ROBERT CORRAN and REPATRIATION COMMISSION

[2009] AATA 984

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 984

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5706

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT CORRAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date22 December 2009

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder is war-caused.

.....................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – pension – diagnosis of post traumatic stress disorder – whether post traumatic stress disorder is a war-caused – reasonable hypothesis raised – not satisfied beyond reasonable doubt that post traumatic stress disorder not war-caused – decision set aside and substituted

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

22 December 2009 Senior Member Bernard J McCabe         

1.      

Mr Robert Corran, the applicant, served in Vietnam. He claims he developed post traumatic stress disorder (“PTSD”) as a result of his experiences there. He has applied for a pension under the Veterans’ Entitlements Act 1986 (“the Act”). The Repatriation Commission, the respondent, has raised doubts about the veracity of

Mr Corran’s account of the events he claimed to have witnessed while on operational service. Mr Corran has asked the Tribunal to reconsider the matter.

2.      I am satisfied Mr Corran’s claim should succeed. I explain my reasons below.

The legislation

3.      

A veteran who claims to have developed a medical condition that is connected to his operational service is entitled to apply for a pension under the Act. The first step in assessing that claim is reaching a view on diagnosis. The claim must then be evaluated pursuant to s 120 of the Act. That process involves four steps, which were explained in a line of cases that included Repatriation Commission v Deledio

[1998] FCA 391; (1998) 83 FCR 82. Subject to what I am about to say in relation to diagnosis, Mr Williams, on behalf of the Commission, agreed that the real dispute in this case arises at the fourth step in the Deledio process. That is the point at which I evaluate whether I am satisfied beyond reasonable doubt that the events described by Mr Corran did not occur.

The diagnosis

4.      

Dr Ivan Holm is Mr Corran’s treating psychiatrist. Dr Holm has seen Mr Corran regularly over a number of years. He gave evidence at the hearing. He is strongly of the view that Mr Corran suffers from PTSD. The Commission expressed some doubts about the diagnosis. It referred to several older reports from eminent psychiatrists that raised doubts over this diagnosis. Subject to what follows, I prefer the evidence of Dr Holm. His opinion is recent, and I am satisfied from the frank nature of his evidence that he was not merely acting as an advocate for Mr Corran. Dr Holm has had a lengthy history of dealing with Mr Corran, and he appears to have a good but objective insight into Mr Corran’s difficulties. Dr Holm’s history with

Mr Corran can be contrasted with the limited opportunities that Drs Chalk and Mulholland had to observe the veteran several years ago.

5.      The Commission’s central difficulty with Dr Holm’s conclusions is his reliance on the veteran’s account of events in Vietnam. The Commission doubts the veracity of that account. If that account is discredited, the Commission argues, the diagnosis of PTSD cannot stand.

The veteran’s hypothesis

6.      Mr Corran claims that he developed PTSD after being confronted with a number of events during his service in Vietnam that posed a serious risk of death or injury.

7.      

Mr Jarro, counsel for Mr Corran, helpfully summarised those events in his submissions. As it happens, I need only consider one of them in detail. I refer to

Mr Corran’s account of being shot at in the streets of Vung Tau. Mr Jarro said that event, amongst others, was connected with Mr Corran’s PTSD.

The relevant statement of principles

8.      There are two Statements of Principles (“SoP”) that are relevant: Instrument No 5 of 2008 and Instrument No 3 of 1999. It will not be necessary to refer to the second of these because I am satisfied Mr Corran is entitled to succeed under the first.

Is the raised hypothesis a reasonable hypothesis?

9.      Mr Corran says he was shot at in the streets of Vung Tau while he was on leave. His account of the incident was sketchy. He referred to it in his statement dated 15 June 1999, but it is unclear whether he raised it with Dr Holm. (When asked during his oral evidence to identify the most stressful events he experienced, he referred to another incident.) He was not cross-examined in relation to the evidence by Mr Williams, although I asked some questions from the bench.

10.     I am not required to decide whether I believe his account at this point of the process. I am merely required to decide whether his story fits the template set out in the relevant SoP. In particular, I have to be satisfied that the account as it was related to me falls within the definition of a category 1A stressor. That definition refers to experiencing “severe traumatic events” such “a life threatening event” or “being threatened with a weapon”.

11.     I am satisfied Mr Corran’s account of being shot at by unknown men in the streets of Vung Tau meets the definition of a category 1A stressor.

Can i be satisfied beyond reasonable doubt that the veteran’s condition is not war-caused?

12.     This is the point at which I must appraise the veteran’s story. I have already noted some of my concerns about his account of what happened in the streets of Vung Tau. His statement gives little detail of what occurred. His oral evidence was difficult to follow on this point, although I accept Dr Holm’s evidence that being a poor historian appears to be a consequence of this man’s condition. Mr Corran certainly did not resile from the account in his statement, however. He does not appear to have discussed the event in question in detail with his doctor. The story has not featured prominently in the course of his case before the Veterans’ Review Board or the Tribunal.

13.     Even so, I am not persuaded beyond reasonable doubt that the events he described did not occur. While other aspects of his story appear inherently unlikely and are contradicted by other evidence, his story in relation to the shooting incident at Vung Tau is not otherwise contradicted. In those circumstances, I must accept Mr Corran’s claim is made out. It also follows that I am unable to accept the Commission’s criticisms of the diagnosis of PTSD.

Conclusion

14.     I am satisfied the decision under review must be set aside. I decide in substitution that Mr Corran’s PTSD is related to his service in Vietnam – specifically, to the shooting incident in the streets of Vung Tau.

15.     There appears to be some dispute about the date of effect. The respondent did not make any submissions about this. I invite both parties to file submissions within 28 days of this decision.

16.     I have not referred to any of the other incidents described by Mr Corran and relied upon for the purposes of this application. It was simply unnecessary for me to form a view on those matters since I am satisfied Mr Corran succeeds on the basis I have discussed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing  15 December 2009
Date of Decision  22 December 2009
Counsel for the applicant          Mr N Jarro
Solicitor for the applicant          Cockburn Legal and Consulting
Advocate for the respondent     Mr B Williams, Department of Veterans' Affairs