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Administrative Appeals Tribunal of Australia |
Last Updated: 22 December 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
) | |
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|
Re |
FLORENCE BENNETT |
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And |
REPATRIATION COMMISSION |
Tribunal |
Dr EK Christie, Member |
Decision
...................(Sgd)......................
EK Christie
VETERANS' AFFAIRS - benefits and entitlements - war widows' pension - whether war-caused death - malignant neoplasm of the stomach - Helicobacter pylori infection - hypothesis - reasonable hypothesis - facts associated with hypothesis necessary to support the hypothesis or which are inconsistent with the hypothesis have not been disproved beyond reasonable doubt - decision set aside
Veterans' Entitlements Act 1986, ss 120, 120A, 196B
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation commission v Law (1980) 31 ALR 140
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Hancock [2003] FCA 711
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Thomas and Repatriation Commission [2003] AATA 65
22 December 2003 |
Dr EK Christie, Member |
|
1. Herbert Bennett, the late veteran, passed away on 17 February 2000. He was 79 years of age. The applicant, his widow, claimed an entitlement to a pension under the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board, on 10 July 2001, determined the death of the veteran was not caused by his war service.
2. The late Mr Bennett had no accepted or rejected service-related disabilities.
3. Because of her hospitalisation, Florence Bennett could not attend the hearing. At the hearing she was represented by her daughter, Ms Jacqueline Ferguson. The respondent was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
FACTS
5. The general facts were not in dispute and may be stated briefly. Florence Bennett is the legal widow of the late veteran. The late Mr Bennett had operational service in World War II in New Guinea from 8 April 1942 to 25 September 1944.
6. The late veteran suffered for many years from hypertension, ischaemic heart disease, cardiac arrhythmia and syncopal attacks (that is, blackouts). He had a pacemaker inserted on 11 November 1999. It was at this time that it was first discovered that he was suffering from stomach cancer.
7. The cause of the late veteran's death was certified as:
"1. Disseminated gastric carcinoma
2. Hypertension, pacemaker" (Exhibit R1, Folio 16)
ISSUES TO BE DECIDED
8. The only issues for the Tribunal to decide were:
(a) whether Florence Bennett was entitled to a pension under the Act, which, in turn, was dependent on,
(b) whether the death of the late Mr Bennett was war-caused.
STATUTORY FRAMEWORK AND LEGAL PRINCIPLES
9. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, the Full Federal Court recorded the four stages as follows:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (emphasis added)
10. The sequential steps in the "Deledio methodology" do not expressly deal with the situation where multiple medical conditions cause death. In the late Mr Bennett's case, the death certificate identifies gastric carcinoma and hypertension/pacemaker as causes of death. It is necessary that these multiple medical conditions be considered. If one of these medical causes of death (or "kinds of death" to use the phrase in s 120A(2) and (4) of the Act) was itself caused by war service, then this would be sufficient to establish an entitlement to a pension. This is clearly evident from the terms of s 9 of the Act (for example, "was attributable to"): see Repatriation Commission v Law (1980) 31 ALR 140 at 151 and see O'Loughlin J in Doolette v Repatriation Commission (1990) 21 ALD 489 at 492.
11. In Repatriation Commission v Hancock [2003] FCA 711, Selway J identified a further problem involving necessarily at least two extra steps before step one of the "Deledio methodology":
"The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that [Mr Bennett] was a veteran, that the respondent was his widow and that [Mr Bennett] had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the `kind of injury' or the `kind of death' suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the `kind of death' is the critical step in the analysis. In determining the `kind of death', proof is on balance of probabilities: see s 120(4) of the Act and see Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54]."
12. The principles for proof in accordance with the standard in subsection 120(4), that is, to the reasonable satisfaction of the Tribunal, has been established in a number of cases: Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
"The AAT had to determine, to its reasonable satisfaction ... Burchett J in Cavell stated that this determination is not to be made upon `nice philosophical distinctions', equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an `eye to reality'."
13. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
"obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous"
and
"The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (`the raised facts') which supports the hypothesis and if the hypothesis can be regarded as `reasonable' if the facts are true."
Furthermore, the High Court in Bushell said (at 415):
"As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function's under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran's claim.. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."
14. In Connors v Repatriation Commission [2000] FCA 783 at par 14, Kenny J rejected a submission made by Counsel that "no individual part or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:
"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. If the material did raise the hypothesis, the decision maker must determine whether it is reasonable. It would not be reasonable if the hypothesis did not fit the relevant SoP. That is, the facts of the applicant's service must satisfy the standards set out in the SoP. "
15. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, said:
"The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran's service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.."
CONSIDERATION OF THE ISSUES
16. The first issue for the Tribunal to consider, before the first of the sequence of "Deledio steps" can be undertaken, is to establish the cause(s) of death of the late Herbert Bennett. Applying the approach in Hancock's case, the Tribunal is required to determine what "kind of death" Mr Bennett had suffered. The standard of proof is "reasonable satisfaction".
17. In determining this issue, the Tribunal has considered all of the professional medical opinion evidence and information before the Tribunal. In this regard, the requirements for best-informed decision-making by the Tribunal were facilitated by Dr P Grant's recommendation at the first day of the hearing for the proceedings to be adjourned from 18 March 2003 until such time as obtaining:
(a) the "Terminal Illness Notes" relating to the final days of the late veteran's life following his admission to the Chinchilla Base Hospital as well as;
(b) further responses and updated opinion from the late Mr Bennett's:
(i) treating GP;
(ii) his cardiologist; and
(iii) his gastroenterologist.
These requests were subject to a Tribunal Order and the hearing resumed some five months later (21 August 2003) when all this information had been provided.
MEDICAL OPINION OF DR K GILMOUR, TREATING GP
18. In his report dated 5 August 2002, Dr Gilmour states:
"In summary, Mr Bennett had long-term hypertension and ischaemic heart disease. Considering he required a pacemaker near the end of his life I think this had some impact on his demise although the major cause of death was carcinoma of the stomach."
19. In his next report (16 April 2003), Dr Gilmour describes the medical symptoms of Mr Bennett during his final days:
"Mr Bennett was admitted to the Chinchilla Hospital on 15 February 2000 via the ambulance with disseminated gastric carcinoma. He was having difficulty swallowing solids and was only able to swallow fluids. A stent had been put in the lower oesophagus and needed to wash anything down with some water. He was also getting pain in the right lower rib and was admitted for Palliative Care. Morphine was given for pain and Maxalon for his nausea. He was also taking Zantac Effervescent to help settle his epigastric discomfort. He continued to deteriorate and was given Nursing care until he died on the 17 February 2000.
He was obviously in end stage of his disease when he was admitted. He had also suffered from hypertension and had had a pacemaker inserted earlier for episodes of syncope."
20. In his last report (18 June 2003), Dr Gilmour summarises the late Mr Bennett's hypertension/pacemaker and gastric carcinoma conditions and their impacts upon him:
"[Mr Bennett] had a long history of hypertension which certainly dated prior to my arrival in Chinchilla. I note he was seen by a consultant physician in 1981 at which time his blood pressure was 160/105 and the reason for his review were episodes of loss of consciousness over the previous 11 years. A CT scan and EEG at that time were not particularly informative with regard to a diagnosis.
The conclusion was that he was having vertebrobasilar insufficiency. These episodes of syncope seemed to be fairly infrequent for many years but in the few years prior to his death they seemed to increase again and he was later assessed at Greenslopes Hospital where it was felt he was getting arrhythmias and a pacemaker was inserted on the 11th November 1999.
[Mr Bennett] also started having difficulty with swallowing and gastroscopy revealed an extensive carcinoma of his stomach and lower oesophagus which ultimately led to his demise."
MEDICAL OPINION OF DR KEONG LIM, GASTROENTEROLOGIST
21. In his first report (12 November 1999), Dr Lim notes the presence of a "rather extensive" tumour and a "large gastric tumour extending to the cardio-oeophaegeal junction".
22. In his subsequent report (8 April 2003), Dr Lim states:
"[Mr Bennett] had a gastroscopy 12/11/1999 showing a large area of tumour in the stomach. Biopsy showed an adenocarcinoma of the stomach. On histology, almost all the biopsy specimen showed adenocarcinoma."
MEDICAL OPINION OF DR V DEEN, CARDIOLOGIST
23. Dr Deen, in his report dated 15 November 1999, refers to the late Mr Bennett having unheralded synocopal episodes that had increased in frequency over the past 20 years. He refers to the late Mr Bennett having a "history of hypertension treated for 39 years". Furthermore, following an ECG in which his "symptoms were very suggestive of Stokes-Adams [heart conduction] attacks", he decided to proceed to implant a permanent pacemaker on 10 November 1999.
24. Furthermore, it was during his consultation with Dr Deen and the evaluation of his gastrointestinal symptoms that the late Mr Bennett was referred for a CT scan and endoscopy. These investigations revealed for the first time a large gastric tumour:
"extending to the cardio-oesophageal junction with large areas of ulceration. CT scan of the chest showed no pulmonary secondaries however, CT of the abdomen showed multiple hepatic metastases with gross disease of the gastro-oesophageal junction and cardia, as well as coeliac nodal disease."
MEDICAL OPINION OF DR L RUTHERFORD, SURGEON
25. In his report (15 November 1999), Dr Rutherford expressed the following opinion in relation to the diagnostic investigations following gastroscopy and the CT scan:
"The findings of the gastroscopy revealed extensive adenocarcinoma of the proximal half of the stomach. I arranged for a CT scan to be done of the chest and abdomen and this revealed very extensive infiltration of the stomach by tumour, retroperitoneal lymphadenopathy and multiple liver metastases."
MEDICAL OPINION OF DR P GRANT, SENIOR MEDICAL OFFICER (COMPENSATION), REPATRIATION COMMISSION
26. Dr Grant prepared a series of reports (16 August 2002; 11 April 2003; 18 March 2003) as well as a final report (4 July 2003) which integrated the professional opinion contained in his earlier reports, as well as providing a review and analysis of the materials provided in relation to the Tribunal Order of 18 March 2003: specifically, the "Terminal Illness Notes (Chinchilla Base Hospital)" as well as updated reports from medical specialists and a pathology report.
27. Dr Grant acknowledged the clinical onset of hypertension to have occurred "most likely" around 1960. He states in his report dated 4 July 2003:
"3. Clinical onset of hypertension is discussed in a range of reports by treating medical practitioners as well as my opinions as listed above. The late veteran had established hypertension in 1981 as confirmed by Dr Gilmour (see his report of 18 June 2003). Dr Deen's report of 15 November 1999 refers to treatment for hypertension over the past 39 years; making clinical onset most likely to have been in 1960 or shortly before that. The late veteran was not hypertensive at the point of discharge in 1944 (see my opinion of 16 August 2000)."
28. Dr Grant then considered the terminal illness notes and the various medical conditions of the late Mr Bennett and expressed the following opinion as to the cause of death (4 July 2003):
"4. I note that the terminal illness notes have been obtained. Mr Bennett was transferred to Chinchilla Hospital on 15 February 2000 for palliative care for malignant neoplasm of the stomach. His blood pressure was within normal limits at 110/60 on admission whilst the late veteran was unable to stand and was confused. He complained of pain in the right lower ribs and analgesia was given as required.
5. At no stage is it recorded that Mr Bennett developed chest pain or hypertension. The final hours were marked by fluctuating breathing (Cheyne-Stokes respiration), clinical signs of shock, and cessation of urination. There are no features to suggest a myocardial infarction or other cardiovascular event nor did he develop an acute hypertensive state..."
29. In an earlier report (11 April 2003), Dr Grant considered the relationship between the late Mr Bennett's pacemaker, heart block/conduction diseases, myocardial infarct and hypertension and expressed the following opinion:
"3. In his most recent report, the cardiologist opines that the conduction diseases likely to result in heart block are idiopathic fibrosis (i.e. scarring of the heart conduction pathways of unknown cause) sometimes called Levic's disease or Lenegre's disease. It is described in association with acute myocardial infarction but Dr Deen adds that Mr Bennett did not have any evidence of an acute infarct. Hypertension has not been described as being associated with either condition in the reputable published literature. In other words, the clinical picture was not in keeping with heart block being caused by ischaemic heart disease of any type."
30. Based on all of these expert medical opinions, the Tribunal concludes that it is reasonably satisfied that the cause of Mr Bennett's death was because of his advanced stomach malignancy. Dr Grant's report is quite clear in this regard and is supported by the specialist opinion of the extent of the stomach cancer when first diagnosed in 1999 (see opinion of Dr Lim and Dr Rutherford). In addition, the opinion of Dr Gilmour was that, when Mr Bennett was admitted to Chinchilla Bast Hospital on 15 February 2000, he was "obviously in end stage" of his disseminated gastric carcinoma.
31. The fact that the late Mr Bennett had a long history of hypertension from around 1960 is not in dispute. However, the Tribunal accepts the opinion evidence of Dr Grant that the "reputable published literature" does not support a linkage between conduction diseases likely to result in heart block and hypertension. In addition, the Tribunal accepts Dr Grant's analysis of the "Terminal Illness Notes" and the opinion he expressed. Specifically:
(a) that at no stage was it recorded that Mr Bennett developed chest pain or hypertension; and
(b) that there were no features to suggest a myocardial infarction or other cardiovascular event nor did he develop an acute hypertensive state.
32. Accordingly, based on this opinion evidence, the Tribunal can make no other conclusion than to find that it is reasonably satisfied (on the balance of probabilities) that the hypertension/pacemaker medical condition was not a cause of Mr Bennett's death. That is, the late Mr Bennett did not die from the hypertension/pacemaker condition.
33. Given these findings, the Tribunal can only consider an hypothesis related to gastric carcinoma, the circumstances of operational service and the death of the late veteran. As hypertension has been found to not be a cause of the late veteran's death, the Tribunal cannot consider any hypothesis linking hypertension to the circumstances of operational service and the death of the late veteran.
34. Accordingly, the Tribunal considers the four steps in the "Deledio pathway".
STEP 1 - WHETHER AN HYPOTHESIS CONNECTING THE DEATH WITH OPERATIONAL SERVICE EXISTS
35. It is evident to the Tribunal that some aspects of the causative change leading to the development of malignant neoplasm of the stomach that caused the late veteran's death, namely the issue of Helicobacter pylori infection, did not emerge until after his death in 2000.
36. However, it is not in dispute that the late Mr Bennett had operational service from 1942 to 1944 in New Guinea and that he died from "Malignant Neoplasm of the Stomach".
37. Dr Deen, Cardiologist, in his medical report (15 November 1999) records:
"Interestingly he's also had mild dysphagia, ½ stone [7 pounds][1] weight-loss associated with mild abdominal discomfort which has been treated with Zantac."
38. Dr Grant in his oral evidence to the Tribunal on 18 March 2003, commented on the above statement of Dr Deen as follows:
"He [Dr Deen] doesn't actually give us a duration, I don't believe, of the symptoms, so how long the dysphagia, difficulty in swallowing had been going on for, or weight loss. So that could have been going on for some several years or more but you wouldn't think beyond about four or five absolute maximum from that. Prior to that time one could argue that any symptoms that he had could be due to Helicobacter, but, again, it's not a thing that seems to have brought him to treatment - to the attention of a doctor to seek treatment of it or investigation." (Transcript page 4)
39. Dr Lim, a Gastroenterologist, expressed the opinion that it was more likely than not that the non-tumour area of the stomach would have shown Helicobacter pylori if biopsies were able to be taken again which unfortunately is not possible (Exhibit R5, 8 April 2003).
40. Harrison's Principles of Internal Medicine, the medical source relied upon by the respondent[2] for submissions, recognises, in its Fifteenth Edition (2002), the following sources for Helicobacter pylori infection:
(a) childhood (age);
(b) low socio-economic status (crowding and low income); and
(c) water sources (contaminated water in developing countries);
and states that the prevalence of Helicobacter pylori colonisation is much greater in developing countries (more than 80%) compared with developed countries (for example, about 30% in the United States).
41. Consequently, the material before the Tribunal allows the following hypothesis to be raised: the late veteran had extensive operational service in New Guinea, a developing country, during World War II resulting in Helicobacter pylori infection and that this infection continued, and was present, at the time of the clinical onset of symptoms of malignant neoplasm of the stomach in 1999. Malignant neoplasm of the stomach led to his death in 2000.
STEP 2 - WHETHER AN SOP IS IN FORCE
42. The relevant SoP is Instrument No 67 of 1997 as amended by Instrument No 9 of 1998 - "Malignant Neoplasm of the Stomach".
STEP 3 - WHETHER THE HYPOTHESIS IS A REASONABLE ONE
43. The late Mr Bennet was a life-long non-smoker (Dr Deen, 15 November 1999). Accordingly, Factor 5(a) is not relevant.
44. The Malignant Neoplasm of the Stomach SoP prescribes at Clauses 4 and 5:
"Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the stomach or death from malignant neoplasm of the stomach with the circumstances of a person's relevant service are:
(a) ...
(b) for carcinoma of the fundus, body, antrum or pylorus of the stomach only,
(i) contracting Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach; or
(ii) having undergone a partial gastrectomy at least 15 years before the clinical onset of malignant neoplasm of the stomach; or
(iii) suffering from chronic atrophic gastritis before the clinical onset of malignant neoplasm of the stomach; or
(c) inability to obtain appropriate clinical management for malignant neoplasm of the stomach."
45. The Tribunal concludes that the hypothesis raised under "Deledio Step 1" and the relevant SoP leads to a finding that the hypothesis raised is reasonable as it is not contrary to known scientific fact nor is it fanciful or untenable: see Bushell v Repatriation Commission (1992) 175 CLR 408; Connors v Repatriation Commission [2000] FCA 783 at paragraph 14.
STEP 4 - WHETHER THE TRIBUNAL IS SATISFIED BEYOND REASONABLE DOUBT THAT THE LATE MR BENNETT'S DEATH WAS NOT WAR-CAUSED
Connection between clinical onset of malignant neoplasm of the stomach and Helicobacter pylori
46. The Tribunal has adopted the approach in Byrnes' case in addressing this step. The first issue for the Tribunal to consider is whether the late Mr Bennett contracted Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach, that is, the period 1989-1999.
47. Dr Gilmour, in his report dated 1 June 2000 (Exhibit R3), notes that the late veteran had never been tested for infection with Helicobacter pylori or received treatment for its eradication. Dr Grant refers to this point in his oral evidence (see paragraph 38). Moreover, he refers to the test for Helicobacter pylori as not becoming available until the early 1980s.
48. Dr Grant in his oral evidence to the Tribunal stated that Helicobacter pylori infection can be asymptomatic and that some patients can "either be asymptomatic or so minimally asymptomatic they won't seek treatment" (Transcript, 21 August 2003, page 4; page 11).
49. The Tribunal makes the observation that Dr Grant's oral evidence is confirmed in the reputable published medical literature:
"Since its discovery in 1984 [Helicobacter pylori] has been recognised as the principal cause of peptic ulcer disease and is the main risk factor for the development of gastric cancer. However, most infected people ([greater than] 70%) are asymptomatic."
Source: Logan RPH and Walker MM (2001), Epidemiology and Diagnosis of Helicobacter pylori infection. British Medical Journal, Volume 323, 20 October 2001 pages 920-922.
50. Ms Ferguson's statement to the Tribunal was that her father took antacids but never sought medical treatment for it (Transcript, 21 August 2003, page 14). Dr Deen confirmed the existence of dysphagia in 1999, and its effects on the late veteran (see paragraph 37). Dr Grant expresses the opinion that the dysphagia condition would have been present for 4 to 5 years before this time (paragraph 38).
51. Dr Lim in his report dated 8 April 2003 states:
"There was no obvious helicobacter pylori identified as almost all the tissue is cancer. However, the negative results does not exclude the possibility of Helicobacter pylori gastritis as the specimens taken were all from the tumour area rather than from the non tumour area of the stomach. Despite the histology not showing Helicobacter pylori it is more than likely that the non tumour area of the stomach would have shown helicobacter pylori if biopsies were able to be taken again which unfortunately is not possible." (Tribunal emphasis)
52. Mr Smith submits that Dr Lim's opinion merely leaves open the possibility of Helicobacter pylori infection and does not point to it.
53. A subsequent pathology report (Dr J Conrad, Sullivan Nicolaides, Exhibit R5, 14 May 2003) was undertaken from sections from the biopsy specimen of adenocarcinoma of the stomach that had been retrieved. The report states:
"Review of these sections confirms the diagnosis of gastric adenocarcinoma. There is a small component of residual benign gastric surface epithelium. No Helicobacter are identified in routine haematoxolin and eosin stained sections or in a Diff Quik stained section."
54. Dr Grant acknowledged that only minimal amounts of clear tissue for biopsy was available for pathology and that on these "minute amounts" it would not be possible to get 100% certainty of identifying Helicobacter pylori.
55. Dr Grant in his oral evidence then expressed the further opinion with respect to the question of the sampling intensity of the stomach in order to achieve an accurate confirmation of the presence (or absence) of Helicobacter pylori:
"...to get an absolute 100 per cent certainty one would have to sample the entire stomach, or to get a high probability one would have to sample possibly 20 or 30 areas of normal stomach. The main test here was that if there was a clear case of Helicobacter that would have a substantially different outcome. So a positive result - the reason I suggested this was that a positive result would have a much greater significance than a negative result. The result is on review is negative. Dr Lim has indicated he believes Helicobacter pylori was there, but it is unclear on what basis he makes that assumption - at least to me." (Transcript, 21 August 2003, page 10)
56. Mr Smith in his submissions referred to Harrison's Principles of Internal Medicine (14th Edition, 1998) and refers specifically to the following statement in the paragraph titled "EPIDEMIOLOGY [HELICOBACTER INFECTIONS]":
"Most studies show that spontaneous acquisition or loss of infection in adulthood is uncommon; thus most infections are thought to be acquired in childhood."
57. Based on this statement, Mr Smith contends that there is no evidence to suggest that any infection was contracted on service, and every reason to believe it was not. Furthermore, in his supplementary submissions (5 December 2003), Mr Smith states:
"The subsection entitled `Epidemiology' appears to be merely a slightly abbreviated version of the corresponding subsection in the 14th edition. Therefore, the respondent's submission remains the same: the evidence is that most H. pylori infections occur in childhood, with little evidence of acquisition of the bacterium in adulthood. Therefore, there is no material pointing to an acquisition of the infection on operational service."
58. Given the respondent has referred to Harrison's Principles of Internal Medicine[3], the Tribunal has referred to the more recent edition of this text (15th Edition) and to consider the above statement in the context of the equivalent section in this edition of the text (at page 960):
"Spontaneous acquisition or loss of bacterium in adulthood is uncommon. [Helicobacter] pylori is usually acquired in childhood... Other than age, the main risk factor for colonization is low socioeconomic status; crowding and low income in childhood are especially strong correlates of colonization.
Humans are the only important reservoir of H. pylori... whether transmission takes place by the fecal-oral or oral-oral route is unknown. H. pylori DNA has been found in water sources, and indirect epidemiological evidence indicates that contaminated water may lead to human colonization in developing countries. Much research is focused on determining which of these possible routes of acquisition is most important."
59. The Tribunal has considered all of the above factual evidence in relation to Factor 5(b)(i) of the SoP being satisfied and makes the following findings of fact:
(a) that it accepts Dr Grant's evidence that Helicobacter pylori infection can be asymptomatic, or so minimally asymptomatic, that treatment is not sought. Ms Ferguson's evidence confirms treatment was not sought;
(b) that the pathology sample for biopsy (Exhibit R5) on which further assays for the Helicobacter pylori were undertaken, contained insufficient amounts of clear tissue for biopsy and so was not representative of the site sampled. The sample could not be based on "possibly 20 or 30 areas of normal stomach". Accordingly, the negative result for Helicobacter pylori at this time cannot be regarded as an accurate result because of limitations imposed by sampling intensity;
(c) the Tribunal accepts the opinion evidence of Dr K Lim, a Gastroenterologist, that it was "more than likely that the non-tumour area of the stomach would have shown Helicobacter pylori...";
(d) the Tribunal accepts the evidence of Dr Deen that the late veteran suffered from mild dysphagia and weight loss associated with abdominal discomfort. Dr Deen's statement that treatment with Zanctac was confirmed by Ms Ferguson, namely, that her late father took antacids;
(e) the Tribunal accepts the evidence of Dr Grant who, on reviewing Dr Deen's report, acknowledges that the problems with dysphagia, difficulty in swallowing or weight loss would have been going on for about "four or five years absolute maximum" prior to the consultation with Dr Deen in 1999. Prior to this period, he states that "it could be argued that any symptoms that he had could be due to Helicobacter" but qualified this response with some uncertainty given that no treatment had been sought;
(f) however, the Tribunal has already made a finding in relation to the asymptomatic nature of Helicobacter pylori infection such that treatment is not always sought. The Tribunal considers this finding to be a plausible explanation for the late veteran to not seek treatment for Helicobacter pylori infection; and
(g) Harrison's Principles of Internal Medicine refers to the sequential course of infection and carcinoma: "Longitudinal analyses of gastric biopsy specimens taken years apart from the same patient show that inflammation may regress to atrophy, intestinal metaplasia, and dysplasia and then (by implication) to carcinoma".
60. Given these findings of fact, the Tribunal concludes that by applying the legal principle in Byrne's case, one or more facts necessary to support the hypothesis that the late veteran contracted Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach in 1999 cannot be disproved beyond reasonable doubt.
Connection between Operation Service and Helicobacter pylori infection
61. The next issue for the Tribunal to consider is the connection between Helicobacter pylori infection and the late veteran's operational service.
62. In discussing the statutory framework with respect to SoPs and raising a "reasonable hypothesis" connecting a disease with the circumstances of service, Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412 stated:
"8. Section 196A of the Act establishes the Repatriation Medical Authority (`the Authority'). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles ("SoP") in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors `must be related to service rendered by a person', before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
9. Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase `related to service'. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
`(b) it arose out of, or was attributable to, that service; or...
(d) it was contributed to in a material degree by, or was aggravated by, that service;...
(f) in the case of a factor causing, or contributing to a disease-it would not have occurred...but for the rendering of that service by the person'."
63. Later, Emmett J stated:
"42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that `factors must be related to any relevant service'. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43. ...Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service." (emphasis added)
64. The Tribunal has applied the reasoning and principles in this decision to the application for review.
65. It is not in dispute that diagnostic tests for identifying Helicobacter pylori infection did not exist during World War II and did not emerge until the 1980s.
66. It is also not in dispute that, on enlistment, the late Herbert Bennett was in excellent health and given a Classification I by the Army on 24 February 1942 (Exhibit R1, Folio 3). In addition, it is not in dispute that the late Mr Bennett served in New Guinea, a developing country.
67. The Tribunal observes that there is not a Statement of Principles concerning Helicobacter pylori infection.
68. The respondent has relied on only one risk factor - age - to rebut the hypothesis that the late veteran may have been infected with Helicobacter pylori during service in World War II. However, such a proposition does not consider the full extent of epidemiological knowledge on Helicobacter pylori infection as documented in the same published source relied upon by the respondent and upon which the respondent's submissions were made. Specifically, other risk factors relate to:
(a) significantly greater prevalence of Helicobacter pylori in developing countries relative to developed countries; and
(b) the link between Helicobacter phlori infection and contaminated water sources in developing countries (see paragraph 40).
69. These additional risk factors need to be considered in the context of the earlier findings made by the Tribunal. In particular, that Helicobacter pylori infection is frequently asymptomatic and that any failure to seek treatment does not necessarily reflect an absence of infection.
70. Accordingly, based on all the evidence and material before the Tribunal, and applying the legal principles in Byrnes' case, the Tribunal concludes that the claim will succeed. The Tribunal considers that it is evident that other sources of Helicobacter infection, such as childhood, are not sufficient to create the evidentiary circumstances whereby the possibility that the Helicobacter pylori was causally related to Mr Bennett's service can be disproved beyond reasonable doubt. Moreover, nor has the truth of another fact which is inconsistent with the hypothesis been proved beyond reasonable doubt; namely, that Helicobacter pylori infection would not have occurred but for the rendering of operational service by the late Mr Bennett in New Guinea.
71. The Tribunal in Re Thomas and Repatriation Commission [2003] AATA 65 concluded that the late veteran's Helicobacter pylori infection was related to operational service in New Guinea during World War II and in making this finding stated:
"...recognises, that while other sources of Helicobacter pylori infection are possibilities, for example childhood, it is evident to the Tribunal that such possibilities are not sufficient to create the evidentiary circumstances whereby the possibility that the Helicobacter pylori infection was causally related to his service, can be disproved beyond reasonable doubt." [paragraph 45]
72. For all of the above reasons the Tribunal concludes that Helicobacter pylori infection was related to the late veteran's operational service in New Guinea and that the hypothesis connecting his death from malignant neoplasm of the stomach with his operational service is a reasonable hypothesis.
73. The Tribunal decides to set aside the decision under review and in substitution therefor decides that the death of the late veteran was war-caused. Mrs Florence Bennett is entitled to receive a war-widow's pension with effect from 18 February 2000.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
Associate
Dates of Hearing 18 March 2003, 21 August 2003
Date of Decision 22 December 2003
For the Applicant Mr J Ferguson, applicant's daughter
For the Respondent Mr M Smith, Departmental Advocate
[1] The late veteran's weight on enlistment was only 131 pounds (Exhibit R1, Folio 3)
[2] The respondent has relied on the 14th Ed. of Harrison in final submissions made to the Tribunal. The Tribunal provided the respondent with the equivalent part of the 15th Ed. of Harrison's and invited the respondent to make supplementary submissions.
[3] See footnote 2.
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