He notes this condition was not apparent on x-rays taken in 1994, but that it is apparent in the next radiology chronologically, being in 2017. Dr Astori states this condition is also most likely from a traumatic occurrence, however states that ‘it is more likely that repetitive strain, particularly involving heavy lifting and hyperextension, are more likely to lead to spondylolysis’. Dr Astori concludes: ‘on the balance of probabilities, Mr Pendock’s spondylosis and subsequent spondylolisthesis developed from a repetitive heavy lifting and strain related to his military service including rugby union football activities’.
In a supplementary report dated 6 August 2019 (Ex R5), Dr Astori responds to questions raised about traumatic causation for the diagnosed spondylolytic spondylolisthesis:
In my opinion it is not possible to be certain beyond doubt of the inciting event or events which led ultimately to the development of spondylolytic spondylolisthesis in this case. The most common scenario is that [it] results from repetitive strain/ repetitive injury but, of course, it can occur following a single traumatic event … it is indeed unfortunate that the x-rays he had taken in February 1994 are not available to be reviewed.
It is also possible that [it] developed sometime after 1994 and, given the heavy physical nature of Mr Pendock’s occupation, it is impossible to discount this possibility, given that the x-ray taken in 2017 demonstrated the pathology conclusively.
However, on the balance of probabilities and given the nature of his symptoms, the timing of the them and their severity, it would seem reasonable to me to place a high level of contribution on the events which occurred during his military service, in particular, the high impact events during rugby or the motor vehicle accident.
In his evidence at the hearing Dr Astori affirmed his written diagnosis. He explained that spondylolisthesis is the slipping of one disc over another and that the pars are the arms at the back of the vertebrae which can be affected for a number of reasons. Dr Astori stated that the most recent (2017) radiology was the point at which spondylolysis spondylolisthesis could be categorically diagnosed.
Dr Astori appeared to agree in evidence that the conditions could have arisen after 1994, stating that Mr Pendock, historically, did not make a claim, and did not have treatment following his discharge. However, he also stated that a different form and quality of radiology in 1994 may have given a different picture of the state of Mr Pendock’s back at that time. Asked about the apparent absence of symptoms during service, Dr Astori stated that if the pathology existed at the time, it would be unlikely that there was no treatment, or symptoms, until later. He stated that the condition could have been asymptomatic but also that he would be surprised if a significant injury would typically settle within a few days.
In cross-examination Dr Astori stated he would not be surprised if a pars fracture could have been missed in earlier radiology, prior to the digitisation of images. This observation was only based on the assumption that radiology he examined was not digitised. Dr Astori stated that spondylosis is a degenerative condition without specific cause and spondylolysis is related to the pars, but the two can co-exist. There are times where there can be spondylolisthesis without a pars defect.
CONSIDERATIONS
There is a common structure to the SoPs applicable to the several psychiatric conditions in Mr Pendock’s applications. Each of SoP 84/2015, 49/2017 and 60/2017 set out a common list of factors that must be found to exist for the condition to be connected to the relevant service. Each also identifies, for certain factors, a list of ‘category 2’ stressors which includes a range of specified events which have chronic effects of ongoing distress, concern or worry, comprising: social isolation; relationship breakdown; disharmony at work; serious legal issues; serious financial hardship; deterioration in health of a family member; or being a full time caregiver. The existence of any factor must be related to the relevant service.
Alcohol Use Disorder
It is submitted in the Applicant’s SFC that Mr Pendock’s circumstances satisfy factors set out in ss 9(6) and 9(13) under SoP No 49/2017. These specific factors require:
(6)experiencing a category 2 stressor within the six months of the clinical onset of [the condition] …
(13)inability to obtain appropriate clinical management for [the condition].
I am satisfied on the basis of the medical evidence that the best estimation of the time of onset of this condition is that made by Dr Carter, being December 1983. I accept that there is some ambiguity on the medical record given that Mr Pendock was considered in late 1984 not to have a psychiatric disorder. However, accepting there is a range of evidence as to Mr Pendock’s level of alcohol consumption at different times, I consider Dr Carter’s diagnosis to be broadly consistent with the evidence as to more intensive drinking in the early years of his service, including, possibly, at lunchtimes, and some of the Applicant’s offending, and personal circumstances.
I am not satisfied on the basis of the material before me that a category 2 stressor can be considered to have occurred in the six months prior to this date. I have taken into account statements made with respect to Mr Pendock’s ‘bullying, harassment and intimidation’ and ‘work stress’ (Ex A1, [19]/SP1, [35]-[39]). These assertions are relatively general in nature and I am not aware of any material in the documentary record that adequately substantiates them at all, and specifically not with respect to the relevant time period. Indeed, at the time in question the evidence indicates that Mr Pendock was regularly drinking with colleagues during and after work hours. This does not speak to social isolation. During 1984 the Applicant also voluntarily sought re-engagement in the Army until 1987 (Ex R1, p 49)[2] and subsequently served for further periods. His service record, despite blemishes, did not prevent his deliberate retention in service (Ex R1, p 114).
[2] Notification titled ‘Re-engagement of a soldier for further service’.
On balance, therefore, while I do not discount the possibility that the assertions made by Mr Pendock may possibly be true, I do not consider that they adequately substantiate workplace bullying. To the extent that there is evidence of disfunction affecting Mr Pendock in his work environment, it appears to arise from his later service, that is, after the requisite six month period.
I also take into account Mr Pendock’s general claim of using alcohol to deal with pain. Again, the documentary record does not, in my understanding, adequately substantiate such claims, nor a relevant stressor. The only medical record for the latter half of 1983 appears to be a presentation for treatment for dermatitis on 13 October 1983 (Ex R2, p 151). In any event, the reference to medical condition or illness in respect of category 2 stressors relates this to social isolation, which does not appear the case on the evidence.
Is there evidence of a failure to obtain appropriate clinical management of the condition? There is little doubt that Mr Pendock struggled with alcohol use and that it led to noticeable disfunction, and that this became a major area of focus in the management of his military career. Within 12 months of onset, Mr Pendock was accepted as an inpatient for assessment. He was referred to an alcohol and drug service in the community. The Applicant’s evidence appears to be, rather, that he felt unable to pursue further treatment due to his perception of military service culture.
I also understand it to be submitted on his behalf that the wide acceptance of alcohol use in military service culture was itself evidence of an inability to obtain treatment, or a reason why such treatment was not available. However, I do not consider the evidence as being able to be construed as demonstrating an inability to obtain treatment. On the contrary, the better view of the evidence is that treatment was provided. I also accept the submission on behalf of the Respondent at the hearing and in their Statement of Facts, Issues and Contentions (SFIC) ([18]) that it is necessary to consider what a person is required, or expected to do, as a soldier (citing Roncevich v Repatriation Commission (2005) 222 CLR 115, [22]-[23]). In this instance, drinking appears to have been only associated with informal social activity.
Major Depressive Disorder
It is submitted on Mr Pendock’s behalf that the following factors in s 9(1) of SoP 84/2015 are applicable:
(e)experiencing a category 2 stressor within the six months before the clinical onset …
(g)having a clinically significant disorder of mental health as specified with the two years before the clinical outset …
(k)having persistent pain of at least six months duration at the time of the clinical onset …
In Schedule 1 alcohol use disorder is listed as one of a number of specified mental health disorders.
As noted above, Dr Carter diagnosed the onset of Mr Pendock’s depressive condition as 1991. Dr Carter identified several events between December 1990 and February 1991 as supporting the diagnosis. The lack of real definition around the diagnosis poses some challenges for the application of the factors. However, given that certain events have been cited, I accept for the purposes of this exercise that these are to be understood as being considered, particularly for the purpose of considering the factors in s 9(1)(e) and (k) of this SoP. I note the submission made on behalf of the Respondent in its SFIC ([36]) that clinical onset was 2015, however in the absence of any supporting medical evidence for this proposition I accept that onset is as diagnosed by Dr Carter.
With respect to the factor specific in s 9(g) of this SoP I am unable to identify Mr Pendock’s alcohol use disorder as meeting this test because, as stated above, I have not found that this condition was service related in the sense required.
As regards category 2 stressors under s 9(1)(e) of this SoP, there is adequate evidence of the incident in which Mr Pendock injured his back while picking up rocks (Ex R2, pp 58, 60). These medical records indicate that he received physiotherapy on several occasions and his condition enabled him to cease treatment from 19 December 1990. The relevant record describes Mr Pendock as ‘going on ARL’ which I understand to indicate that he was about to take a period of annual recreational leave following the end of his treatment. A medical condition is relevant in so far as it may cause social isolation and an inability to maintain friendships. I do not understand any of the available evidence to demonstrate that this condition is made out.
A further stressor is: ‘having concerns in the work … environment including on-going disharmony with fellow work … colleagues, perceived lack of social support within the work … environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace …’. As stated above with respect to alcohol use disorder, the evidence regarding Mr Pendock’s relatively broad claims of bullying is not strong.
I accept that, as submitted, there may have been a sense of lack of control over Mr Pendock’s work and possibly a sense of stressful workloads. However, there is no clear evidence before me that substantiates Mr Pendock’s statements as to this being the case. As a general proposition, it is axiomatic that these descriptions might apply to military service. I consider therefore that something more needs to be clearly demonstrated on the evidence to raise the circumstances to those described by this factor. This is borne out, for example, by a character reference provided for Mr Pendock as at 22 November 1990 by his troop commander in relation to the disciplinary charge (Ex R1, p 168) which states in part:
… I have found him to be a reliable and diligent worker in his trade. He requires little or no supervision in his work. His trade work is of a high standard.
Since joining the troop, he has interacted well among his fellow workers and participates freely in troop activities.
Specifically, in relation to the factor of pain in s 9(1)(k), the SoP defines ‘persistent pain’ in Schedule 1 to mean:
(a)continuous;
(b)almost continuous; or
(c)frequent, severe, intermittent pain;
which may or may not be ameliorated by analgesic medication and is of a level to cause interference with usual work or leisure activities or activities of daily living.
The evidence available to me does not demonstrate that this factor is made out. I do not discount the possibility that Mr Pendock may have been experiencing pain and discomfort at the requisite time. However, the documentary record does not substantiate that there was interference of the kind envisaged by the words of this factor. For example, Mr Pendock clearly received treatment for his back condition but was then able to cease treatment and depart on annual leave. I acknowledge the submission made on Mr Pendock’s behalf (for example SFIC [17]) that self-medication meant that the official record does not fully capture the circumstances. However, on balance, I consider that the better view of the totality of the evidence is that the factor is not met.
Substance Use Disorder
In relation to this condition it is contended on Mr Pendock’s behalf that the relevant factors of SoP 60/2017 are those in subs 9(1) and (7). These factors are:
(1) having a clinically significant disorder of mental health as specified at the time of the clinical onset of [the condition] …
(7) experiencing a category 2 stressor within the six months before the clinical onset of [the condition].
The specified category 2 stressors are as noted above. The SoP identifies in Schedule 1 a list of mental health conditions, which must be ‘of sufficient severity to warrant ongoing management’, and includes both alcohol use disorder and depressive disorder.
Dr Carter diagnoses the onset of this condition as 1991. Therefore, the time frame, and stressors, are as considered above in relation to major depressive disorder. For the reasons given there, I do not consider that the requirements of the factor in s 9(7) of this SoP can be made out in this instance. As set out above, I have not found that either alcohol use disorder or major depressive disorder meet the requisite test of being service related. Therefore, they cannot be relied upon in relation to the factor of mental health specified in s 9(1) of this SoP.
Spondylolisthesis and Spondylolysis
It is submitted on Mr Pendock’s behalf that, in particular, the relevant factors of SoP 25/2017 are those set out in subsections 9(1) and (7):
(1) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch at the time of the clinical onset of [either condition] …
(7) having pathological damage to the affected vertebra at the time of the clinical onset of [either condition] …
These conditions are defined in s 7(2) of this SoP as follows:
(a) spondylolisthesis means forward displacement (anterolisthesis) or backward displacement (retrolisthesis) of one vertebra over the vertebra below; and
(b) spondylosis means a defect or fracture, unilateral or bilateral, involving the pars interaticularis of a vertebra.
Schedule 1 to this SoP defines ‘pathological damage to the affected vertebra’ as: ‘a local or systemic disease process which significantly weakens or destroys the vertebral bone, including benign and malignant tumours, tuberculosis, osteomyelitis, osteoporosis and Paget’s disease’.
On behalf of Mr Pendock it was submitted that one of several hypotheses connect the conditions to his service (SFC [30]-[39]). First, he experienced numerous high impact traumas comprising of several sporting injuries, a serious car accident, and multiple strains. Second, he suffered a back injury in July 1994 which, while described as a lifting or strain injury, amounted also to a high impact trauma. Third, Mr Pendock had existing pathological damage to the affected vertebra at the time of onset, within the terms of the definition in the SoP.
At the hearing it was further submitted that the 1993 x-ray should not carry much weight and should also be considered unreliable, in part as it had never been in the Applicant’s possession. Dr Astori, it was submitted placed the highest likelihood upon the multiplicity of back injuries and strains, all of which were in the context of service or sport for service purposes. It was also submitted that the Applicant should be considered a reliable witness.
It was submitted on the Respondent’s behalf that clinical onset was July 2017 and there is no evidence of an acute fracture of the vertebral arch prior to this date. The Respondent also submitted there is no evidence of pathological damage, and the accepted claim of lumbar spondylosis does not qualify. At the hearing it was submitted that Dr Astori’s conclusions for the purposes of diagnosis, based on the history provided by Mr Pendock, did not necessarily mean the provisions of the SoP are satisfied. The Respondent’s representative pointed to Dr Astori’s evidence that recovery from a significant injury would take longer than a few days and it is difficult to find evidence of such an event. It was also submitted that the general practitioner (GP) medical records did not disclose a history of back complaint.
Mr Pendock’s final medical examination prior to discharge took place on 7 July 1994 (Ex R2, pp 15-16). The record notes ‘chronic lower back pain due to previous injuries unable to lift heavy objects’. Under ‘employment restrictions’ the record states ‘no heavy lifting’. Under ‘Diagnosis of disabilities discovered’ the record also notes ‘chronic lower back pain’. The record lists ‘back’ as ‘abnormal’, giving rise to the annotations cited, and appears to record ‘yes’ against the question relating to ‘back injury’, which correlates to another question as to whether a claim has been, or is intended to be made regarding identified injuries. I note that a further back injury occurred following this date on 13 July 1994, as noted in the chronology above. The medical record (Ex R2, pp 7-10) states ‘lifting heavy object in flexed position’ and ‘constant left sided lower back pain following lifting injury’. Mr Pendock appears to have received treatment of massage and stretching over a period of approximately a week.
With respect to the wider medical record there is a large gap in radiology between 1994 and 2017, spanning Mr Pendock’s entire post-service work life. Further, GP medical records tendered (Ex R4) only span 2004-2018 and include the annotation themselves that this clinic had no notes prior to 2004 (Ex R4, p 19). Therefore, there is a further gap in medical evidence of the ten years following Mr Pendock’s service.
These documents include a report of what appears to be a pathology referral of 21 July 2017 (Ex R4, p 47) which includes a detailed personal history of Mr Pendock including a reference to a ‘longstanding history of lower back pain’ which started during military service, and no history of spinal procedures. It describes his post-service work as involving civil construction, building roads and tunnels and involving ‘a lot of digging’, while not specifying whether this was manual. There is what appears to be a related consultation note dated 6 July 2017 (Ex R4, p 16) which records ‘low back pain for over 25 years: relates this to working in the Army as an Engineer’. A prior record of 29 September 2016 notes ‘low back pain: being looked at as a claim for Vet. Affairs’.
A consultation at the clinic on 20 November 2012 (Ex R4, pp 7-8) is stated as being related to severe right sided shoulder pain. The record includes the following: ‘works in construction - lifts and pulls heavy loads’. Between this record and the first entries in this exhibit dating to 2006, I have been unable to identify any other record relating to a medical consultation for Mr Pendock’s back.
The SoP identifies two separate conditions which as I understand the evidence in this case may exist separately, but which in Mr Pendock’s case are considered to be associated. The factors from the SoP identified are however quite distinct, and different, in their character: one traumatic; one pathological.
I understand Dr Astori’s evidence as being quite clear in identifying both conditions as only capable of being diagnosed, categorically, on the basis of the 2017 radiology. I do not consider the evidence overall to support a finding that Mr Pendock experienced a trauma during his service sufficient to be responsible for the spondylolysis. It is even clearer from the evidence that he did not experience a trauma sufficient to cause what I understand to be the more visibly obvious of the two conditions, being the spondylolisthesis, during his service. While the origins of the spondylolysis may be uncertain, there is also no evidence that any of the injuries experienced during Mr Pendock’s service could satisfy the specific definition of pathological damage. Equally there is no evidence of any pathological condition leading to his spondylolisthesis.
Summary
I am not reasonably satisfied that the conditions of alcohol use disorder, substance use disorder, major depressive disorder, or spondylolitic spondylolisthesis are attributable to Mr Pendock’s service. This is because I have not found that the evidence supports the conclusion that any of the requisite factors in the respective SoPs can, on the balance of probabilities, be found to apply. For completeness, I note that I have considered the wider range of factors specified in each SoP, in addition to those specifically addressed by the parties in submissions.
DECISION
For the reasons given above, the Tribunal affirms the decisions under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
..................[sgd]......................................................
Associate
Dated: 8 April 2020
Dates of hearing: 28 and 29 January 2020 Advocate for the Applicant: Ms R.E. Coates-Kelly
Veterans Professional AdvocacySolicitor for the Respondent:
Mr K. Rudge
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