Gittins and Repatriation Commission
[2006] AATA 453
•25 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 453
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/839
VETERANS' APPEALS DIVISION
Re: PATRICIA ANN GITTINS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:25 May 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – widows' pension – veteran’s death due to non‑Hodgkin's lymphoma – fear or phobia of doctors and hospitals leading to delay in diagnosis and treatment – fear or phobia claimed to be due to the veteran’s medical treatment and hospitalisation in Japan – operational service – no Statement of Principles for fear or phobia
Veterans' Entitlements Act 1986
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1981) 147 CLR 635
REASONS FOR DECISION
25 May 2006 Miss E.A. Shanahan, Member
1. The applicant, Mrs Patricia Ann Gittins, lodged a claim on 16 October 2002 for a widow's pension following the death of her husband, Philip George Gittins on 25 July 1997 from a low grade non‑Hodgkin's lymphoma. Mrs Gittins applied to the Veterans’ Review Board (VRB) for review of the respondent's decision on 19 November 2002. On 20 May 2004 the VRB affirmed the respondent's decision.
2. The veteran served in the Australian Army from 14 July 1949 until 2 December 1971. He had operational service in Japan from 9 July 1953 until 24 July 1955. While his operational service was in the same period as the Korean War, there is no record that Mr Gittins ever served in Korea.
3. Mrs Gittins' application for review by this Tribunal is based on the hypothesis that as a result of the veteran’s fear or phobia of doctors and hospitals, arising from his experiences in Japan, he failed to obtain and receive adequate and appropriate treatment for his lymphoma. Thus his death was war‑caused within the provisions of s 8 of the Veterans' Entitlements Act 1986 (the Act).
4. Mrs Gittins had no knowledge of her husband's illnesses and treatment in Japan, as they had met in 1959 and married in 1960. Her late husband had told her very little about his service in Japan, as he refused to discuss it (trans p12), but she had overheard his conversations with male friends. While Mr Gittins had never discussed his periods of hospitalisation in Japan with Mrs Gittins, he had repeatedly stated that doctors are butchers (trans p15), and hence his refusal to seek medical attention.
5. It would appear, and the Tribunal has no reason to doubt the second‑hand reports, that Mr Gittins experienced a traumatic childhood. His father, stepmother and half brother were killed by the Japanese in the invasion of Singapore in 1942 (T2 p xvi) and Mr Gittins had been required to identify the bodies. At the time he was 14 years old. Following this tragedy, Mr Gittins apparently escaped to Indonesia and at age 17 joined the Indian Army. It is said that he falsified his age in order to join the Indian Army; and certainly at the time of his discharge from the Australian Army, at which time he was said to be 43 years old, he declared that he had been a soldier for 28 years, that is from the age of 14½ years.
6. While serving in Burma with the British Army, Mr Gittins is said to have been wounded in action but the details of his injuries are unknown.
7. Mrs Gittins cited her late husband's first‑hand experience of the effects of the atomic bomb explosion at Hiroshima, although he had viewed the effects some 8 to 10 years after the event. Mrs Gittins had also assumed that her husband had been involved in combat in Korea although the service records do not support this.
8. Mrs Gittins described her husband as being rigid in his requirements of household cleanliness and routine household functioning. She reported major variation in mood, from depression to elation; and overall a refusal to confide in her and their children. Mr Gittins' emotional fluctuation impacted on his wife, son and daughter. Both children had required psychiatric treatment in their teens. The son, Peter, committed suicide in 2003, after a long history of drug abuse. Mrs Gittins believes her husband had confided in his son regarding his experiences during service and his fears.
9. It would appear that Mr Gittins had two personas. At home he was moody, non‑communicative and dictatorial. In contrast, his work as a teacher at Brighton Grammar, after discharge from the Australian Army in 1971, was exemplary and he was a very effective and highly regarded member of the teaching staff. In addition, he was a prolific author on the politics of war and the history of conflict in South East Asia.
10. In 1976 Mr Gittins had, at the insistence of the Headmaster of Brighton Grammar, seen a specialist surgeon in regard to a mass in the left side of his neck. The surgeon had made a diagnosis of a branchial cyst and advised review. Mr Gittins refused to undergo a review. Mrs Gittins had been aware of the existence of a mass in the left side of her husband's neck since approximately 1960. She stated that this was only evident when Mr Gittins turned his head to the right and strained. With the passage of time, this mass had been become more readily visible but had not caused any symptoms.
11. Mr Gittins remained well until April 1997 when he developed lethargy. However, numerous subcutaneous masses had been noted in the preceding years. Mr Gittins' admission to hospital on 10 July 1997 was precipitated by vomiting, loss of weight of three stone in three months, anorexia and his wife's inability to cope at home (Monash Medical Centre medical records). Subsequent investigations had revealed widespread lymphadenopathy confirmed on biopsy to be a non‑Hodgkin's lymphoma of the B cell mantle variety. Chemotherapy was commenced on 17 July 1997. The prognosis was regarded as poor given the CT scan demonstrated widespread nature of the lymphoma. The hospital admission notes record Mr Gittins' phobia for medical treatment and hospitalisation as being due to a loss of control and the possible need for sedation (Monash Medical Centre medical records). The lumps were described in the hospital admission history on examination as progressive lymphadenopathy over a period of months. The past history of a left branchial cyst was noted.
12. Mrs Gittins was represented by Mr Dino De Marchi, a solicitor, and the respondent was represented by Mr Ed Nyhof, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1). The parties tendered the following documents:
Statement of Mr R.D. Bachley dated 20 January 2005 Exhibit A1
Supplementary Statement of Mr K. Olive dated
16 December 2004 Exhibit A2
Report by Dr N. Strauss dated 16 November 2004 Exhibit A3
Emails Re: Investigations of hospitalisation Japan Exhibit A4
Letter from Mr R. Rofe AM to Mrs Gittins
dated 14 September 2005 Exhibit A5
Letter from Mrs Gittins to Mr De Marchi
dated 8 September 2005 Exhibit A6
Published Works The ME in World Politics Exhibit A7
Report by Professor R. Fox dated 28 January 2005 Exhibit R2
Monash Medical Centre Medical records Exhibit R3
ISSUES BEFORE THE TRIBUNAL
13. The VRB found that Mr Gittins' death was not war‑caused. At the VRB Mrs Gittins relied upon the Statement of Principles (SoP) № 37 of 2003 concerning non‑Hodgkin's lymphoma; and in particular, factor 5(j) of that SoP, which is an inability to obtain appropriate clinical management for non-Hodgkin’s lymphoma. Clause 6 of that SoP states that
Paragraph 5(j) applies only to material contribution to, or aggravation of, non‑Hodgkin’s lymphoma where the person’s non-Hodgkin’s lymphoma was suffered or contracted before or during (but not arising out of) the person’s relevant service….
In her application to this Tribunal, Mrs Gittins again relied upon SoP № 37 of 2003. She also raised the hypothesis that as a result of her husband's fear or phobia of doctors and hospitals, arising from his experiences in Japan, he failed to obtain or receive adequate and appropriate treatment for his lymphoma and thus his death was war‑caused within the provisions of s 8 of the Act.
14. Mr De Marchi, the solicitor who represented Mrs Gittins, had not clearly stated this latter hypothesis in his Statement of Facts and Contentions. In the course of the hearing, which took place over two and a half days, the Tribunal directed him to amend the applicant’s Statement of Facts and Contentions to state clearly that this was the hypothesis upon which he relied.
15. As there was no evidence that Mr Gittins suffered from non‑Hodgkin's lymphoma before his service in the Australian Army or that he contracted it during his service in the Australian Army, factor 5(j) of SoP № 37 of 2003 is not satisfied.
16. The Tribunal has therefore only considered the second hypothesis as outlined above. There is no SoP relating to fear or phobia. The Oxford Dictionary defines fear as an unpleasant emotion caused by exposure to danger, expectation of pain etc; a state of alarm; anxiety for the safety of; danger; likelihood of something unwelcome. Phobia is defined as an abnormal or morbid fear or aversion.
17. The Tribunal finds that the hypothesis raised by the applicant is not reasonable as, on all the facts before it, any connection between Mr Gittins' death in 1997 from non‑Hodgkin's lymphoma and his experiences while hospitalised in Japan in 1954 and in 1955 are too remote and too tenuous.(Bushell v Repatriation Commission (1992) 175 CLR 408).
ORAL EVIDENCE
Patricia Ann Gittins
18. Mrs Gittins' evidence before the Tribunal was essentially as summarised in the introductory paragraph of this decision. She repeatedly pointed out that her husband had never discussed his war service in the Indian, British or Australian armies with her; and her knowledge had been gleaned from over‑hearing conversations with his male friends. She had over‑heard how he had parachuted into Burma, presumably while serving in the British Army and was wounded in action. She had assumed that he had been hospitalised in Burma. As far as she knew, his involvement in combat had been with the Indian and the British armies. Mrs Gittins had believed that he had seen active fighting in Korea (trans p17). In cross‑examination Mr Nyhof had acquainted Mrs Gittins with her husband's medical history following his return from Japan and several episodes of consulting doctors for various minor conditions, including a motor vehicle accident in 1958. Mrs Gittins was totally unaware of these episodes and could not comment.
19. The Tribunal questioned Mrs Gittins in some detail with respect to the left sided neck mass for which he sought medical treatment in 1976. She informed the Tribunal that her late husband had said he had had it since his 30s and had shown her a lump in his neck when they first met in 1959, at which time he would have been 34 years old. Mrs Gittins said that the lump in her husband's neck had become quite obvious by 1970. While Mrs Gittins had no firsthand knowledge of her husband's service, she had learnt more details after he gave a talk to U3A (University of the Third Age) on his life history. She did not hear this talk but it was related to her. She said that her husband had left Singapore after the deaths of his family members and went to Indonesia and then made his way to India as a refugee. He had lost his birth certificate and his identification papers. When he joined the Indian Army he falsified his age. While with the Indian or British Army he saw active service in Burma. He had joined the British Army in India. Mrs Gittins stated that she had documentation to confirm the Burma service and that he had also served in the Malayan Emergency, the counter-terrorist campaign. It was her understanding that he saw some appalling injuries and actions in that campaign.
20. The Tribunal asked Mrs Gittins questions regarding her husband's biological mother, who had divorced his father when he was a child. However, Mrs Gittins had no knowledge of her whereabouts or even whether she was alive or dead. However, she did know that Mr Gittins had several uncles living in London and at least two of these had been members of the Armed Forces; but her husband had not made any effort to contact these relatives.
Dr Nigel Strauss
21. Dr Strauss had been asked to provide a psychiatric opinion regarding Mr Gittins. For this purpose, he had seen Mrs Gittins on 16 November 2004. The history obtained by Dr Strauss was essentially that as already reported except for some minor discrepancies in dates which were minor. Mrs Gittins did however recall that her husband had visited Japan with his family; that is, his father, stepmother and half brother, after the war. However, the evidence of Mr Bolwell (T10) is that this visit occurred before the Second World War. Mrs Gittins recalled to Dr Strauss that her husband had recounted one story when the door of a hut had been blasted open and an old man and child inside the hut had been injured. The child had bled to death. Mrs Gittins was not sure whether this had occurred in Korea or Malaya.
22. Mrs Gittins and Mr Gittins had become pen pals in 1958, when she answered a letter in the university newspaper asking for two young ladies to go to the Gold Coast with an older man on holiday (Exhibit A3 p4). Having corresponded for several months, they met in 1960 and married in December 1960. Mrs Gittins told Dr Strauss that her husband had always been a heavy drinker from the time of his family's death in Singapore and it was his habit to drink two bottles of wine a night before falling asleep. She stated that he often had bad dreams but she was uncertain whether he had any flashbacks. If he was upset he would listen to a recording of Puccini’s Madame Butterfly over and over again in his study.
23. Dr Strauss suspected that Mr Gittins had developed significant psychiatric problems as a result of his experiences in his teenage years, in particular the deaths of his family members. While the exact nature of Mr Gittins' medical conditions and hospitalisation in Japan was not known, it would appear that the specific phobia about doctors and hospitals and medical treatment had developed in the mid‑1950s. Dr Strauss concluded that Mr Gittins had significant psychiatric problems which involved post traumatic stress symptoms and depression and probably paranoid traits in his personality. Based on this, he felt that a reasonable hypothesis could be made connecting the various necessary factors and so link his operational service to his phobic disorder. Dr Strauss confirmed his written report in his evidence before the Tribunal.
24. Dr Strauss agreed with Mr Nyhof that his conclusions were based on the information provided by Mrs Gittins and that he had been told that Mr Gittins had only seen one or two doctors between the time of his discharge and his terminal illness. Based on Mrs Gittins' evidence and the reporting of her statements in the Monash Medical Centre clinical notes and a letter from Dr Briggs, an oncologist, he had concluded that Mr Gittins' phobia (which he defined as an irrational fear of something) had arisen from his hospital treatment in Japan during service. Dr Strauss did agree that there could have been other causes for Mr Gittins' fear of doctors and hospitals such as his wounding in action while serving in the British or Indian Army in Burma. Dr Strauss was not aware that Mr Gittins had been seen by doctors on two or three occasions between 1957 and 1959, while still in the Armed Forces, for minor medical conditions and that he had in fact been hospitalised from 1 May to 5 May 1959 and again on 25 May to 29 May 1959. Dr Strauss agreed that he could not be absolutely certain as to the cause of Mr Gittins' phobia. However, he maintained his opinion that Mr Gittins' phobia arose from hospital experiences in Japan during his operational service.
25. The Tribunal asked Dr Strauss for his opinion regarding Mr Gittins' lengthy periods of hospitalisation in Japan - 13 days in 1954, for seborrheic dermatitis and 14 days in 1955 for an upper respiratory tract infection and hookworm. Dr Strauss agreed with the Tribunal that these periods of hospitalisation were extraordinarily long for such diagnoses and in his mind this raised a doubt about the diagnoses. Dr Strauss thought that it may be a possibility that the admissions to hospital in Japan were not just for physical problems but may have also had a psychological basis (trans p34). Dr Strauss commented on Mr Gittins' reported love/hate relationship with Japan and the Japanese as being a strange relationship.
Kevin Frederick Olive
26. Mr Olive had first met Mr Gittins in 1953 when they were preparing to embark for service in the Japan/Korea area. Mr Olive served in Korea and he believed that Mr Gittins served in Japan. They did not see each other during their operational service but Mr Olive had met Mr Gittins again some years later and a friendship developed. While primarily based in Korea, Mr Olive had spent some time in Japan and had visited Hiroshima himself, and noted …that the place was getting back to level again.
27. Mr Olive was well aware of Mr Gittins' fear of doctors and hospitals and had personal experience of Mr Gittins' refusal to enter hospital when his wife was recovering from an operation. He had been quite happy to drive Mr Olive's wife to hospital for various investigations, but he would not accompany her into the hospital. Mr Gittins had told Mr Olive that he had almost died while in hospital in Japan. Mr Olive had noted that Mr Gittins had a lump in the left side of his neck over a period of several years.
28. Under cross-examination by Mr Nyhof Mr Olive said that he had served in Korea while Mr Gittins was in Japan, and their acquaintanceship was not renewed until approximately 1968, when Mr Gittins had helped him with his studies for an adult matriculation. At that time he had not noted any physical abnormality in Mr Gittins' neck and he first became aware of the lump some time in the late 1970s or 1980s. In his written statement (Exhibit A2) Mr Olive had stated that he had provided Mr Gittins with various medications whenever he had any minor illnesses as Mr Olive was then working for a pharmaceutical company.
29. The Tribunal had noted a comment in this same statement (Exhibit A2) to the effect that …I thought at the time that maybe he'd had a friend or relation who had died unexpectedly after an operation. This observation was made in relation to Mr Gittins' fear or phobia of hospitals and doctors. The Tribunal asked Mr Olive whether he had any reason for making that statement to which he replied No, it was just something that had passed through his mind.
Professor Richard Fox
30. Professor Fox provided the respondent with a report dated 28 January 2005 (Exhibit R2). Professor Fox had been provided with the opinions of Dr Peter Briggs and with the clinical notes from the Monash Medical Centre. Professor Fox reviewed the incidence of non‑Hodgkin's lymphoma in the Australian community and stated that mantle cell lymphoma was a disease of older, predominantly male, adults with a rapid progression and a poor prognosis. Professor Fox regarded it as possible that Mr Gittins had had a low grade non‑Hodgkin's lymphoma for 20 years. However, there was no definite evidence to support such a possibility. In addition, he thought the suggestion that earlier treatment may have extended Mr Gittins' life expectancy was purely conjectural. Professor Fox had noted Mr Gittins' phobias in relation to hospital treatment; seeing doctors; his exposure to other stressors in the form of his family being killed by the Japanese in 1942 and his injuries while in the British Army or the Indian Army serving in Burma. Any possible exposure to the effects of atomic radiation resulting from the Hiroshima bombing was discounted, as Mr Gittins had visited Hiroshima at least eight years after the atomic bomb explosion. Professor Fox doubted that, despite Dr Briggs' opinion and the entry on the death certificate, Mr Gittins had had lymphoma since 1976 as the evidence was to the effect that in 1976 the lump in the left side of his neck had been diagnosed as a branchial cyst. Professor Fox concluded that Mr Gittins' non‑Hodgkin's lymphoma was not caused by war service and that it was fanciful to suggest that Mr Gittins' operational service in the Occupational Forces in Japan could have led to a psychiatric condition.
31. In his oral evidence to the Tribunal Professor Fox confirmed his opinions in his report of 28January 2005. He confirmed that there was no evidence that Mr Gittins had non‑Hodgkin's lymphoma prior to his discharge from the Armed Forces on 19 December 1971.
32. In cross‑examination Professor Fox refuted the suggestion that Mr Gittins' lymphoma could have been related to the Hiroshima nuclear explosion as the numerous studies had indicated that the risk of increased malignancy was confined to exposure within a few hundred metres of the actual explosion and at the time of explosion. Professor Fox also explained that while low grade non‑Hodgkin's lymphoma is treatable, it is in general not curable although life expectancy can be prolonged. In view of this latter statement he thought that Mr Gittins, if in fact he had contracted the disease in 1976, had done extremely well without any treatment.
33. The Tribunal asked Professor Fox several questions, in particular relating to mantle cell lymphoma which was the actual cause of Mr Gittins' death. Professor Fox explained that a low grade lymphoma can undergo a change to a mantle cell lymphoma giving rise to the symptomology Mr Gittins displayed; and that such a transitional change could take place over a period of 12 months to two years. He also agreed that numerous patients with non‑Hodgkin's lymphoma are not treated after diagnosis but are observed and treatment is only commenced when there is a sign of progression. In re‑examination Professor Fox again stated that a 40‑year presence of untreated lymphoma which did not cause symptoms for 40 years was far too long. Professor Fox stated: There is no evidence that the disease, or anyone has got any record of the disease that can go for the duration of [that] period of time (trans p76 in reference to a 40‑year timeframe). Professor Fox reiterated his opinion in answer to a question from Mr Nyhof that there was no evidence that Mr Gittins had non‑Hodgkin's lymphoma in 1958 and that all the evidence suggested that he had a branchial cyst and to consider that was a non‑Hodgkin's lymphoma would not be appropriate (trans p78).
DOCUMENTARY EVIDENCE
Mrs Patricia Taylor
34. Mrs Taylor is the daughter of Mr and Mrs Gittins. She provided a statement dated 19 September 2003 (T10 p56). In her statement Mrs Taylor described her father's mood swings, depression, anger and tendency to violence as well as the impact that this had on herself and her younger brother. Both children had sought psychiatric treatment in their teenage years; and on one occasion their father had accompanied Mrs Taylor to a consultation with a psychiatrist at the psychiatrist's request. Mrs Taylor stated that the psychiatrist advised that it was her father who needed psychiatric treatment not herself.
35. Mrs Taylor confirmed that her father had an absolute terror about doctors, hospitals and any talk of medical issues (T10 p56).
36. Mrs Taylor had never discussed his war‑time experiences with her father. She described what she perceived to be a love/hate relationship with Japan. Her father had encouraged her to learn Japanese and he collected Japanese dolls and stamps. When depressed or very upset, Mr Gittins would retreat to his study and play Madame Butterfly over and over again, for hours on end (T10 p56).
37. Mrs Taylor described her father as vigilant at all times, having a rifle nearby, being fearful in enclosed areas and insisting on being seated in restaurants so that he could face the door.
38. Mrs Taylor said her father had confided in her brother and this had placed a great burden on her brother Peter. Peter refused to breach his father's trust by telling Mrs Taylor or her mother of his father's wartime experiences. Mr Peter Gittins died from a drug overdose on 22 March 2003.
Mr Robert Rofe am
39. In his letter of 14 September 2005 Mr Rofe recollected that Mr Gittins had had a lump in the left side of his neck and that he urged him to seek medical attention. On each occasion this advice was refused Mr Gittins said he had a fear of all doctors which went back to his army days.
Mr John White
40. Mr White provided a statement dated 2 October 2003 (T10 p61). Mr White had known Mr Gittins for several years as they shared interests in stamps and antiques. He had noted Mr Gittins' mood swings, vigilance and rigidity of personalty with respect to small matters. Mr White stated that Mr Gittins had told him about the killing of his family in 1942 and his enlistment in the Indian Army as a teenager. Mr Gittins had also described seeing people getting their heads blown off, not soldiers but civilians (T10 p61).
Mr Ronald Bolwell
41. Mr Bolwell was Mr Gittins' father‑in‑law and provided a statement dated 7 October 2003. Mr Bolwell was aware that his son‑in‑law had served in the Indian Army, the British Army in India and the Australian Army; and stated that to his knowledge Mr Gittins had seen action in Burma, Malaya and Korea. Mr Bolwell was of the opinion that Mr Gittins' worst experiences had occurred in Korea. Mr Bolwell stated:
I know he also felt very badly about Hiroshima. His family had had friends in Japan before the war, and he spent time there with his father when he was a child. I think he might have had friends who disappeared. I know he played Madam Butterfly lot.
42. Mr Bolwell had found his son‑in‑law a rather neurotic kind of person…often moody and had a very bad temper (T10 p62).
Mr R. Blachly (Exhibit A1)
43. Mr Blachly had worked with Mr Gittins at Brighton Grammar School from 1977 until 1991. In addition to his teaching duties, Mr Gittins had been the Teacher in Charge of First Aid, a role which Mr Blachly found strange given that Mr Gittins had told him in confidence that he had nearly died in hospital during the 1950s while in service in Japan and Korea. Mr Blachly regarded Mr Gittins as having a great phobia for doctors.
Dr Ann Kearney
44. Dr Kearney provided a short report to the Department of Veterans' Affairs on 15 November 2002, stating that Mr Gittins had been suffering from a non‑Hodgkin's lymphoma and had a phobia about attending doctors since his war service. He had refused investigations and treatment until it was too late. She stated that …Lymphoma presented in neck in his thirties. In addition, he complained of chronic indigestion all of his married life.
Dr Peter Briggs
45. Dr Briggs provided a report dated 17 January 2003. The letter was written in support of Mrs Gittins' application for a widow's pension. Dr Briggs confirmed that he had seen Mr Gittins on 26 May 1997 and that Mr Gittins had neglected his then disease for possibly close to 20 years. He said Mr Gittins had presented in 1997 with gross bulky lymphadenopathy involving an inguinal region, axillae and cervical nodes. In addition, there was gross splenomegaly and intra‑abdominal masses. Mr Gittins was reluctant to undertake any form of treatment, despite the fact that standard therapy may well have provided some years of disease control. Low intensity chemotherapy was instituted but Mr Gittins felt that his condition was deteriorating and was reluctant to continue with any further treatment. Mr Gittins had died from progressive disease on 25 July 1997. On the basis of the history obtained from Mrs Gittins, Dr Briggs noted Mr Gittins' medical phobias dating from war service. Dr Briggs was led to believe that Mr Gittins did not see another doctor following his war service for over a period of 20 years. Dr Briggs was of the opinion that the avoidance of medical help contributed to his death (T8 p40).
46. On 2 June 1997 Dr Briggs had replied to Dr Kenny who had referred Mr Gittins to him initially. Dr Briggs noted that Mr Gittins' phobia regarding doctors and hospitals was certainly intense and longstanding. Mr Gittins had told Dr Briggs that he had swollen glands in 1976 and was seen by a specialist who diagnosed a benign branchial (sic) cyst on the left side of the neck. Mr Gittins at the time declined surgery and also stated that this lesion had not increased in size since at least 1980. In fact, Mr Gittins reported that the mass on the left side of his neck, present from before 1976, had recently decreased in size.
47. From Dr Briggs' report, it would appear the majority of the history was provided by Mrs Gittins rather than her late husband. Physical examination revealed generalised lymphadenopathy with the largest masses in the groin Dr Briggs noted the reports of a prior biopsy, showing a B cell type non‑Hodgkin's lymphoma. Dr Briggs regarded this condition as a relative low grade non‑Hodgkin's lymphoma and recommended chemotherapy. Given Mr Gittins' reluctance for treatment and general anxiety oral medication as opposed to intravenous chemotherapy was prescribed.
Monash Medical Centre Records (Exhibit R3)
48. The Monash Medical Centre records detail Mr Gittins' admission to hospital, his subsequent investigation and his treatment. The history taken on admission is, once more, generally related to Mrs Gittins' comments and the referring letter from Dr Briggs. The review of the biopsies led to a diagnosis of mantle cell lymphoma which has a poor prognosis. On admission Mr Gittins was severely dehydrated as the result of his gastrointestinal symptoms and reduced fluid intake but this rapidly responded to intravenous therapy. The Monash Medical Centre records include letters from Dr Briggs to the referring general practitioner Dr Kearney, which on 19 June 1997 state that, despite the various side effects, there had been a marked reduction in Mr Gittins' lymphadenopathy. On this basis ongoing chemotherapy was recommended. In‑hospital investigations in the form of CT scan of the abdomen had revealed quite massive intra‑abdominal lymphadenopathy with mild splenic enlargement but no abnormality in the liver.
49. During his stay in hospital, Mr Gittins was seen by a consultant psychiatry team and interviewed by a psychologist. This referral was prompted by Mr Gittins' longstanding phobia for hospitals and doctors. In his interview with the psychologist, Mr Gittins indicated that he should have sought out medical advice sooner and labelled himself as being stupid. In addition, he was anxious regarding his diagnosis and his prognosis. The psychologist recommended family support and ongoing attendance as an outpatient to assess his anxiety.
Dr Kearney
50. Dr Kearney provided the respondent with a medical report dated 27 May 2003, in which she stated she had first seen Mr Gittins in 1997 with an 18 month history of feeling unwell and suffering from indigestion. She noted a large mass on the left side of his neck which Mr Gittins said had been present since his early 30s and had been investigated some 20 years before and diagnosed as a brachial (sic) cyst. Examination revealed multiple abdominal masses and an enlarged spleen and liver and obvious lymphadenopathy in the neck. Various blood tests and X‑rays were performed. A diagnosis was made of lymphoma and Dr Kearney referred Mr Gittins to Dr Briggs. Mr Gittins made Dr Kearney aware that he hated doctors and hospitals and was resistant to further treatment.
Dr Peter Briggs
51. Dr Briggs had seen Mr Gittins on referral from Dr Kearney in June 1997 and obtained a one‑month history of indigestion and some abdominal discomfort. He gave a past history of having a mass in the left side of the neck in 1976 and having seen a specialist at that time when a diagnosis of brachial (sic) cyst was made. Mr Gittins had felt that the mass had decreased in size recently. The history of doctor and hospital phobia was obtained; and Mr Gittins said that he had only seen about four different doctors during his life and these were mainly during his army service. On the basis of the initial biopsy Dr Briggs diagnosed a non‑Hodgkin's lymphoma of a B cell type and reported this to be a relatively low grade non‑Hodgkin's lymphoma, which had probably been present for a number of years. Mr Gittins was commenced on oral chemotherapy (T10 p52).
Service Records (T4 pps 1 to 19)
52. Mr Gittins had enlisted in the Australian Army on 14 July 1949, having previously served for approximately two and a half years in the British Army, and before that in the Indian Army. He was discharged from the Australian Army on 2 December 1971. His operational service was from 9 July 1953 to 24 July 1955 in Japan where he served in the British Commonwealth Engineering Regiment as an assistant Clerk of Works in a construction area. There is no record of him ever having served in or visited Korea. During his period in Japan, Mr Gittins was hospitalised on two occasions: the first for 13 days from 17 March 1954 to 30 March 1954; and the second for 14 days from 22 April 1955 to 6 May 1955. The first admission in 1954 was said to have been due to Seborrhoeic dermatitis and the second admission in 1955 was due to an upper respiratory tract infection and hook worm infestation. In his discharge medical examination, Mr Gittins had declared that he had served in Japan and Korea. However, his Record of Service in the Australian Army does not show any time served in Korea. Prior to his operational service, Mr Gittins was admitted to hospital in Australia for a period of four days, and after his period of operational service there were two periods of hospitalisation, for four and three days respectively, in May 1959; and a record of medical treatment for an injury on 25 September 1958.
53. The Service Record contained an entry POR 22/70 HQ Slona (?): Keyword Depend. 1 Jan 70. 3F=son, 8A=adopted. 13 July 1957. The Tribunal was unable to decipher this entry and it was not raised during the hearing although the Tribunal had noted the entry prior to the hearing. Having heard the evidence in this matter, the Tribunal sought interpretation of the entry, having informed both parties of its intention to do so. Neither party objected to this proposal. The respondent undertook, at the Tribunal’s direction, to seek further information and interpretation via Writeway Research Service Pty Ltd (Writeway). A Writeway report by Mr David F. Gibson PSM was lodged with the Tribunal on May 2006. Mr Gibson provided a detailed explanation of the entry and in conclusion stated:
A note on the service records held at CARO [Central Army Records Office] for the deceased shows that the adopted son was a “ward”, the then WO1 Gittins was appointed legal guardian, by court order, for the period 1 Jan 1970 to 31 Dec 1974, both dates inclusive. (RAAEC [Royal Australian Army Educational Corps, 70/29/70 refers). On his enlistment into the Citizen Military Forces, in 1971, LT Gittin (sic) recorded that the child born on 13 Jul 1957 was a “foster child”.
54. In the early 1960s Mr Gittins commenced further studies, obtaining his Leaving Certificate in 1962 and Matriculation Certificate in 1964. In 1966, he obtained his Primary Teacher's Certificate in Queensland. Throughout his service in the 1960s, until 1971, he was an education instructor in the Australian Army.
VRB's Decision (T2 ppvi‑xi)
55. Mrs Gittins had raised the hypothesis that her husband's death from non‑Hodgkin's lymphoma had been related to his war‑caused phobia toward doctors and hospitals which had led him to delay any treatment until his condition was in an advanced stage. The VRB accepted that Mr Gittins had died from non‑Hodgkin's lymphoma and on Dr Briggs' evidence this lymphoma may possibly have been present since 1976. The VRB considered that the relevant SoP was № 37 of 2003 concerning non‑Hodgkin's lymphoma. However, on the evidence before it, the VRB concluded that there was no material raised to fit within the template of the SoP. The VRB also commented that it was not clear whether Mr Gittins' service with the British and Indian armies in the 1940s or his service with the Australian Army in Japan had given rise to his phobia.
THE LEGISLATION
56. As the late veteran had rendered operational service, s 120(1) and s 120(3) of the Act are applicable. Section 120A requires the Tribunal to apply any relevant SoPs. The parties initially relied upon SoP № 37 of 2003 concerning non‑Hodgkin's lymphoma, and in particular, the applicant relied upon factor 5(j), which states the inability to obtain appropriate clinical management for non‑Hodgkin’s lymphoma. In the course of the hearing the applicant changed the emphasis on the hypothesis raised, submitting that Mr Gittins' death had occurred as a result of a failure to obtain adequate and appropriate treatment for his condition because of his war‑caused phobia for medical intervention including contact with doctors. There is no SoP for a phobia.
57. The relevant sub‑sections of the Act state as follows:
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
58. The applicant had relied upon risk factor 5(j), namely the inability to obtain appropriate clinical management for non‑Hodgkin’s lymphoma and disputed the effect of paragraph 6, which states:
Paragraph 5(j) applies only to material contribution to, or aggravation of, non‑Hodgkin’s lymphoma where the person’s non-Hodgkin’s lymphoma was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
59. The applicant submitted that s 120A(4) provides that s 120A(3) does not apply in relation to the death of a person if the Authority has not determined a SoP in respect of the kind of disease contracted by the person. There being no SoP for a phobia of doctors or hospitals, s 120(1) and s 120(3) are attracted; and the Tribunal must determine whether there is a reasonable hypothesis linking the death of the veteran with war service on the basis of legal precedent, including Bushell, Byrnes v Repatriation Commission (1993) 177 CLR 564 and East v Repatriation Commission (1987) 16 FCR 517.
60. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis standard of proof. The series of steps are as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
These steps are applicable to the consideration of whether or not the late veteran satisfied SoP № 37 of 2003 concerning non‑Hodgkin's lymphoma.
SUBMISSIONS
61. Mr De Marchi raised two hypotheses in support of Mrs Gittins' eligibility for a war widow's pension. First, that Mr Gittins' inability to obtain appropriate medical treatment was war‑caused. Mr De Marchi contended that the applicant relied upon factor 5(j) of the SoP № 37 of 2003 concerning non‑Hodgkin's lymphoma; and secondly, that Mr Gittins, as a result of his hospitalisation in the British Commonwealth Hospital in Japan in 1954 and 1955, developed a phobia relating to hospitals and the medical profession; and this phobia resulted in his delay in seeking medical treatment until his condition was life threatening and shortly thereafter resulted in his death in 1997.
62. Mr De Marchi spoke to the legal argument he had provided in a revised statement of facts and contentions dated 25 July 2005, wherein it was stated:
Factor 5(j) in SoP 37 of 2003 applies to material contribution to or aggravation of non‑Hodgkins Lymphoma, where the presence of non‑Hodgkins Lymphoma was suffered or contracted before or during, but not arising out of the person's relevant service….
It is submitted that the proper construction of paragraph 6 enables 5 (j) to apply where there has been material contribution to non‑Hodgkins lymphoma, and where there has been an inability to obtain appropriate clinical management of non‑Hodgkins Lymphoma, materially contributing to such condition.
In the case of the late veteran, the non‑Hodgkins Lymphoma on the written report of Professor Fox, may have been a dormant type of lymphoma, which was untreated because of the late veteran’s phobia with doctors and hospitals, and therefore was a material contribution to the contraction of the disease.
This submission postulates that it is not necessary for material contribution to have occurred before or during the person's relevant service, and that s. 8 (1) (e) is reserved to aggravation of non‑Hodgkins lymphoma. In other words, that only in the case of aggravation of the condition, the inability to obtain appropriate clinical management applies in circumstances where the condition was contracted before or during, but did not arise out of the relevant service. In the case of material contribution the condition may have occurred after the relevant service.
In his oral submission Mr De Marchi described clause 6 as illogical and disjunctive.
63. With respect to the second hypothesis, the applicant noted that there was no SoP for a phobia and that SoP 1 of 2000, concerning generalised anxiety disorder, specifically excluded a phobia. Thus, the Tribunal should rely on the precedent set in Bushell and Byrnes; and it was contended that Professor Fox and Dr Strauss' evidence supported the hypothesis. Professor Fox's evidence was regarded as being to the effect that the phobia and the failure to obtain treatment had been the cause of the low grade non‑Hodgkin's lymphoma developing into a mantle lymphoma (sic - mantle cell lymphoma). The applicant also contended that Dr Strauss in his report had clearly raised a connection between service and the phobia.
64. The respondent disagreed strongly with the applicant's interpretation of clause 6 as it applied to factor 5(j). Mr Nyhof said there was no evidence that Mr Gittins was suffering from lymphoma before 1953 (the date of commencement of his operational service) and Professor Fox's evidence had been that a 40‑year history of survival from untreated non‑Hodgkin's lymphoma was unheard of. Professor Fox had said a 20‑year natural history was possible, but rare. Even a 20‑year history was unlikely in the case of Mr Gittins, as the left sided neck mass had reportedly been present from his early 30s and had been diagnosed as a brachial (sic) cyst in 1976. The respondent submitted that clause 6 and its affect on factor 5(j) were clear; and there was no evidence before the Tribunal allowing it to conclude that the template set by SoP 37 of 2003 was met.
65. The respondent contended that Mr Gittins had a fear not a phobia, of hospitals and doctors but the source of this fear was unclear. Dr Strauss had entertained the diagnosis of post traumatic stress disorder (PTSD) based on the history provided by Mrs Gittins, which could have been sourced to Mr Gittins' childhood experiences such as the death of his family or his encounters with the enemy while in the Indian and British Armies.
66. Mr Gittins' service records indicated that he had been hospitalised in the British Commonwealth Hospital in Japan on two occasions for minor complaints: on the first occasion for Seborrhoeic dermatitis and on the second for hook worm infestation and an upper respiratory tract infection. Both of these periods of hospitalisation had been lengthy in light of the diagnoses. In addition, Mr Gittins had been hospitalised and sought medical treatment on several occasions after his operational service.
67. Mr Nyhof contended that Mr Olive's evidence did not assist the applicant as he had met Mr Gittins in 1953, travelled with him to Japan and then he, Mr Olive, went on to Korea. So their paths digressed after a few weeks and their friendship was not renewed until after 1968.
68. Mr Nyhof submitted that, on the basis of the evidence before the Tribunal, Mr Gittins' fear of doctors and hospitals was not war‑caused.
THE TRIBUNAL'S DELIBERATIONS
69. There is no doubt that Mr Gittins died from non‑Hodgkin's lymphoma on 25 July 1997; nor that this condition had been present for months to years prior to his death. (Professor Fox had estimated one to two years prior to presentation to Dr Kearney in 1997 (trans p73).)
70. Having considered all the material before it, the Tribunal determines that the material points to the two hypotheses raised establishing a causal link between the death of Mr Gittins and his operational service.
71. SoP 37 of 2003 concerning non‑Hodgkin's lymphoma relates to the first hypothesis. The applicant relied on factor 5(j) as qualified by clause 6 of the SoP. As there is no evidence before the Tribunal that Mr Gittins had contracted non‑Hodgkin's lymphoma before his operational service the hypothesis is not consistent with the template provided in the SoP. As stated by the Full Court in East at 533: A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. This hypothesis does not fit within the template of the SoP and is thereby not reasonable. In addition, it is contrary to known scientific fact as indicated by Professor Fox in his evidence i.e. that a 40 plus year survival from an untreated lymphoma has never been reported in the medical literature nor had Professor Fox ever heard of such a case.
72. The second hypothesis by the applicant is that Mr Gittins developed a phobia or fear of medical and hospital treatment as a result of his experiences in Japan during operational service; and as a consequence, delayed his seeking of treatment for his non‑Hodgkin's lymphoma and this delay resulted in his death. There is no SoP regarding phobia or fear.
73. The absence of a relevant SoP does not preclude the Tribunal from considering the hypothesis in accordance with the High Court of Australia's decisions in Bushell and Byrnes; and despite the Full Court of the Federal Court decision in Deledio to the contrary.
74. In Byrnes the High Court said of the relationship between s 120(1) and s 120(3):
ion may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. …
75. In Repatriation Commission v Bey (1997) 79 FCR 364 at 366 the Full Court of the Federal Court said:
The method of applying s 120(1) and (3) is now well established:
1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. …
76. The steps outlined in Byrnes preceded the Full Court of the Federal Court decision in Deledio and does not refer to a reliance on a SoP template to determine the reasonableness of the hypothesis.
77. In this instance the Tribunal, having considered all of the material before it, finds that the second hypothesis is pointed to by the facts, namely that Mr Gittins was hospitalised on two occasions in Japan in 1954 and 1955 and that he, in confidence, stated to Mr Blachly (Exhibit A1) that his fear of hospitals and medical treatment in general had resulted from his experiences during the period of hospitalisation in Japan and that he had also stated that he had nearly died during these periods.
78. In accordance with step 4 in Bey the Tribunal must find in favour of the claim unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt…
79. The Full Court in Byrnes directs the decision‑maker to find that the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or secondly that the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt.
80. There is no doubt that Mr Gittins suffered from a phobia as defined as abnormal or morbid fear. The cause of this phobia and its relation to his operational service is questionable. Mrs Gittins stated that she never discussed her husband's service with him and her knowledge came from overhearing conversations he had with his male friends. The Tribunal has not considered the fact that Mr Gittins had adopted a son in 1970 or more correctly was made the legal guardian of this, then 13 year-old, child by court order as being relevant to the decision. It does however support Mrs Gittins’ claim that her husband did not tell her anything about his past, including his war service and experiences.
81. Mr Olive (T10 p60) confirmed that Mr Gittins' hatred of doctors and hospitals, but was uncertain of the cause and even postulated whether or not a close friend of Mr Gittins had died as a result of surgery.
82. Mr Bolwell (T10 p62) was aware of Mr Gittins' service in the Indian, British and Australian armies and had been told that Korea was the veteran’s worst experience. Mr Bolwell did not seem aware of his son‑in‑law's phobia regarding doctors and hospitals, as he made no comment in this regard. Mr Bolwell was aware that Mr Gittins had fought in Burma and Malaya while enlisted in the Indian and British armies.
83. Mr Blachly (Exhibit A1) said that he had been told, in confidence that Mr Gittins had nearly died when hospitalised in the 1950s while in service in Japan and Korea.
84. There is no evidence that Mr Gittins served in Korea in any capacity. He was employed as a clerk in a construction regiment. His periods of hospitalisation in the British Commonwealth Hospital in Japan, in 1954 was for Seborrhoeic dermatitis, which he was documented to still have in 1997 when admitted to Monash Medical Centre; and in 1955 was due to an upper respiratory tract infection and hook worm infestation (the latter is most likely to have been contracted in Northern India or Burma. The Tribunal makes this comment based on the Tribunal Member's knowledge of this condition). Dr Strauss thought the periods of hospitalisation seemed long considering the diagnoses (trans p33) and stated that this had led him to doubt the admission diagnosis. However, there was no evidence to refute the diagnoses in the record of service. Dr Strauss had concluded that Mr Gittins' phobia was service‑related; having diagnosed PTSD, which he stated may have been due to the deaths of Mr Gittins’ family in Singapore, or to his experiences in Burma. Dr Strauss was limited to the medical history as provided by Mrs Gittins in forming his opinion.
85. There is no evidence to substantiate a claim that Mr Gittins' hospital experiences in 1954 and 1955 caused his phobia. Nor can the claim be categorically refuted. There is merely insufficient evidence.
86. Is there evidence of the truth of another factor in the material inconsistent with the hypothesis? In general terms there is doubt regarding the second hand evidence relating to Mr Gittins' operational service and experiences. He did not serve in Korea and could not have seen the atrocities he described to Mr Bolwell. His periods of hospitalisation on his medical service record are for minor complaints with no evidence of any life threatening disease. While these two points are not definitive, they raise the question of the reliability of the information given by Mr Gittins to other persons and then through them to Mrs Gittins.
87. Mr Gittins was hospitalised after his operational service on three occasions and also saw several doctors in relation to minor illnesses, discharge medicals and the like, and on no occasion reported a phobia relating to medical or hospital treatment.
88. While it has been suggested by Dr Kearney and Dr Briggs that the branchial cyst diagnosed in the left side of Mr Gittins' neck in 1976, may have been an early sign of his non‑Hodgkin's lymphoma, this is a pure supposition, and the Tribunal does not accept that a surgeon in 1976 misdiagnosed a branchial cyst.
89. Professor Fox's evidence was to the effect that Mr Gittins' small cell lymphoma had probably been present for 1 to 2 years, then changed to a mantle cell lymphoma and became severely symptomatic. It was also Professor Fox's opinion that, if in fact the left sided neck mass, reported in 1976, was a small cell lymphoma, then Mr Gittins had experienced a far better life expectancy than if he had been treated. If the mass diagnosed in 1976 was lymphoma he had a 21‑year survival, which was rare in treated lymphoma.
90. Neither question, as posed by Byrnes, can be definitively answered. The evidence is such that the Tribunal finds that the second hypothesis is, in terms of East as approved by Bushell, too tenuous and too remote to be reasonable.
I certify that the ninety [90] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 19 July 2005
23 January 2006
Date of Decision: 25 May 2006
Solicitor for the applicant: Mr D. De Marchi, De Marchi & AssociatesAdvocate for the respondent: Mr E. Nyhof
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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