Graham and Repatriation Commission
[2001] AATA 1024
•6 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/471
VETERANS' APPEALS DIVISION )
Re MARTHA ELLEN GRAHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member Brigadier I.R.W. Brumfield, CBE DSO RL, Member Dr. K.P. Kennedy, OBE, Member
Date6 December 2001
PlaceBrisbane
.............(Signed).................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
VETERANS' AFFAIRS – widows pension – missing links in chain of causation – no reasonable hypothesis linking war service with death.
REQUEST FOR WRITTEN REASONS FOR DECISION
Mr. D.W. Muller, Senior Member Brigadier I.R.W. Brumfield, CBE DSO RL, Member Dr. K.P. Kennedy, OBE, Member
This involves an application for review of a decision to reject a claim for widows' pension pursuant to the provision of the Veterans' Entitlements Act 1986.
The applicant, Martha Ellen Graham, is the widow of the late veteran, Harold Graham, who died on 10 October 1978.
The material placed before the Tribunal reveals that:
(i)Harold Graham was born on 2 May 1917.
(ii)He joined the Australian Army on 26 May 1942 and served until he was discharged on 27 October 1944.
(iii)He served in New Guinea from 28 July 1943 until 21 March 1944. Otherwise his service was in Australia.
(iv)After discharge he initially returned to the occupation of dairy farmer, then he became the local cream collector.
During his Army service, Harold Graham had the following medical treatment:
(i)Bilateral herniotomy on 27 July 1942.
(ii)Four attacks of malaria which required hospitalisation from 1 October 1943 until 1 July 1944.
The applicant gave evidence to the Tribunal by way of a signed statement. Her statement contained the following (among other matters):
(i)Martha Graham married Harold Graham on 5 July 1939.
(ii)Prior to his Army service Harold Graham was a non-smoker and he did not drink alcoholic beverages.
(iii)During the course of his Army service, Harold Graham had become a heavy smoker and a heavy consumer of alcoholic drinks.
(iv)Harold Graham was not interested in dairy farm work after his Army service. He successfully tendered for the cream run.
(v)From the day he began the cream run until almost the day he died, Harold Graham followed a set routine, which he very rarely departed from.
"He commenced work at about 5.00am, when he commenced to collect the cream from the neighbouring farms, and then he would deliver it to Gladstone. He would return to Mt. Larcom just about 3.00pm each day, bring the truck home and refuel it ready for the next day, and then walk to the Royal Hotel. There he would stay drinking until at least 7.00pm, when he would come home for dinner. This routine would only be varied if Harold had a back load for one of the farms, in which case he would arrive home no later than about 5.00pm and off to the hotel, or, the other variation being if he stayed at the hotel later than 7.00pm. I am able to recall this because I always put the tea out at 7.00pm for the children, and Harold would most often come through the door right then. If there was someone at the pub that he had not seen for some time or whatever, then he would come late, and I would put his tea in the oven. I would estimate that the latest he came home would be 8.30pm. This routine was followed 6 days a week."
(vi)Harold Graham suffered regularly from severe stomach pains, from the date of his discharge from the Army until he died.
(vii)Harold Graham experienced a gastrointestinal bleed in 1967.
There is nothing in the material which points to any details of what caused Harold Graham to experience the gastrointestinal bleed in 1967. There was never any confirmation of peptic ulcer disease, either when he was alive or at post-mortem.
In January1977, Harold Graham sought medical treatment for abdominal pain and ankle swelling. He had also noticed the presence of nodes in his neck. Reports from the Voss Clinic, Rockhampton and the Queensland Radium Institute shed some light on the treatment received by Mr. Graham in 1977.
"Pathology reports at the time revealed a secondary carcinoma. However the tissue was too necrotic as to give any definite idea as to where the primary site was.
The patient was then referred to Dr. J. Dunn, Physician of Rockhampton for advice re investigation. He felt at the time that he could feel an epigastric mass. However a Barium meal had previously been reported as normal. It was his opinion that it was probably a pancreatic primary and he referred him to the Queensland Radium Institute at the Royal Brisbane Hospital for further investigations.""On 21st. January, 1977 he had an enlarged right supraclavicular node excised and histological examination showed a poorly differentiated carcinoma. Extensive investigation failed to reveal the primary malignancy and he had a course of palliative radiotherapy to the right supraclavicular region. He was referred back on 28th. June, 1977 with a further large mass in the right supraclavicular region and a mass palpable in the epigastrium. He was given a further course of palliative radiotherapy to the right supraclavicular region and to the upper abdomen. He apparently had a good response to the treatment and when further lumps developed over the right scapular region in September, 1977, one was removed and subjected to further histological examination. On this occasion it was the opinion of the pathologists that the lesion may be a histiocytic lymphoma. In view of this he was commenced on combination chemotherapy and had two courses in Brisbane. Arrangements were made for Dr. Dunn, Rockhampton to continue with intermittent courses thereafter."
On 28 September 1978, Mr. Graham was admitted to hospital in Rockhampton. His condition deteriorated over the following twelve days and he died on 10 October 1978.
A post-mortem was performed on 11 October 1978. The relevant parts of the post-mortem report record the following:
"(C) POST MORTEM APPEARANCES.
…. Bilateral pleural effusions. …. Arising from the lesser curvature of the stomach and the porta hepatis was a large mass of tumour tissue which extended to pelvic brim. There were multiple seedings on surface of stomach, mesentery of small bowel, omentum of large bowel.
(D) MACROSCOPIC APPEARANCES OF ORGANS.(1)HEART : Weighed 415gms. NAD apparent. A large paraortic node was found in the thoracic cavity.
…..
(3)RIGHT AND LEFT ADRENALS : Both involved in the large tumour mass in the peritoneal cavity.
(4)PANCREAS : Unable to locate as it was involved in the large tumour mass.
(5)LIVER: Weighed 2000gms – Gall Bladder attached – no stones. Multiple neoplastic deposits throughout substance and at porta hepatis, continuous with the large tumour mass extending down around posterior abdominal wall.
….
(9)INTESTINES AND STOMACH : Neoplastic deposits on outer surface of stomach and omentum of large bowel. Mesentery of small bowel studded with deposits.
(E)MICROSCOPIC FINDINGS ON SECTIONS TAKEN.
…
(2)RIGHT AND LEFT KIDNEYS : Both show mild degree of arteriosclerosis. Both show deposits of reticulum cell sarcoma in perinephric fat, and the right shows invasion of capsule only.
(3)RIGHT AND LEFT ADRENALS : Both closely invested by the neoplastic process the right more than the left, and the cortex of the right adrenal shows invasion by the reticulum cell sarcoma.
…
(5)DEPOSIT ON SUPERIOR SURFACE OF DIAPHRAGM. Confirmed as reticulum cell sarco.
(6)STOMACH : Deposits of reticulum cell sarcoma, some confined to the serosa, others invading all coats to the mucosa.
(7)HILAR NODES : All involved by reticulum cell sarcoma.
(8)LIVER : All sections taken showed deposits of reticulum cell sarcoma.
….
(10)CARDIOVASCULAR SYSTEM : (a) AORTA - Mild atheroma. There was a large paraortic node in the thorax which showed reticulum cell sarcoma.
(11)MAIN TUMOUR MASS : A rather anaplastic reticulum cell sarcoma with numerous bizarre hyperchromatic giant cells, some with multiple and some with giant nuclei, some with abnormally large mitotic figures.
(F)SUMMARY OF PRINCIPAL FINDINGS :
(1)RETICULUM CELL SARCOMA INVOLVING :
(A) STOMACH
(B)RIGHT ADRANAL
(C)HILAR NODES
(D)LIVER
(E)CAPSULE OF RIGHT KIDNEY
(F)NODES IN HILUM OF SPLEEN
(G)THORACIC PARAORTIC NODE
(H)SUPERIOR SURFACE OF DIAPHRAGM
(I)A LARGE TUMOUR MASS – STRETCHING FROM PORTA HEPATIS DOWN AND AROUND VERTEBRAL COLUMN ALMOST TO PELVIC BRIM."
The advocate for the applicant submitted the following hypothesis to link the late veteran's death with his Army service.
(i)The late veteran was infected with Helicobacter Pylori while he was serving in the Army – most likely when he was in New Guinea.
(ii)The Helicobacter Pylori caused the late veteran to develop peptic ulcer disease.
(iii)The peptic ulcer disease caused a primary cancer site to develop inside the late veteran's stomach. The primary cancer was probably a gastric lymphoma of mucosal-associated lymphoid tissues (MALT).
(iv)The primary gastric MALT lymphoma gave rise to the reticulum cell sarcoma which caused the death of the late veteran.
The Tribunal does not accept that the hypothesis submitted by the applicant's advocate is reasonable, for the following reasons.
(i)There is no evidence that the late veteran was ever infected with Helicobacter Pylori – let alone during Army service or in New Guinea.
(ii)There is no evidence that the late veteran ever suffered from peptic ulcer disease. It is true that he suffered from stomach pains but those pains could have had their origins in many possible causes other than peptic ulcer disease.
(iii)The late veteran had a "normal" barium meal in or about January 1977.
(iv)The post-mortem report shows that there was no primary cancer site inside the late veteran's stomach. Microscopic examination revealed reticulum cell sarcoma cells on the serosa (the outer layer of the stomach) and other cells invading the stomach wall coats to the mucosa. That is, the invasion was from the outside to the inside of the stomach – not the other way around.
Consequently, the Tribunal is satisfied that the death of the late veteran, Harold Graham, was not war-caused.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member; Brigadier I.R.W. Brumfield, Member; Dr. K.P. Kennedy, OBE, Member.
Signed: .....................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 6 December 2001
Date of Decision 6 December 2001
Request for written reasons 18 December 2001
Applicant Mr. N.D. Millward
Respondent Mr. M. Smith, departmental advocate
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