Godfrey and Repatriation Commission - [2002] AATA 590

DECISION AND REASONS FOR DECISION [2002] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/613

VETERANS' APPEALS DIVISION          )
           Re      Ivy May Godfrey
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date18 July 2002
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Ms S M Bullock
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - War Widows Pension - Reasonable Satisfaction - Diagnosis of Primary Site of the Neoplasm - Chronic Pancreatitis – Diabetes Mellitus -Malignant Neoplasm of the Pancreas

LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 8, 9, 11, 13, 119, 120, 120B
AUTHORITIES
Repatriation Commission v Tuite (1993) 29 ALD 609
Re Doolan and Repatriation Commission (1995) 41 ALD 557
Re Bridgeman and Repatriation Commission (1998) 50 ALD 671

REASONS FOR DECISION

18 July 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mrs Ivy May Godfrey, the Applicant, of a decision made by the Veterans' Review Board ("the Board") dated 23 February 2000 (T13), which affirmed a decision of the Repatriation Commission ("the Commission") made on 11 September 1996 (T2). The Commission and the Board decided that the death of Mr Norman Charles Godfrey on 22 June 1996 (T6, p44) was not related to service.
A hearing was held in Sydney before the Tribunal on 3 December 2001. Mrs Godfrey was represented by Ms A Toliopoulos, Advocate with the Legal Aid Commission of New South Wales and the Respondent, the Commission, was represented by Mr P Godwin, Departmental Advocate. Mrs Godfrey provided oral evidence to the Tribunal as did Mr John Russell, Mrs Godfrey's son-in-law. Oral evidence was provided by telephone by Associate Professor P Katelaris, Consultant Gastroenterologist. Professor J Levi, Consultant Physician specialising in the field of Medical Oncology also provided oral evidence.
The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents", T1-T18) and the following exhibits.
Exhibit No.   Description Date
A1      Statement of Mr John Russell      3 September 2001
A2      Statement of Mrs Ivy Godfrey       2 November 2000
A3      Reports by Associate Professor P Katelaris, Gastroenterologist       9 March 2001 28 November 2001
A4      Smoking Questionnaire      14 August "1900" [(sic) 2000]
R1      Reports of Professor J Levi, Consultant Physician in Medical Oncology     24 January 2001   14 June 2001
R2      Clinical notes of Dr G Morgan, General Practitioner     Various
R3      Clinical notes from St George Private Hospital, Kogarah        Various
R4      Clinical notes from Nowra Community Hospital Various

ISSUES

The issues in this matter are:
(a)Whether or not the primary site of the malignancy which caused Mr Godfrey's death was in the pancreas.
(b)Whether or not Mr Godfrey's alcohol consumption was service-related.
(c)Whether or not Mr Godfrey had chronic pancreatitis.
(d)Whether or not Mr Godfrey's death was war-caused.

SERVICE HISTORY

Mr Godfrey served in the Australian Army from 2 April 1942 until 21 February 1946 in Australia, including Western Australia and in Darwin. This service is eligible war service as defined in the Veterans' Entitlements Act 1986.
LEGISLATION
A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Section 8 of the Act deals with war-caused death and states as relevant:
" 8 War-caused death
(1) Subject to this section, for the purposes of this Act, the death of a
veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the death of the veteran arose out of, or was attributable to, any
eligible war service rendered by the veteran;
…"
Section 9 of the Act deals with war-caused injuries or diseases and as relevant states:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury
suffered by a veteran shall be taken to be a war-caused injury, or a disease
contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"

Section 11 of the Act deals with dependants, and specifically a dependent in relation to a veteran includes a widow.
Section 13 of the Act deals with eligibility for pension and as relevant, states:
"13 Eligibility for pension

(1)     Where:
                   (a) the death of a veteran was war-caused; or
                   (b) a veteran has become incapacitated from a war-caused injury or a
war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran-pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran-pension by way of
compensation to the veteran;

in accordance with this Act.
…"

Section 119 of the Act deals with the Commission, or other decision-makers standing in the shoes of the Commission, not being bound by technicalities. This section recognises that decision-making under the Act is of an administrative nature rather than judicial and allows decision-makers to take into account matters including the absence or deficiency in records or the effects of the passage of time including difficulties with memory.
As Mr Godfrey rendered eligible service, the standard of proof is that applicable from subsection 120(4) of the Act which states:
"120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B.
…"
The Tribunal must also consider Mrs Godfrey's application for pension in light of section 120(B) of the Act which requires that the determination be made to the decision-maker's reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act.
The Tribunal considers, and there was no dispute, that the relevant Statements of Principles are:
·     Instrument Number 56 of 1997 concerning Malignant Neoplasm of the Pancreas
·     Instrument Number 58 of 2001 concerning Chronic Pancreatitis
·     Instrument Number 83 of 1999 as amended by Instrument Numbers 10 of 2001 and 92 of 2001 concerning Diabetes Mellitus

BACKGROUND

The following information is provided by way of background and the details contained within are not disputed.

Mr Godfrey's date of birth is 26 April 1918 (T6). Mr and Mrs Godfrey were married on 14 April 1938 (T6, p45).
Mr Godfrey died on 22 June 1996, aged 78 years. The Death Certificate (T6, p44) noted the cause of death as:
"(I) Cancer pancreas 2 months
(II) Diabetes mellitus 5 years"
On 23 July 1996, Mrs Godfrey lodged a claim for a War Widow's Pension (T6).
On 11 September 1996, the Commission decided that Mr Godfrey's death was not causally related to service. The Commission concluded that the cause of death was malignant neoplasm of the pancreas and there was no evidence of chronic pancreatitis. The Commission determined that Mr Godfrey's circumstances did not satisfy the relevant Statement of Principles concerning Malignant Neoplasm of the Pancreas.
Mrs Godfrey made an application for review to the Board and on 23 February 2000, the Board affirmed the Respondent's decision noting that Mr Godfrey's 1966 gastrectomy operation did not result in a trauma to the pancreas as required by Factor 1(c) of the Statement of Principles Instrument Number 114 of 1995 concerning Chronic Pancreatitis and that there was no evidence that Mr Godfrey suffered from chronic pancreatitis before the onset of pancreatic cancer in 1996 (T13, p67).
In Mrs Godfrey's application for review to the Tribunal, she noted that Mr Godfrey was hospitalised in 1966 at Concord Hospital following a second haemorrhage and surgery was performed. The operation was not successful and he was left with "dumping", Mrs Godfrey wrote. Mrs Godfrey noted that her husband's General Practitioner, Dr Ratcliffe, suggested that city life was not possible at that time and accordingly Mr Godfrey left work and applied for a pension which was granted. Mr and Mrs Godfrey moved to Sussex Inlet. Mr Godfrey's health was noted to not improve and he was subsequently diagnosed with diabetes and other related problems. Mrs Godfrey further wrote that Mr Godfrey was constantly on stomach medication and other tablets. He was admitted in 1996 to Nowra Community Hospital for urgent surgery and then told he only had three weeks to three months to live. Mr Godfrey was moved to St George Private Hospital but he was dead three weeks later on 22 June 1996. Mrs Godfrey concluded that if her husband had not been so proud and stubborn in the belief that he was capable of managing, he may have taken the advice of Dr Ratcliffe and his General Practitioner in Sussex Inlet, who urged him on many occasions to apply for further pension benefits (T1, p3).

Evidence Of Ivy May Godfrey

Mrs Godfrey told the Tribunal that she met her husband when she was 15 years old and she had left school. Mr and Mrs Godfrey married in 1938.
When Mr Godfrey joined the Army, the couple had a four year old child. Mrs Godfrey told the Tribunal that her husband felt it was his duty to join up.
Mrs Godfrey saw her husband twice when he was serving in Western Australia. He was training very hard and disappointed when he was not sent overseas, having expected that he was to be sent to Burma.
In 1943, Mr Godfrey had been in Western Australia some three or four months and during this time he was hospitalised for his stomach problems. When Mr Godfrey came home on leave during 1943, Mrs Godfrey noticed that there was a change in his alcohol consumption. Mrs Godfrey stated that she was not happy with her husband's alcohol consumption and believed that the level of consumption had increased. She did not argue with her husband about this, only speaking to him when the opportunity might arise. Mrs Godfrey told the Tribunal that other army personnel told her that they had also noticed Mr Godfrey's increased drinking.
In Mr Godfrey's letters to his wife while he was on service, he wrote that he became homesick and that he was consuming alcohol. Furthermore, Mrs Godfrey stated that her husband told her that the consumption of alcohol helped him with the pain in his stomach. He would also use analgesic medication for this pain. Mrs Godfrey stated that her husband did not drink alcoholic spirits.
Whilst Mr Godfrey was in the Army, Mrs Godfrey's mother was very ill and died in 1943. Mr Godfrey was not granted leave to come back for the funeral. He was extremely upset by this because he had been very close to his mother-in-law and had helped her in her business activities. Later in 1944, Mrs Godfrey had to have surgery and was very ill. Again, Mr Godfrey tried to obtain leave which was initially refused. She believed he actually attempted to go on leave without any authorisation and was arrested. Mr Godfrey was also distressed on service because he did not obtain the promotion that he had wished for and was classified "B", "because of his health problems".
When Mr Godfrey returned home after service, there was always alcohol in the house. At dinner, Mrs Godfrey would have a beer or a Scotch whisky with her husband, who drank beer and they would have wine with dinner. Mrs Godfrey stated that drinking was never actually a problem unless Mr Godfrey became "agro". There was some aggressive behaviour during the period after he returned from service when he was unable to find employment. People had told Mrs Godfrey that her husband was good company when he consumed alcohol. Mr Godfrey would like to go to an hotel or the RSL Club with his friends. When there was a six o'clock closing, he would come home at approximately 6.15pm. When there were later closing hours, Mr Godfrey would return home at 7 or 8pm. Mr Godfrey was then happy to watch television or go to bed.
Mr Godfrey had often told Mrs Godfrey that alcohol was like a medicine for him. He would rather have a beer than take a tablet particularly for the pain in his stomach. Mrs Godfrey believed that her husband drank schooners of beer when he was out with his friends every Wednesday and Friday night. She knew that her husband drank more than he should but it was difficult to talk to him about it. She believed that he was put on to light beer later in life.
Mr Godfrey was becoming more ill and after a second haemorrhage he underwent surgery in 1966. This is when he started having the symptoms of diarrhoea and what has been referred to as "dumping". Mr Godfrey was advised by Dr Ratcliffe, his then General Practitioner, that his lifestyle had to change and he would need to leave the city and have a quieter life. Moving to Sussex Inlet, Mr and Mrs Godfrey did have a quieter life, but Mrs Godfrey estimated that her husband drank more. He would play bowls and golf. Mr Godfrey would not drink in the morning and when he did drink, it was usually with a group – "it was a social thing". He would play golf two days per week and then later commenced playing bowls. There were always drinking sessions on Wednesday and Friday nights, Mrs Godfrey told the Tribunal. Mrs Godfrey noted that medical reports made in 1973, 1982 and 1983 of her husband drinking two stubbies at night and two or three stubbies during the day was just not true. Furthermore, Mrs Godfrey noted that her own earlier reports of a lower level of drinking had been an underestimation because she found it very difficult to reveal the true extent of her husband's alcohol consumption. Mrs Godfrey stated that she did not wish to denigrate his memory or criticise him in any way.
In relation to the dumping syndrome, Mrs Godfrey noted that this started after the 1966 operation and became a regular problem after two years. He would always need to be near a toilet in case he had diarrhoea which occurred regularly and unpredictably.
Mrs Godfrey told the Tribunal that it was after she had noticed Mr Godfrey wanting to drink copious amounts of water that she encouraged him to seek medical advice and he was advised that he was a diabetic. Furthermore, gallstones were discovered and he was operated on in Nowra Community Hospital. At that time, in 1996, Mr Godfrey was shocked to be told that he had an incurable problem with cancer, which was inoperable, and that he would only have a number of weeks to live. Mrs Godfrey stated that her husband was never able to leave hospital and died of cancer very soon after the diagnosis.
In describing her husband, Mrs Godfrey stated that he was a proud man who wanted to cope. She explained to the Tribunal that a local General Practitioner had wanted Mr Godfrey to claim the "TPI" pension but Mr Godfrey did not want to do this and he would never sign the required claim forms. He was a good businessman and a good valuer for Toyota later in his life.
After her husband's funeral, Mrs Godfrey was visited by a Legacy Advocate. Mrs Godfrey reiterated that she could not tell the advocate "bad things" about her husband. Mr Godfrey could be happy or occasionally very unhappy, but Mrs Godfrey did not wish to complain about him to anyone.
In relation to her husband's smoking, she noted in her statement that before Mr Godfrey joined the Army he would smoke every now and again as most kids did but he was not a smoker. After Mr Godfrey joined the Army and particularly when he was in Western Australia and had been refused compassionate leave to visit Mrs Godfrey when she became very ill, she believed he smoked more heavily. It was about that time that Mrs Godfrey believed Mr Godfrey developed the ulcer in his stomach which caused him a great deal of pain and never went away. When Mrs Godfrey saw her husband on leave in the Army, he was always stressed and smoking heavily. He also told Mrs Godfrey that he smoked when he was away with the Army. When Mr Godfrey left Army service, Mrs Godfrey estimated that he was smoking up to a packet of cigarettes every day. Mr Godfrey told his wife that smoking relieved his stomach problem. Mrs Godfrey told the Tribunal that her husband ceased smoking during the 1950s, and it is noted in a Smoking Questionnaire completed by Mrs Godfrey on 13 August 1996 (T8), that her husband ceased smoking in 1952. Mrs Godfrey noted that her husband had no choice but to stop smoking after he had suffered a terrible haemorrhage.
Mrs Godfrey concluded that she had no doubt that her husband's war service did start off his problems and caused his death. She noted that it was a very stressful period for him on service with everything going on at home and his not being able to obtain compassionate leave. Mrs Godfrey noted that her husband was a healthy young man before he joined the Army but when he returned he had many problems. He was drinking heavily and continued to do so even after he was diagnosed with diabetes. Mr Godfrey did not in fact cease alcohol consumption and continued drinking beer until he died.
Evidence Of Mr John Russell
Mr Russell is Mr Godfrey's son-in-law. He met Mr and Mrs Godfrey in 1953 and at that time Mr Godfrey owned a bike shop near a local hotel. Mr Russell remembered that Mr Godfrey would finish work at approximately 5pm and then would meet three or four friends at the Bankstown Hotel. Mr Russell was not drinking there every night but he knew that Mr Godfrey was there regularly. Mr Russell's own father had been a heavy drinker and Mr Russell himself had started drinking at age seventeen and would drink every Monday and Wednesday. It was obvious to Mr Russell that Mr Godfrey had been drinking heavily on such occasions because he would have slurred speech. It was not unusual for him to return home at 11 or 11.30pm. Mr Russell did not believe that Mr Godfrey consumed much alcohol at home after he had been drinking out. As far as Mr Russell knew, when Mr Godfrey was at the hotel there would be four or five shouts as each of the friend's would contribute. The drinking was constrained when the hotel closed early at 6 pm and there would be considerable amounts of alcohol consumed in one hour. Mr Godfrey was also a heavy smoker.
Mr Russell noted that Mr Godfrey played golf at the Bankstown Golf Club, he believed, every Wednesday and Sunday. He would play eighteen holes with three friends and then have dinner afterwards. On golf days, Mr Godfrey would work until about lunchtime and then play eighteen holes of golf in the afternoon. The group would then have dinner, play cards and/or play snooker and he would be at the club until 11 or 11.30 pm. During this period, Mr Russell estimated that his father-in-law would consume approximately eight schooners, each friend generally providing two shouts each. Mr Godfrey would drink beer not wine. After 1966, both Mr and Mrs Godfrey would go to the golf club but they would go their separate ways at the club. Mr Russell stated that he would see Mr Godfrey every Wednesday and Sunday.

After Mr Godfrey retired and was living in Sussex Inlet, he was a member of the local golf, RSL and bowling clubs. He would walk to the clubs so he did not have to worry about the police breathalyser. Over a period of about forty years, Mr Russell had gone fishing at Sussex Inlet with Mr Godfrey. On fishing days, he would consume five schooners of beer and on the fishing trip itself, Mr Godfrey would consume two 375 mls cans of beer. Mr Russell stated that he and Mr Godfrey drank full strength beer and he does not ever recall his father-in-law consuming light beer or midis of beer. Mr Russell thought it was ridiculous to say that Mr Godfrey only consumed two or three midis of beer per day. Mr Russell noted the reports of such low levels of alcohol consumption in 1973, 1982 and 1993 and did not know why Mr Godfrey would report such low alcohol consumption. Mr Russell told the Tribunal that his father-in-law certainly drank more than that and that perhaps he was embarrassed to tell doctors of his higher level of alcohol consumption. Mr Russell noted that he never saw Mr Godfrey fully drunk but had observed him slurring his speech on a number of occasions. Mr Godfrey was not a binge drinker and would never drink alone, Mr Russell observed.
Mr Russell concluded that Mr Godfrey's drinking pattern never really changed. He was a "six-seven per day schooner man". It would be unusual, Mr Russell opined, for Mr Godfrey to drink more than eight schooners noting that he was more likely to drink four to eight schooners particularly on Wednesdays and Sundays.
Mr Russell told the Tribunal that Mr Godfrey never complained about being sick although Mr Russell was aware that his father-in-law coughed blood. He thought that Mrs Godfrey was too scared to say anything to her husband about his drinking. It was not that Mr Godfrey was violent, but he was the head of the house and Mrs Godfrey respected that. Mrs Godfrey had confided in Mr Russell that she wished her husband did not drink as much as he did. Mr Russell's wife, Mrs Godfrey's daughter, never said anything to Mr Russell about her father's level of alcohol consumption.
Evidence Of Associate Professor P Katelaris, Consultant Gastroenterologist
Associate Professor Katelaris provided oral evidence to the Tribunal. He had provided two reports dated 9 March 2001 and 28 November 2001 (Exhibit A3). Associate Professor Katelaris noted that Mr Godfrey was diagnosed with chronic complicated duodenal ulcer disease culminating in gastric surgery in 1966. He suffered from considerable gastrointestinal morbidity with many symptoms over a number of years which were ascribed to "post-operative dumping". Associate Professor Katelaris noted that Mr Godfrey developed diabetes mellitus in 1983, had a significant history of cigarette smoking and in 1996, developed symptoms which lead to a tissue diagnosis of undifferentiated large cell carcinoma metastatic to the liver. Mr Godfrey had a rapid demise thereafter despite palliative chemotherapy.
Mr Godfrey did not have a post mortem conducted and Associate Professor Katelaris concluded that diagnostic certainty was lacking. In this regard, there was a possibility of considering a number of primary sites of the cancer including the pancreas, lung or bladder. Associate Professor Katelaris noted that there was a lesion in the tail of the pancreas found on CT scan combined with an elevated serum CA 19-9 level, liver biopsy revealing metastatic carcinoma and endoscopies negative for cancer at other sites. Associate Professor Katelaris opined that the constellation of metastatic liver lesions, the CT lesion in the pancreas and the elevated tumour marker of CA 19-9 is compatible with a diagnosis of metastatic pancreatic cancer. Thus, Associate Professor Katelaris agreed with Professor Levi's comment that cancer of the pancreas was consistent with these findings. In his second report dated 28 November 2001, Associate Professor Katelaris noted that it is clear that there is evidence suggesting a pancreatic cause and it is therefore a possible site of Mr Godfrey's metastatic malignancy. Such a finding is consistent with the clinical and radiological information available. Associate Professor Katelaris noted that other potential primary sites were discussed by him such as in the lung, liver or bladder and although possible, they seemed statistically less likely than a primary tumour in the pancreas.
If Mr Godfrey did have a cancer of the pancreas, Associate Professor Katelaris considered service-related factors. In the Statement of Principles, Instrument Number 56 of 1997 concerning Malignant Neoplasm of the Pancreas, the relevant factors considered by Associate Professor Katelaris are smoking, diabetes mellitus and chronic pancreatitis. Associate Professor Katelaris noted that the onset of Mr Godfrey's terminal illness was in 1996. According to the records in relation to smoking, Mr Godfrey ceased smoking either in 1952 or 1966 which was more than fifteen years prior to the onset of the terminal illness and therefore this factor was not met. There was some issue of inconsistency however in relation to the smoking record. In relation to diabetes mellitus and the cancer of the pancreas related through service, Associate Professor Katelaris noted that diabetes mellitus was diagnosed in 1983 but in order to relate diabetes to the cause of death, Mr Godfrey would need to have had a chronic pancreatitis predisposing him to diabetes.
In relation to chronic pancreatitis, Associate Professor Katelaris noted that this is most commonly caused by alcohol excess and certainly in his first report, Associate Professor Katelaris could not find evidence that Mr Godfrey drank to excessive levels. Other causes of chronic pancreatitis which are relatively uncommon include trauma, ductal-obstruction, hereditary disease and idiopathic causes. There was a contention that Mr Godfrey may have suffered trauma to his pancreas at the time of his gastric surgery in 1966 for the accepted disability of ulcer disease. While this could occur, it was unlikely to result in chronic pancreatitis, Associate Professor Katelaris opined. Associate Professor Katelaris further noted that Mr Godfrey did have long standing poorly controlled ulcer disease with radiological evidence of a marked duodenal scar-deformity but it could not be proven that the ulcer penetrated to cause pancreatitis. Furthermore, Associate Professor Katelaris noted that Mr Godfrey's symptoms were later ascribed to the consequences of partial gastrectomy or the dumping syndrome. Associate Professor Katelaris opined however that although the phrase "partial gastrectomy" appears many times throughout Mr Godfrey's notes, it does not appear that he actually had a partial gastrectomy. What is described in 1966 was a vagotomy and an ante-colic gastrojejunostomy and jejuno-jejunostomy which involves a surgical division of vagus nerves and a procedure to the anterior or posterior wall of the stomach. This does not ordinarily involve gastric resection (Exhibit A3, 9 March 2001, p4). While dumping can occur following vagotomy and drainage procedures such as those undertaken with Mr Godfrey, it is more common after resective surgery, Associate Professor Katelaris concluded. Moreover, the surgical record at the time noted that there was doubt as to the completeness of the vagotomy for technical reasons.
Associate Professor Katelaris reported that chronic pancreatitis may be asymptomatic for long periods of time or present with recurrent abdominal pain as well as the consequences of pancreatic exocrine failure, including diarrhoea, steatorrhoea and malabsorption. Associate Professor Katelaris concluded that it would be possible to confuse the symptoms of dumping with that of chronic pancreatic insufficiency, particularly if there was the incorrect belief that a partial gastrectomy had been performed.
Associate Professor Katelaris referred to the CT scan undertaken in 1996 which although not mentioning changes of chronic pancreatitis, did note a lesion which if cystic then would be supportive of Mr Godfrey having a small primary focus of the cancer elsewhere in the pancreas. In his first report, Associate Professor Katelaris concluded that it was possible, but not established, that Mr Godfrey had chronic pancreatitis. At that stage of his consideration of the matter, Associate Professor Katelaris believed that in the clinical context, dumping seemed more likely.
In relation to gastric dumping, Associate Professor Katelaris noted that postgastric surgery dumping was accepted as service-related due to his surgery for the ulcer disease. In 1983, Mr Godfrey claimed vasomotor instability which was subsequently refused. Associate Professor Katelaris opined that if Mr Godfrey had a dumping syndrome, symptoms of light-headedness, weakness and faintness that could be termed vasomotor instability were very likely to have been manifestations of the dumping syndrome.
In his second report, Associate Professor Katelaris had been provided with greater detail in relation to Mr Godfrey's alcohol consumption, particularly provided by Mr Russell, Mr Godfrey's son-in-law. Noting that Mr Godfrey was reported to have consumed four or five schooners of beer per day and up to six or eight schooners on some occasions, Associate Professor Katelaris noted that this equates to approximately 60 or 75 grams of alcohol on most days with 90 to 120 grams of alcohol twice per week. Furthermore, Mrs Godfrey had recently reported that her husband drank three 10-ounce glasses of beer every day. With the addition of alcohol drank with workmates and friends, Associate Professor Katelaris concluded that this alcohol consumption was much larger than initially assessed. An approximate calculation of the total alcohol consumption based on Mrs Godfrey's and Mr Russell's recollections, suggests a total consumption of 200 kilograms of alcohol in a five year period, Associate Professor Katelaris opined. The actual amount of alcohol consumed may be higher, noting the propensity of people to under report or underestimate their alcohol consumption. Such alcohol exposure is significant and exceeds the determining factor provided in the Statement of Principles concerning Chronic Pancreatitis, Associate Professor Katelaris noted. The new information concerning Mr Godfrey's alcohol consumption strengthened the possibility in Associate Professor Katelaris' mind that Mr Godfrey may have had unrecognised, alcohol-related chronic pancreatitis with the diabetes being secondary to this.
Associate Professor Katelaris reiterated his evidence in relation to the confusion between symptoms of pancreatic insufficiency due to chronic pancreatitis with those of gastric dumping. The description of pale bulky bowel motions suggestive of pancreatic steatorrhoea was not considered previously.
At hearing, Associate Professor Katelaris noted that both he and Professor Levi considered that the primary site of the malignancy was the pancreas, pointed to because of the abnormality seen on the CT scans, the raised tumour marker at CA19-9. The history of major alcohol consumption over a sustained period made it more likely that Mr Godfrey had chronic pancreatitis which lead to diabetes with smoking as a co-factor and making him more at risk of developing cancer of the pancreas as the primary site, Associate Professor Katelaris opined.
The evidence in relation to pale stools was suggestive of symptoms of steatorrhoea. Associate Professor Katelaris noted the symptoms associated with dumping syndrome and the symptoms of chronic pancreatitis can be mistaken. In this regard, he noted that some people with dumping syndrome develop diarrhoea and frequent loose stools. There was a reference to Mr Godfrey having pale bulky stools which is called steatorrhoea clinically and comes from the upper ductal pancreas. With dumping, gastric contents often mixed poorly and in clinical practice now, there are specific tests which can work out what the particular bulky stool is symptomatic of. During Mr Godfrey's life, those tests were never done. Associate Professor Katelaris reiterated the view in his report in which he noted that Mr Godfrey had not had a partial gastrectomy but rather had a vagotomy and then a drainage procedure. Associate Professor Katelaris acknowledged that you can have dumping from that particular operation even without having the partial gastrectomy but it is less likely. The difficulty in this matter is also that Mr Godfrey did not appear to have painful pancreatitis, as is often the case. Associate Professor Katelaris noted that chronic pancreatitis with alcohol can be violently painful but need not be a painful disease.
Associate Professor Katelaris noted that Mr Godfrey had his gastric surgery in 1966 but the symptoms ascribed to as dumping, did not, on his understanding of the evidence, occur until two years after the surgery. Associate Professor Katelaris noted that it was unusual to have dumping so long after the surgical procedure. With such late dumping being reported, Associate Professor Katelaris indicated that for him it meant that one should consider the possibility of another cause for the symptoms. Associate Professor Katelaris acknowledged that a vagotomy could cause loose stools and that is part of why people might have had dumping. But in Mr Godfrey's case, there were notes indicating that perhaps not all of the vagus nerve was transected which made it less likely that this procedure caused post vagotomy diarrhoea. Furthermore, the diarrhoea would not normally happen two, three or four years after the actual event. You would expect it sooner, once the nerve was cut. In relation to the steatorrhoea, the tendency is that the severity of the condition is dependent on dietary fat intake. Although the gap between surgery and diarrhoea did not favour a diagnosis of dumping, Associate Professor Katelaris opined that it did not rule out the possibility.
Associate Professor Katelaris noted that large quantities of beer would exacerbate symptoms of loose stools so there would be a tendency to diarrhoea made worse by beer drinking. The consequences of drinking large quantities of alcohol, in this case beer, could be chronic pancreatitis. There was no evidence of end organ damage related to alcohol, but Associate Professor Katelaris noted that not everybody who suffers from chronic alcoholic pancreatitis develops other end organ damage. He expanded his opinion by noting that alcohol can sometimes be very specific and that is why some people get cirrhosis of the liver while others have alcoholic cardiomyopathy or other problems.
Dealing with the evidence in the CT scan, such scans have a certain sensitivity for abnormalities in the pancreas. The fact that Mr Godfrey had a CT scans showing a lesion towards the tail of the pancreas raised the argument of whether it was cystic or solid. If the lesion was cystic then that would be evidence of chronic pancreatitis because it is not normal to have cysts in the pancreas. The other argument was that the lesion was not cystic but rather it was his actual primary cancer. Again that is one of the dilemmas faced by medical opinion in this case. There was not any of the more prominent features of pancreatitis such as calcification or ductualasymatation, but their absence on CT scan did not negate, in Associate Professor Katelaris' mind, the possibility of the diagnosis of the chronic pancreatitis. Once one got to the more serious stage of chronic pancreatitis, it would be expected that there may be a problem of the pancreas doing its absorptive job. Associate Professor Katelaris agreed that one would expect that the CT would find some suggestions of this, but stated that it could not be determined what was the degree of severity of Mr Godfrey's chronic pancreatitis.
Taking all of the evidence together, Associate Professor Katelaris concluded that it was more probable than not that Mr Godfrey did not have a dumping syndrome. In someone who had a heavy alcohol consumption, with symptoms seeming to be steatorrhoea and with a CT scan with an abnormality, that would be consistent with chronic pancreatitis. Furthermore, Mr Godfrey did not have a gastric resection, having had a vagotomy and drainage. While this procedure can cause dumping it is less likely to do so than a gastric resection.
In relation to the question of the onset of diabetes mellitus, Associate Professor Katelaris noted a record in 1983 that Mr Godfrey's blood sugar level was elevated. He agreed that people who have had gastric surgery can have a disregulation of glucose absorption and that there can be a variation in the levels of blood sugar giving misleading levels. In this regard it was pointed out that in 1984 and 1985 Mr Godfrey had a record of no sugar present in his urine and that the blood sugar levels were normal. This lead Associate Professor Katelaris to explain that there are two types of dumping, early dumping and late dumping. This refers to how soon after a meal you would have the symptoms. With late dumping, that is caused by an insulin overreaction which drives blood sugar levels down. If it was thought that the surgery upset Mr Godfrey's sugar levels, which is often found, these people tend to have post prandial hypoglycaemia and that causes vasomotor instability and some of the symptoms of late dumping. Mr Godfrey did have a record of having high blood sugar levels at the relevant times and Associate Professor Katelaris later noted that when people have dumping, it is quite dramatic and they become pale and sweaty and such symptoms provide assistance in a clinical diagnosis.
Associate Professor Katelaris was asked whether or not it would be unusual for a man who is suffering abdominal symptoms and signs as a consequence of high alcohol intake, to continue to drink for a period of at least 20 to 25 years and not get into serious and obvious trouble with his pancreas as a consequence. Associate Professor Katelaris noted that there is no evidence that Mr Godfrey suffered painful pancreatitis. Some people with this condition are caused severe pain and every time they drink they experience bad pain. On the other hand, other patients have silent pancreatitis where the functions of the pancreas are impaired, but not painful. If Mr Godfrey did have chronic pancreatitis, it would have to have been the silent type, Associate Professor Katelaris opined.
Any pain which Mr Godfrey did experience could either have been pain emanating from his surgery or to do with the original ulcer pain. Associate Professor Katelaris noted that Mr Godfrey had ulcers accepted back in the 1940s and it was possible that he could have drunk beer to ease the pain.
If Mr Godfrey did suffer from chronic pancreatitis, it was likely that it may have gone back to the late 1960s. In so concluding, Associate Professor Katelaris noted that the condition causes slow damage to the secretory function of the pancreas. The pancreas has a lot in reserve and can be severely damaged before symptoms become clinically overt with diarrhoea for example. The onset could well have gone back to the time when Mr Godfrey was suffering from diarrhoea as chronic pancreatitis with exocrine or absorptive failure happens after many years of alcohol consumption but it would have a subtle onset, Associate Professor Katelaris concluded.
Finally, Associate Professor Katelaris opined that although he was not an endocrinologist, it is fairly well-known medically that consumption of large amounts of alcohol can upset glycaemic control but Associate Professor Katelaris did not have good records of Mr Godfrey's diabetes control.
Evidence Of Professor J Levi, Clinical Professor, Professor Of Medicine, University Of Sydney, Consultant Physician Specialising In The Field Of Medical Oncology

Professor Levi noted that Mr Godfrey first had a history of hematemesis or vomiting blood developing in 1944 with the diagnosis of duodenal ulcer being made in 1952 following a second hematemesis. Further hematemesis occurred in June 1966 and Mr Godfrey subsequently had surgery on 9 June 1966 with a vagotomy, partial gastrectomy and gastrojejunostomy being performed. It was noted that following surgery, Mr Godfrey developed ongoing symptoms of intermittent abdominal pain, nausea, sweating and weakness and intermittent diarrhoea which was assessed on a number of occasions and diagnosed as dumping syndrome. Mr Godfrey continued to have ongoing symptoms of periodic lower abdominal pain radiating to the back with explosive diarrhoea, nausea and sweating which were assessed on several occasions. On 1 August 1983, there is a record of diarrhoea, nausea and sweating with comments on the regular passage of large, pale bulky stools with associated passage of intermittent creamy anal discharge. In view of these symptoms, Mr Godfrey was admitted to Concord Hospital for assessment and investigation failed to reveal any definitive abnormality and diagnosis of dumping syndrome was confirmed. Glucose tolerance tests at that time confirmed a diagnosis of diabetes mellitus. Clinical notes of Dr G Morgan, Mr Godfrey's General Practitioner, confirmed ongoing symptoms of abdominal pain and diarrhoea as well as the use of oral anti-diabetic agents for the treatment of his diabetes. In June 1996, Mr Godfrey developed a three or four week history of pain in the right upper quadrant which became more severe and was associated with decreased appetite and weight loss. A CT scan performed revealed evidence of lesions in the liver consistent with likely metastases. A further CT scan performed on 29 May 1996 indicated the presence of multiple low attenuation lesions of varying sizes involving both the right and left lobes of the liver. The appearance was consistent with hepatic metastases. There was associated evidence of gall stones. A lesion two centimetres in diameter was noted in the region of the pancreatic tail and could have been a long standing pancreatic cyst although a mitotic lesion was not excluded. A fine needle biopsy of one of the liver lesions was undertaken on 3 June 1996 which revealed high grade undifferentiated epithelial cells with the diagnosis of undifferentiated large cell carcinoma. Further investigation included gastroscopy and colonoscopy failed to reveal any obvious site of the primary malignancy. It was considered that Mr Godfrey was suffering metastatic carcinoma of the pancreas.
Professor Levi agreed with Associate Professor Katelaris' opinion that the likely site of the primary cancer was in the pancreas, consistent with tumour marker CA19-9 and the pathology within the tail of the pancreas.
In relation to whether or not Mr Godfrey had chronic pancreatitis, this had to be considered given the history of long term intermittent abdominal pain, nausea, diarrhoea and sweating. Some of these symptoms could be considered consistent with chronic pancreatitis. However a number of medical examinations performed in the 1970s and 1980s, failed to consider such a diagnosis and repeatedly diagnosed dumping syndrome. Professor Levi opined that the symptoms described are consistent with such a diagnosis. The CT scan performed on 29 May 1996 revealed evidence of a lesion within the pancreatic tail consistent with the carcinoma and did not reveal any other obvious evidence to support a diagnosis of chronic pancreatitis.
In relation to the hypothesis raised that Mr Godfrey's surgery in 1966 may have lead to damage of the pancreatic duct causing the development of chronic pancreatitis, this was not likely in Professor Levi's view, because the lesion was found within the tail of the pancreas without any apparent disturbance of the head or body of the pancreas. On the balance of probabilities, Professor Levi opined that Mr Godfrey did not suffer from chronic pancreatitis and therefore this was not a causative factor in the subsequent development of his pancreatic cancer.
In relation to the alcohol consumption, Professor Levi concluded that Mr Godfrey had a mild to moderate alcohol consumption of two or three beers per day. This was therefore not a likely factor in developing carcinoma of the pancreas. There was no evidence of end organ damage associated with alcohol intake.
Noting the diagnosis of diabetes made in 1983 which was initially controlled by diet and subsequently by oral anti-diabetic agents, Professor Levi opined that it would appear that at all times the diabetes was mild to moderate and adequately controlled. In relation to the Statement of Principles concerning Malignant Neoplasm of the Pancreas, one of the factors deals with suffering from diabetes mellitus for at least ten years immediately before the clinical onset of malignant neoplasm of the pancreas. While Mr Godfrey would fulfil the criteria in the sense that his diabetes mellitus was first diagnosed in 1983, there is no available evidence, in Professor Levi's opinion, to indicate that Mr Godfrey's diabetes mellitus was associated with any event from his war service.
In his second report dated 14 June 2001, Professor Levi noted supplementary reports from Mrs Godfrey in addition to records from Nowra Community Hospital. Professor Levi maintained his view, given the additional information, that it was not unreasonable that the potential primary site of Mr Godfrey's terminal malignancy was the pancreas, but this was by no means definitive. Professor Levi noted that smoking would not have any relevance in terms of the relevant Statement of Principles and linking the cause of death to service.
With regards to the question of chronic pancreatitis and Mr Godfrey's long history of gastrointestinal morbidity, Professor Levi maintained his view that it was more likely to be considered in relationship to previous gastric surgery and the phenomena of dumping syndrome. Nevertheless, the symptoms were not completely incompatible with chronic pancreatitis and Professor Levi agreed with Associate Professor Katelaris in regards to the diarrhoea not being entirely consistent with dumping syndrome and raising suggestion of chronic pancreatitis. There were however no investigations undertaken throughout the years providing support for a diagnosis of chronic pancreatitis in terms of the performance of serum amylase and the results of investigations including the CT scan in 1996 which failed to reveal any obvious deformity of the pancreas which would be consistent with chronic pancreatitis. Accordingly, Professor Levi concluded that the long term symptoms experienced by Mr Godfrey were much more likely to be related to the phenomenon of dumping syndrome as diagnosed during the course of his life with relatively little evidence to consider a likely diagnosis of chronic pancreatitis.
At hearing, Professor Levi expanded his discussion in his reports and noted that nothing is black and white in Mr Godfrey's matter and what one has to do is to look at all of the evidence available objectively.
Professor Levi stated that classical dumping includes episodes of sweating and feeling faint and that is very specific symptom which is not seen in pancreatitis. Furthermore, if Mr Godfrey had chronic pancreatitis, that would quite often be exacerbated by acute episodes of pain which are also not described in any of the notes. There are similarities in the two conditions in that there is chronic discomfort, diarrhoea and then it has to be ascertained whether or not there was steatorrhoea which is a particular type of diarrhoea. The symptoms that make it difficult are the non specific components of both chronic pancreatitis and the dumping syndrome and there is nothing in the notes that allows one to say with absolute confidence that it is a clinical syndrome compatible with either chronic pancreatitis or dumping. There are clues however which make Professor Levi wary of the diagnosis of chronic pancreatitis. Firstly, Mr Godfrey did not seem to have the pain associated with chronic pancreatitis. It would be expected if he had this condition that there would be acute exacerbations of very bad pain which would require him to be seeking help from doctors. Furthermore if Mr Godfrey had significant periods of time with steatorrhoea, which means fat malabsorption, he would loose weight. People with classical malabsorptive diarrhoea associated with chronic pancreatitis loose weight and Mr Godfrey did not loose weight until he was diagnosed with cancer which most probably was associated with the metastatic disease itself. If Mr Godfrey had true malabsorption during the time he potentially had symptoms of chronic pancreatitis, then he would have lost weight well before either 1983 or 1996. In considering steatorrhoea as being one of the manifestations of chronic pancreatitis in order to have that symptom, one has to have bad pancreatitis with a great deal of pancreas damage because the pancreas would have malabsorption problems. The other manifestations apart from steatorrhoea would be a clear manifestation in weight loss and significant changes on a CT scan. By that time, 30 years down the track, if he had chronic pancreatitis, Mr Godfrey's pancreas would have been in very poor shape and he would have diabetes requiring insulin treatment. More than 75 per cent of his pancreas would have been wiped out and that would definitely show up on CT scan, Professor Levi concluded.
If diabetes was considered to be related to chronic pancreatitis there is no way that it would have been non insulin dependent diabetes because once a patient develops diabetes in relation to chronic pancreatitis, that signifies pancreatic failure. Professor Levi opined that if Mr Godfrey required insulin for treatment, he would have had severe diabetes. He would not be able to get away with control of the diabetes mellitus by either diet control or some anti-diabetic medication.
Accordingly, Professor Levi opined that it was more likely than not that Mr Godfrey did not have chronic pancreatitis. There was a difficulty in making this conclusion however because Mr Godfrey did not have classical dumping syndrome symptoms either. The reality was that Mr Godfrey had neither classical symptoms of either dumping syndrome or of chronic pancreatitis. It was quite possible, Professor Levi further opined, that Mr Godfrey did not truly have a dumping syndrome in the classical sense but had "some sort of post vagotomy ulcer type syndrome". In other words, Professor Levi noted that Mr Godfrey might still have been experiencing symptoms related to "a dickie tummy". If, as has been suggested, Mr Godfrey was a long-term fairly heavy drinker, then he could well have ongoing symptoms of chronic gastritis and abdominal discomfort. The bottom line for Professor Levi is that chronic pancreatitis is a severe illness and that was why he had great doubts about Mr Godfrey's having such a disease.
In relation to the distinction between chronic pancreatitis and acute pancreatitis, Professor Levi noted that chronic pancreatitis develops over time without an initial episode of acute pancreatitis leading to chronic pancreatitis but one could have exacerbations of acute pancreatitis while having chronic pancreatitis. Classically, acute pancreatitis means inflammation of the pancreas whereas chronic pancreatitis means that there is a chronic ongoing disturbance. There is also in the chronic condition an inflammatory process, ending in permanent organ damage whereas acute pancreatitis may not necessarily lead to chronic pancreatitis but it would be expected. If Mr Godfrey had true chronic pancreatitis he would very likely have had episodes of acute pancreatitis.
Professor Levi agreed with Associate Professor Katelaris that one could experience silent chronic pancreatitis. In this regard, a patient could have localised areas of pancreatitis sufficient to cause slow damage to the pancreas which may ultimately manifest itself in an end organ effect but would not necessarily be associated with symptoms and if there was a small amount of damage not associated with the acute inflammatory process there may be no symptoms. It was possible that Mr Godfrey had silent pancreatitis. However, if Mr Godfrey did have significant pancreatitis with classical symptoms, the drinking of alcohol would not mask the symptoms no matter how often he drank. But if he had silent pancreatitis then the drinking may mask some symptoms. Furthermore, Professor Levi noted that you can have chronic pancreatitis without having episodes of acute pancreatitis.
Professor Levi reiterated that while, as it later emerged in evidence, Mr Godfrey had a heavy alcohol intake and abdominal symptoms, he did not think this was classic pancreatitis. In relation to the more recent reporting of alcohol consumption of 100 grams of alcohol per day, Professor Levi noted that there was no evidence of end organ damage and Mr Godfrey had a type of liver function test which did not show any specific abnormality. If Mr Godfrey had come to Professor Levi as a patient and told him that he had been drinking high levels of alcohol over many years and that in 1983 he was diagnosed with diabetes mellitus, treated by diet or occasional anti-diabetic medication, and that he had been diagnosed with malignant cancer of the pancreas, Professor Levi would probably have concluded that the diabetes mellitus was unrelated to pancreatic cancer. In this regard, Professor Levi noted that diabetes mellitus is a common condition and many people, particularly older adults, develop non-insulin dependant diabetes. It is controlled by diet alone or with anti-diabetic oral medication in conjunction with diet and that is not associated with major pancreatic damage. If he did have diabetes secondary to chronic pancreatitis, then he would never have lived until 1996, drinking in the manner in which he was reportedly consuming high levels of alcohol. If it was assumed that Mr Godfrey did have chronic pancreatitis back in the 1970s, leading to diabetes mellitus in 1983, he also would not have been able to mask the symptoms by alcohol or slowed down the progression of chronic pancreatitis, especially if he was drinking at the level reported. Therefore, Professor Levi did not consider diabetes having any clinical association with Mr Godfrey's pancreatic cancer.
Professor Levi was referred to a Discharge Summary from Concord Hospital dated 23 August 1973 (T4, p24). The Discharge Summary noted that Mr Godfrey had a two year history of weakness and diarrhoea. A past history of duodenal ulcer, gastro-enterostomy and vagotomy in 1996 and an incisional hernia in 1968. Mr Godfrey was further noted to have weakness following exertion, episodes of shaking, sweating and parathesia of the thighs. Professor Levi noted that that description was more like typical dumping syndrome-type symptoms. He had not seen that discharge summary previously. Professor Levi further noted that Mr Godfrey had received "indocid," 25mg, three times a day for arthritis. That medication could cause abdominal symptoms of the dyspeptic type and is associated with gastric irritation commonly occurring with anti-inflammatory agents, Professor Levi opined.
While Professor Levi accepted that Mr Godfrey had a higher level of alcohol consumption than originally thought, the only correlation between heavy alcohol intake and pancreatic cancer is via chronic pancreatitis. Professor Levi reiterated his view however, that he did not think that Mr Godfrey had chronic pancreatitis. Professor Levi stated that the diagnosis of malignant neoplasm of the pancreas was made in 1996 but this would not have been an episode of acute pancreatitis.
In relation to the proposition put forth by Associate Professor Katelaris that Mr Godfrey had silent chronic pancreatitis, and noting that different people experience pain differently, while that was a possibility, Professor Levi clearly opined that that was not what he considered to be the true situation with Mr Godfrey, given all the evidence concerning diabetes mellitus and alcohol consumption. The more likely or probable situation is that Mr Godfrey had a dumping syndrome.
SUBMISSIONS
Ms Toliopoulos submitted that Mr Godfrey's war service lead him to consume alcohol, becoming a heavy drinker and that drinking history continued through his post service period. Mr Godfrey served for four years in World War II solely within Australia and principally stationed in Western Australia. When he commenced service, he left behind a wife and young child and although he did not have operational service, he nevertheless experienced stress during his service, having to leave his family behind. There was a stressful event when Mr Godfrey was not allowed leave to attend his mother-in-law's funeral. This was stressful to Mr Godfrey because he had been close to his mother-in-law and they had lived together prior to him leaving to serve in Western Australia and later in Darwin. Mrs Godfrey herself later became ill while Mr Godfrey was on service and he was once again not given leave until the intervention of a doctor.
Ms Toliopoulos referred the Tribunal to Mrs Godfrey's evidence that she noted a difference when Mr Godfrey returned from service on leave in that he was consuming more alcohol. Mr Godfrey had been told twice that he was going to serve overseas, firstly in Burma and then New Guinea but he actually was sent to Darwin after the bombing in Darwin. Mrs Godfrey's further evidence was that after his service, Mr Godfrey was unable to settle down and it took him approximately one year to find work and settle. Mrs Godfrey believes that one of the reasons that Mr Godfrey commenced drinking during service was because it actually alleviated the symptoms of his stomach ulcer condition which is an accepted disability and which was diagnosed in 1994. At some time in the 1950s, Mr Godfrey was awarded a Disability Pension at 70 per cent of the General Rate for the ulcer condition and in Ms Toliopoulos' submission, the pain which Mr Godfrey experienced from the ulcer/s must have been severe. Ms Toliopoulos submitted that Mr Godfrey continued to consume beer in order to alleviate the pain of his stomach problems. Associate Professor Katelaris had provided evidence that the drinking of beer can actually alleviate the symptoms from ulcers. Ms Toliopoulos referred the Tribunal to Repatriation Commission v Tuite (1993) 29 ALD 609 when Davies J held that:
"If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease."
The principle to be found in Repatriation Commission v Tuite (supra) was upheld in the decision of Re Doolan and Repatriation Commission (1995) 41 ALD 557. In Re Bridgeman and Repatriation Commission (1998) 50 ALD 671, that case concerned a war widow whose husband had died of a ischaemic heart disease due, it was argued, to smoking on service. That Tribunal noted at 672:
"The commission's argument that the veterans' smoking had, at most, a temporal connection with service was harsh and unfair. Given the passage of time, difficulties of proof, and reluctance of veterans to discuss their war experiences, attempts to place an onus of proof on veterans or their widows had no warrant. The beneficial objective of the legislation exemplified by s119(1)(h) of the Veterans' Entitlements Act 1986 (Cth) and s120(6) which denies that there is any onus of proof on a veteran, indicate that, as a matter of public policy, the legislation was designed to assist veterans to succeed without being subjected to strict or legalistic proof of their claimed hypotheses."

In conclusion, Ms Toliopoulos submitted that given all the evidence before the Tribunal, it is open to the Tribunal to find that the death of Mr Godfrey was related by way of his service-related alcohol consumption through chronic pancreatitis to his death from malignant neoplasm of the pancreas. Ms Toliopoulos emphasised that the causative factor between service and drinking was that the consumption of alcohol aided his stomach problems and once Mr Godfrey had left service, that did not change because the stomach problems continued. This was the difference between a service related smoking habit and the consumption of alcohol. This chain of causation was proposed by Associate Professor Katelaris who is a specialist in the field of gastroenterology, whereas Professor Levi is an oncologist. Ms Toliopoulos contended that the Tribunal should place greater weight on the opinion of Associate Professor Katelaris whose specialty covered the areas under consideration by the Tribunal.
Ms Toliopoulos submitted that the date of effect for Mrs Godfrey's entitlement to a War Widow's pension was from 23 June 1996.
Mr Godwin, for the Respondent, noted that the causal chain proposed by the Applicant is that Mr Godfrey's service was related to his death through alcohol consumption, chronic pancreatitis to primary cancer of the pancreas, the cause of Mr Godfrey's death. Considering Mr Godfrey's service, he served mostly in Western Australia and the Northern Territory. While Mr Godwin noted that clearly being kept away from his home and family because of service would cause Mr Godfrey some stress, he would have experienced those distresses in any event, as in his domestic life, the death of his mother-in-law and his wife's illness would still have occurred.
In relation to the Applicant's submission concerning a service-related alcohol consumption, the Respondent has some difficulty accepting that the stresses Mr Godfrey experienced on service would then compel him to have an alcohol consumption habit carrying on after service. Mr Godwin submitted that Mr Godfrey had a good group of friends carrying on from the time of his service until he died and his normal social relationships with his friends involved a drinking culture. In relation to the quantity of alcohol consumed, the relevant Statement of Principles concerning Chronic Pancreatitis requires 180 kilograms over a five year period prior to the onset. If Mr Godfrey did have chronic pancreatitis, and that was by no means accepted, it would have had to have had its onset in about 1968.
Mr Godwin submitted that there is conflicting evidence in the documents as to the level of alcohol consumption. In 1966, there is a report that shows alcohol heavy in the past and moderate during the last six to twelve months (T4, p30). Further references in 1973 indicate two stubbies of beer being consumed at night (T3, p19E) and in 1983 the consumption level is two midis per day. Later on the consumption in 1973 was noted as two midis per day (T3, p19O). In 1982 there is a record of two stubbies of beer per night (T3, p19Y). In August 1973 there is a record of two or three midis of beer per day (T4, p23). Mrs Godfrey completed an Alcohol Questionnaire on 13 August 1996 (T7) where she indicated that her husband consumed three, ten ounce glasses of beer per day with a comment that about her husband being a diabetic and on a controlled diet. In the Nowra Community Hospital notes (Exhibit R4, p40) on 21 May 1996 there is a notation of Mr Godfrey having a regular alcohol intake of one can of beer per day. Furthermore at page 48 of the notes, there is a record of Mr Godfrey having a regular alcohol intake. In the St. George Private Hospital notes (Exhibit R3, p5) Dr Morris, Professor of Surgery, notes on 6 June 1996 that Mr Godfrey drinks the occasional beer. At page 33 of those clinical notes, there is a record of a consumption of 15 grams, that is one and a half standard drinks or a schooner or a stubby per night, with notes that Mr Godfrey ceased drinking two weeks ago.
In relation to Mr Russell's evidence, the period predating 1968 is a less reliable period for Mr Russell to comment upon, Mr Godwin submitted. Mr Russell stated that Mr Godfrey drank considerably more, somewhere between four and eight schooners of beer. Mr Russell was clearly not with Mr Godfrey every day and on the occasions he was with his father-in-law, that was on social occasions with other people, apart from dinners at home. Mrs Godfrey's evidence was that her husband would be drinking at the golf, bowling or RSL clubs with his colleagues but that was not an everyday event. It was perhaps three days per week rather than seven days per week. He did not drink any more when he returned home. If Mr Godfrey had not been drinking with his friends, then he would have two or three midis with Mrs Godfrey.
Mr Godwin submitted that the overall picture makes it difficult to come to a conclusion that Mr Godfrey's average alcohol consumption was five schooners a day over a five year period, which is what is required by the Statement of Principles. The five year period has to be prior to 1968 when the symptoms started. Mr Godwin noted that in 1966 there is a record that he had a heavy alcohol consumption in the past but it was then moderate. Mr Godwin submitted that there is some difficulty in putting a figure on the quantity of Mr Godfrey's alcohol consumption. Mr Godwin submitted that there would be difficulty coming to the conclusion that Mr Godfrey actually drank five schooners per day every day on average for any five year period.
Considering whether or not Mr Godfrey had chronic pancreatitis, Mr Godwin submitted that Professor Levi has provided the opinion that if Mr Godfrey had chronic pancreatitis, and continued to drink in the fashion in which he was said to have been consuming alcohol, he would not have lived until 1996. Furthermore, Professor Levi points to symptoms of pain that would be severe enough to cause Mr Godfrey to go to the doctor. Weight loss associated with the particular kind of diarrhoea that was described as being indicative of chronic pancreatitis and also diabetes would have had to have been much more severe than it appears to have been. Furthermore there is a lack of CT scan findings shortly before Mr Godfrey's death. Accordingly, Mr Godwin submitted that the Tribunal would not be able to be reasonably satisfied that Mr Godfrey suffered from chronic pancreatitis. If chronic pancreatitis was not present, then the agreed likely cause of death of pancreatic cancer was not satisfied in relation to the Statement of Principles.
Mr Godwin submitted that in relation to the reasonable satisfaction standard which is required in this matter, what is required is that the Tribunal must be satisfied on the balance that something is the case, not that it is a 50/50 possibility. It is certainly not some possibility that is less than that but a possibility that is more likely than not. Thus the Tribunal has to be reasonably satisfied that the cause of death of malignant neoplasm of the pancreas occurred as a result of chronic pancreatitis arising out of the level of alcohol consumed by Mr Godfrey.
In relation to the authorities submitted by the Applicant, Mr Godwin noted that Re Bridgeman and Repatriation Commission (supra) is a smoking case not an alcohol-related case. Smoking is treated as an addiction as a small amount of cigarette consumption can lead to addiction to tobacco. In relation to alcohol, Mr Godwin submitted that someone who has been drinking alcohol in a particular environment, if that environment changes, then their consumption can change and they are not compelled to drink to a particular level because of drinking, in the way that a smoker might be. The Tribunal must, on Mr Godwin's submission, decide matters to its reasonable satisfaction and having identified the steps in the causal chain to death, must be reasonably satisfied that each of the causal links is substantiated.
FINDINGS
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal finds that Mrs Godfrey and Mr Russell were genuine in the provision of their evidence and the Tribunal finds that they are witnesses of credit.
The Tribunal has to determine a number of issues in this matter, firstly, the cause of death, then the chain of causation leading to Mr Godfrey's death and whether it is service-related.
There is agreement between the medical experts, Professor Levi and Associate Professor Katelaris that the most likely cause of Mr Godfrey's death was a malignant neoplasm of the pancreas, the site of the primary cancer. While there was no post mortem performed and the possibility of other primary sites was discussed by both Associate Professor Katelaris and Professor Levi, the preponderance of evidence suggests to both experts that the primary site of the cancer was in the pancreas and not at some other site such as in the lung, liver or bladder. The Tribunal is reasonably satisfied therefore that on all of the evidence, the primary site of Mr Godfrey's cancer was in the pancreas and the onset of this condition was in 1996.
The principal submission put by the Applicant is that Mr Godfrey had a service-related alcohol consumption pattern, which lead to chronic pancreatitis then leading to death from malignant neoplasm of the pancreas.
Mrs Godfrey's evidence is that her husband started drinking consistently on service. This alcohol consumption was related to the stress of Mr Godfrey being away from his wife and young child and increasing as he was refused leave to attend his mother-in-law's funeral and initially refused leave to be with Mrs Godfrey when she was very seriously ill. Furthermore, Mrs Godfrey's evidence is that her husband drank also during service to relieve the pain of his stomach ulcer condition which he had diagnosed in about 1944 and which has been accepted as a service-related condition for which Disability Pension was paid. Mrs Godfrey's evidence in relation to the consumption of alcohol to relieve stomach pain from the ulcer was supported by Associate Professor Katelaris' evidence to the Tribunal. The Tribunal is obviously unable to obtain evidence from Mr Godfrey on these matters but the Tribunal is reasonably satisfied, given that it has found Mrs Godfrey to be a credible witness and there is support for her evidence from Associate Professor Katelaris, that indeed Mr Godfrey's alcohol consumption which increased on service was as a result of that service and that this drinking pattern continued on throughout his life post service. The legislation is beneficial and the Tribunal notes that Section 119 of the Act should be utilised in this matter, allowing for the passage of time, difficulty in recall and also because Mr Godfrey is unable to provide direct evidence himself. The Tribunal considers that in this matter there is not just a temporal connection between service and alcohol consumption, but there was a reason for increased alcohol consumption related to the stress Mr Godfrey experienced and also the ongoing pain from his ulcer condition which commenced on service and continued throughout his life.
In relation to the quantities of alcohol recorded as being consumed by Mr Godfrey, the Tribunal considers that given Mrs Godfrey's and Mr Russell's evidence, documentary records provide a considerable underestimation of the level of alcohol consumed. The Federal Court, this Tribunal and the Board and primary decision-makers are well aware, as is confirmed in the medical research literature, that there is a tendency in people to underestimate their alcohol consumption. Certainly, in Mrs Godfrey's evidence in relation to her husband's alcohol consumption, she noted that she did not want to say anything adverse about her husband which might denigrate his memory. This is frequently cited by widows as the reason for them not fully disclosing the extent of their deceased husband's drinking habits. In Mrs Godfrey's case, the Tribunal accepts that her explanation is genuine. There is some difficulty in trying to estimate the actual quantity of alcohol consumed but based on the evidence of Mr Russell and Mrs Godfrey, and Associate Professor Katelaris' opinion, the Tribunal accepts that it is at the rate of at least 180 kilograms over a five year period, prior to 1968.
The Tribunal turns to consider the issue of whether the alcohol consumption caused chronic pancreatitis as discussed in the relevant Statement of Principles, Instrument Number 58 of 2001 concerning Chronic Pancreatitis. The Tribunal must first be reasonably satisfied however that Mr Godfrey did have chronic pancreatitis, before coming to any determination in relation to the various factors within that Statement of Principles. Herein lies the diagnostic dilemma which has been discussed most ably by both Professor Levi and Associate Professor Katelaris. Both experts provided excellent and objective evidence in relation to their opinions on a number of matters, including in relation to whether or not Mr Godfrey had chronic pancreatitis. Associate Professor Katelaris is a Gastroenterologist and Professor Levi is a Consultant Physician specialising in Oncology. The Tribunal must determine whether or not it is reasonably satisfied that the symptoms experienced by Mr Godfrey were symptoms of chronic pancreatitis or in the alternative, symptoms of the dumping syndrome. Both experts agree that the symptoms experienced by Mr Godfrey do not provide a classic picture of either condition.
In reaching a decision as to whether or not the veteran suffered from chronic pancreatitis, the Tribunal notes the evidence contained in the 1973 Discharge Summary from Concord Hospital (T4, p24) which describes symptoms typical of dumping syndrome and not typical of chronic pancreatitis. This evidence is combined with other medical investigations such as the failure of a CT scan in 1996, just before Mr Godfrey died, to indicate any evidence of pancreatic damage. Furthermore, the Tribunal accepts Professor Levi's opinion that if Mr Godfrey was drinking to the level accepted, then he would not, with chronic pancreatitis, have lived until 1996. Furthermore, Professor Levi noted that Mr Godfrey would have been in increasingly severe pain which would have required him to have had medical attention. The consumption of alcohol would not have masked the pain in these circumstances if he did have chronic pancreatitis.
The Tribunal also notes that while chronic pancreatitis can be silent, if Mr Godfrey had this condition to the level which caused the cancer, then Professor Levi's opinion is that it would have shown up on the CT scan and there would have been other very noticeable symptoms. Even if Mr Godfrey did have silent pancreatitis, he would still have died, in Professor Levi's opinion, which the Tribunal accepts, before 1996. Another piece of convincing evidence to the Tribunal to indicate that Mr Godfrey did not have chronic pancreatitis lies in the fact that his diabetes mellitus was controlled either by diet or anti-diabetic medication. Mr Godfrey was not, on the records available, treated with insulin. For a person to have had diabetic mellitus secondary to chronic pancreatitis, the Tribunal accepts Professor Levi's opinion that diabetes mellitus would not have been treated in the manner in which Mr Godfrey diabetes mellitus was treated, that is, by diet and or anti-diabetic medication from time to time. Thus, the Tribunal is reasonably satisfied that given the combination of evidence or clues through Mr Godfrey's symptomatology, objective investigations and expert opinion, that he did not have chronic pancreatitis.
While the Tribunal notes Associate Professor Katelaris' opinion that the high level of alcohol consumption lead to chronic pancreatitis which lead to diabetes with smoking as a cofactor through to cancer of the pancreas and Mr Godfrey's death, the Tribunal considers that this opinion cannot be sustained when one looks at the totality of evidence concerning the CT scan, the type of treatment for Mr Godfrey's diabetes mellitus and the symptoms of sweating and shaking which is not typical of chronic pancreatitis. The CT scan would have been expected to show after thirty years, significant evidence of chronic pancreatitis. The lesion in the pancreas, is considered by the Tribunal on the evidence, to have been part of the primary cancer in the pancreas and not a cyst. There is also no end organ damage from the high-level alcohol consumption. In relation to the vagotomy, the Tribunal accepts that this can cause loose stools and as Associate Professor Katelaris stated, that is why people have loose stools and experienced dumping. The pain which Mr Godfrey experienced could have been related to dumping, it could have been related to his ulcers, which on Mrs Godfrey's evidence, he had suffered with since his service. In relation to Associate Professor Katelaris' concern that the dumping syndrome occurred not soon after surgery but later, the Tribunal's understanding of Mrs Godfrey's evidence was that he had it from the time of surgery and particularly in the two years prior to seeking treatment. He was pale and sweating as was noted at page 24 of the T documents.
On all of the evidence, there is sufficient doubt in the Tribunal's mind which does not allow the Tribunal to be reasonably satisfied that Mr Godfrey had chronic pancreatitis. As the Tribunal has found that Mr Godfrey did not have chronic pancreatitis then none of the factors within the relevant Statement of Principles concerning Chronic Pancreatitis can be applied because he did not have the condition in the first place.
Having found that Mr Godfrey did not suffer from chronic pancreatitis, then Factor 5(a)(iii) is not met in the Statement of Principles concerning Malignant Neoplasm of the Pancreas, Instrument Number 56 of 1997. The Tribunal turns to consider whether or not there may be any other factor which is relevant in this Statement of Principles. Factor 5(a)(ii) deals with suffering from diabetes mellitus for at least ten years immediately before the clinical onset of malignant neoplasm of the pancreas. Certainly Mr Godfrey had diabetes mellitus diagnosed in 1983 and he had it for ten years prior to the onset of the neoplasm of the pancreas which is been taken to be 1996. The Tribunal must turn its attention to the Statement of Principles concerning Diabetes Mellitus, Instrument Number 83 of 1999 as amended by Instrument Numbers. 10 of 2001 and 92 of 2001. This approach is necessary because each causal link in the chain through to Mr Godfrey's death must be determined to the Tribunal's reasonable satisfaction. The only relevant factor is Factor 5(e) of the relevant Statement of Principles for Diabetes Mellitus and that requires that Mr Godfrey would have had to have suffered from acute pancreatitis or chronic pancreatitis before the clinical onset of diabetes mellitus. The Tribunal has already determined that Mr Godfrey did not have chronic pancreatitis, and furthermore, the Tribunal accepts Professor Levi's evidence that Mr Godfrey did not have acute pancreatitis. Therefore, Mr Godfrey's circumstances do not satisfy factor 5(e) of the relevant Statement of Principles concerning Diabetes Mellitus. There is no other factor, on the evidence provided to the Tribunal, which is satisfied in that Statement of Principles.
Returning to the relevant Statement of Principles concerning Malignant Neoplasm of the Pancreas, the Tribunal finds that there are no other factors relevant to Mr Godfrey's circumstances. In relation to Mr Godfrey's smoking history and Factor 5(a)(i), Mr Godfrey ceased smoking in 1952, 44 years before the onset of his pancreatic cancer and well outside the 15 year limit specified in the Statement of Principles.

The Tribunal has already noted the beneficial nature of the Act and the intent of Section 119 of the Act. However, the Tribunal is not able, to its reasonable satisfaction on all of the available evidence, to find that Mr Godfrey's death from malignant neoplasm of the pancreas was war-caused. The Tribunal is not able to make inferences to its reasonable satisfaction when the evidence is not present to allow it to do so. This has been a difficult matter to determine because of the diagnostic dilemma involved. The Tribunal's decision should not in any way be considered to lessen the importance of Mr Godfrey's service during World War II. The decision made by the Tribunal reflects the legislative requirements placed on decision-makers in determining such matters.
Accordingly, on all of the evidence and for all of the reasons expressed above, the decision under review is affirmed.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Jessica Purches, Associate
Date of Hearing  3 December 2001
Date of Decision  18 July 2002
Representative for the Applicant              Ms A Toliopoulos, Advocate, Legal Aid Commission of New South Wales
Representative for the Respondent          Mr P Godwin, Departmental Advocate