Fuss and Repatriation Commission - [2001] AATA 500

DECISION AND REASONS FOR DECISION [2001] AATA 500

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N1999/1165 and N2000/89

VETERANS' APPEALS DIVISION       )
           Re      DULCIE EDNA FUSS
  Applicant
           And    REPATRITION COMMISSION
  Respondent

DECISION

Tribunal DR J D CAMPBELL, Member

Date7 June 2001
PlaceSydney

Decision The Tribunal determines that both decisions under review are affirmed.

[sgd] Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlement - cancer - death from metastatic carcinoma of unknown primary site - adeno carcinoma - primary site possibilities - hypothesis - reasonable hypothesis - facts associated with hypothesis to be disproved beyond reasonable doubt

Veteran' Entitlement Act 1986 ss 120, 120A, 196B
Statement of Principles Instrument No 67 of 1997, as amended by Instrument No 9 of 1998
Statement of Principles Instrument No 55 of 1997
Statement of Principles Instrument No 97 of 1995, as amended by Instrument No 189 of 1999

Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v O'Brien (1985) 155 CLR 422
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Webb (1987) 76 ALR 131
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Gosewinckel [1999] FCA 1273
Byrnes v Repatriation Commission (1993) 177 CLR 564
Connors v Repatriation Commission (2000) 59 ALD 61
Budworth v Repatriation Commission [2001] FCA 317
Maiolo v Read & Ors (1997) SCNSW 20159/97
Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

Dr J D CAMPBELL, Member

In this matter, Mrs Dulcie Fuss ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 19 May 1998. In this decision the Respondent refused the Applicant's claim that malignant neoplasm of the pancreas was a war-caused disability. In a further decision dated 2 June 1998 the Respondent determined that the death of the Applicant's husband was not related to service. These decisions were subject to review by the Veterans' Review Board, which in decisions dated 29 June 1999 and 29 July 1999 respectively, affirmed that the late veterans' death was not war-caused and that the late veterans' malignant neoplasm of the pancreas was not a war-caused disease.
A hearing was held before the Administrative Appeals Tribunal ("Tribunal") on 8 February 2001, at which the Applicant was represented by Ms Buchanan, an advocate from the Veterans' Advisory Service, Legal Aid Commission of NSW. The Respondent was represented by Ms Pacey, an advocate from the Department of Veterans' Affairs. Oral evidence was presented to the Tribunal by Dr P Gillespie, a consultant gastroenterologist and Dr P Katelaris, a consultant gastroenterologist.
The following material was placed into evidence before the Tribunal:
Exhibit No  Description              Date
T1-T43 pp1-112 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Medical report by Dr Katelaris      10 May 2000
A2      Clinical notes of Dr Alison Rose    17 January 2000
A3      Applicant's Statement of Facts and Contentions          22 May 2000
R1      Medical Report by Dr Gillespie     12 August 2000
R2      Clinical notes by Dr Craig 21 May 1998
R3      Statement of Principle, Instrument No 67 of 1997, as amended by Instrument No 9 of 1998
R4      Respondent's Statement of Facts and Contentions     23 May 2000
issues
The relevant issues in this matter are:
(a) consideration and definition, if possible, of the late veterans' primary site of malignant disease; and
(b) consideration of whether any of the considered primary sites of malignant disease, that is the primary malignancy, was a war caused disease.

legislation

The relevant legislation in this matter is:

the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 120(1), 120(3), 120A, 196B;
Statement of Principles ("SoP") Instrument No 67 of 1997, as amended by Instrument No 9 of 1998 concerning malignant neoplasm of the stomach;
SoP Nno 55 of 1997 concerning malignant neoplasm of the pancreas;
SoP Instrument No 97 of 1995 as amended by Instrument No 189 of 1999 concerning malignant melanoma of the skin.

background

The deceased veteran experienced operational service between 28 June 1941 to 24 January 1946, having served in Moratai for a period of six months. The late veteran died on 7 April 1998 with the cause of death nominated on his death certificate as metastatic carcinoma of unknown primary. The diagnosis had been established by way of liver biopsy prior to his death, with histo-pathological examination of the biopsy specimen revealing the metastatic tumour to be an adenocarcinoma, with suggested primary source being large intestine, stomach, pancreas, prostate etc. No primary site of the carcinoma was established prior to death. No autopsy was undertaken.
evidence
Dr Craig was the late veterans' treating Consultant Gastroenterologist.   A review of his clinical notes reveals the following clinical information (Exhibit 2):
(a) the late veteran was first seen by Dr Craig on 19 December 1997, and at this consultation the late veteran complained of pain over the previous three weeks, with the pain being similar to a "duodenal ulcer", with an uneasy epigastric discomfort. A duodenal ulcer had been diagnosed some five years earlier. The late veteran had a reduced appetite and his weight tended to fluctuate. His pain was worse after eating a large meal and was not relieved by taking mylanta;
(b) a gastroscopy undertaken on 24 December 1997 revealed "prominent veins in the mid oesphagus. Generalised moderate gastritis, antral biopsy. Normal first and second part of duodenum";
(c) a colonoscopy undertaken on 24 December 1997 revealed a normal examination with the instrument passing to caecum;
(d) antral and duodenal biopsies taken on 24 December 1997 reported by Dr Campbell, Consultant Pathologist, revealing the following:
(i)antral – no active inflamation, intestinal metaplasia or glandular atrophy was seen; no Helicobacter were demonstrable,
(ii)duodenal – showed normal duodenal mucous, no significant inflammation; and
(iii)      no evidence of malignancy in the specimens.
(e) An upper abdominal ultrasound was performed on 8 January 1998, and reported on by Dr Jessup, Consultant Radiologist, as follows:
"1.There is evidence of fatty change in the liver. Multiple small hypoechoic solid lesions in both lobes of the liver may just be due to cavernous haemangiomas but hepatic metastases need to be excluded. A CT scan of the abdomen is recommended.
2. A distal abdominal aorta appears ectatic with atheromatous plaque."
(f) a CT scan abdomen and pelvis was undertaken on 12 January 1998 and reported by Dr Jessup as follows:
"1. Multiple small low density lesions are present in both lobes of the liver. They have neither typical CT nor sonographic features of cavernous haemangiomas and hepatic metastatic disease is suspected. No primary site for hepatic metastatic disease is detected in this examination.
2. No significant focal pulmonary or pleural lesion is identified and changes of congestive cardiac failure are not detected."
(g) on 4 February 1998 a MRI scan of the abdomen was conducted at Royal Prince Alfred Hospital and the following concluding comments were made in the report:
"Comment: Multiple lesions are demonstrated in the liver and as they do not have characteristic imaging appearances for haemangioma, metastasis must be considered."
(h) on 22 January 1998 a whole body bone study was undertaken and reported as finding "no definite scan evidence for metastatic bone disease";
(i) on 23 February 1998 a liver biopsy was reported on by Dr Cherian, a Consultant Pathologist, in the following terms:
          "MICROSCOPIC:
Sections reveal multiple cores of liver tissue, which is extensively replaced by a metastatic adenocarcinoma. The tumour is moderately differentiated and has a tubular pattern with small foci of cribriform arrangement. There is evidence of mucin fixation.
The possible primary sources would include large intestine, stomach, pancreas etc.
LIVER BIOPSY – METASTATIC ADENOCARCINOMA."
(j) a haemangioma study was undertaken on 17 February 1998 by Dr Butler, a Consultant Physician in nuclear medicine, and he reported that there was "no scan evidence of cavernous haemangiomata in liver";
(k) in a report dated 6 February 1998, Dr Moon reported that the late veterans' CT scan and ultrasound had been reviewed at the Sydney Melanoma Unit and it was considered that the "lesions in his liver most likely represented metastatic disease, but not malignant melanoma"; and
(l) a copy of the late veterans' death certificate indicating cause of death on 7 April 1998, being metastatic carcinoma of unknown primary.
dr rose
Dr Rose was the late veterans' treating general practitioner, and her clinical notes contain the following clinical information (Exhibit A2):
(a) the late veteran never smoked; there is no evidence of diabetes mellitus or chronic pancreatic disease; there was no evidence, nor did she have any idea whether the late veteran had exposure to DDT; that she had no evidence of the late veteran being treated for Helicobacter;
(b) a prostate specific antigen reading of 1.2ng/mb (normal 0.0 - 4.0) on 20 January 1998; a normal prostate examination;
(c) a report by Dr Craig dated 26 February 1998 in which he expresses the opinion that "the pancreas seems the likely site of the primary carcinoma";
(d) a report indicating that the late veteran had a malignant melanoma excised in December 1997 by Dr Davis from the right side of his neck; and
(e) evidence of the late veteran suffering from a moderately large ulcer on the
posterior wall of the duodenal bulb at a barium swallow and meal examination conducted by Dr Fletcher on 28 May 1991. This was found to be healed without any significant residual deformity by Dr Bassett at barium meal examination on 1 June 1994. The late veteran was on Voltaren medication prior to May 1991 and on Sugram medication prior to June 1992.
Dr Katelaris
Dr Katelaris, a Consultant Gastroenterologist, in an opinion dated 10 May 2000 (Exhibit A1), made the following comments:
(a) the late veteran may have acquired Helicobacter pylori infection during his war service in south-east Asia, with this infection leading many years later to the development of gastro adenocarcinoma and subsequent metastasis;
(b) the diagnosis of malignant neoplasm of the pancreas is not established. It is a presumption based on the lack of identification of an alternate primary site, there being no firm clinical or radiological evidence of carcinoma of the pancreas with a modern spiral CT scan of the abdomen. This CT scan identified multiple metastases in the liver, but commented specifically that the pancreas appeared normal. Similarly, an ultrasound of the upper abdomen and a MRI scan failed to identify an abnormality in the pancreas. It was concluded that on clinical, radiological and histological grounds, the diagnosis of cancer of the pancreas is not established. It is an assumption and is only one possibility.
(c) H pylori infection is recognised as the single most important risk factor for the subsequent development of gastric adenocarcinoma, although the process may take decades. Infection is most commonly acquired in childhood, with slow adult acquisition of the infection as well. Infection is related to hygiene and living standards, and is more common in countries with poor socio-economic living standards, with older people having higher rates of infection. As a consequence, it is plausible that the late veteran acquired H pylori infection as an adult during his period of operational service in south-east Asia;
(d) a precise histological or other diagnosis of H pylori was not available in the documents made available to him, but that in 90% or more of cases of duodenal ulceration there is an associated H pylori infection, and that if the diagnosis of duodenal ulcer is accepted in this case, there is a greater than 90% likelihood that he was H pylori infected. Further, with gastritis having being observed at endoscopy by the treating gastroenterologist, and with the two most common causes of gastritis being H pylori infection and medication with non steroidal anti-inflammatory drugs, the more likely explanation for the endoscopic explanation is H pylori infection, as there was no evidence of medication with non steroidal anti-inflammatories at or around the time of the endoscopy in December 1997;
(e) the absence of H pylori in the biopsy material does not mean that infection was not present at the time or some time prior, as the organisms are patchily distributed in the stomach, particularly often long standing infection, and two random biopsies may not identify the organism. Furthermore, it is well established that at the time of development of gastric carcinoma in patients, the long-standing H pylori gastritis leads to the development of gastric mucosal atrophy and intestinal metaplasia, creating an environment in which the organism is auto eradicated. Dr Katelaris concluded that on the balance of evidence it seemed likely that the late veteran was infected with H pylori; and
(f) the absence of a finding of gastric adenocarcinoma at endoscopy, one month before a diagnosis of metastatic disease was made may indicate that:
(i) the gastric adenocarcinoma may sometimes present as linitis plastica, with the tumour being located submucosally; or
(ii) in a gastritic (inflamed) stomach, a small flat primary adenocarcinoma of the stomach may not be apparent .
Dr Katelaris summarised his opinion in the following manner( Exhibit A1):
"This veteran's application was rejected as it was considered he had cancer of the pancreas not related to war service.
The diagnosis of cancer of the pancreas is an assumption based on a clinical possibility but it is not established. Available evidence from imaging procedures does not support this diagnosis.
It is certainly possible that the veteran died of metastatic gastric adenocarcinoma. This cannot be proven, as an autopsy was not carried out. However, a plausible hypothesis is that the veteran acquired H pylori infection during his period of service in south-east Asia during World War 2. Infection of the stomach with H pylori is known to contribute to the later development of gastric adenocarcinoma. It is possible for the endoscopy not to have revealed a primary adenocarcinoma if it was a small flat lesion in an area of gastritis or if there was a non-visible linitis tumour. The histology on the liver biopsy demonstrating adenocarcinoma of unknown origin was certainly consistent with a gastric primary among other possible diagnoses. This hypothesis is plausible and in accord with current medical knowledge. It cannot, however, be proven at this time with more certainty."
In oral evidence to the Tribunal, Dr Katelaris confirmed the following features of his written evidence:
·     that it is was more likely than not that the late veteran would have been infected with H pylori at his age;
·     that with radiological evidence of a duodenal ulcer, it was more than 90% likely that the late veteran was infected with H pylori;
·     that the gastroscopy performed in late December 1997 may have overlooked a small gastric adenocarcinoma because of the existence of generalised gastritis or alternatively the existence of a submucosal linitis plastica adenocarcinoma; and
·     that H pylori infection occurs in individuals exposed to a lower socio economic environment; that the method of spread is not known; that it is present in 60% of older people and that the hypothesis associating the late veteran's service, H pylori infection and gastric adenocarcinoma, becomes more plausible over time.
dr gillespie
In a report dated 12 August 2000, Dr P Gillespie, a Consultant Gastroenterologist, detailed the significant features of the late veteran's medical history (Exhibit R 1):

28 May 1991 – barium meal, posterior wall duodenal ulcer;
1 June 1992 – barium meal, no scars, no deformity in the duodenum, suggestive of previous ulcer, small hiatus hernia with tertiary contractions in the oesophagus;
3 June 1994 – abdominal ultrasound – pancreas not seen due to gas;
October 1997 – late veteran complained of epigastric pain and the possibility of gastro-oesophageal reflux and/or angina was raised;
24 December 1997 – endoscopy showed generalised moderate gastritis; biopsy were taken and were negative for Helicobacter pylori, dysplasia and intestinal metaplasia;
8 January 1998 – pancreas not seen due to gas on abdominal ultrasound; multiple small hypoechoic lesions in both lobes of the liver;
12 January 1998 – CT scan, no thickening of stomach wall, but confirmed metastatic lesions;
February 1998 – MRI scan suggested metastatic liver disease but no thickening of the stomach wall and no abnormality seen in the pancreas.

As a consequence of this clinical history, Dr Gillespie detailed his summary opinion (Exhibit R1):
"There is no available evidence to implicate Helicobacter Pylori as the cause of his radiological duodenal ulcer in 1991. Endoscopy is a far more accurate means of diagnosing duodenal ulceration – radiology can be incorrect and the films are not available for review.
Similarly, endoscopic review by a competent endoscopist in 1997 failed to show a gastric carcinoma. On balance, a carcinoma if present would more than likely have been a distal carcinoma if due to Helicobacter Pylori and unlikely to have been missed. Concurrent imaging with MRI scan and CT scan did not show evidence of gastric wall thickening which might occur in Linitis plastica and might theoretically be overlooked at endoscopy.
I do not believe this happened and would trust the endoscopy report.
At no stage has Helicobacter Pylori been identified and biopsies have apparently not shown changes of metaplasia or dysplasia.
The situation is thus of a radiologically diagnosed duodenal ulcer at a time when multiple gastric irritants were prescribed. There was no endoscopy and no testing for Helicobacter Pylori and its presence remains speculative and the inference that the endoscopy may have been incorrect, can equally be applied to the first barium meal.
The tumour markers as presented are those usually found in biliary/pancreatic malignancy and are not usually those of gastric carcinoma although they are non specific (reference Pavlidis etal Med. Pediatric Oncol 1994:22:162:167). Although disproportionately CA 19.9 is more often elevated in biliary or pancreatic tumours."
In oral evidence before the Tribunal, Dr Gillespie confirmed his written opinion, but acknowledged that a negative biopsy for Helicobacter indicates no more than Helicobacter was not present in the biopsy samples taken and examined.
In further histopathological analysis of the liver biopsies, Dr Vonthethoff, a Consultant Pathologist, detailed the following supplementary report on 31 March 1999 (T35, p87):
"Review of sections requested by Dr E Kyin, Veterans Affairs:
Review: I agree with the above diagnosis of metastatic adenocarcinoma. The tumour shows definite mucin production and markers for epithelial differentiation later performed (Cam 5.2) are positive (++) and S-100 stains are negative, adding conclusive support to the diagnosis of adenocarcinoma (the tumour deposit is not melanoma)."

submissions

applicant:

It was submitted on behalf of the Applicant that the correct diagnosis for the late veterans' cancer is "metastatic adenocarcinoma of unknown primary". Further, it is the Applicant's contention that the primary site of the veterans' adenocarcinoma is not established on the balance of probabilities.
The Applicant contends that it is a reasonable hypothesis that the deceased veteran acquired Helicobacter pylori infection in south east Asia during his operational service in World War 2, which caused or contributed to gastric adenocarcinoma, which, in turn, caused metastatic carcinoma of unknown primary. In formulating such a hypothesis the Applicant relies upon the opinion of Dr Katelaris, a consultant gastroenterologist and expert in the field of heliobacter pylori and related diseases.
respondent:

The Respondent contends that in view of a normal gastroscopy and a normal colonoscopy, that the most likely site of the late veterans' primary tumour was the pancreas and in so stating relies upon the opinion of Dr Craig.
The Respondent contends that the large intestine and stomach as the primary site have been excluded, as a consequence of no evidence of tumour being found at either gastroscopy or colonscopy.
The Respondent contends that the diagnosis of metastatic gastric adenocarcinoma is not established; that the presence of Helicobacter pylori has not been demonstrated and that there is evidence to suggest that the late veterans' duodenal ulcer was preceded by medication, with voltaren and later with surgam, both medications being non steroidal anti-inflammatory agents.
Further, the Respondent contends that the late veteran did not suffer from metastatic malignant melanoma, citing the histopathology report of Dr Vonthehoff and the opinion given by the Sydney Melanoma Unit.
Finally, the Respondent submits that the hypothesis proposed by the Applicant, that the late veteran acquired Helicobacter infection while serving in Morotai and that this infection was a causative element of a gastric carcinoma which metastised to the liver, is not a reasonable hypothesis. The elements which form the hypothesis cannot arise from the material before the Tribunal unless a process of clinical speculation is embarked upon, which in turn requires both a failure to acknowledge facts raised by the material, or alternatively requires inferences to be drawn which either ignore and/or refute facts raised in the material.
consideration and findings
The Tribunal readily acknowledges that this is a difficult and complex matter and raises many of the issues, which have been considered and addressed in earlier cases. The Tribunal further acknowledges that both parties agree that the cause of the late veterans' death was " metastatic adenocarcinoma of unknown primary". The Tribunal finds, having reviewed the medical evidence, that the late veterans' cause of death was "metastatic adenocarcinoma of unknown primary". This, in the Tribunal's view is the easy part of this matter, with the remainder of the decision dealing with the statutory framework and prior cases in which matters of consequence have been addressed.
statutory framework
The term disease is defined in section 5D of the Act and for the purpose of this matter subsection 5D(1)(a) defines disease as any physical or mental disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 9 of the Act provides that a disease contracted by a veteran shall be taken to be a war-caused disease if it was contracted during, or arose out of, eligible war service rendered by the veteran.
Section 13(1) provides an entitlement to pension for a wife where the death of a veteran was war-caused.
Section 14 of the Act deals with the making of claim for a pension, and section 17 details the requirement for the departmental Secretary to investigate claims and put them before the Repatriation Commission for consideration and determination. Section 18 requires the Commission to satisfy itself on all matters relevant to the determination of the claim, with section 19 further nominating the Commissions' role in relation to claims. Section 32 confirms that the role of the Commission is an inquisitional role as outlined by the powers and procedures nominated in the section, with section 119 requiring the Commission in hearing, determining or making a decision to "act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities", including "taking into account any difficulties that for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance", including any reason attributable to the effects of the passage of time, and the absence of or a deficiency in, relevant official records and the non reporting of an occurrence that happened during service.
The standard of proof to be applied in such determinations is governed by section 120 of the Act. In the matter before the Tribunal, there is clear and non disputed evidence that the late veteran died from "metastatic adenocarcinoma of unknown primary", with the issue in this matter relating to the possible identification of the primary source, which, in essence, is required to assist in identifying a causal connection between the disease and the late veterans' operational service.
The standard of proof to be applied when making determinations as to the existence of a disease, and whether it was war-caused, was considered by the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307, where the Court stated:
"…the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s120(1) and (3) assume the present existence of a relevant condition, in this case as disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran…The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service.
…the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily on that issue (in the main medical evidence one would suppose) available than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question."
This question was further considered in Budworth v Repatriation Commission [2000] FCA 317, where Madgwiek J again clearly distinguished the two issues. The first issue being whether or not an applicant suffers from a disease, with the standard of proof for this being determined by section 120(4) of the Act, namely reasonable satisfaction. The second issue is the question of the diagnosis of a particular condition. This may in some cases be dependent on supposed wartime causation, with the question of causation bound up in the question of diagnosis of a particular disease. The standard of proof in this latter situation is said to be the reverse criminal standard.
In considering the factual material outlined earlier in this decision, the Tribunal concludes that the late veteran did suffer from a disease, namely metastatic adenocarcinoma of unknown primary, with such a finding being made on the balance of probabilities. In further pursuing this matter, the Tribunal concludes that the question of diagnosis of the primary site of the carcinoma in this matter and the question of causation are tied, and as such the standard of proof to be applied, is the reverse criminal standard, if a reasonable hypothesis is established.
Section 120A of the Act modifies the operation of section 120 in relation to claims made after 1 June 1994, with section 120A(3) providing that"
"for the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by a person is reasonable only if there is in force
(a) a Statement of Principles determined under subsection 196B(2) or (ii) or…
that upholds the hypothesis".
The Tribunal, in further considering the requirements nominated in the previous paragraph, acknowledges the following series of cases, which generally outline the approach to be adopted:

(a) Section 120(3) of the Act was introduced following the decision of the High Court in Repatriation Commission v O'Brien (1985) 155 CLR 422, with the notion of the reasonable hypothesis concept being addressed in East v Repatriation Commission (1987) 16 FCR 517, where at 533 it was stated:

"A " reasonable hypothesis"… required more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities...
If a Tribunal accepted medical evidence that condition B would be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself made quantity irrelevant. If, on the other hand, the evidence was that exposure to quantity X of factor A could cause condition B, the hypothesis cannot be described as reasonable unless there was reason to believe that the veteran was exposed to factor A to the extent of quantity X."

(b) In Repatriation Commission v Bey (1997) 79 FCR 364 at 373 the Full Court stated that:

"A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

"The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true."

(d) In Connors v Repatriation Commission (2000) 59 ALD 61, Kenny J stated:

"If an essential element in a hypothesis was not raised (or pointed to) by the material before the decision maker, that hypothesis was not raised by that material. If the material did raise the hypothesis, then the decision-maker must determine whether it was reasonable. By virtue of s 120A(3) it will be reasonable if the hypothesis fits the SOP (or the SOP upholds the hypothesis)."

(e) In Repatriation Commission v Gosewinckel [1999] FCA 1273, Weinberg J said:

"In dealing with the causation issue, it was necessary for the hypothesis raised by the material before the AAT to include the elements prescribed by the SoP – Deledio v Repatriation Commission (supra) at 412. The medical-scientific standard prescribed in the SoP required that the veteran's circumstances fall within cl 1(b) since none of the other alternatives within c1 were applicable. If the hypothesis raised by the material did not satisfy that requirement, it could not be upheld by the SoP."

(f) Kenny J in Connors v Repatriation Commission [supra] said in his judgement at ALD 70, that:

""Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3), where it applies, is that a hypothesis must be supported by evidence pointing to each individual element in an SoP for the hypothesis to be reasonable: cf Shelton v Repatriation Commission (1999) 85 FCR 587.
In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares (1996) 66 FCR 594 at 601. In Bey, the respondent submitted that the primary judge was wrong in failing to find that the AAT had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgement, four members of the Full Court responded to this, at FCR 373, as follows:
The hypothesis was that the respondent's physical work and sporting activities in Vietnam caused or contributed to his disease. The AAT did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis.

There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: se Deledio at 412."

The factual material before the Tribunal in this matter has been detailed earlier in this decision, and from this material the Applicant submits that the following hypothesis can be postulated: that the late veteran while serving in Morotai during his period of operational service, became infected with Helicobacter pylori, which much later in the veterans' life caused the development of a gastric adenocarcinoma, which later metastased to the liver causing the veterans' death. It is the Applicant's contention that the hypothesis is sufficient for the Applicant to satisfy factor 5(b)(i) for carcinoma of the fundus, body, antrum or pylorus nominated in SoP Instrument No 67 of 1997 concerning malignant neoplasm of the stomach. The Tribunal also notes that the Applicant relies on the reasoning and opinion of Dr Katelaris for the formulation of the hypothesis. The Tribunal has detailed Dr Katelaris' opinion earlier in this decision.
The Tribunal notes that there are two fundamental elements to both the hypothesis and the SoP factor 5(b)(i) contained within Instrument No 67 of 1997. The first relates to contracting Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach. The Tribunal in assessing this element against the factual circumstances before it, is unable to indicate the existence of a particular fact, which points to the existence of a Helicobacter infection in the late veteran. The Tribunal, nevertheless, notes that it was encouraged to accept that inferences or assumptions could be properly drawn from particular facts, namely:
(a) that the late veteran served in a low socio economic environment during his period of operational service in Morotai, and that such communities have a high incidence of Helicobacter infections. As such, it could be inferred that the late veteran may have become infected with the organism and that this organism continued to reside within the Applicant over the ensuing years. Further, the Tribunal was encouraged to infer from the fact that the late veteran suffered from a duodenal ulcer in 1997, that this points to the possibility of infection with Helicobacter pyloric continuance at that time. The Tribunal also acknowledges that the absence of Helicobacter pylori organisms in the endoscopic biopsies taken by Dr Craig, does not allow the drawing of a general inference that Helicobacter organisms were not present in other parts of the stomach at that time, or that they were not necessarily present either before or after;
(b) that the late veteran suffered from a gastric adenocarcinoma, in that despite all the investigations undertaken, a small gastric adenocarcinoma may have been missed at endoscopic examination; and/or alternatively, a particular form of submucosal gastric adenocarcinoma, namely linitis plastica, may have existed, despite the failure to demonstrate such a tumour by ultrasound studies and CT and MRI scan investigations.
In examining the propositions put forward by the Applicant, the Tribunal expresses some concern at the somewhat tenuous and remote nature of the proposition that the late veteran was infected with Helicobacter pylori while serving in Morotai for six months during his period of operational service. This proposition requires the Tribunal to make a number of assumptions, namely that the Borneo population at that time were infected as a community with Helicobacter pylori; that the living circumstances of the Australian soldier in Morotai was consistent with that of the indigenous population, or alternatively, there was a common and mutual association in terms of living environment, diet, accommodation and customs resulting in the Australian soldier being infected with the particular organism, again with an assumption that varying differences in nutritional states between the Australian soldier and the indigenous population played no part in cross infection with the organism. Further, the Tribunal is unable to infer anything from the late veterans' Morotai service as regards the specifics or particulars of that service (other than being there), which may have placed him in circumstances that made him more vulnerable to infection.
Further, the Tribunal has to assume that the 45 year period of latency is of no consequence in the absence of particular gastric disorder until 1991, when a duodenal ulcer was diagnosed. Further, the Tribunal is asked to disregard the history of the late veterans' medication with non-steroidal anti-inflammatories, both prior to his diagnosis of duodenal ulcer and after, and place little weight upon the absence of the organism in the biopsy sections.
In so far as this element of the hypothesis is concerned, the Tribunal, notes the absence of particular facts in the material which of themselves would allow the Tribunal to establish this element of the hypothesis. For this element of the hypothesis to be established, the Tribunal would have to rely upon a series of assumptions, not all of which are interrelated. As a consequence, the Tribunal concludes that this element of the hypothesis is too remote and/or too tenuous..
In turning to the second element of the hypothesis, the Tribunal experiences even greater difficulty in establishing such an element from the material placed before it. In so stating, the Tribunal notes that there is nothing in the material, which would directly point to the stomach as the primary site of the adenocarcinoma, other than its inclusion along with pancreas, bile ducts, larger intestine etc, as sites having a common pathological mucosal definition. To establish the stomach as the primary site of the adenocarcinoma, the Tribunal, in effect, is being asked to disregard the treating gastroenterologist's endoscopy findings as to the absence of such an adenocarcinoma and to reject the ultrasound, CT and MRI findings. In short the Tribunal is being asked to, at best, ignore such findings, or, at worse, to draw negative inferences from them, and at the same time to make a series of assumptions that involve: the treating gastroenterologist missing the lesion at endoscopy; or alternatively, assume the existence of a particular form of the cancer (linitis plastica) which was missed by the endoscopist at endoscopy and not demonstrated by any of the ultrasound or radiological investigations. Further, in support of such, the Tribunal's attention was directed to the case of Maiolo v Read & Ors, SCNSW (1997) 20159/97, in which the particular form of gastric adenocarcinoma known as linitis plastica was central to an action in negligence, and highlights the intramuscular spread of such a cancer, making it difficult to detect at endoscopy, with the diagnosis being made after surgical intervention.
In considering the second element of the hypothesis, the Tribunal observes that the hypothesis is postulated not so much on the investigatory facts before the Tribunal, but on a series of assumptions. This assumptions are built on the failure of the treating endoscopist to visualise a small gastric adenocarinomatous lesion or alternatively the presence of a particular form of gastric adenocarcinoma. While such is argued before the Tribunal, in the absence of any material before it to point to such assumptions, the Tribunal cannot see that the second element of the hypothesis is properly established. This is because it involves a series of hypothesis which give rise to the alternate hypothesis, as opposed to a hypothesis being formulated or pointed to by the raised facts. In essence, the process where a hypothesis is dependent on the existence of another hypothesis is seen by the Tribunal to be too tenuous and/or too remote.

It is for the reasons nominated in this decision that the hypothesis, relating infection with H pylori, gastric adenocarcinoma and death from metastatic adenocarcinoma, is not raised (or pointed to) by the material before the Tribunal, as the essential elements in the hypothesis are not raised (or pointed to) by the material.
Further, the Tribunal concludes that for the same reasons, (that essential elements of the hypothesis are not raised (or pointed to) by the material before the Tribunal), such a hypothesis as postulated by the Applicant is not a reasonable hypothesis for the purposes of subsection 120(3) of the Act. Repatriation Commission v Deledio (1998) 83 FCR 82 considered and applied.
The Tribunal, in consideration of the nature of the carcinoma, did seek to explore as to whether any other hypothesis could be established in relation to other primary sites. In this regard, the Tribunal notes that the material suggested pancreas/bile ducts as the primary site, with further supporting evidence from tumour markers. The Tribunal considered that such a hypothesis could be raised from the material before the Tribunal, but on examination of SoP Instrument No 55 of 1997 concerning malignant neoplasm of the pancreas, the Tribunal considered that the late veteran satisfied none of the factors contained within paragraph five. Accordingly, the Tribunal concludes that a reasonable hypothesis is not established.
Finally, in relation to a consideration of large bowel or prostate as the primary site of the carcinoma, the Tribunal concludes that on the material before the Tribunal, such a hypothesis could not be established.
determination
The Tribunal determines that both decisions under review are affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  8 February 2001
Date of Decision  7 June 2001
Solicitor for the Applicant         Ms Buchanan
Solicitor for the Respondent    Ms Pacey