Thomas and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 902

Thomas and Repatriation Commission (Veterans’ entitlements) [2016] AATA 902 (14 November 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2015/4739
Re	Mark Thomas
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr C Kendall Brigadier AG Warner, Member
Date	14 November 2016
Place	Perth

The Tribunal affirms the decision under review.

....................[sgd]...........................

Deputy President Dr C Kendall

CATCHWORDS

VETERANS’ DIVISION – entitlement – lumbar spondylosis – whether defence caused – Statement of Principles, No. 63 of 2014 – factor 6(k), obesity – insufficient evidence to find connection between lumbar spondylosis and defence service - decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 – ss 70(5) – 120(4) -120B

Statement of Principles concerning lumbar spondylosis No. 63 of 2014 – factor 6(k)

REASONS FOR DECISION

Deputy President Dr C Kendall
Brigadier AG Warner, Member

14 November 2016

Perth

The Tribunal affirms the decision under review.

BACKGROUND

1. A summary of relevant facts was provided by the Repatriation Commission in the Respondent’s Statement of Issues, Facts and Contentions dated 8 August 2016 at paragraphs 3.1 - 3.14.  That summary was not disputed and is repeated below where relevant.

2. Mr Mark Thomas, age 56, served in the Australian Army from 14 May 1979 to 4 September 1979.  He suffers from two medical conditions that are accepted as service related:

   (a)dislocating left patella; and

   (b)recurrent dislocation patella, chrondromalacia of the patella. 

3. Mr Thomas also suffers from lumbar spondylosis which has not been accepted as service related.

4. In a claim under the Veterans’ Entitlements Act 1986 (the “VEA”) signed by Mr Thomas on 2 March 2012 and received by the Department of Veterans’ Affairs on 13 March 2012, Mr Thomas claimed for the disability of ‘lower back’ (T4 pages 14-22). In answer to the question of causation on page 16 of his claim form, Mr Thomas claimed: “I have an accepted knee disability since 1980.  It has caused me to compensate through my lower back when carrying out day to day tasks.  I now find because of this my back has deteriorated severely”.

5. On 11 June 2012, the Repatriation Commission (“the Commission”) issued a determination under the VEA which found that Mr Thomas’ lumbar spondylosis was not related to service. The Commission found that Mr Thomas did not meet any of the factors in the relevant Statement of Principles (“SoP”). The delegate also maintained Mr Thomas’ pension at 50% of the general rate.

6. A decision of the Veterans’ Review Board (VRB) of 11 October 2012 (T12 pages 64-70) affirmed the Commission’s decision and concluded that the medical evidence raised none of the factors set out in the relevant SoP.  That is, the VRB was satisfied that the material did not raise a connection between Mr Thomas’ lumbar spondylosis and his relevant service.

7. In a further claim under the VEA signed by Mr Thomas on 2 September 2014 and received by the Department on 9 September 2014, Mr Thomas again claimed for the disability of ‘lower back’ (T3 pages 3-12). In answer to the question of causation on page 5, Mr Thomas claimed “I have a significant knee condition since 1980 I have been unable to exercise since the disability occurred.  This over the years has created a weight problem to the point of obesity.  Creating my back problem due to no exercise.”  

8. It is this claim for pension under the VEA which is currently under review before the present Tribunal.

9. On 1 December 2014, the Commission found that Mr Thomas’ lumbar spondylosis was not related to his military service and that his pension should be continued at 50% of the General Rate (T11 pages 59-63).  Relevantly, the Commission found:

   Mr Thomas has contended that his lumbar spondylosis was caused by an inability to exercise due to his accepted knee disability, which resulted in obesity.

   This is a factor identified by the Repatriation Medical Authority (RMA) in the relevant Statement of Principles. The minimum requirements of the factor, and the relationship to service covered under the Act, are considered below under the heading of “Being obese”.

   I have determined lumbar spondylosis using Statement of Principles, Instrument number 63 of 2014, which sets out the factors known to contribute to this condition.

   Being obese

   It is a requirement of the Statement of Principles that for obesity to contribute to lumbar spondylosis, there must be a history of obesity for a period of at least ten years.

   In this Statement of Principles the Repatriation Medical Authority has defined being obese as meaning an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater. The BMI = W/H², where W is the person’s weight in kilograms and H is the person’s height in metres.

   In this case, I note from a disability claim lodged in March 2012 that the veteran first received treatment for lumbar spondylosis in July 2010. However, the veteran reported that he first noted pain and loss of range of movement in his lumbar spine. As a result, I am satisfied that the clinical onset of lumbar spondylosis occurred around 2007.

   I have limited details regarding the veteran’s BMI prior to the clinical onset of lumbar spondylosis in 2007. However, I do have the following records:

Date	BMI	Source of Information
1/8/1979	21.4	Veteran’s service medical records
2/5/1979	22.3	Veteran’s service medical records
14/3/1986	23.6	Veteran’s departmental hospital file
25/7/1986	23.5	Veteran’s departmental hospital file
9/9/1986	23.6	Veteran’s departmental hospital file
25/6/2004	30.2	Prime’s occupational medical assessment report and Medical Report - BMI
31/3/2006	30.2	Medical Report - BMI
6/12/2006	27.9	Clinical note from Byford Medical Centre

In this case, I have been unable to establish that there was at least a ten year history of obesity prior to the clinical onset of lumbar spondylosis. As a result, I cannot be satisfied that the requirement of the Statement of Principles have been met.

1. On 17 June 2015, the VRB affirmed this decision finding, relevantly, as follows:

   13.In his claim for ‘Lower Back Injury’ Mr Thomas identified the signs and symptoms of his condition as constant pain, loss of movement, pain at rest and difficulty walking (folio 5). He stated that his accepted knee condition which arose in 1980 caused him to be unable to exercise. He believes that over the years this has created a weight problem to the point of obesity. This had, in turn, led to the development of his lower back problem. He noted he first became aware of the signs and symptoms of his lower back condition in 2007.

   14.Mr Thomas’ application for review by the Board states that the decision under review placed a lot of weight on the scanty records available in relation to his obesity. He contends that there is sufficient evidence on the fife that clinical worsening of his disability occurred on 17 December 2011 when he was forced out of the workforce due to his disability. He maintains that his accepted knee condition led to his inability to exercise, then to obesity which is a factor in the SOP for lumbar spondylosis.

   …

   19.There is material before the Board which indicates the applicant was obese at times during the 25 year period before clinical onset of his lumbar spondylosis. Consequently the Board carefully considered whether there was material which indicates there was a history of the applicant being obese for a period of at least 10 years before the clinical onset of lumbar spondylosis as required by factor 6(k). The Board identified the following BMl records from the Medical Report - BMI provided by Dr Somers (folio 142) and other material contained in the Departmental Report:

Serial	Date	Height	Weight	BMI	Remarks
1	9 Sep 86	194 cm	89 kg	23.6	Target weight
2	25 Jun 04	196 cm	116kg	30.2	Obese
3	31 Mar 06	196 cm	115kg	29.9	Overweight
4	6 Dec 06	195 cm	106 kg	27.9	Overweight
5	5 Oct 10	195 cm	123 kg	32.3	Obese
6	22 Feb 11	195 cm	121 kg	31.6	Obese
7	4 Jul 11	195 cm	124.6 kg	32.8	Obese
8	17 Oct 11	195 cm	120 kg	31.6	Obese
9	15 Nov 11	195 cm	114 kg	30.0	Obese
10	9 Mar 12	195 cm	117.6 kg	30.9	Obese
11	28 Aug 14	194 cm	T14 kg	30.3	Obese
12	14 Oct 14	194 cm	118 kg	31.4	Obese

20.The available material does not provide a history of the applicant being obese for a period of at least 10 years within the 25 years before the clinical onset of lumbar spondylosis. In his application for review, the applicant contended that there was sufficient evidence available. However he made no further submission in support of his contention and, as the hearing was conducted in absentia at his request, the Board was not able to identify such a 10 year period.

21.Even had the Board been able to identify a period of 10 years where the applicant was obese within 25 years of clinical onset of his lumbar spondylosis, it would still need to be satisfied that there was a connection between his obesity and his relevant service under the Act. The Board was not able to identify material which would enable it to be so satisfied.

22.Having considered all the available material, the contention based on factor 6(k) in relation to obesity fails.

1. By application dated 6 March 2016, Mr Thomas sought review by this Tribunal of the VRB decision of 17 June 2015.  In effect, Mr Thomas now asks this Tribunal to set aside that decision and find that his lumbar spondylosis is connected to his military service. 

   ISSUE

2. Broadly, this Tribunal must decide whether Mr Thomas’ claimed lumbar spondylosis is defence-caused.  To make this determination, the Tribunal must determine:

   a)whether the material before the Tribunal raises a connection between the lumbar spondylosis and the particular service rendered by Mr Thomas; and

   b)whether there is a Statement of Principles in force that upholds the contention that the lumbar spondylosis is, on the balance of probabilities, connected with that service.

   RELEVANT LEGISLATION

3. Section 70(5) of the VEA provides that a disease or injury shall be taken to be defence caused if it, in effect:

   a)    arose out of or was attributable to eligible defence service;

   b)    resulted from an accident while travelling to or from duty;

   c)    was due to an accident that would not have occurred or a disease that could not have been contracted but for defence service; or

   d)    was contributed to in a material degree or aggravated by defence service.

4. Subsection 120(4) of the VEA requires the Tribunal to decide all relevant matters to its reasonable satisfaction. This means that the Tribunal must decide, on the balance of probabilities, whether Mr Thomas’ condition was caused by his period of Army service.

5. Pursuant to section 120B of the VEA, the Tribunal is required to decide matters to its reasonable satisfaction in accordance with any relevant SoP issued by the Repatriation Medical Authority or any relevant determinations or declarations under the VEA. SoPs set out factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service. The SoPs are binding on decision-makers at all levels, including the Tribunal.

6. It was agreed between the parties and the Tribunal so finds that the relevant SoP in relation to Mr Thomas’ lumbar spondylosis is SoP No 63 of 2014. 

7. Relevantly, SoP No 63 of 2014, provides as follows:

   Factors that must be related to service

   5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

   Factors

   6.The factor that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person’s relevant service is:

   (a)having inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; or

   (b)having an infection of the affected joint as specified at least one year before the clinical onset of lumbar spondylosis; or

   (c)having an intra-articular fracture of the lumbar spine at least one year before the clinical onset of lumbar spondylosis; or

   (d)having a specified spinal condition affecting the lumbar spine for at least the one year before the clinical onset of lumbar spondylosis; or

   (e)having leg length inequality for at least the five years before the clinical onset of lumbar spondylosis; or

   (f)having a depositional joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; or

   (g)having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis; or

   (h)having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or

   (i)lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; or

   (j)carrying loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 3 800 hours within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; or

   (k)being obese for at least ten years within the 25 years before the clinical onset of lumbar spondylosis; or

   (l)flying in a powered aircraft as operational aircrew, for a cumulative total of at least 2 000 hours within the 25 years before the clinical onset of lumbar spondylosis; or

   (m)extreme forward flexion of the lumbar spine for a cumulative total of at least 1 500 hours before the clinical onset of lumbar spondylosis; or

   (n)having acromegaly involving the lumbar spine before the clinical onset of lumbar spondylosis; or

   (o)having Paget's disease of bone involving the lumbar spine before the clinical onset of lumbar spondylosis; or

   (p)having inflammatory joint disease in the lumbar spine before the clinical worsening of lumbar spondylosis; or

   (q)haviang an infection of the affected joint as specified at least one year before the clinical worsening of lumbar spondylosis; or

   (r)having an intra-articular fracture of the lumbar spine at least one year before the clinical worsening of lumbar spondylosis; or

   (s)having a specified spinal condition affecting the lumbar spine for at least the one year before the clinical worsening of lumbar spondylosis; or

   (t)having leg length inequality for at least the five years before the clinical worsening of lumbar spondylosis; or

   (u)having a depositional joint disease in the lumbar spine before the clinical worsening of lumbar spondylosis; or

   (v)having trauma to the lumbar spine at least one year before the clinical worsening of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical worsening of lumbar spondylosis; or

   (w)having a lumbar intervertebral disc prolapse before the clinical worsening of lumbar spondylosis at the level of the intervertebral disc prolapse; or

   (x)lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical worsening of lumbar spondylosis, and where the clinical worsening of lumbar spondylosis occurs within the 25 years following that period; or

   (y)carrying loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 3 800 hours within any ten year period before the clinical worsening of lumbar spondylosis, and where the clinical worsening of lumbar spondylosis occurs within the 25 years following that period; or

   (z)being obese for at least ten years within the 25 years before the clinical worsening of lumbar spondylosis; or

   (aa)flying in a powered aircraft as operational aircrew, for a cumulative total of at least 2 000 hours within the 25 years before the clinical worsening of lumbar spondylosis; or

   (bb)extreme forward flexion of the lumbar spine for a cumulative total of at least 1 500 hours before the clinical worsening of lumbar spondylosis; or

   (cc)having acromegaly involving the lumbar spine before the clinical worsening of lumbar spondylosis; or

   (dd)having Paget's disease of bone involving the lumbar spine before the clinical worsening of lumbar spondylosis; or

   (ee)inability to obtain appropriate clinical management for lumbar spondylosis.

   Factors that apply only to material contribution or aggravation

   7.Paragraphs 6(p) to (ee) apply only to material contribution to, or aggravation of, lumbar spondylosis where the person’s lumbar spondylosis was suffered or contracted before or during (but not arising out of) the person’s relevant service.

8. At the hearing of this matter, it was agreed that Mr Thomas relies only on factor 6(k) above as it relates to obesity:  “being obese for at least ten years within the 25 years before the clinical onset of lumbar spondylosis”.  In effect, Mr Thomas argues that his lumbar spondylosis was caused by an inability to exercise due to his accepted knee disability which resulted in obesity.

   EVIDENCE

9. The evidence before the Tribunal comprised:

   ·The “T Documents” (T1-T24, pp 1-225) (Exhibit R1)

   ·Statement of Mark Thomas dated 26 July 2016 (Exhibit A1)

   ·Statement of Julie Thomas dated 29 June 2016 (Exhibit A2)

   ·Report of Dr Ivo Buters dated 1 April 2015 (Exhibit A3)

   ·Report of Dr Moira Somers dated 25 September 2015 (Exhibit A4)

   ·Report of Michael Anderson Orthopaedic Surgeon dated 13 October 2015 (Exhibit A5)

   ·Report of Dr Ivo Buters dated 5 May 2016 (Exhibit A6)

   ·Report of Dr Moira Somers dated 12 May 2016 (Exhibit A7)

   ·Report of Dr Michael Anderson dated 26 May 2016 (Exhibit A8)

   ·Extract – Employment Medical dated 29 January 2009 (Exhibit A9)

   ·Extract – Physical Examination dated 4 May 2005 (Exhibit A10)

   ·Applicant’s Statement of Facts, Issues and Contentions dated 4 July 2016 (Exhibit A11)

   ·Report of Dr Anthony Cairns dated 4 July 2016 (Exhibit R2)

   ·Supplementary Report of Dr Anthony Cairns dated 31 August 2016 (Exhibit R3)

   ·Respondent’s Statement of Issues, Facts and Contentions dated 8 August 2016 (Exhibit R4)

   ·The oral evidence of Mr Thomas

   ·The oral evidence of Mrs Julie Thomas

   ·The oral evidence of Dr Anthony Cairns

   CONSIDERATION

10. The VRB decision of 17 June 2015 outlines the basis of Mr Thomas’ claim as follows:

    In his claim for ‘Lower Back Injury’ Mr Thomas identified the signs and symptoms of his condition as constant pain, loss of movement, pain at rest and difficulty walking (folio 5).  He stated that his accepted knee condition which arose in 1980 caused him to be unable to exercise.  He believes that over the years this has caused a weight problem to the point of obesity.  This had, in turn, led to the development of his lower back problem.  He noted he first became aware of the signs and symptoms of his lower back condition in 2007.

    Mr Thomas’ application for review by the Board states that the decision under review placed ‘a lot of weight on the scanty records’ available in relation to his obesity.  He contends that there is sufficient evidence on the file that clinical worsening of his disability occurred on 17 December 2011 when he was forced out of the workforce due to his disability.  He maintains that his accepted knee condition led to his inability to exercise, then to obesity which is a factor in the SOP for lumbar spondylosis (T2/2B-2C).

1. There is no dispute that Mr Thomas rendered eligible defence service such that s 120(4) and s 120B of the VEA apply. Further, the Tribunal must decide this matter to its reasonable satisfaction. The jurisprudence in that regard is quite clear.

2. The Commission accepts that there is evidence before the Tribunal providing a diagnosis of lumbar spondylosis with a clinical onset in July 2010 (Exhibit R4, para 4.2).  The Tribunal agrees and, on the available evidence, finds accordingly.

3. Pursuant to s 120B of the VEA, the Tribunal can only be reasonably satisfied that Mr Thomas’ lumbar spondylosis is defence-caused if:

   a)the material before the Tribunal raises a connection between the lumbar spondylosis and Mr Thomas’ service; and

   b)there is in force a SoP that upholds the contention that the lumbar spondylosis is, on the balance of probabilities, connected with that service.

   SoP No 63 – lumbar spondylosis and obesity

4. There is no SoP in force for obesity.  The relevant SoP concerning lumbar spondylosis is No. 63 of 2014.  Mr Thomas relies on factor 6(k) in that SoP relating to obesity:  “being obese for at least ten years within the 25 years before the clinical onset of lumbar spondylosis”.  

5. “Being obese” is defined at paragraph 9 of the SoP as:

   “Being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.

   The BMI = W/H²

   W is the person’s weight in kilograms; and

   H is the person’s height in metres.

6. There is medical evidence before the Tribunal that Mr Thomas was obese at various times during the 25 years prior to the clinical onset of lumbar spondylosis in July 2010.  BMIs are recorded on the following dates as follows:

   ·9 September 1986 – 22.3

   ·25 June 20004 – 30.2

   ·31 March 2006 – 29.9

   ·6 December 2006 – 27.9

   ·5 October 2010 – 32.3

   ·22 February 2011 – 31.6

   ·4 July 2011 – 32.8

   ·17 October 2011 – 31.6

   ·15 November 2011 – 30.0

   ·9 March 2012 - 30.9

   ·28 August 2014 – 30.3

   ·14 October 2014 – 31.4.

7. A Supplementary Report by Dr Cairns dated 31 August 2016 (R3) relevantly provides:

   … I confirm my opinion that Mr Thomas’ diagnosis of lumbar spondylosis is that of an age-related degenerative condition, very likely contributed to by his diagnosed hyperuricaemia (gout).

   With respect to the association of lumbar spondylosis with obesity, reference to the AMA Guides to the Evaluation of Disease and Injury Causation, 2^nd edition, page 213 states, “the association between LBP and obesity remains controversial”.  There follows reference to the literature suggesting some studies indicating obesity as a risk factor, and others excluding same, the conclusion being “the evidence is insufficient and conflicting for obesity as a risk factor for low back pain”.

   However, in my opinion following onset of the underlying condition (lumbar spondylosis), obesity is a well accepted and documented aggravating factor related to the forward shift of the individual’s centre of gravity away from the spinal column, and increase of the lever arm stressing the lumbosacral spine.

   In passing, I also note that the reference states, “there is insufficient evidence for smoking as a risk factor for low back pain”, noting the client’s past history of that habit.

   Notwithstanding, “lumbar spondylosis” in the general population is an age-related, constitutional degenerative condition, Mr Thomas diagnosed hyperuricaemia also noted.  (Exhibit R3) .

8. Further, in oral evidence before the Tribunal, Dr Cairns opined that obesity was a contributing factor to Mr Thomas’ lumbar spondylosis.  He also stated that gout could cause inflammatory effects throughout the body, and that because Mr Thomas ambulated without changed gait, it would be unlikely that his knee injury of itself caused or materially contributed to Mr Thomas’ lumbar spondylosis. 

9. In addition to their witness statements (Exhibits A1 and A2), Mr Thomas and Mrs Julie Thomas gave oral evidence at the hearing.  They presented as honest and entirely credible witnesses.  The Tribunal accepts their evidence relating to Mr Thomas’ weight increase, his attempts at exercise and diet and the impact of his injury on his capacity to work and his personal life. 

10. The Tribunal expresses considerable sympathy for Mr and Mrs Thomas.  It is evident that as a couple they struggle on a day to day basis with Mr Thomas’ medical conditions.

11. Unfortunately, there was no probative evidence before the Tribunal that satisfies the requirements of factor 6(k) of SoP No. 63.

12. On the evidence, the earliest record of obesity is the BMI of 30.2 in the Prime Occupational Medical Assessment dated 25 June 2004, approximately six years before the clinical onset of Mr Thomas’ lumbar spondylosis (T18/201-203).  BMIs lower than 30 were recorded in March and December 2006 as listed above.  The available material does not provide a history demonstrating that Mr Thomas was obese for at least ten years before the clinical onset of lumbar spondylosis. This is required by factor 6(k) in SoP No 63.  Without clear evidence in that regard, Mr Thomas’ claim simply cannot succeed.  

13. Even if the Tribunal had been able to satisfy itself that Mr Thomas was obese for at least ten years within the relevant 25 year period, it would still need to be satisfied that there was a connection between that obesity and Mr Thomas’ eligible defence service under the VEA. The Tribunal was unable to identify any evidence which would allow it to be so satisfied.

14. Having considered all the available material before it, the Tribunal finds that the requirements of factor 6(k) of SoP No. 63 are not met and there is insufficient evidence upon which to find the required connection between Mr Thomas’ obesity and his eligible defence service under the VEA.

    Other factors – lumbar spondylosis

15. For completeness, the Tribunal also considered other arguably relevant factors in SoP No. 63.

16. The Tribunal notes Factor 6(a) (“having inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis”) because of Mr Thomas’ diagnosed gout condition and Dr Cairns opinion that “Mr Thomas’ diagnosis of lumbar spondylosis is that of an age-related degenerative condition, very likely contributed to by his diagnosed hyperuricaemia (gout)” (Exhibit R3).  However, there was no further evidence before the Tribunal relevant to this factor and Mr Grayden, on behalf of Mr Thomas, advised that Tribunal that gout would not be pursued in relation to SoP No 63.

17. Mr Thomas’ application to the VRB contended:

    That there is sufficient evidence on file that the clinical worsening of the disability in question occurred on the 17 December 2011 when I was forced out of the workplace due to the disability.  It is maintained that this disability is due to my already accepted disability under the SOP for Being Obese (T21/212).

18. Although 6(z) was not pressed by Mr Graydon, the Tribunal notes that paragraph 7 of SoP No. 63 provides that factor 6(z) can only apply to material contribution to or aggravation of lumbar spondylosis where it was suffered or contracted before or during the person’s relevant service.  As the clinical onset of Mr Thomas’ lumbar spondylosis was more than 30 years after his service, this contention is taken no further.

19. No submissions were made in relation to other factors listed in SoP No. 63 and the Tribunal was unable to identify any factors applicable to Mr Thomas.

20. Accordingly, having regard to all the material before it, the Tribunal is satisfied that the material does not raise a connection between Mr Thomas’ lumbar spondylosis and his eligible defence service as required by the VEA. The Tribunal thus affirms the decision of the VRB below in relation to this issue.

    Assessment of disability pension

21. As detailed above, Mr Thomas has an accepted condition of dislocating left patella.  In its decision dated 17 June 2015, the VRB reviewed the assessment of that disability and continued disability pension at 50% of the general rate (T2/2E-2G).

22. At this hearing, no submissions were made on the issue of assessment and there was no further evidence before the Tribunal to support any change to the current rate of Mr Thomas’ disability pension.  Accordingly, the Tribunal also affirms the decision under review in relation to assessment.  

    DECISION

23. For the reasons provided above, the Tribunal affirms the decision under review.

I certify that the preceding 43 (forty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall, and Brigadier AG Warner, Member.

........................[sgd].....................................

Administrative Assistant

Dated 14 November 2016

Date of hearing	20 September 2016
Representative of the Applicant	Mr R Grayden
Solicitors for the Applicant	Robert Grayden Legal
Counsel for the Respondent	Mr J Wallace
Representative of the Respondent  Ms N Nicolaou	Ms N Nicolaou