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Administrative Appeals Tribunal of Australia |
Last Updated: 23 January 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
HILDA THOMAS |
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And |
REPATRIATION COMMISSION |
Tribunal |
Dr J D Campbell, Member |
Decision |
The Tribunal determines that the decision under review be affirmed. |
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VETERANS' ENTITLEMENTS - war widow pension - war caused death - B-cell non-Hodgkin's lymphoma of duodenum - issue of Helicobacter pylori infection - concurrent evidence
Veterans' Entitlements Act 1986 - ss 9, 120, 120A
Statement of Principles Instrument No. 80 of 1999 concerning Non-Hodgkin's Lymphoma
23 January 2003 |
Dr J D Campbell, Member |
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1. In this matter, Mrs Hilda Thomas ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 15 March 2000 that determined, that the death of her husband, the late veteran Mr James Thomas was not war caused, in that the evidence did not raise a reasonable hypothesis connecting the death of the late veteran with his operational service. This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 22 February 2001.
2. A hearing was held before the Tribunal in Sydney on 28 August 2002 at which the Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Mr Modder, an advocate, from the Department of Veterans' Affairs. The Applicant and Professor Zwi presented oral evidence on this day. The matter was held over until 13 November 2002 at which concurrent evidence was taken from Dr Garvey and Professor Zwi, together with closing submissions.
3. The following documents were placed into evidence before the Tribunal:
Exhibit |
Description |
Date |
T1-T19 p1-p59 |
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 |
|
A1 |
Applicant's Statement of Facts & Contentions |
20 November 2001 |
A2 |
Statement of Mrs Hilda Thomas |
28 February 2002 |
A3 |
Statement of Mr John Little |
20 February 2002 |
A4 |
Medical Report of Professor J Shepherd |
8 November 2001 |
A5 |
Medical Report of Dr J Garvey |
9 July 2002 |
A6 |
Medical Report of Dr J Garvey |
11 November 2002 |
A7 |
Five Articles provided by Dr J Garvey |
13 November 2002 |
R1 |
Respondent's Statement of Facts & Contentions |
14 August 2002 |
R2 |
Clinical Notes of Dr Wong |
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R3 |
Clinical Notes Bankstown Lidcombe Hospital |
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R4 |
Medical Report of Dr Hall |
12 November 2001 |
R5 |
Medical Report of Dr Hall |
3 January 2002 |
R6 |
Medical Report of Professor Zwi |
23 June 2002 |
R7 |
Clinical Notes Concord Hospital |
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ISSUE
4. The relevant issue in this matter is whether the late veteran's death from non-Hodgkin's lymphoma was war-caused.
LEGISLATION
5. The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 9, 120, 120A and Statement of Principles Instrument No.80 of 1999 concerning non-Hodgkin's lymphoma.
BACKGROUND
6. The Applicant lodged a claim (T11) for a widow's pension on 13 March 2000 in which she claimed that the death of her husband, the late veteran James Thomas, from non-Hodgkin's lymphoma on 4 December 1982 was caused and/or contributed to by his war service in New Guinea between 1943 and 1946. In completing her claim the Applicant stated that the late veteran had suffered the following conditions after discharge:
* Back Injury and Arthritis - Treated in 1947 by general practitioner Dr Wong and in 1948 by Dr Corrigan at Concord Hospital;
* Gastric Upsets - Treated in 1947 by Dr Wong
* Bowel Fistula - Treated in 1960 by Dr Cutler at Bankstown Hospital
* Laminectomy - Treated in Concord Hospital in 1981 by Dr Wilding
* Duodenal Cancer - Treated in Concord Hospital in 1981 by Dr Hewson
7. In a statement accompanying the claim (T11, p33):
"My late husband suffered with gastric upsets from as early as 1947. Being a proud and independent man he never approached Repat for assistance but did attend the family doctor who treated him with various antacid compounds for many years.
Jim was also troubled with back pain from about 1947 as well as disc trouble, both conditions developing into arthritis for which he was treated originally with rest and muscle relaxants until about the mid-1950's when drugs such as Naprosyn and Indocid became available. He was treated with them from that time on. Unfortunately these medications aggravated the stomach to such an extent that he remarked he didn't know which was the worst, however as he could not work without pain relief he felt he had no choice but to continue with the arthritis medication.
I believe his war service was the cause of the deterioration in health. His service involved strenuous physical labour in the manual removal of rocks from riverbeds for road making in New Guinea, back. I also believe that the cramped and unhygienic living conditions caused him to develop Helicobacter pylorus but this condition was unheard of in the 40's and 50's. He had in fact 3 tours of duty, serving in Milne Bay, Port Moresby and Rabaul. Undoubtedly Helicobacter infection caused the development of a fistula in the bowel about 1960 and can also be linked to the duodenal cancer which was not diagnosed until many years later.
The cause of death is stated to be Non Hodgkin's lymphoma it is my firm belief that this was the end cause but the significant contributing factors were stomach disease and duodenal cancer. The doctor who signed this Death Certificate did not treat my husband except on his admission to Bankstown Hospital on 2nd December, Jim died on 4th December, I thus question the wording of the Death Certificate. These conditions could not be managed appropriately because they were masked by the constant stomach upsets which plagued Jim after discharge from the army, and for the remainder of his life."
8. On 15 March 2000 the Respondent determined that the late veteran's death was not war-caused, as the evidence did not raise a reasonable hypothesis connecting the death of the late veteran with his operational service (T12).
9. On 2 February 2001 the VRB affirmed the decision under review (T17) and in so doing concluded:
* that there was no material before the Board to indicate that the tumour was a primary B-cell lymphoma;
* that even if the veteran was infected with helicobacter pylori, the infection could not be connected with the veteran's service.
APPLICANT'S EVIDENCE
10. The Applicant confirmed the comments within her statement of 28 February 2002 in which she indicated that her husband had helped rebuild the mission station at Kwato in August/September 1945, during which time he had day-to-day contact with children (Exhibit A2).
11. The Applicant told the Tribunal of her late husband's stomach problems which commenced in 1947 when her husband complained of nausea and a sick feeling. She stated that her husband saw a general practitioner at that time, who considered that the problems arose from the ingestion of atebrin tablets, and that time would remedy the problem. The Applicant stated that her late husband continued to suffer symptoms every few weeks, but that no doctor pursued the causation with further investigation. Instead, she stated that her late husband did not bother to seek medical attention for these symptoms and that he resorted to self-medication with a variety of proprietary medications including Andrews, Mylanta and Kaomagma. Nevertheless she stated that the frequency of symptoms did not change over the years.
12. In response to questions in cross-examination, the Applicant indicated that the late veteran had had considerable treatment for his arthritis over many years including a hospitalisation period of three months duration. The Applicant stated that the late veteran did not suffer from any episodes of diarrhoea, anaemia or other major illnesses until his admission to Concord Hospital in 1981.
OTHER EVIDENCE
FILE EVIDENCE
13. The late veteran's cause of death was stated to be a non-Hodgkin's lymphoma with the date of death being 4 December 1982.
CONCORD CLINICAL NOTES
14. On 28 September 1981 a panendoscopic examination at Concord Hospital by Dr Loh was reported as:
"The oesophagus and stomach were normal. The duodenal bulb was also normal. However in the second part of the duodenum a clearly malignant lesion was seen infiltrating around 3/4 of the circumference of the mid part of the second part of the duodenum. There was also a small second lumen seen. However, this might represent a deep diverticulum, a fistula over the colon. Biopsies were taken of this malignant lesion." (Exhibit R7 - p 356)
15. On 6 October 1981 a barium duodenogram was reported as showing:
" A featureless fistula passes between the distal 2nd part of the duodenal loop and the proximal 4th part of the loop. The 3rd part just proximal to the junction of the fistula with the 4th part is relatively stenosed. Oedema involves the duodenal mucosa and walls. A diverticulum is shown on the inner aspect of the 2nd part of the loop about 20mm proximal to the fistula. There is no evidence of any communication with the colon. A chronic granulomatous or neoplastic aetiology is possible. A carcinoma of the pancreas or a lymphoma could be considered in the neoplastic group. In support of the latter, the CT of the lumbar spine shows an apparent mass lesion about the lower lumbar bodies where the aorta and the inferior vena cava are not able to be defined." (Exhibit R7, p305-306)
16. A duodenal biopsy was undertaken and in 9 October 1981 a report was issued stating:
" Sections show fragments of small bowel mucosa and submucosa. The mucosa is acutely inflamed and the submucosa is heavily infiltrated by poorly differentiated lymphocytes. The appearance is that of a poorly differentiated lymphocytic lymphoma." (Exhibit R7, p13)
17. Despite clinical records stating that the late veteran was suffering from a poor differentiated non-Hodgkin's lymphoma involving the gastric mucosa and retroperitoneum (Exhibit R7, p201, p217), a panendoscopy performed on 16 July 1982, which is a time frame consistent with the two earlier entries referred to, is reported in the following terms:
"Oesophagus NAD. Stomach NAD. Duodenal cap normal. In the middle of the second part of the duodenum there was a large ulcerated polypoid lesion, which is almost circumferential. This looked and felt very malignant. Numerous biopsies were taken..." (Exhibit R7, p211)
MR LITTLE
18. In a statement dated 20 February 2002, Mr Little, a veteran who served with the late veteran in New Guinea, stated that the late veteran was sent to help out at the Kwato Mission for a couple of months between mid-August, early September and sometime in November (Exhibit A3).
PROFESSOR SHEPHERD
19. Professor Shepherd, a consultant surgeon, prepared a report following an examination of the T-documents. In his report dated 8 November 2001, (Exhibit A4) the late Professor Shepherd stated:
* he would agree that if the late veteran had suffered from a mucosa associated lymphoid tissue lymphoma, it would be appropriate to assume that the late veteran was infected with Helicobacter pylori, as that organism is found in the great majority of patients with the mucosa associated lymphoid tissue lymphoma;
* it cannot be proved that the late veteran developed the Helicobacter pylori in New Guinea, although it was statistically more probable that he acquired the infection in New Guinea than in childhood, if he served for two years or more in New Guinea;
* that the bacteria, Helicobacter pylori was first described in 1982; the association with peptic ulcer in 1984, with type B lymphomas in 1991, and with carcinoma of the stomach in 1994.
20. In conclusion Professor Shepherd stated:
"The present issue therefore is no longer to decide whether the veteran was infected with Helicobacter Pylori but whether it is a reasonable, rather than a fanciful, proposition that this could have been acquired as a result of war service. Conclusive proof is clearly impossible but in my opinion this is a perfectly reasonable hypothesis that is more than a mere possibility." (Exhibit A4)
DR GARVEY
21. In a report dated 9 July 2002, (Exhibit A5) Dr Garvey, a consultant surgeon expressed the following opinion:
"1. On the balance of probabilities, Mr James Thomas suffered from Helicobacter infestation of his stomach.
2. Mr Thomas was most likely to have developed Helicobacter pylori infection during his War Service in New Guinea rather than in his childhood or in his adulthood in Australia.
3. There is evidence that Helicobacter infection is causally related to the type of non-Hodgkin's lymphoma of which Mr Thomas suffered.
4. There is now new clinical evidence based on immuno-staining that Mr James Thomas suffered from primary B-cell lymphoma which is irrefutable proof.
5. Mr Thomas satisfies factor 5(h) of the statement of principles concerning non-Hodgkin's lymphoma (80 of 1999).
6. In my opinion, Mr Thomas' terminal condition of non-Hodgkin's lymphoma was war-caused.
7. I agree with the opinion expressed by Professor Shepherd that it is reasonable to assume that Mr Thomas acquired Helicobacter pylori in New Guinea.
8. I agree with the body of the report of Professor Peter Hall dated 12th November 2001 and I consider this a clear statement of the issues involved. This report is unfavourable to the claimant's case only because it is considered that Mr Thomas suffered from poorly differentiated lymphocytic lymphoma or alternately, "large cell diffused" lymphoma. However, the sections of duodenal tumour have been re-embedded and the biopsies that are available show a predominantly B-cell pattern which, if such information were made available to Professor Hall, he would undoubtedly like to reconsider his opinion."
22. In a report dated 9 July 2002 attached to Dr Garvey's opinion, Dr Lin, a consultant histopathologist, having undertaken further immunohistochemical stains on the residual tissue contained within the paraffin blocks of 1981 concluded:
" The findings would favour a diagnosis of B-cell malignant lymphoma, of mucosa associated lymphoid tissue (MALT) type."
23. The Tribunal also notes the five articles provided by Dr Garvey:
(a) Regression of Duodenal Mucosa-Associated Lymphoid Tissue
Lymphoma After Eradication of Helicobacter pylori: Nagashima et al. Gastroenterology, December 1998.III: 1674-1678
"...no reports have mentioned any relationship between the disease and Helicobacter pylori infection ... Antibiotic therapy for Helicobacter pylori resulted in resolution of the morphological feature of the lymphoma ... Although additional follow up is needed it is suggested that Helicobacter pylori eradication therapy may be effective for patients with MALT lymphoma in the duodenum as well as the stomach."
(b) Duodenal Mucosa -Associated Lymphoid Tissue Lymphoma
Treatment with Oral Cyclophosphamide: Anne Lepicard et al.
The American Journal of Gastroenterology 2000 Vol 5 No.2
"Small cell mucosa associate lymphoid tissue (MALT) lymphoma rarely affect the duodenum. Three of the four cases reported antral gastritis with associated Helicobacter pylori infection."
(c) Increased Incidence of Follicular Lymphoma in the Duodenum
Tadashi Yoshimo et al.
The American Journal of Surgical Pathology Vol 24 No.5 2000, p688-693
"Mucosa-associated lymphoid tissue (MALT) lymphoma has been widely accepted as a new lymphoma entity since the first description in 1983 by Isaacson and Wright. The stomach is the most common site of this lymphoma and an etiologic relationship with Helicobacter pylori has been documented. Primary MALT lymphoma also develops in the duodenum which is occasionally sensitive to eradication of Helicobacter pylori." (p 688)
(d) Eradication of Helicobacter pylori Did Not Lead to Cure of Duodenal Mucosa - Associated Lymphoid Tissue Lymphoma.
JS Kim et al.
Scandanavia Journal of Gastroenterology 1999; 34-215-218
"Mucosa-associated lymphoid tissue (MALT) lymphoma of the duodenum is very rare and little is known about its development and clinical course. In low-grade gastric MALT lymphoma the major risk factor is Helicobacter pylori infection, and eradication of this organism may lead to regression of the lymphoma. The association between duodenal MALT lymphoma and and Helicobacter pylori infection has not been established, although MALT lymphoma regression after Helicobacter pylori eradication has been reported." (p215)
(e) Tracking down Duodenopancreatic Malignancy
Westerhof et al. Surgery 2000 Vol 02 405-411
"There is only minor evidence that eradication of Helicobacter pylori is beneficial other than in gastric mucosa." (p406)
DR HALL
24. Dr Hall, a consultant in internal medicine in a report dated 12 November 2001 (Exhibit R4) made the following observations :
* unable to find any evidence that the late veteran had Helicobacter pylori infection at the time of the clinical onset of Non-Hodgkin's lymphoma;
* that in 1981 the possibility of diagnosing Helicobacter pylori infection was not possible;
* that even if the late veteran was suffering from a Helicobacter pylori infection there was nothing in the accompanying material to suggest a causal link between such infection and the veteran's service.
PROFESSOR ZWI
25. Professor Zwi, a consultant physician in his report dated 25 June 2002, (Exhibit R6), concluded that the late veteran did not have Helicobacter pylori infection, nor did he have B-cell lymphoma of the stomach, and that his death from non-Hodgkin's lymphoma was not related to his war service.
MILITARY SERVICE REPORT
26. In an advisory report from the Respondent's Disability Compensation Branch on 21 December 1999 (T14), the issue of Military Service and infection with Helicobacter pylori is considered. The following relevant extracts are appropriate in the consideration of this matter:
Is infection present?
While the diagnosis of the condition to be investigated is determined on the balance of probabilities the presence of the Helicobacter pylori infection is a factor necessary under both reasonable hypothesis and balance of probabilities.
Scientific evidence has established that in most persons with the form of the four diseases covered by the above SoPs the infection is present. This means that even on the balance of probabilities the infection is present in those with the disease under investigation. Other than for some very specific circumstances it would be impossible to be satisfied beyond reasonable doubt that the infection was not present in those suffering from the diseases under consideration.
The presence of infection at the time of or before the clinical onset of the relevant disease can be presumed where infection was first detected at some time after the clinical onset of the disease, unless there is a negative pathology test. Since pathology testing has only been available since 1983 claims that rely on an earlier onset of Helicobacter pylori infection cannot be required to use such a test to establish the presence of the infection at the time of clinical onset.
Presence of Helicobacter pylori infection
Helicobacter pylori infection is present in nearly all cases of chronic gastritis. This is also true of duodenal ulceration as well as nearly all cases of chronic gastric ulceration that are not due to ingestion of non-steroidal anti-inflammatory drugs (NSAIDs). The infection also precedes essentially all cases of stomach cancer of the fundus, body, antrum and pylorus. The infection is also a necessary precursor to primary B-cell lymphoma of the stomach.
About 15% of infected persons will develop a peptic ulcer and considerably fewer will develop stomach cancer. These diseases may not appear until some decades after infection.
The scientific evidence concerning rates of infection means that we can be reasonably satisfied that Helicobacter pylori is (or was) present in almost all persons with one of the relevant diseases (chronic gastritis, peptic ulcer, malignant neoplasm of the stomach (specific sites) and non-Hodgkin's (primary B-cell) lymphoma of the stomach), without the need to specifically demonstrate the infection by pathological testing.
Thus in most cases covered by the relevant SoPs the presence of Helicobacter pylori infection can be presumed.
Was infection caused by VEA service?
Operational and warlike and non-warlike cases
The following circumstances could allow infection to be attributed to service:
(a) acquisition of infection demonstrated by pathology tests during the course of operational/warlike/non-warlike service; or(b) service involving close personal contact with children for periods totalling at least six months.
Acquisition of infection during service would be demonstrated by a negative pathology test for Helicobacter pylori during or shortly before a period of service, followed by a positive pathology test at some later time during or shortly after that service.
Close contact with children is possible in circumstances of nursing staff looking after children, military aid in civil emergencies involving contact with children and aid to orphanages by military personnel. There may be any number of other means that may form part of the claim for a medical condition where Helicobacter pylorus is a factor. Such claims remain to be decided in accordance with the Commission Guidelines on "Decision-making" (the Deledio approach).
For military personnel whose relevant service predates the availability of pathology testing from 1983 the circumstances described in (a) are unable to be satisfied.
CONCURRENT EVIDENCE
27. The two clinicians, Dr Garvey and Professor Zwi both considered that the late veteran was, on the balance of probabilities, infected with Helicobacter pylori at the time of his clinical onset of his non-Hodgkin's lymphoma. There was no agreement between the two clinicians that such an infection was related to his operational service; with Professor Zwi being of the opinion that there was no material in the late veteran's clinical history to support such a contention. Dr Garvey considered that the late veteran's service in New Guinea, his time spent assisting the repair of a mission station on an island near Port Moresby and his further time at Rabaul preparing the city for civilian re-occupation did raise the hypothesis relating his infection to war service, which in turn had been clearly analysed by the late Professor Shepherd.
28. The two clinicians agreed, that with the further histopathological report, the late veteran's non-Hodgkin's lymphoma was a B-cell type. Dr Garvey, while noting that the tumour location was in the second part of the duodenum argued that the B-cell mucosal affected lymphoid tumour (MALT) which affected the stomach and the duodenum were tumours with the same pathogenesis and should be treated identically when considered in the circumstances such as in this matter. In support of his position Dr Garvey referred to five articles, which have been discussed briefly earlier in this decision. Professor Zwi, while agreeing that the tumour was a B-cell type, was specific in stating that the lesion was in the duodenum, not the stomach.
SUBMISSIONS
APPLICANT
29. Counsel for the Applicant submitted that the late veteran died from a B-cell non-Hodgkin's lymphoma; that the late veteran was infected with Helicobacter pylori at the time of the clinical onset of the tumour, that infection with Helicobacter pylori occurred during the late veteran's service in New Guinea, with particular reference to his working with children at the mission on an island near Port Moresby for several months and his subsequent activities in assisting to repair Rabaul for civilian re-occupation. In so submitting Counsel relied upon the opinions of Professor Shepherd and Dr Garvey.
30. Counsel further submitted that a MALT tumour of the duodenum and MALT tumour of the stomach were tumours with the same aetiology and pathogenesis, and that the Statement of Principles of No.80 of 1999 concerning non-Hodgkin's lymphoma reflects an assessment of current medical knowledge at that time. Counsel, in relying upon the opinion of Dr Garvey and the five accompanying articles, argued that particular consideration should be given to the Applicant's case and that the two tumour sites in question should be considered as concurrent in terms of aetiology and pathogenesis.
RESPONDENT
31. The Respondent, in accepting that the late veteran died from a B-cell type non-Hodgkin's lymphoma of the duodenum, submitted that this tumour site did not satisfy factor 5(h) of Statement of Principles Instrument No.80 of 1999 concerning non-Hodgkins lymphoma, as the site nominated was the stomach.
32. The Respondent, while accepting that the late veteran was, on the balance of probabilities, infected with Helicobacter pylori at the time of the clinical onset of his non-Hodgkin's lymphoma, submitted that there was no material pointing to the late veteran being infected during service. In so stating the Respondent relied upon the opinions of Dr Hall and Professor Zwi.
CONSIDERATION AND FINDINGS
33. In addressing this matter, the Tribunal is again reminded that medicine as a science continues to evolve as human endeavour pursues understanding of the cause, course and nature of a disease process. It is evident to the Tribunal that aspects of the causative chain leading to the development of the tumour which caused his death did not surface to after his death, namely the issue of Helicobacter pylori infection. The Tribunal further noted that at the time of the hearing there would appear to be unresolved issues as to whether a mucosal-related lymphoid tumour (MALT) of the stomach and of the duodenum are congruent in terms of causation and pathogenesis.
34. The Tribunal, again with the assistance of new developments in science, in noting the report of Dr Lin, a consultant histopathologist of 9 July 2002, concludes that the late veteran, on the balance of probabilities died from a mucosal related lymphoid tumour of the duodenum of the B-cell type, ie a non-Hodgkin's lymphoma. The Tribunal notes that there was no disagreement on this issue between Professor Zwi and Dr Garvey, while Professor Shepherd and Dr Hall, had not provided further medical reports subsequent to the advice of Dr Lin becoming available.
35. Further the Tribunal, having analysed both the Respondent's advisory report on Helicobacter pylori infection and the five articles provided by Dr Garvey, concludes on the balance of probabilities that the late veteran was infected with Helicobacter pylori at the time of the clinical onset of the non-Hodgkin's lymphoma of the duodenum. The Tribunal also observes that Dr Garvey, Professor Zwi and Professor Shepherd are of similar opinion. In so finding as it has the Tribunal is mindful that the literature as nominated and the opinions of the doctors point to a particular correlation, namely the presence of Helicobacter pylori infection, in the great majority of cases, with non-Hodgkin's lymphoma, B-cell type, of both the stomach and duodenum. The Tribunal, in reaching such a finding, has applied current knowledge of clinical circumstances and relationships, to a clinical situation in history (1981/82) where such clinical circumstances and relationships had yet to be defined.
36. In addressing all the material before the Tribunal, the Tribunal observes that such material points to the following facts, which can be said to have been raised by the material:
* the late veteran had extensive operational service in New Guinea during World War 2;
* that during his service in New Guinea he worked at a mission for several months in 1945, during which time he was exposed to children. Further he then worked in Rabaul preparing the town for re-occupation;
* that from 1947 onwards he suffered from arthritis for which he required hospitalisation; that he arthritis although episodic in severity continued over the years with intermittent exacerbations in his lower back, hips and knees;
* that from 1947 onwards the late veteran suffered from episodic gastric problems, namely nausea and a sick feeling. The illness was treated with self-treatment and antacids by a local medical practitioner. Treatment for arthritis with particular medications aggravated his stomach condition;
* a review of Dr Wong's clinical notes from1964 onwards indicate the majority of attendances by the late veteran at his surgery related to arthritic complaints;
* a review of the Concord Clinical Notes and Dr Wong's Clinical Notes are silent on the issue of duodenal ulceration, and indeed repeated endoscopies report the duodenal cap as normal.
37. From a consideration of all the material and in particular the facts pointed to by the material, the Tribunal concludes that the following hypothesis is raised namely: The late veteran's service in New Guinea resulted in infection with Helicobacter pylori and this infection continued and was present at the time of the clinical onset of his non-Hodgkin's lymphoma, B-cell type of his duodenum in 1981, which led to his death in 1982. Such a hypothesis is pointed to by the nature and length of service in New Guinea and his involvement with children at the mission over several months in 1945 and the rebuilding of Rabaul prior to re-occupation in late 1945 early 1946.
38. The Tribunal further notes that the hypothesis as nominated is a hypothesis supported by both Professor Shepherd and Dr Garvey.
39. In addressing the issue of whether the raised hypothesis is a reasonable hypothesis, the Tribunal observes that factor 5(h) Statement of Principles Instrument No.80 of 1999 concerning non-Hodgkin's lymphoma states:
(h) for primary B-cell lymphoma of the stomach only, having Helicobacter pylori infection at the time of the clinical onset of non-Hodgkin's lymphoma.
40. The Tribunal also notes that Helicobacter pylori infection is defined within paragraph 8 of Instrument No.80 of 1999 as "means an infection of the mucus layer overlying gastric-type epithelium by the bacterium Helicobacter pylori."
41. The Tribunal, while again observing that the late veteran had already died before issues of testing for and the significance of Helicobacter pylori infection had been identified in 1983, has already concluded on the balance of probabilities that the late veteran was infected with Helicobacter pylori at the time of the clinical onset of his non-Hodgkin's lymphoma, cell Type B. The issue that remains to be considered is whether such infection was related to his service.
42. The Tribunal observes that there is not a Statement of Principles concerning Helicobacter pylori infection, nor it would seem an intention to create such. In the absence of such a Statement of Principles the Tribunal must consider whether the Helicobacter pylori infection, which on the balance of probabilities has been found to exist at the time of the clinical onset of the non-Hodgkin's lymphoma, is causally related in some way to the late veteran's relevant service.
43. The Tribunal, in considering this particular part of the hypothesis, notes that both Professor Shepherd and Dr Garvey point to particular aspects of the late veteran's service, namely the length of time in New Guinea and in particular his service at the mission which involved mixing with children and the rebuilding of Rabaul prior to reoccupation. The Tribunal also notes that Professor Shepherd has statistically evaluated the likelihood of the late veteran acquiring Helicobacter pylori infection as a consequence of his service in New Guinea. The Tribunal also notes the opinions of Professor Zwi (the material does not point to such an infection during service) and Dr Hall (the material points to an infection more likely occurring in childhood).
44. In considering all the material before it, the Tribunal is satisfied that a reasonable hypothesis exists which relates the late veteran's infection with Helicobacter pylori to his service in New Guinea. The Tribunal in making such a finding recognises that particular assumptions are being made, in that Helicobacter pylori became identified as clinically important in 1983. Nevertheless the Tribunal does not view the foundations upon which this part of the hypothesis is raised and upon which Professor Shepherd and Dr Garvey rely as being mere possibilities or being too remote or too tenuous, as the material clearly points to particular activities within the late veteran's service in New Guinea, namely length of time, serving with children and rebuilding of Rabaul. Further the Tribunal also concludes that the hypothesis raised is not contrary to known scientific fact, nor is it fanciful or untenable.
45. In addressing section 120(1) of the Act, the Tribunal, in noting both Dr Hall's and Professor Zwi's opinions, concludes that there is nothing in either of their opinions which disprove any of the facts which support the hypothesis relating Helicobacter pylori infection to service beyond reasonable doubt. Further there are no other facts in the material which are inconsistent with the hypothesis before the Tribunal which are proved beyond reasonable doubt. Accordingly the Tribunal concludes that the late veteran's Helicobacter pylori infection was related to his war service. The Tribunal, in so finding, 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.
46. In addressing the second part of the hypothesis, the Tribunal, in noting that the factor 5(h) of Instrument No.80 of 1999 refers only to primary B-cell lymphoma of the stomach, concludes that, as the late veteran's B-cell lymphoma was of the second part of the duodenum, the hypothesis cannot be considered reasonable, on this particular fact and this particular fact alone.
47. The Tribunal has indeed noted the opinion of Dr Garvey that a B-cell non-Hodgkin's lymphoma in two sites nominated in this matter have essentially the same causation, pathogenesis and treatment, and that the articles provided in support of his position allow the reader a tentative appreciation on what clinical inferences the authors are drawing from their clinical studies. However even if the Tribunal was able to conclude a definite opinion, it is not the role of the Tribunal to alter, change or redefine the Statement of Principles as it exists.
48. In such circumstances, it is appropriate that such articles and opinions be drawn to the attention of the RMA Authority who are responsible for determining such Statements of Principles. It is understood that the Respondent intended to undertake such action at the conclusion of the hearing.
49. The Tribunal, having determined that the hypothesis connecting the late veteran's death from non-Hodgkin's lymphoma, B-cell type of the duodenum with his operational service was not a reasonable hypothesis, determines that the decision under review be affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .......................................................................................
Associate
Dates of Hearing 28 August 2002, 13 November 2002
Date of Decision January 2003
Counsel for the Applicant Mr M Vincent
Advocate for the Respondent Mr S Modder
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