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 definition of Major Depressive Disorder.

5.        In regard to factor 6(a)(vii) of the SoP, the respondent submits that Mr Pickering’s PTSD did not become clinically significant until the 1990s.  The respondent contends that the evidence of Dr Hassan and Dr White is in accord in indicating that PTSD did not precede and cause Depressive Disorder but that the clinical onset of both conditions was at the same time, or co-morbid.

6.        In a letter dated 6 May 2011 the applicant advised that he did not wish to make further submissions in response to the respondent’s submissions.

THE ISSUES

7.      The issue remaining to be determined is whether Mr Pickering’s Depressive Disorder is war-caused.

IS MR PICKERING’S DEPRESSIVE DISORDER WAR-CAUSED?

8.        In making this determination the Tribunal follows the same path it used in its determination in regard to PTSD, namely the path laid out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97-98:

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.

step 1 – does the material point to a hypothesis connecting the veteran’s depressive disorder with his operational service?

9.        The hypothesis advanced by Mr Pickering is that he experienced a category 1A stressor during his operational service in Vietnam, as a result of which he developed Depressive Disorder as a co-morbid condition with his PTSD (which has already been found to be war-caused).

10.      The Tribunal accepts that this hypothesis connects Mr Pickering’s Depressive Disorder with his operational service.

step 2 – is there an sop in force which deals with the relevant condition?

11.      There is an SoP.  Instrument N° 27 of 2008 (as amended) is the SoP concerning Depressive Disorder.

step 3 – does the hypothesis fit the template of the sop?

12.     Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the person’s service.  The relevant factors in paragraph 6(a) of the SoP are:

…

(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

…

(vii)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or

…

13.     In this case, the hypothesis is that Mr Pickering experienced a life-threatening incident, a category 1A stressor, during his operational service in Vietnam and that the clinical onset of his Depressive Disorder was immediately on his return from Vietnam, which was within five years of the stressor.  The Tribunal accepts that the hypothesis fits this section of the SoP.

14.     The application of factor 6(a)(vii) of the SoP to this case requires the clinical onset of Mr Pickering’s Depressive Disorder to be after, and within two years of, the onset of his PTSD.  The applicant’s submission is that features consistent with PTSD were apparent soon after Mr Pickering returned from Vietnam and therefore his PTSD pre-dated the onset of his Depressive Disorder.  However, that submission ignores the two-year limitation specified in that factor.

15.     The hypothesis that Mr Pickering’s Depressive Disorder is a co-morbid condition with his PTSD also does not meet the provisions of factor 6(a)(vii).  Co-morbidity means that the conditions exist simultaneously.  Without further amplification, the term co-morbidity does not imply that, in this case, Mr Pickering’s PTSD preceded his Depressive Disorder, nor that the clinical onset of his Depressive Disorder occurred within two years of the onset of his PTSD.  Accordingly, the Tribunal is not satisfied that the hypothesis meets the template of the SoP in regard to factor 6(a)(vii).

16.     As the hypothesis meets the template of the SoP in regard to factor 6(a)(ii), the Tribunal will proceed with Step 4 of the Deledio reasoning and determine whether it is satisfied beyond reasonable doubt that Mr Pickering’s Depressive Disorder is not war-caused.

step 4 – is the tribunal satisfied beyond reasonable doubt that the depressive disorder was not war-caused?

17.The classic symptoms of depression include depressed mood, lack of energy and drive, tiredness, diminished interest in most activities, problems with concentration, sleep disorder, irritability and suicidal ideas.  Of these symptoms, the ones that overlap with PTSD are sleep disturbance and irritability and the Tribunal has evidence of the existence of these symptoms from the time of Mr Pickering’s return from Vietnam.  However, the Tribunal has been unable to find clear evidence of the other identifiably separate symptoms of depression soon after his return from Vietnam.

18.Dr Hassan, by establishing excellent communication with Mr Pickering, was able to elicit symptoms and behaviour soon after Mr Pickering’s return that, in retrospect, were consistent with PTSD.  Her evidence in that regard was supported by that of Mrs Pickering.  Apart from irritability and trouble sleeping, the Tribunal is unable to find evidence of any symptoms of depression in those early years from the evidence of Dr Hassan or of other witnesses.

19.To the contrary, the Tribunal has evidence of Mr Pickering’s behaviour and demeanour that is not consistent with diagnosable depression.  This includes the observations of family friend Mr Reid, and Mrs Pickering’s evidence of altered behaviour that troubled her as being most obvious in the last 10 to 15 years (Transcript, page 129, line 44 onwards).  The evidence also includes Mr Pickering’s good work record, which is not consistent with significant depression.  In addition, the evidence of the other psychiatrists is that depressive symptoms first manifested around 15 to 20 years ago.  The records of Mr Pickering’s general practitioner support this evidence.

20.There is further evidence in Dr Hassan’s written report that is consistent with this analysis.  At the bottom of page 12, she writes:

Whilst there is no history of MDD [Major Depressive Disorder] prior to his service there is not as clear a temporal relationship with MDD and his service.

21.     As a result of these considerations, the Tribunal is satisfied that the clinical onset of Mr Pickering’s Depressive Disorder did not occur until the 1990s.  This timeframe is well outside the five-year provision of factor 6(a)(ii) of the SoP.  Accordingly, the Tribunal is satisfied that Mr Pickering’s Depressive Disorder is not connected to his operational service.

22.     The Tribunal is satisfied beyond reasonable doubt that Mr Pickering’s Depressive Disorder is not war-caused.  This does not alter the previous finding that Mr Pickering’s PTSD is war-caused.

DECISION

23.      The decision under review is set aside and in its place the Tribunal decides that Mr Pickering’s psychiatric conditions are properly diagnosed as PTSD and Depressive Disorder and that the PTSD is war-caused.  However, the Depressive Disorder is not war-caused.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision herein of:

Brigadier C Ermert (Retd), Member
Dr K J Breen, AM, Member

Signed: ………………[signed]…………………………………

Associate  Grace Horzitski

Dates of Hearing:  26 and 28 July, and 23 November 2010

Date of Decision:  6 June 2011

Solicitor for the applicant:               Williams Winter Solicitors

Counsel for the applicant:              Ms C. Serpell

Solicitor for the respondent:          Mr K. Rudge, Department of Veterans’   Affairs