PICKERING and REPATRIATION COMMISSION

[2011] AATA 385

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2230

VETERAN'S APPEALS DIVISION		)
Re		IAN PICKERING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Emert (Retd), Member
Dr K. J. Breen, AM, Member

Date6 June 2011

PlaceMelbourne

Decision

The decision under review is set aside.  In its place the Tribunal decides that:

1.        Mr Pickering’s psychiatric conditions are properly diagnosed as            post-traumatic stress disorder (PTSD) and depressive disorder;

2.        the PTSD is war-caused; and

3.        the depressive disorder is not war-caused.

.................[signed].....................

Member

VETERANS’ AFFAIRS – operational service in Vietnam – depressive disorder – whether depressive disorder war-caused – four stages of Deledio reasoning ‑ hypothesis connecting conditions with operational service ‑ Statements of Principles ‑ satisfied beyond reasonable doubt that depressive disorder not war-caused

Pickering and Repatriation Commission [2011] AATA 58

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

6 June 2011 Brigadier C. Emert (Retd), Member
Dr K. J. Breen, AM, Member

1.On 4 February 2011 the Tribunal handed down its interim decision in this matter, setting aside the decision under review and deciding that Mr Pickering’s psychiatric conditions are properly diagnosed as Post Traumatic Stress Disorder (PTSD) and Depressive Disorder and that the PTSD is war-caused (see Pickering and Repatriation Commission [2011] AATA 58). The Tribunal will now determine whether Mr Pickering’s Depressive Disorder is also war-caused.

SUBMISSIONS

2.        The applicant’s final submissions dated 28 April 2011 contend that the evidence before the Tribunal supports a finding that his Depressive Disorder is war-caused.  This contention is supported by Dr Hassan’s evidence.  In her oral evidence, Dr Hassan said it’s incredibly common to get depressed when you have PTSD … [i]t’s a very, very common post-comorbid diagnosis.  I think absolutely he suffered from depression.  The applicant also referred to the Tribunal’s earlier findings that Mr Pickering suffered a life-threatening event during his operational service in Vietnam and that he displayed symptoms consistent with PTSD soon after he returned from Vietnam.

3.        The applicant contends that the evidence and findings satisfy factor 6(a)(ii) of the Statement of Principles concerning Depressive Disorder (Instrument N° 27 of 2008 as amended by N° 40 of 2010) (the SoP) which requires the onset of the symptoms of Depressive Disorder occur within five years of the stressor.  The applicant also contends that factor 6(a)(vii), which requires him to have a clinically significant psychiatric disorder prior to the onset of the Depressive Disorder, is satisfied.

4.        In written submissions dated 29 April 2011 the respondent contends that factor 6(a)(ii) of the SoP is not satisfied, as the clinical onset of the Depressive Disorder was not until the 1990s, which is beyond the five year period specified.  The respondent refers to the evidence of Dr White, Dr Carter, Dr Mock, Mr Reid and Mrs Pickering and submits that the evidence does not point to the presence until the 1990s of all of the symptoms required by the SoP…