Pickering and Repatriation Commission [2011] AATA 58 (4 February 2011)

Last Updated: 4 February 2011

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

Date 4 February 2011

Place Melbourne

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] FCA 1879; (2001) 70 ALD 622

Gerzina v Repatriation Commission [2003] FMCA 490; (2003) 79 ALD 400

Gerzina v Repatriation Commission [2004] FCAFC 96

Hill v Repatriation Commission [2001] FCA 1775; (2001) 66 ALD 293

Hunter v Repatriation Commission [2010] FCA 145

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

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

Repatriation Commission v Gosewinckel [1999] FCA 1273; (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 machine gun at Mr Pickering, before flying away again. Mr Pickering feared that the gunner would open fire on him. (the helicopter incident)
   • (c) While walking on the eastern side of the Vung Tau peninsula, some distance away from the Australian base, Mr Pickering came across a sign that indicated that he had possibly just walked through a minefield. (the minefield incident)
   • (d) While he was walking on the western side of the Vung Tau peninsula Mr Pickering was confronted by a group of Vietnamese who tried to take his camera. He believed that his life was in danger. (the camera incident)
   • (e) On one occasion, while on night piquet duty at Vung Tau, Mr Pickering heard a bullet pass between him and his fellow sentry. Both men dived to the ground before retreating to the rear of the hill and continuing with their piquet duties. (the piquet incident)
   • (f) While sleeping on board the John Monash at a wharf in the Saigon River, Mr Pickering awoke, startled by the noise of explosions. He feared the vessel might be the subject of an attack, in which case he might be trapped below the water line. (the John Monash incident)
4. After his service in Vietnam, Mr Pickering continued to serve in the Army, rising through the ranks to Warrant Officer Class 1 by the time of his retirement in 1981. After leaving the Army, Mr Pickering found employment as a parking inspector with Stonnington City for about two years, before commencing employment at the Titles Office. Mr Pickering stayed with the Titles Office for 15 years. During that time he was promoted from attendant to examiner. He retired in October 1999.
5. Mr Pickering contends that he suffered no emotional problems prior to his service in Vietnam but after his return to Australia he was irritable, angry, short tempered and moody.
6. On 15 February 2008 Mr Pickering submitted a claim to the Repatriation Commission for multiple medical and psychiatric conditions. On 31 July 2008 the Commission decided that anxiety disorder, depressive disorder, erectile dysfunction, ischaemic heart disease and unilateral edema of the optic disc (left eye) were not war-caused conditions. Mr Pickering applied for a review of the decision. On 19 March 2009, the Veterans’ Review Board (VRB) affirmed the decision under review. Mr Pickering has applied to this Tribunal for a review of the decision of the VRB.

THE HEARING

7. At the hearing, Ms C. Serpell of counsel represented Mr Pickering. Mr K. Rudge, an advocate with the Department of Veterans’ Affairs, represented the Commission. Mr Pickering gave evidence. The Tribunal also heard evidence from Mrs Pickering, and Drs H. Hassan and G. White, consultant psychiatrists.
8. The Tribunal had before it the documents the respondent submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Ms Serpell tendered the following evidence: statements by Mr and Mrs Pickering, a medical report by Dr Hassan, photographs taken by Mr Pickering, and a poem written by Mr Pickering. Mr Rudge tendered the following evidence: the clinical notes of Dr Carter, the transcript of the hearing at the VRB, a report by Mr W. Barsley, military historian, a medical report by Dr White, and a bundle of documents pertaining to the respondent’s acceptance of the condition of hypertension as war-caused.

THE ISSUES

9. Prior to the hearing, the respondent conceded that Mr Pickering’s ischaemic heart disease and erectile dysfunction were war-caused, with effect from 15 November 2007. In addition, Ms Serpell advised the Tribunal that Mr Pickering was no longer pursuing the claim for unilateral edema of the optic disc (left eye). Accordingly, the only conditions for consideration are Mr Pickering’s depressive and anxiety related conditions.
10. The Tribunal must determine:

(a) the diagnoses of Mr Pickering’s conditions, and

(b) whether those conditions are war-caused.

WHAT ARE THE DIAGNOSES OF THE CONDITIONS?

11. The Tribunal’s first task is to determine the appropriate diagnoses for the conditions claimed by Mr Pickering. The standard of proof is to the Tribunal’s reasonable satisfaction: Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690. Consistent with these cases, in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:

When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act ...

12. Mr Pickering’s claim for disability pension stated that his conditions were PTSD – Depression/Anxiety Disorder.

SUMMARY OF THE MEDICAL EVIDENCE

13. The Tribunal observed Mr Pickering give evidence for more than one day. The Tribunal read and heard evidence from a number of doctors who have seen him and heard evidence from his wife. It is clear to the Tribunal that Mr Pickering has been emotionally unwell for a very long time and remains moderately unwell.
14. It was apparent to the Tribunal that Mr Pickering has considerable difficulty in expressing and/or explaining his emotional distress in verbal terms. Evidence from Mr Pickering’s treating psychiatrist and a report by a clinical psychologist confirmed this. His treating psychiatrist noted that he was able to express some of his emotions through his writings, examples of which Mr Pickering provided to the Tribunal.
15. In the Tribunal’s view, even in writing, his expressions of distress can be obscure. Whether his difficulty in understanding and expressing his feelings are a part of his illness, caused by his illness, or are part of his personality and temperament, did not become clear in the hearing. However, for reasons that will become clearer when the evidence is summarised and assessed below, the Tribunal believes that this difficulty goes a long way towards explaining the conflicting medical reports presented to the Tribunal.
16. The Tribunal noted that all of the psychiatrists found Mr Pickering to be unwell. Where they differed was in the diagnosis of his illness, and in the degree to which his operational service contributed to that illness. Its observation of Mr Pickering’s demeanour, his distress and his evident difficulties in expressing himself about his emotions, assisted the Tribunal to evaluate the various opinions expressed by the psychiatrists.

MR PICKERING’S EVIDENCE

17. Ms Serpell and Mr Rudge examined and cross-examined Mr Pickering for several hours during two hearing days. In addition, Mr Pickering provided the Tribunal with a six-page statement dated 15 May 2009 (exhibit A1). In his statement, Mr Pickering stated that he suffered no emotional problems prior to his service in Vietnam but on his return to Australia he was irritable, angry, short-tempered and moody and was counselled about his behaviour and bad temper.
18. In his statement, Mr Pickering said that at that time he was intolerant of the noise made by his young children and was hypervigilant, checking for intruders around his house every evening. He stated that:

...it was in about 1967 or 1968 that I shot the next door neighbour’s cat because I was so annoyed by its behaviour.

Mr Pickering stated that he was having trouble sleeping... on my return from Vietnam ... averaging about three hours of sleep per night. Later in his statement he wrote that [i]n the 1990s my emotional state deteriorated.

19. In his oral evidence, Mr Pickering confirmed that he joined the Army in 1958, at the age of seventeen. He was asked to describe himself at around the time he met his wife (18 months prior to marriage) and he responded

Very young, confident, motorbike rider.
Being confident, I was probably a smart alec; got on well with women, enjoyed myself

He denied having problems with his temper or in relating to people at that time.

20. Mr Pickering was then asked how he felt after returning from Vietnam and he stated:

I didn’t know at the time that I was moody and angry, and it was only – in fact, I’d set out in the passage – Dawn and I were babes in the wood when it came to my troubles.

Mr Pickering then gave examples of how he had been abusive to staff after his return and was often angry with others. He described having difficulty reviewing communications traffic from Vietnam as it was something that tended to make me want to cry.

21. Ms Serpell asked Mr Pickering to describe his talking with his wife before and after Vietnam and he replied:

Very little that I remember. In that way, I have to tell the hearing that the only person who saw anything – who verbalised anything being wrong with me was Dawn’s parents ... I didn’t realise I had a problem.

22. Ms Serpell asked Mr Pickering about his claim that loud noises upset him. He answered:

And it does – it did and it does, but probably my biggest problems were the smaller noises that I couldn’t identify...
If I heard something, I had to know what it was. And if that meant getting up in the middle of the night to do so, I did it.
I could say that I had a certain amount of agitation until I had identified what the noise was.

As a way to cope with these concerns, he described keeping weapons including a machete, an air rifle, a baseball bat, and a hammer; all of which disappeared. The Tribunal heard in subsequent evidence that Mr Pickering’s wife took those items away.

23. Mr Pickering stated that although he had nightmares, he could not recall their content but added:

There have been times when Dawn has woken me up and I’ve felt so bad I haven’t been able to go back to sleep and I get up and do something which they call – things to make you forget.

24. Despite the apparent difficulties Mr Pickering had in verbally expressing his emotional responses to events past and present, the Tribunal formed the view that Mr Pickering was an open and frank witness. Mr Pickering demonstrated his frankness by his willingness to recount past behaviours that were potentially embarrassing or even shameful; and his adherence to his original description of his Vietnam experience as being a boy’s own adventure. He maintained the description even after it had become clear that such an approach was almost certainly an inappropriate psychological defence mechanism and after it should have been apparent to him that some psychiatrists had misinterpreted this description to his disadvantage.

MRS PICKERING’S EVIDENCE

25. Mrs Dawn Pickering, the applicant’s wife, provided a statement dated 15 May 2009 (exhibit A2) and gave oral evidence. In addition, she made her undated letter, addressed to Dr Pomorin, available to the Tribunal. In her written statement, Mrs Pickering stated that her husband had:

...no emotional problems of which I was aware prior to his service in Vietnam.
There was a significant change in Ian which I noticed immediately following his return from his first tour of service ... He was easily upset and startled by loud noises, he was very moody, irritable and short tempered. He seemed very angry ... had developed significant sleeping problems ... was suffering bad dreams ... would thrash in bed ... I was struck on many occasions and I would have to wake Ian up.

26. In the two-page letter addressed to Dr Pomorin, Mrs Pickering wrote about the changes she had observed in her husband but did not provide a time frame. This document also contains a description of an incident she had observed when travelling in Australia with her husband:

...we were sitting down at the beach having lunch at Tin Can Bay. He looked up and said those sand dunes over the other side reminded him of Vung Tou [sic], and then two helicopters flew over. It took about a week to get over that. When we got back, the doctor asked Ian about the holiday and he broke down and cried.

27. In her oral evidence, Mrs Pickering explained that she had met her future husband while they were both working in communications in the Army. She left the Army when they married, 18 months later in February 1961. She described Mr Pickering at that time as very easy going, normal and very conscientious. She was asked about her husband’s ability to have easy conversations and his ability to convey his feelings. She stated that before he went to Vietnam he had no difficulties but on his return:

He was off - very angry. Very private, sort of, you know, the talking wasn’t the same, sort of thing... He would say a lot, “You don’t want to know.” I used to say “What are you thinking?” And he’d say “You don’t want to know.

28. Mrs Pickering contrasted her husband’s patient behaviour with their two young boys before he went to Vietnam with his lack of involvement with them on his return. She recalled the shouting and the anger was the main thing, and I’m not used to that. She described a number of incidents including seeing him flat on the floor after hearing a car backfire and hiding in bushes in response to an aircraft flying over. She also confirmed her husband’s habit, after his return from Vietnam, of keeping a range of weapons under the bed including (at different times) a machete, a hammer and a baseball bat, weapons that she confiscated.
29. Mrs Pickering contrasted her husband’s ability to sleep through anything before Vietnam with his poor sleeping on his return. She confirmed her written statement about her husband’s nightmares, some of which she concluded were horrific because he’d sing out and thrash around ... his arms and legs would go ... I had bruises.
30. Mrs Pickering also recounted the incidents where shortly after her husband’s return from Vietnam he shot a neighbour’s cat because it was annoying him. She also said Mr Pickering shot the family dog because it was chasing his mother-in-law’s hens. Mrs Pickering gave evidence about her husband no longer liking to be left on his own. However, when questioned by Ms Serpell as to whether this was soon after his return from Vietnam, she said No, really in the last 10 or 15 years...
31. Ms Serpell asked Mrs Pickering about her husband’s temperament before and after Vietnam. She described his tolerance levels after his return from Vietnam as not very high and before Vietnam as easy going and just went along with everything and mum and dad really loved him ... but it just changed ...
32. In cross-examination, Mr Rudge put to Mrs Pickering that her evidence about the timing of changes in her husband’s demeanour differed from the description provided in a statement by Mr Digby Reid, who said he had known Mr Pickering since 1976. She explained the difference in terms of her husband being very good at putting on a good face; and that she used to think Well, how come he’s like this when he’s with others...
33. The Tribunal asked Mrs Pickering about the most troubling aspects of her husband’s behaviour soon after he returned from Vietnam. Mrs Pickering responded:

Well, the kids really couldn’t have their friends around a lot; and Ian being so jumpy at noises; at Craigieburn the wind blows one way, and the front door would bang, and the back door would bang, and that really upset him.

The Tribunal then asked Mrs Pickering whether there was any sign of her husband’s apparent nightmares in the first two years after his return from Vietnam. She replied Look, I can’t remember. I can’t, sorry...

34. The Tribunal also invited Mrs Pickering to describe what happened at the start of Mr Pickering’s first attendance with Dr White and she gave the following account:

I was there, and Ian wanted me to come in with him, and Dr White said, “No. She can’t.” And Ian said, “Well I’m not going in.” So Dr White asked me in, and he said, “Now, don’t you say anything.” So I just sat there.

Mrs Pickering impressed the Tribunal as a person not inclined to overstatement or exaggeration and the Tribunal accepts her evidence as a whole.

DR HASSAN’S EVIDENCE

35. Dr Hassan, a psychiatrist, provided a detailed written report (exhibit A3) and gave oral evidence. She first saw Mr Pickering on 5 January 2010. At the time of writing her report, dated 26 April 2010, she had been treating him for four months and had seen him seven times. By the time Dr Hassan gave her oral evidence at the hearing, she had been treating Mr Pickering for six months and she estimated she had seen him ten times.
36. At the beginning of her report Dr Hassan emphasised how much difficulty Mr Pickering experienced in communicating his emotions in the following terms:

When I first started to see Mr Pickering it was clear to me that his situation was complex and that he clearly had difficulties with communication and the expression of his emotions. Initially I found Mr Pickering would communicate indirectly and use circuitous routes to explain his feelings and behaviours. He seems to prefer to communicate via his written work, sharing it generously with myself, other professionals and friends .... I certainly think that his style of communication has acted as a barrier to the understanding of his psychiatric experience.

Dr Hassan wrote that she concurred with Captain Philippa Weiland, psychologist, who saw Mr Pickering weekly for individual psychotherapy, while he attended a post-traumatic stress disorder group:

I concur specifically with her impression that his difficulties with verbal expression may reflect heightened emotional reactivity especially when discussing war related experiences.

37. Dr Hassan’s report referred in detail to Mr Pickering’s upbringing, and the impression she had gained that bushfires may have traumatised his mother. Being raised by a traumatised individual may have rendered Mr Pickering vulnerable to the development of PTSD should he be exposed to severe trauma. Dr Hassan wrote that By all accounts he functioned well in the army, especially in the early years, gaining promotion.
38. Dr Hassan was firm in her opinion that Mr Pickering suffered from PTSD. She reported a temporal relationship between his symptoms and his tour of duty in Vietnam, observing that:

He describes clear symptoms of re-experiencing in the form of nightmares, avoidance/numbing, hyperarousal (characterised by insomnia, increased startle response, hypervigilance and irritability) immediately on return from Vietnam.

39. Dr Hassan noted that Mr Pickering came from a family of veterans whose members were perceived as coping well with their war experiences. This would have strongly influenced Mr Pickering’s responses to his experiences and his denial strategies initially adopted as his own mechanism for coping. She wrote:

...his management of his distress in Vietnam was clearly in keeping with his learnt experience of management of stress and his defensive strategies to ward off feelings of shame.

40. Dr Hassan’s report addressed seriatim some experiences of Mr Pickering while in Vietnam. In relation to the helicopter incident, she wrote:

Mr Pickering describes looking down the barrel of the gun intensely fearful that he would die and at that point felt totally helpless.

In relation to the piquet incident, Dr Hassan reported that Mr Pickering had explained to her that he felt to leave the picket and report the incident would result in disciplinary consequences. Her report then went on to catalogue Mr Pickering’s flashbacks, noting a number of triggers including the smell of fish and seeing helicopters and sand hills.

41. Dr Hassan noted that Mr Pickering avoided talking about Vietnam and used his interest in genealogical research to distract himself. She reported:

...chronic sleeping problems which his wife noticed immediately on his return from Vietnam and which he was aware of himself in the 1970s.

She recorded examples of hypervigilance, finding that

...he has to sit with his back to walls in restaurants. In the past he would check the house for safety and had various offensive weapons around the house (e.g. a machete, air rifle, bolster hammer, baseball bat).

42. Dr Hassan also diagnosed major depressive disorder, which she noted had been treated and which she felt was then in remission.
43. Ms Serpell asked Dr Hassan about an aspect of her report, where she indicated that changes had taken place in Mr Pickering in the last decade or so. Dr Hassan explained:

What happens with PTSD ... and what I think happened with him, is that there was clear symptoms of acute stress and the – and symptoms of the disorder at the beginning. And then what happens is, patients who do have some kind of level of resilience, or very powerful defence mechanisms, actually try and quash the symptoms and control the illness, really and sometimes for many years. But it always eventually comes out, and I think he has been living with the symptoms that he’s been able to keep from, obviously not Dawn, but from maybe distant family or friends that don’t actually live with him. It’s a really occult disorder that’s associated with shame.

44. Dr Hassan gave evidence of Mr Pickering’s irritability, anger and poor judgement soon after his return from Vietnam, mentioning his shooting of a neighbour’s cat and his son’s dog. She stated that Mr Pickering‘s wife had reported his insomnia after his return from Vietnam; adding:

He doesn’t report that, but I think his self awareness at that time might have been quite impaired. He made quite a poor judgement in volunteering to return to Vietnam, and I think that that’s – you know, that’s – there’s another defence in play there.

45. Dr Hassan noted that, when asked, Mr Pickering seemed unaware of what the term flashback meant. Dr Hassan emphasised that Mr Pickering does not have any traumatic memories or re-experiencing of events when he was growing up. Ms Serpell asked Dr Hassan to rank the stressful events in the order of the level of stress. Dr Hassan identified the helicopter incident and the piquet incident as equally important.
46. Ms Serpell also questioned Dr Hassan about the diagnosis of depression and she stated:

...it’s incredibly common to get depressed when you have PTSD...
...it’s a very, very common post-comorbid diagnosis. I think absolutely he suffers from depression.

47. Dr Hassan’s evidence was balanced, insightful and thorough. The evidence she gave of the history she had elicited over time from the applicant and the interpretations she had made were consistent with Mr Pickering’s evidence and the emotional responses observed in Mr Pickering by the Tribunal.

DR WHITE’S EVIDENCE

48. Dr White assessed Mr Pickering at the Commission’s request. In his report, dated 21 January 2010, he recorded that he had interviewed Mr Pickering twice, on 20 November 2009 and on 15 January 2010. His report makes no mention of an incident at the beginning of the first consultation, an incident that Mr and Mrs Pickering had described to the Tribunal earlier. Mr Pickering gave evidence that he had requested that his wife be present for the interview and that at first Dr White appeared reluctant to agree to this request.
49. In his oral evidence, Dr White told the Tribunal that he saw Mr Pickering twice because he thought during the first interview that he was too agitated and distressed. Dr White was able to recall that Mr Pickering did ask that his wife be present. When cross-examined, he admitted that he did not clearly recall what happened when Mr Pickering wanted his wife to accompany him. The Tribunal believes that in conducting his assessment, Dr White may have been disadvantaged by this initial interaction; a disadvantage which, when added to Mr Pickering’s difficulties in verbally expressing his emotions, could readily explain how Dr White extracted a somewhat different history to that taken by Dr Hassan; and thus reached a quite different conclusion.
50. The first three pages of Dr White’s report represent his selected extracts from a range of the materials provided by the Commission. These materials did not include Dr Hassan’s report, as that was yet to be compiled. The materials did include the Section 37 documents, which contained the two-page report of Captain Weiland, written in 2008, at the end of 15 counselling sessions. Dr White’s report does not refer to or extract any information directly from Captain Weiland’s report but does refer to selected elements of the report in so far as they were used by the Veteran’s Review Board.
51. Dr White concluded that Mr Pickering suffered from a mid-life major depressive disorder characterised by low mood, reduced interest and other biological, psychological and social symptoms of depression. Part of his symptomatology, in Dr White’s view, included considerable ruminations upon and re-experiencing of a number of issues from his past, including traumatic events in Vietnam as well as guilt and resentment about his and others’ behaviour in Vietnam. In his oral evidence, Dr White reiterated his belief that the ruminations and re-experiencing were a manifestation of depression and not of PTSD.
52. In his oral evidence, Dr White indicated that, in hindsight, a diagnosis of dysthymic disorder should be preferred to major depressive disorder but that this was in his view largely academic. He stated:

...that there may have been some patches over that 10 to 15 years of being unwell, during which his symptoms did not fully meet the criteria for major depressive disorder.

53. Mr Rudge asked Dr White if he had considered the diagnosis of PTSD and if so, what was he looking for. He stated:

...I was looking for a combination of catastrophic traumas and a constellation of re-experiencing symptoms, avoidance symptoms and hyper-arousal symptoms.

He later added:

When people become depressed they have nightmares, they have every symptom in the textbook, and every symptom included in PTSD, so PTSD is not just the diagnosis by ticking boxes.

54. Dr White gave evidence on two days separated by approximately three months. Between those dates, he was provided with a copy of Dr Hassan’s report and was cross-examined by Ms Serpell about some of its content.
55. The Tribunal finds that the diagnosis of major depressive disorder reached by Dr White was a reasonable one, based on the material he was able to extract from the records he was provided and from the interviews with the applicant. Indeed Dr Hassan agrees that Mr Pickering suffers from depression. Nevertheless, the Tribunal attaches far less weight to the diagnosis of Dr White than to the diagnosis of Dr Hassan. The Tribunal has come to this conclusion principally because of the very considerable time that Dr Hassan spent with Mr Pickering compared with that available to Dr White. Further, the Tribunal’s own observations of Mr Pickering throughout his evidence far more closely align with the evidence of Dr Hassan than that of Dr White.

OTHER MEDICAL EVIDENCE

DR A VELAKOULIS’ EVIDENCE

56. Dr Velakoulis, a psychiatrist who treated Mr Pickering for a brief period, made a short entry dated 17 December 2007 on a disability claim form lodged by the applicant. He provided a diagnosis of PTSD and depression and based the diagnosis of PTSD on Vietnam-related trauma, re-experiencing, avoidance, numbing and hyperarousal. His notation indicated that he based the diagnosis of depression on diminished mood, diminished attention and anhedonia.

CAPTAIN WEILAND’S EVIDENCE

57. In a report dated 14 October 2008, Captain Weiland stated that Mr Pickering had recently completed a twelve-week PTSD residential program at the Veteran’s Psychiatry Unit at the Austin Repatriation Hospital at Heidelberg. Mr Pickering attended fifteen individual counselling sessions during that time (the report is unclear but it seems that all 15 sessions were with Captain Weiland). She wrote:

Ian generally presents as enthusiastic and jovial, however, he has disclosed that this presentation is a facade, masking his true thoughts and emotional responses. Ian is an avid writer both in poetry and prose and uses these mediums to express his reactions to his time in Vietnam. In contrast, Ian struggles to verbally express his thoughts and feelings, often displaying heightened emotional reactivity, especially when discussing war related experiences.

She continued:

Ian consistently reports that he did not feel emotionally distressed whilst in Vietnam and describes his time in Vietnam as the best in his life, “like a boy’s own adventure” ... It would appear that Ian coped with events in Vietnam by distancing or cutting himself off from an emotional reaction ... This may be an extension of a long-standing coping style of distancing himself from experiencing emotions, reflected in Ian’s description of his disruptive childhood as having no long-term effect on his life.

DR POMORIN’S EVIDENCE

58. Dr Norbert Pomorin, psychiatrist, assessed Mr Pickering at the request of the Department of Veterans’ Affairs on 3 June 2008, in the presence of Mrs Pickering. His report, dated 17 June 2008, does not indicate how long the assessment took. Dr Pomorin elicited symptoms that he felt were consistent with anxiety and depression and diagnosed generalised anxiety disorder and depressive disorder. Dr Pomorin was not called to give evidence. The Tribunal has difficulty reconciling this assessment with those of Drs Hassan, Mock and Weiland. The Tribunal is not persuaded from the recorded history in the report that Dr Pomorin had sufficient time with Mr Pickering to reach a conclusion with the same degree of clarity as the other reviewing psychiatrists.

DR MOCK’S EVIDENCE

59. Dr Phoebe Mock wrote a report addressed to Mr Pickering’s general practitioner and dated 7 November 2007. At the time, Dr Mock was a psychiatry registrar (a training position), employed by Austin Health and working in the Older Veterans Psychiatry Program. She wrote that she had assessed Mr Pickering on 25 September 2007. The report is over three pages in length and quite detailed. It does not state how much time Dr Mock spent interviewing Mr Pickering.
60. Dr Mock reported that Mr Pickering had been treated for depression by his general practitioner for the past two years. She noted that he was distressed and tearful throughout the interview and he described symptoms of depression and of PTSD. Earlier in the report, she mentioned Attempted to re-enter Veteran community by helping sell badges in Long Tan week, unfortunately this caused more emotional disturbances. Later in her report she wrote:

He describes symptoms of excessive emotionality and outbursts of anger and aggression over this time, which are gradually becoming worse. There are associated symptoms of poor sleep and irritability, and PTSD-like symptoms of agitation and hypervigilance, with increasing avoidance of war-related events over the years.

DR KRUSE’S EVIDENCE

61. Dr David Kruse, consultant psychiatrist to the Austin Health PTSD Program, wrote a brief letter to the Department of Veterans’ Affairs dated 21 July 2008. This letter informed the Department as follows:

The above veteran has been assessed and is suffering from service related Post Traumatic Stress Disorder based in the American Psychiatric Association’s DSM 1V criteria.
His symptoms are of moderate severity.
Psychiatric co-morbidities include Major Depression.

62. The Commission did not call Dr Kruse to give evidence so the Tribunal was not able to inquire as to the basis of this opinion. The Tribunal notes that this brief letter was written after the assessment made by Dr Mock but apparently prior to Mr Pickering’s 12-week stay in the PTSD residential program at the Veteran’s Psychiatry Unit at the Austin Repatriation Hospital.

FINDINGS AS TO DIAGNOSIS

63. Based on the above summaries and assessment of all the evidence before us, the Tribunal is satisfied on the balance of probabilities that Mr Pickering suffers from PTSD and that features consistent with PTSD were apparent soon after he returned from Vietnam. In addition, the Tribunal is satisfied that Mr Pickering suffers from depressive disorder.
64. The Tribunal will consider each condition in turn to determine whether in Mr Pickering’s case the conditions are war-caused.

IS MR PICKERING’S PTSD WAR-CAUSED?

65. The question of whether an injury or disease is war-caused is covered in s 9 of the Act. This section provides that:

(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
...

66. The parties agreed that the relevant period of the veteran’s service constituted operational service as defined in the Act. Thus, the question of whether his claimed condition is war-caused is to be determined by applying s 120(1) and s 120(3) of the Act. Those sections provide that:

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.

67. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has determined a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. Section 120A(3) provides that:

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.

68. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides:

(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
...
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
...

69. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in s 196B(14) of the Act. Section 196B(14) provides that:

(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
...

70. Where a condition is the subject of an SoP, the Tribunal must apply the test prescribed by section 120A(3) of the Act, in the manner explained by the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 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.
       

Adopting the Deledio line of reasoning, the Tribunal considered whether Mr Pickering’s PTSD was war-caused.

STEP 1 – DOES THE MATERIAL POINT TO A HYPOTHESIS CONNECTING THE VETERAN’S PTSD WITH HIS OPERATIONAL SERVICE?

71. The hypothesis advanced on behalf of Mr Pickering is that the stressful events he experienced during his operational service led to the onset of his psychiatric condition. The contention is that, although the condition was not diagnosed as PTSD until 2007, Mr Pickering nevertheless showed clear signs of his condition soon after he returned from his first period of service in Vietnam. Mrs Pickering gave evidence of the changes she saw in her husband immediately following his return from Vietnam. Her evidence was that Mr Pickering was easily upset, startled by loud noises, moody, irritable, short-tempered and very angry and that he had developed significant sleeping problems. Mrs Pickering also gave evidence of her husband keeping weapons by his bedside and his habit of checking the perimeter of his house each night before going to bed.
72. In her evidence, Dr Hassan clearly related the onset of Mr Pickering’s symptoms of PTSD to his service in Vietnam. While some of the medical evidence differed concerning the diagnosis of Mr Pickering’s condition, the evidence clearly connected Mr Pickering’s condition with his service in Vietnam.
73. The Tribunal is satisfied that there is material pointing to the hypothesis connecting Mr Pickering’s PTSD with his operational service in Vietnam.

STEP 2 – IS THERE AN SOP IN FORCE WHICH DEALS WITH THE RELEVANT CONDITION?

Instrument No 5 of 2008 is the SoP concerning PTSD and is in force. The Tribunal notes that Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 was in force at the date of the primary decision (31 July 2008) and it may need to consider this later in the decision.

STEP 3 – DOES THE HYPOTHESIS FIT THE TEMPLATE OF THE SOP?

74. Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the RMA has determined to be the minimum that must exist and be related to the person’s service. In this case, a relevant factor of the SoP is factor 6(a), which states:

(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;

75. Paragraph 9 of SoP No 5 of 2008 defines a category 1A stressor as:

...one or more of the following severe traumatic events:
(a) Experiencing a life-threatening event;
(b) Being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) Being threatened with a weapon, being held captive, being kidnapped, or being tortured;

76. Ms Serpell contends that the helicopter incident and the piquet incident fit the definition of a category 1A stressor.
77. In his oral submissions, Mr Rudge contended that the helicopter incident was not a life-threatening event. Mr Pickering was not threatened by a weapon, as the helicopter was a US Army helicopter which merely hovered over Mr Pickering and then flew off. However, Mr Rudge did concede that the piquet incident was, at face value, a life-threatening event.
78. In relation to the helicopter incident, the evidence was that although Mr Pickering knew that the helicopter was American, he was fearful for his life when he saw the door gunner point his machine gun directly at him. Mr Pickering had heard stories of Americans shooting first and asking questions later and he was fearful that the gunner could shoot him. The Tribunal is satisfied that Mr Pickering genuinely believed that he was being threatened with a weapon and that such an event would classify as a category 1A stressor.
79. In relation to the piquet incident, the Tribunal heard the evidence of Mr Pickering, uncontested on this point, that while on night piquet duty in Vietnam he and his fellow piquet heard a bullet pass between them. The evidence was that both persons were convinced at the time that they had been shot at and they immediately hid themselves from the view of the shooter. The Tribunal is satisfied that such an incident constitutes a life-threatening event, meeting the provisions of a category 1A stressor as defined in the SoP.
80. Consequently, the Tribunal is satisfied that the hypothesis submitted on behalf of Mr Pickering meets the template of factor 6(a) of the SoP.

STEP 4 – IS THE TRIBUNAL SATISFIED BEYOND REASONABLE DOUBT THAT THE PTSD WAS NOT WAR CAUSED?

81. Mr Rudge submitted that Mr Pickering’s circumstances did not meet any of the essential factors of the SoP. He submitted that the only factor relevant to this case were factor 6:

(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder and
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder.

Mr Rudge contended further that the category 1B stressors all relate to a veteran observing one of a number of traumatic events happening to someone else and therefore do not apply to this case. This contention was not contested and the Tribunal is satisfied that factor 6(b) is not applicable in this case.

82. Concerning factor 6(a) of the SoP, Mr Rudge submitted that the circumstances of a category 1A stressor all constitute serious attacks on the individual. He cited Hunter v Repatriation Commission [2010] FCA 145 in which Perram J observed that the SoP required the claimant to have come, in effect, face to face with some species of peril. He contended that this was not the situation with Mr Pickering. Mr Rudge submitted that the helicopter incident was not in fact a life-threatening event as the helicopter was American and posed no threat to Mr Pickering. For the same reason, he submitted that Mr Pickering was not threatened with a weapon.
83. Mr Rudge conceded that the piquet incident, at face value, could be considered a life-threatening event; although there was no evidence that Mr Pickering showed signs of intense fear as a result of the incident. Mr Rudge submitted that at the time Mr Pickering was a trained and qualified non-commissioned officer and that he was accompanied by a colleague. He referred to Mr Pickering’s evidence that after the incident he and his colleague continued to walk around the unit lines for the remainder of their shift and did not report the shot to anyone. He said that Mr Pickering considered the threat to be one against him and not a threat to the unit and therefore did not require such a report.
84. In her submissions, Ms Serpell said that during the piquet incident, Mr Pickering believed that his life was under threat and that he was terrified at the time. Ms Serpell submitted that in the helicopter incident Mr Pickering feared that the gunner would open fire on him. This fear was based on the stories Mr Pickering had heard that Americans were likely to shoot first and ask questions later.
85. Ms Serpell contended that only one event needs to meet the criteria of the SoP for the Tribunal to find in the applicant’s favour.

THE TRIBUNAL’S CONSIDERATION

86. In considering the question of whether Mr Pickering’s PTSD was war-caused the Tribunal looked first at the definition of PTSD in the SoP. For the purposes of the SoP, PTSD means a psychiatric condition meeting the following diagnostic criteria derived from the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR):

(A) The person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
...and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
...and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
... and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

87. The Tribunal will consider the claimed events in turn against the provisions of the SoP.

THE PIQUET INCIDENT

88. The uncontested evidence of Mr Pickering was that he heard a bullet pass between him and his companion while on piquet in Vietnam. In his submissions, Mr Rudge conceded that at face value this would be a life-threatening event. He went on to raise the question of whether the incident actually occurred but later withdrew that issue. The Tribunal considers it self-evident that a bullet passing between two people on a night patrol is an event that threatens death or serious injury to the people involved. The Tribunal is satisfied that, in this incident, Mr Pickering experienced an event that threatened death or serious injury to himself and his companion and that the provisions of paragraph 3(b)(A)(i) of the SoP have been met.
89. Paragraph 3(b)(A)(ii) of the SoP requires Mr Pickering’s response to the incident to have involved intense fear, helplessness, or horror. Mr Rudge contended that there is no evidence of Mr Pickering having shown intense fear, helplessness or horror. He referred the Tribunal to the decisions of Doussa J in Hill v Repatriation Commission [2001] FCA 1775; (2001) 66 ALD 293 at 302, Gerzina v Repatriation Commission [2003] FMCA 490; (2003) 79 ALD 400 at 408 and Gerzina v Repatriation Commission [2004] FCAFC 96. Together, these cases determine that the word intense as used in this section of the SoP is applied adjectively to each of the nouns fear, helplessness and horror.
90. In his oral evidence of this incident, Mr Pickering described his reaction as shock and out of a scale of 10 he rated his level of fear as:

...six or seven ...
[And you say in your statement that you were terrified at the time, but couldn’t admit it?] ... Yes. ... I knew that I’d had the shit frightened out of me

When asked again later about his level of fear he described it as:

...intense fear, mainly because you couldn’t see anything and you didn’t know if it was a precursor to something that you should be concerned about...
[So that was intense for you?] Yes

91. In considering Mr Pickering’s rating of his reaction as six or seven on a scale of ten, the Tribunal also noted the evidence of Dr Hassan and Captain Weiland. Both reported the difficulty Mr Pickering has in expressing his emotions, particularly in relation to his operational experiences. Dr Hassan, in particular, reported on Mr Pickering’s intense shame at his feelings of fear. During the hearing the Tribunal noted for itself the difficulties Mr Pickering has in expressing himself, preferring to downplay the intensity of his feelings, which became apparent when he was pressed for further clarity and becoming quite emotional and visibly distressed.
92. Under cross-examination, Dr White accepted that Mr Pickering’s evidence of being very fearful of indeed soiling his pants would involve intense fear.
93. After considering the evidence of Mr Pickering, the medical evidence and its own observations, the Tribunal is satisfied that Mr Pickering’s response to the piquet incident involved intense fear. Accordingly, the Tribunal is satisfied that the provisions of paragraph 3(b)(A)(ii) of the SoP are met in this case.
94. Paragraph 3(b)(B) of the SoP calls for the traumatic event to be persistently re-experienced in one of a number of ways. Mr Pickering gave evidence of nightmares after his return from Vietnam. Although he does not remember the content of the nightmares, he said that his wife told him that he used to sing out in the middle of the night, and hit and kick her. Mrs Pickering corroborated his account in her own evidence. Mr Pickering also recounted an occasion when he and his wife were walking along a track at Rainbow Beach and the situation revived memories of his first night in Vung Tau, when he walked through the scrub to the remote radio equipment. The memories caused Mr Pickering to stop and go back to the car to lie down before packing up and driving back to their accommodation.
95. In her psychiatric assessment of Mr Pickering contained in a letter to Dr Gary Carter, dated 25 September 2007, Dr Mock reports no nightmares or flashbacks (exhibit R1, page 30).
96. In his oral evidence, Dr White recounted Mr Pickering acknowledging that he was having a lot of dreams and thoughts about Vietnam and said that he was happy to use the word re-experiencing in a very broad sense, but he had no evidence of its persistence. He commented that Dr Hassan had not documented how many times a day, for how many seconds or minutes or hours they have the experience, and how many times a week but agreed that such documentation was not necessary for someone to fit within a diagnosis of PTSD. Dr White referred to his written notes and said that Mr Pickering:

...frequently ... thought about various events in Vietnam ... walking down the streets, to having to attend dangerous parades, to annoyance about decision making and politics. "I spend a lot of time being angry about it all."
I had already formed the opinion that yes he was having re-experiencing.

97. The Tribunal acquainted Dr White with Mr Pickering’s evidence of having to go back to the car, lie still, and then leave the area (and being distressed for a week) after a helicopter came over a hill while he and his wife were on a holiday trip. Dr White said in response that he “would certainly wonder about that being a PTSD kind of re-experience.”
98. In her report (exhibit A3) Dr Hassan records Mr Pickering describing flashbacks where he sees things again like a picture or a TV program and one memory leads to another. Mr Pickering amplified this particular point in his own evidence, in which he described his memories as a kaleidoscope of information that just keeps going round and round. Dr Hassan gave evidence of Mr Pickering’s more intense and more common traumatic memories and re-experiencing of the helicopter and piquet incidents. Dr Hassan also noted Mr Pickering response to various triggers. She noted in particular Mr Pickering’s reaction to certain smells. In his evidence of the piquet incident, Mr Pickering associated the incident with the smell of the river where he grew up. His evidence was that there was a swamp near the unit lines he was patrolling at the time of the incident. Dr Hassan said in her evidence:

Your senses can become really - if you are in fear and dissociate at that time, your senses can become really - really clear, and so his olfactory senses may have become really specific...
...an olfactory memory is really one of the most primitive visceral memories, so for that to be there ... is evidence of trauma and that’s not something ... that he can make happen to him, it’s absolutely driven by smell ... not only does he see the film but he smells the smell of the place

99. In his submissions, Mr Rudge referred to the report of Dr Mock saying she had found no evidence of nightmares or flashbacks. He also referred to the report of Dr Pomorin in which he says Mr Pickering does not have any re-experiencing symptoms. Mr Rudge submitted that Dr White spoke of the non-specificity of Mr Pickering’s dreams, being about a range of experiences but not specifically about the incidents drawn to the Tribunal’s attention. In particular, Mr Rudge referred to Dr White’s evidence that:

...most psychiatrists, I am confident, would not diagnose PTSD very easily on the basis of a shot being fired on piquet duty, unless ... there was ... in immediate years after, a re-experiencing of that event. Secondly, that the re-experiencing be really quite convincingly related to that event either via nightmares of shots ringing out whilst on picket duty, or flashbacks during the day, walking along the street and suddenly hearing a shot ringing out...

100. The Tribunal notes that there is no direct evidence of persistent re-experiencing of the piquet incident. Mr Pickering does not remember the content of his dreams and describes his flashback episodes as a recurring kaleidoscope of events. The histories obtained by the various psychiatrists vary from statements that Mr Pickering had no flashbacks or re-experiences to an acceptance that he clearly did have recurring kaleidoscopic traumatic memories. However, the histories indicate that these memories cover a multitude of aspects of his time in Vietnam and are not specific to this incident. There is strong evidence from Mr and Mrs Pickering of his reaction to the sound of a helicopter flying overhead, clearly relating to the helicopter incident. The only evidence specific to the piquet incident is from Dr Hassan, namely, that the traumatic memories, the re-experiencing of those two incidents seems to happen more intensely and more commonly, the two incidents being the helicopter incident and the piquet incident. Later, in answer to a question from the Tribunal, Dr Hassan said:

...as far as I’m concerned the evidence is about having traumatic memory and so he clearly to me has traumatic memory of those two incidences where he has a reliving, re-experiencing...

101. The common evidence of Mr Pickering’s persistent re-experiencing of various events in Vietnam and the specific evidence of Dr Hassan is sufficient to satisfy the Tribunal that in regard to the piquet incident the provisions of paragraph 3(b)(B) are met.
102. Paragraph 3(b)(C) requires a persistent avoidance of the stimuli associated with the trauma. Mr Pickering gave evidence of no longer reading war books, nor watching films or television programs relating to war, and of not attending ANZAC day celebrations; indeed making positive efforts to go away in order to avoid coming into contact with the ceremonies. In her report Dr Hassan records that Mr Pickering avoids talking about Vietnam and that he tries to distract himself with other activities such as genealogical research. He actively avoids ANZAC Days and RSLs as they are triggers to his memories. Dr Hassan also records a diminished interest in things he used to be interested in and that he feels detached from others for about 20-30 per cent of his time. He also feels emotionally numb much of the time with moderate intensity.
103. This evidence of avoidance was not disputed. Indeed, Mrs Pickering corroborated much of it. Accordingly, the Tribunal is satisfied that the provisions of paragraph 3(b)(C) of the SoP are met.
104. In regard to symptoms of increased arousal, not present before the trauma, Mr Pickering gave evidence of difficulty in staying asleep with disturbances from violent dreams. He detailed many instances of irritability and outbursts of anger. He has been banned from several shops because of his outbursts. He gave evidence of shooting the neighbour’s cat because it was annoying him; and on another occasion shooting the family dog because he thought it was killing sheep. Mrs Pickering gave evidence of Mr Pickering’s hypervigilance about the security of the house. Each night before going to bed Mr Pickering patrols around the outside of the house, armed with whatever weapon he can find, to assure himself that there is no threat. Dr Hassan records a similar history, including that of Mr Pickering’s exaggerated startled response, which she witnessed in her rooms.
105. There is no dispute about this evidence. The Tribunal is satisfied that the provisions of paragraph 3(b)(D) are met in this case.
106. In regard to the onset of the disturbances, there is considerable evidence, uncontested, that Mr Pickering’s symptoms of re-experiencing, avoidance and arousal started to become evident on his return from Vietnam. That his symptoms have been evident for more than one month is not in dispute. Accordingly, the Tribunal is satisfied that paragraph 3(b)(E) of the SoP is met.
107. In regard to clinically significant distress or impairment, Mr Pickering’s evidence was of abusive behaviour towards his superiors in the Army before he resigned, and his irritability with his subordinates at the Titles Office. He could not continue working because of his outbursts of anger and irritability. A friend who had also known Mr Pickering before his Army service remarked upon his change in behaviour. Similar histories were recorded in the medical reports and there is no dispute that Mr Pickering’s psychiatric condition caused clinically significant distress and impairment in social and occupational functioning. Accordingly, the Tribunal is satisfied that the provisions of paragraph 3(b)(F) are met.
108. Therefore, the Tribunal is satisfied that Mr Pickering’s circumstances meet the definition of PTSD as provided in the SoP. The Tribunal has already found that a bullet passing between the two members on patrol constitutes a life-threatening event in accordance with paragraph 9 of the SoP. Accordingly, the Tribunal has evidence that Mr Pickering experienced a life-threatening event while on operational service. The Tribunal has accepted that Mr Pickering suffers the condition of PTSD. There is evidence connecting each of the required provisions of the SoP with Mr Pickering’s war service. Consequently, in regard to the piquet incident, the Tribunal is not satisfied beyond reasonable doubt that Mr Pickering’s PTSD was not war-caused.
109. There is no requirement for the Tribunal to consider other incidents claimed to contribute to Mr Pickering’s PTSD. The findings of the piquet incident alone are sufficient for the Tribunal to reach its conclusions that it is not satisfied beyond reasonable doubt that Mr Pickering’s PTSD was not war-caused. In accordance with the provisions of s 120(1) of the Act, the Tribunal is therefore required to determine that Mr Pickering’s PTSD was war-caused, and it does so.

CONCLUSION

110. Mr Pickering’s claim was for a review of the decision of the VRB that affirmed an earlier decision that anxiety disorder, depressive disorder, erectile dysfunction, ischaemic heart disease and unilateral edema of the left eye were not war-caused. Subsequent to that decision, Mr Pickering’s erectile dysfunction and ischaemic heart disease were accepted as war-caused. At this hearing, the Tribunal was advised that Mr Pickering was not pursuing the claim for his left eye condition. Hence, the only conditions for review were the psychiatric conditions of anxiety disorder and depressive disorder.
111. After considering the extensive medical evidence available, the Tribunal has found that Mr Pickering’s psychiatric conditions are properly diagnosed as PTSD and depressive disorder.
112. After considering all of the evidence, the Tribunal has determined that Mr Pickering’s PTSD is war-caused. This finding is sufficient for Mr Pickering’s claim to succeed. The Tribunal does not need to consider whether his depressive disorder is also war-caused.

DECISION

113. 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.
     

I certify that the one hundred and thirteen [113] preceding paragraphs are a true copy of the reasons for the decision

herein of:

Brigadier C Ermert (Retd), Member

Dr KJ Breen, AM, Member

Signed: ..................[signed]....................................

Associate Grace Horzitski

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

Date of Decision: 4 February 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