Docket: T-2052-14
Citation: 2015 FC 540
Ottawa, Ontario, April 28, 2015
PRESENT: The
Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
ANTHONY MANUGE
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application by Anthony Manuge
challenging a decision by the Veteran Review and Appeal Board [Board] denying
his claim to a disability pension in connection with a diagnosis of
degenerative cervical disc disease.
I.
Background
[2]
Mr. Manuge served in the Canadian Forces
[Reserves] from January 22, 1980 to May 6, 1981 and in the Regular Forces
[hereafter CF] from May 7, 1981 to June 7, 1984 and, again, from November 23,
1984 to August 29, 1990. Mr. Manuge was an infantryman. For much of his
military service, he drove armoured vehicles and engaged in a number of other physically
demanding activities.
[3]
In 1989 Mr. Manuge sought medical
treatment for recurrent cervical pain. The medical records at the time gave a
diagnosis of chronic cervical strain as manifested in intermittent pain for the
previous 3 to 4 years. A physical examination note dated September 11, 1989
referred to a “cervical strain [suggestive of
degenerative disc disease]” but an x-ray report from the same day failed to
demonstrate any disc abnormalities. In 1990 a medical examination report
prepared in connection with Mr. Manuge’s release from service described a
condition of “chronic cervical strain” and “frequent muscle spasm” dating back
to 1987.
[4]
In a relatively
brief set of reasons, the Board awarded Mr. Manuge a partial disability
pension in connection with a chronic injury to his shoulder. However, it
denied his claim for an enhanced award in connection with cervical disc disease.
[5]
The Board’s decision must be read with reference
to an earlier 2012 Entitlement Review Panel decision [Entitlement Decision]. The
Board adopted by reference parts of this earlier decision in its analysis
including a general affirmation of the Entitlement Decision in the Board’s
conclusion. Both decisions include a finding that the evidence adduced by Mr. Manuge
failed to establish a causal link between his 2010 diagnosis of degenerative
cervical disc disease and his military service dating back some 20 years.
[6]
The Entitlement decision makes this point in the
following passage:
The Panel does appreciate that the Applicant
is sincere in his testimony. It accepts that he has identified a theory of
causation. However, it is the Panel’s conclusion that the Applicant has not
brought forward sufficient evidence for the Panel to conclude, nor reasonably
infer, that the Applicant’s proposition is more than simply a possibility from
which the Panel is being asked to presume that a causal link exists. The Panel
recognizes that the jurisprudence of Bourgeois v Attorney General of Canada
(23 May 2003) T-602-02 says that notwithstanding the duty to favourably
interpret the circumstances and the evidence as foreseen in section 39 of
the Veterans Review and Appeal Board Act, the Applicant is nonetheless
obliged to produce evidence establishing a causal link and the Panel cannot
presume such a link to exist.
[7]
The Board came to the same conclusion as
reflected in the following passages from its decision:
The Board concurs with the notations in the
Entitlement Review decision that indicates that degenerative disc disease is,
for the most part, a result of normal age degeneration. The Board notes that
the diagnosis of the claimed condition was when the Appellant was 47 years of
age. Medical literature, including the Entitlement Eligibility Guidelines, the
Medical Guidelines and the Orthopaedic Handbook authored by orthopaedic
specialist Dr. Stanish clearly indicate that degeneration in human spinal
discs begins early in life and becomes evident in the third and fourth decades.
The Appellant was well into his fifth decade when there was evidence of
degenerative change. The literature indicates that a specific severe injury to
the cervical spine can accelerate the degeneration. The Board was not able to
find any contemporaneous medical evidence of a severe specific service-related
injury to the Appellant’s cervical spine during his military service.
…
As a result, the Board was not able to
conclude that a service relationship has been established, and with regret the
Board affirms the previous decision dated 24 January 2012 and denies disability
award entitlement on grounds that there is insufficient evidence to establish a
relationship between the claimed condition of degenerative disc disease
cervical spine and the Appellant’s Regular Force service.
II.
Standard of Review
[8]
The issues raised on this application are
matters of mixed fact and law attracting the standard of review of
reasonableness. On this the parties agree.
III.
Issues
[9]
Mr. Manuge asserts the following four
reviewable errors in the Board’s decision;
a.
The Board ignored a crucial piece of evidence – Mr. Manuge’s
1989 diagnosed cervical strain suggestive of degenerative disc disease;
b.
The Board misstated Mr. Manuge’s evidence
on the cause of this neck condition;
c.
The Board erred by rejecting the uncontradicted
medical opinion of Dr. Ducharme; and
d.
The Board ignored its own Entitlement
Eligibility Guidelines (Osteoarthritis).
The first and fourth issues were combined
during Mr. Wallace’s oral argument and it makes sense to consider them
together.
IV.
Analysis
[10]
There is nothing in the record before me to
support the argument that the Board either ignored or misinterpreted material
evidence in coming to the conclusion Mr. Manuge had failed to establish a
link between his military service and his 2010 diagnosis of degenerative
cervical disc disease. Although Mr. Manuge advanced a theory of causation,
it was seen by the Board to be no stronger than the medical evidence supporting
it. Mr. Manuge did not contend his neck problems reported in 1989 and
1990 were triggered by any particular accident or event. His evidence was only
that he believed the condition to be related to the rigours of his military
service. Although he did attribute the paucity of medical evidence during
service to a culture of military stoicism, that explanation would not extend to
the absence of relevant medical evidence after he left the CF in 1990. It was
the evidentiary gap between 1990 and 2010 that was at the heart of the Board’s
conclusion that Mr. Manuge had failed to meet the burden of proving
causation.
[11]
Mr. Wallace argues the Board erred by
overlooking Mr. Manuge’s medical history from 1989 and by failing to link
that history to the 2010 diagnosis of cervical disc disease. Mr. Wallace
points to medical literature disclosing that the symptoms of disc disease will
often initially appear intermittently and progress, often over years, to a
persistent condition. He also relies on medical literature attributing disc
disease, in many cases, to long-standing mechanical stress of the sort
experienced by Mr. Manage including constant vibration. In the face of
this evidence it is argued the Board erred by failing to consider the
possibility the 1989 diagnosis of recurring cervical strain was, in fact, the
early onset of cervical disc disease. Mr. Wallace buttresses his argument
by reference to the Veterans Affairs Canada Entitlement Eligibility Guidelines
[Guidelines] for assisting adjudicators tasked with determining pension
eligibility. Those Guidelines provide the following advice:
The subsection medical conditions which
are to be included in entitlement assessment serves to identify
conditions for which separate entitlement need not be sought, and which will be
included in the assessment of the primary condition. The inclusions may be
disabilities for which separate entitlement is held.
Any common conditions which are readily
apparent are listed. This section is not all-inclusive. As a general rule,
the basis for combining diagnoses arises where:
1. a
disability progressed so as to develop different features which appear at
different times and the different features are part of the same disease process
and involve the same body or organ system;
2. two
or more disabilities have similar symptoms and effects which cannot be
separated for assessment purposes, usually involving the same body part or
organ system. As ongoing consultation is taking place with Health Care
Programs, this subsection is not finalized for all entitlement guidelines.
[Emphasis in original]
[12]
In the list of medical conditions adjudicators
may consider in common under a diagnosis of osteoarthritis are degenerative
disc disease of the cervical spine and chronic cervical sprain/strain.
[13]
I accept Mr. Wallace’s point that the
Guidelines represent an available diagnostic shortcut. However, the Guidelines
explicitly state they are “not intended to be a
textbook of medicine or of causation” nor are they “mandatory or binding” on
adjudicators. Policy guidelines are, of course, just that; they do not fetter
the discretion of a decision-maker.
[14]
Further, the Board did not ignore Mr. Manuge’s
1989 medical history. Those details are accurately recounted in the decision
along with a summary of his entire relevant medical history. The Board also
referenced the causation evidence advanced by Mr. Manuge concerning “stresses and strains and rigours” associated with his
military service and the medical information linking disc disease to persistent
mechanical stress. Similarly, the Board looked for evidence of an acute
injury to the neck and found nothing of significance. This was not
unreasonable in the face of Mr. Manuge’s evidence that his neck problem
was not triggered by any particular incident but was, rather, caused by an
accumulation of stress over a number of years of active service (see Application
Record at page 453). This was a distinguishing feature from Mr. Manuge’s
shoulder condition. He was able to establish his shoulder problem was likely triggered
by a particular incident during military service and an award was made by the
Board on that basis.
[15]
What the Board was essentially left with from
the contemporaneous medical records was a 1989-1990 diagnosis of intermittent
neck strain and spasm with no radiological evidence of disc disease followed,
20 years later, by a diagnosis of cervical disc disease supported by clear
radiological evidence. Although Dr. Ducharme was involved with the care
of Mr. Manuge from 2004 onwards there is nothing in his report of October
14, 2011 to establish that Mr. Manuge’s neck presented as a particular
problem until 2010 when an MRI was ordered. The Board was clearly concerned by
the evidentiary lacuna between 1990 and 2010. It was not unreasonable for the
Board to require some evidence of persistent neck problems in the period
between 1990 and 2010 before making a diagnostic link of the sort advanced by Mr. Manuge.
[16]
Dr. Ducharme failed to fill in that gap
beyond the vague assertion that, at some unspecified date after 2004, Mr. Manuge
began to complain about neck pain. The problem could not have a major concern
before 2010 because it was only then Dr. Ducharme obtained radiological
data and referred Mr. Manuge for surgery.
[17]
In the end, the complaint that the Board erred
by ignoring or misinterpreting relevant evidence amounts only to a concern
about the weight it attributed to the evidence. Ms. Chan acknowledged on
behalf of the Minister that a different outcome could have been obtained on
this record but she is correct that the possibility of disparate outcomes does not
render a decision unreasonable.
[18]
I also cannot identify any reviewable error in
the Board’s treatment of Mr. Manuge’s testimony or of his medical history.
With the exception of a 1986 tracked vehicle accident the Board identified the
various events he put forward possible contributors to his 1989 cervical
complaint. The Board’s failure to mention the 1986 incident is immaterial in
the face of Mr. Manuge’s acknowledged inability to connect that or any
other specific event to his documented problems in 1989. According to Mr. Manuge
this was just one of a series of stressors he believed were the cause of his
neck symptoms. The testimony now relied upon by Mr. Manuge attributing
additional significance to the 1986 incident is not compelling in the face of
his other acknowledgements that he could not identify a specific triggering
event. The Board’s failure to expressly note the 1986 incident is,
accordingly, of no legal consequence.
[19]
The Board gave little weight to Dr. Ducharme’s
2011 medical opinion “attributing a greater than 50%
probability that [Mr. Manuge’s] degenerative cervical disc disease is
directly attributed to the pounding his neck took in discharging the
responsibilities of his job while serving from 1981-1990”. On this
issue the Board relied heavily on the analysis outlined in the Entitlement
Review decision from 2012. That decision dealt with Dr. Ducharme’s
opinion in the following way:
With respect to the medical opinion offered
by Dr. Ducharme at ER-M2, that the Applicant’s neck condition is likely
due to his military responsibilities between 1981 and 1990 and that this
probability is greater than 50%, the Panel notes that Dr. Ducharme’s
information is not compatible with the conventional medical literature as
embodied in the Veterans Affairs Canada Medical Guidelines respecting
degenerative disc disease. It is appreciated that Dr. Ducharme says his
opinion is based on his observation of the evolution of the Applicant’s
symptoms and the time he has known the Applicant, a review of some of the
records that the Applicant has provided, and the collection of investigations,
along with a brief review of the literature which Dr. Ducharme states,
seems to support that these occupational related stressors had an effect on his
neck and arm problems. The Panel also respects that Veterans Affairs Canada is
of the view that normal service activities such as described by the Applicant
in riding in military vehicles across rough terrain do not in and of themselves
result in, cause or contribute, to any specific disability such as those
claimed by the Applicant.
The Panel concludes that Dr. Ducharme’s
information does not sufficiently set out facts and data upon which his opinion
of the development of the Applicant’s condition is based. Dr. Ducharme
has not sufficiently identified the theory and methodology he has relied on in
coming to his conclusions. He has not shown examinations or measurements that
he has conducted, made accurate inquiries, nor that he consulted a complete
medical history, and Dr. Ducharme has not accounted for obvious
alternative explanations such as those spoken of in the Medical Guidelines
respecting the development of degenerative disc disease and degenerative
arthritis.
These concerns are legitimate and provide a
sound basis for discounting the value of Dr. Ducharme’s opinion. Dr. Ducharme
did not discuss the significance of the large gap in Mr. Manuge’s medical
history after 1990 and he was particularly vague about when Mr. Manuge
first complained about the condition of his neck. It is quite apparent this
was not a matter of concern for some time after Mr. Manuge came under Dr. Ducharme’s
care.
[20]
The absence of any reported medical history of
on-going neck symptoms after 1990 was critical to the establishment of a
clinical link to the 2010 diagnosis. Dr. Ducharme’s gloss of this
evidentiary gap along with the Board’s other identified concerns provide a reasonable
foundation for Board’s negative assessment of this evidence.
[21]
On the basis of the above I am satisfied that
the Board’s decision was reasonable and this application is dismissed.
[22]
The Respondent is not seeking costs and none are
awarded.
Email this Content