Pickering and Repatriation Commission

[2011] AATA 58

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2230

VETERANS' APPEALS DIVISION		)
Re		IAN PICKERING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

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

Date4 February 2011

PlaceMelbourne

Decision The decision under review is set aside and in its place the Tribunal decides 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.

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

Member

VETERANS’ AFFAIRS – operational service in Vietnam – anxiety disorder, depressive disorder, erectile dysfunction, ischaemic heart disease, unilateral edema of left eye – diagnosis of psychiatric conditions – PTSD, depressive disorder – whether psychiatric conditions war-caused – four stages of Deledio reasoning ‑ hypothesis connecting conditions with operational service  ‑ Statements of Principles ‑ not satisfied beyond reasonable doubt that PTSD not war-caused – decision set aside – PTSD war-caused.

Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196A, 196B

Benjamin v Repatriation Commission (2001) 70 ALD 622

Gerzina v Repatriation Commission (2003) 79 ALD 400

Gerzina v Repatriation Commission [2004] FCAFC 96

Hill v Repatriation Commission (2001) 66 ALD 293

Hunter v Repatriation Commission [2010] FCA 145

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

REASONS FOR DECISION

4 February 2011 Brigadier C. Emert (Retd), Member
Dr K. J. Breen, Member     

1.        Mr Ian Grey Pickering, the veteran, was born in 1941.  He served in the Australian Army from 18 September 1958 to 27 February 1981.  His Army service included two periods in Vietnam, the first from 15 April 1966 to 1 May 1967, and the second from 1 August to 13 August 1972.

2.        During his first period in Vietnam, Mr Pickering was initially located in Saigon as an operator in a communications centre.  After approximately three months, Mr Pickering was transferred to Vung Tau, where he was a shift leader in a communications centre.  During his second tour of duty, Mr Pickering served as a communicator on board the Army ship, MV John Monash.  The Repatriation Commission (the Commission) accepted both periods of service  as comprising operational service, in accordance with the provisions of the Veterans’ Entitlement Act 1986 (the Act).

3.        Mr Pickering contends that during his operational service he experienced a number of incidents which caused him considerable stress.  They were:

(a)While walking in the countryside away from Saigon, local villagers warned Mr Pickering and his two companions to move away from their village.  Mr Pickering assumed the reason was the presence of Viet Cong.  He was concerned about the risk of the Viet Cong attacking him, until they were a safe distance from the village. (the village incident)

(b)While walking through an orchard some distance from Saigon, a US helicopter flew towards Mr Pickering, hovered overhead with the door gunner pointing his…