Graham and Repatriation Commission

[2004] AATA 1167

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/347

VETERANS' APPEALS DIVISION		)
Re		MARTHA GRAHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe
Brigadier G Maynard, Member

Date9 November 2004  

PlaceBrisbane

Decision

The Tribunal decides:
(a)      the decision under review is set aside;

(b) the death of Harold Graham was war-caused in terms of section 8 of the Veterans’ Entitlements Act 1986; and

(c)       the date of effect of this decision is 19 November 2002 

........[Sgd]...........

K L Beddoe

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – widow’s pension – Non-Hodgkin’s Lymphoma – reasonable hypothesis connecting cause of death with war service.

Veterans’ Entitlements Act 1986 s8

REASONS FOR DECISION

9 November 2004     Senior Member K L Beddoe
  Brigadier G Maynard, Member

1.      The respondent determined that the death of Harold Graham (“the veteran”) was not related to his war service.  The Veterans’ Review Board subsequently affirmed that decision and the applicant widow applied for review in this Tribunal.

2. Section 8 of the Veterans’ Entitlements Act 1986 (“the Act”) provides, inter alia, that the death of a veteran shall be taken to have been war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service.  There is no dispute that the deceased veteran rendered operational service.

3. Because of the operation of sections 120 and 120A of the Act the death is taken to be war-caused if there is a reasonable hypothesis connecting the veteran’s death with his operational service unless the Tribunal is satisfied beyond reasonable doubt that the death was not related to the operational service.

4.      At the hearing Mr Millward represented the applicant and Mr Smith represented the respondent.

5. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” documents and further documents were tendered and marked as exhibits.  Oral evidence was given by Dr Milliner, general practitioner, Dr Ades, histopathologist and Dr Grant, senior medical officer.  Following the completion of the evidence, the parties were given leave to lodge written submissions in the Tribunal.  Those written submissions have been taken into account by the Tribunal.

6.      The applicant lodged her claim for widow’s pension with the Department of Veterans’ Affairs on 19 February 2003.  She is the widow of the veteran.

7.      The veteran was born on 2 May 1917 and served in the Australian Army from 26 May 1942 until his discharge on 27 October 1944.  All of that service is deemed to be operational service because he served in New Guinea from August 1943 to March 1944.  During service the veteran had four attacks of Malaria.

8.      In a report dated 28 September 1978 a Dr Dunn noted the veteran was complaining of abdominal pain and that he had been well before January 1977 when nodes in the neck were noted and the veteran treated and diagnosed as having histiocytic lymphoma.

9.      Dr Dunn reported that on admission (to Rockhampton Hospital) the veteran complained of vague abdominal pain which was fairly constant without radiation but with accompanying nausea without vomiting and bleeding.  Investigations were conducted, he was treated as having Cardiac failure but his condition worsened and the veteran died 12 days after admission.

10.     There is a detailed post mortem report which found Reticulum Cell Carcinoma involving the stomach and other organs, the tumour surrounding the Pancreas with some deposits confined to the serosa and others invading all coats to the mucosa.

11.     In a report dated 4 July 2001, addressed to Dr Grant, Dr Ades was of the opinion that the post mortem report showed that the reticulum cell carcinoma to be nodal based on both sides of the diaphragm and mostly serosal involvement of the stomach with only focal mucosal involvement consistent with direct invasion.  He noted that Gastric MALT Lymphoma tend to extensively involve the gastric mucosa.  He thought that a MALT tumour was unlikely but difficult to exclude.

12.     Dr Ades said Helicobacter Pylori is a major and possibly necessary risk factor for gastric MALT lymphoma but no other lymphoma.  He thought MALT lymphoma did not play a part in the veteran’s diagnosed cause of death.

13.     In a further report dated 9 September 2001, and also addressed to Dr Grant, Dr Ades said:

“2.       I am not aware of any reference to duodenal ulceration in the initial documents sent to me.  The draft report by Dr Milliner, which I now have, refers to a long clinical history consistent with peptic ulceration.  If this is so then Helicobacter Pylori infection is a likely underlying cause.  Helicobacter infection is a major aetiological factor for primary gastric lymphoma of mucosa associated with lymphoid tissue (MALT) type.  Therefore if the lymphoma was a primary gastric lymphoma of this type there would be a link between these factors.  However, as I have previously discussed, there is no evidence to suggest a primary gastric origin or type in this case and a nodal origin is most likely.  Despite this, the possibility of undetected gastric lymphoma of MALT type with limited gastric involvement undergoing high grade transformation and extensive nodal spread is theoretically possible, although highly unlikely, in my opinion.

3.        Type B gastritis is a manifestation of Helicobacter infection.  The acquired mucosa associated lymphoid tissue induced in this reaction is thought to be the origin of gastric MALT lymphoma.  Therefore if the chain of events speculated in question 2. occurred then type B gastritis would have played a role.

4.        There is no evidence to indicate this was an indolent lymphoma.  On the contrary, the reported histological features most probably corresponding to a large cell lymphoma including anaplastic cells and extensive necrosis, initial misdiagnosis as metastatic carcinoma, recurrence within 6 months following initial radiotherapy and death less than 2 years after presentation, indicate a high grade lymphoma.

5.        As discussed previously, this is most probably primary nodal disease.  A primary origin from gastric MALT lymphoma is theoretically possible, although highly unlikely.”

14.     In his oral evidence Dr Ades said a MALT lymphoma is described as a low grade B-cell lymphoma of mucosa associated lymphoid tissue – a rare type of B-cell lymphoma most commonly occurring in the stomach.  He said a MALT lymphoma could not be ruled out in this case but was unlikely. 

15.     In a report addressed to Mr Milliner dated 31 January 2002 Dr Searle, Queensland Health, reports that the tumour would now be classified as a high grade diffuse large G-cell malignant lymphoma with no evidence of a MALT lymphoma.  That view was confirmed by a further report dated 25 March 2002 addressed to Mr Millward.

16.     The essence of Dr Milliner’s evidence, which was clearly argumentative, is that there is a reasonable possibility that the cause of death had its genesis in a MALT lymphoma which in turn can be connected back to the veteran’s war service.  Dr Milliner relies on evidence from the applicant.  In that regard, we accept the applicant’s evidence that the veteran suffered from stomach pain from the time he returned from war service.

Consideration

17.     The applicant has proposed a hypothesis which connects the death of the veteran with the particular service rendered by the veteran.  The hypothesis has been developed by Dr Milliner and relies extensively on input from the veteran’s widow, examination of the veteran’s meagre clinical records that survive and Dr Milliner’s lengthy clinical experience.  The veteran’s widow, in extensive interviews with Dr Milliner, described her recollections of the veteran’s clinical course from the time of his discharge from the Army to his death.  This history was submitted in documentary form and not disputed by the respondent’s advocate.

18.     Dr Milliner hypothesised, on the evidence available to him, that the veteran had long-term gastrointestinal disease post discharge from the Army and this ultimately lead to his death in 1978 from non-Hodgkin’s lymphoma.  The nature of the gastro intestinal disease described in the applicant’s recall was, in Dr Milliner’s view, commonly associated with chronic gastritis and peptic ulceration.  The presence of helicobacter phlori is very commonly associated with these conditions.  The hypothesis suggests that the veteran was exposed to helicobacter phlori during the war service.

19.     The Statement of Principles concerning non-Hodgkin’s lymphoma is Instrument No 37 of 2003.  Para 5(h) states “for primary B-cell lymphoma of the stomach only, suffering from helicobacter pylori infection of the stomach at the time of the clinical onset of non-hodkin’s lymphoma”.

20.     The respondent’s advocate used testimony from Drs Ades and Grant to contest the proposition that the primary site of the non-Hodgkin’s lymphoma was the stomach.  The arguments were based on the report of a post-mortem conducted in a regional hospital at a time when much less was known of the natural history of lymphomas in general.  The post-mortem report was unable with certainty, to identify the primary source of the lymphoma.

21.     Dr Ades was a most credible witness who held the firm view that the original of the veteran’s disease was nodal and therefore did not originate in the stomach.  It is significant that he had no knowledge of the veteran’s clinical history in forming this opinion.  He did, however, admit that the proposed hypothesis was difficult to exclude but firmly held the view that it was unlikely.  Dr Grant was of a similar view.  The witnesses opined that the absence of tumour in the stomach at post mortem and the absence of histopathology of MALT lymphoma in the stomach at the time were strongly in favour of a nodal origin.  In cross-examination by the applicant’s advocate the effect of combination therapy, of which the veteran had several courses, was explored.  Dr Ades had little experience with the clinical course of the disease following combination therapy but agreed that there were varying responses by lymphomas following such treatment.  The treatment may have eliminated all evidence of MALT lymphoma and may have altered the size or presence of any stomach lymphoma.  Dr Milliner’s evidence suggested an initial improvement in the veteran’s clinical condition post combination treatment, was a result of changes in the disease processes in the veteran’s gastrointestinal system. 

22.     The Tribunal is of the opinion, based on the course of the veteran’s post war clinical history, as recalled by the applicant, that it is possible that the veteran carried helicobacter pylori in his gastro intestinal tract.

23.     We understand the difficulty in determining the time of acquiring helicobacter pylori was the lack of knowledge of the bacteria and its role in gastrointestinal disease causation until the 1980s.  The applicant and respondent submitted a number of scientific papers and extracts from Harrison’s Textbook.  None of these papers seem to be based on experience which truly reflect experience of veterans in New Guinea during World War II.

24.     From evidence submitted it would seem that infection with helicobacter pylori is usually acquired in childhood.  The incidence is much higher in third world countries.

25.     In evidence it was shown by the original researchers of this bacteria and its relationship to gastrointestinal disease that ingestion of the bacteria lead to disease.  It is proposed that the faecal-oral route is the most likely method of infection as supported by third work country experience.

26.     In a question from Brigadier Maynard, Dr Grant confirmed that the incidence of gastrointestinal disease spread by the faecal-oral route was high in the conditions that prevailed in New Guinea during World War II.  This is not conclusive proof that the veteran contracted helicobacter pylori during war service but is open as a distinct possibility.

27.     We are satisfied on the balance of probabilities that the correct diagnosis of the cause of the veteran’s death is now properly described as Non-Hodgkin’s Lymphoma.

28.     We are also satisfied on the basis on the medical evidence before us that there is a sound basis for Dr Milliner’s hypothesis connecting the veteran’s death with his war service.

29.     The relevant statement of principles is Instrument No 37 of 2003 and factor 5(h) is satisfied thereby satisfying clause 4 of the Instrument, if it is accepted, as we do, that it is open that the veteran suffered from Helicobacter Pylori from the time of his operational service in New Guinea.

30.     We are satisfied there is a reasonable hypothesis connecting the veteran’s death with his war service.  In the light of the material before us, we cannot be satisfied beyond reasonable doubt that the veteran’s death did not arise from his operational service.

31.     There will be a decision that the decision under review is set aside and in lieu a decision that the veteran’s death was war-caused.  The date of effect of the decision will be 17 November 2002.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe and Dr G Maynard, Member

Signed:   S Appleton

Associate

Date/s of Hearing  14 September 2004
  1 October 2004
Date of Decision  9 November 2004
For the Applicant  Mr N Millward, Advocate
For the Respondent                  Mr M Smith, Departmental Advocate