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Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021)
1Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021)
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Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021)
made under subsection 196B(3) of the
Veterans' Entitlements Act 1986
Compilation No. 1
Compilation date: 19 September 2022
Includes amendments up to: Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022) (F2022L01123)
Veterans' Entitlements (Statements of Principles—definition of "one pack-year") Amendment Determination 2022 (No. 94 of 2022) (F2022L01128)
The day of commencement of this Amendment Determination is 19 September 2022.
About this compilation
This compilation
This is a compilation of the Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021) that shows the text of the law as amended and in force on 19 September 2022.
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
1 Name
3 Authority
5 Application
6 Definitions
7 Kind of injury, disease or death to which this Statement of Principles relates
8 Basis for determining the factors
9 Factors that must exist............................................
10 Relationship to service
11 Factors referring to an injury or disease covered by another Statement of Principles
Schedule 1 - Dictionary
1 Definitions
Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
1 Name
This is the Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021).
3 Authority
This instrument is made under subsection 196B(3) of the Veterans' Entitlements Act 1986.
5 Application
This instrument applies to a claim to which section 120B of the VEA or section 339 of the Military Rehabilitation and Compensation Act 2004 applies.
6 Definitions
The terms defined in the Schedule 1 - Dictionary have the meaning given when used in this instrument.
7 Kind of injury, disease or death to which this Statement of Principles relates
(1) This Statement of Principles is about asthma and death from asthma.
Meaning of asthma
(2) For the purposes of this Statement of Principles, asthma:
(a) means a chronic disorder of the airways that is characterised by variable and recurring symptoms, variable airflow obstruction, bronchial hyperresponsiveness and an underlying inflammation; and
(b) includes reactive airways dysfunction syndrome.
Note 1: Symptoms of asthma include intermittent shortness of breath, chest tightness, cough and wheezing.
Note 2: In general, airflow obstruction is at least partially reversible, although it may become irreversible in long-standing, severe asthma.
Note 3: reactive airways dysfunction syndrome is defined in the Schedule 1 - Dictionary.
Death from asthma
(3) For the purposes of this Statement of Principles, asthma, in relation to a person, includes death from a terminal event or condition that was contributed to by the person's asthma.
Note: terminal event is defined in the Schedule 1 - Dictionary.
8 Basis for determining the factors
On the sound medical‑scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that asthma and death from asthma can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the MRCA.
Note: MRCA, relevant service and VEA are defined in the Schedule 1 - Dictionary.
9 Factors that must exist
At least one of the following factors must exist before it can be said that, on the balance of probabilities, asthma or death from asthma is connected with the circumstances of a person's relevant service:
(1) being exposed to an immunologic or non-immunologic stimulus within the 24 hours before the clinical onset of asthma;
Note: immunologic or non-immunologic stimulus is defined in the Schedule 1 - Dictionary.
(1A) having a sensitising exposure to an allergen before the clinical onset of asthma;
Note: sensitising exposure to an allergen is defined in the Schedule 1 – Dictionary.
(2) for reactive airways dysfunction syndrome only, inhaling very high concentrations of a substance with irritant properties, where such inhalation has resulted in acute toxic lower respiratory tract effects, within the 24 hours before the clinical onset of reactive airways dysfunction syndrome;
Note 1: Irritant substances that cause reactive airways dysfunction syndrome include:
Note: (a) acids (including acetic and hydrochloric acids);
Note: (b) alkalis (including ammonia and hydrazine);
Note: (c) biocides (including formalin and fumigating agents);
Note: (d) fumes (including diesel exhaust and fire smoke);
Note: (e) gases (including chlorine and sulphur dioxide);
Note: (f) halogenated derivatives (including trifluoromethane and chlorofluorocarbons);
Note: (g) solvents (including perchloroethylene); and
Note: (h) sprays (including paints and floor sealant).
Note 2: reactive airways dysfunction syndrome is defined in the Schedule 1 - Dictionary.
(3) being overweight or obese for at least the five years before the clinical onset of asthma;
Note: being overweight or obese is defined in the Schedule 1 - Dictionary.
(4) taking a drug from the specified list of drugs within the 24 hours before the clinical onset of asthma;
Note: specified list of drugs is defined in the Schedule 1 - Dictionary.
(5) having smoked tobacco products:
(a) in an amount of at least one pack-year before the clinical onset of asthma; and
(b) if smoking has ceased before the clinical onset of asthma, then that onset occurred within five years of cessation;
Note: one pack-year is defined in the Schedule 1 - Dictionary.
(6) being exposed to an immunologic or non-immunologic stimulus within the 24 hours before the clinical worsening of asthma;
Note: clinical worsening of asthma and immunologic or non-immunologic stimulus are defined in the Schedule 1 - Dictionary.
(7) being overweight or obese for at least the five years before the clinical worsening of asthma;
Note: being overweight or obese and clinical worsening of asthma are defined in the Schedule 1 - Dictionary.
(8) taking a drug from the specified list of drugs within the 24 hours before the clinical worsening of asthma;
Note: clinical worsening of asthma and specified list of drugs are defined in the Schedule 1 - Dictionary.
(9) having smoked tobacco products:
(a) in an amount of at least one pack-year before the clinical worsening of asthma; and
(b) if smoking has ceased before the clinical worsening of asthma, then that worsening occurred within six months of cessation;
Note: clinical worsening of asthma and pack-year are defined in the Schedule 1 - Dictionary.
(10) having been exposed to second-hand smoke for at least 1,000 hours within the one year before the clinical worsening of asthma;
Note: clinical worsening of asthma and having been exposed to second-hand smoke are defined in the Schedule 1 - Dictionary.
(11) having a clinically significant depressive disorder for at least the six months before the clinical worsening of asthma;
Note: clinically significant and clinical worsening of asthma are defined in the Schedule 1 - Dictionary.
(12) having gastro-oesophageal reflux disease at the time of the clinical worsening of asthma;
Note: clinical worsening of asthma is defined in the Schedule 1 - Dictionary.
(13) inability to obtain appropriate clinical management for asthma.
10 Relationship to service
(1) The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
(2) The factors set out in subsections 9(6) to 9(13) apply only to material contribution to, or aggravation of, asthma where the person's asthma was suffered or contracted before or during (but did not arise out of) the person's relevant service.
11 Factors referring to an injury or disease covered by another Statement of Principles
In this Statement of Principles:
(1) if a factor referred to in section 9 applies in relation to a person; and
(2) that factor refers to an injury or disease in respect of which a Statement of Principles has been determined under subsection 196B(3) of the VEA;
then the factors in that Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Schedule 1 - Dictionary
Note: See Section 6
1 Definitions
In this instrument:
asthma—see subsection 7(2).
being overweight or obese means having a Body Mass Index (BMI) of 25 or greater.
Note: BMI is also defined in the Schedule 1 - Dictionary.
BMI means W/H2 where:
(a) W is the person's weight in kilograms; and
(b) H is the person's height in metres.
clinical worsening of asthma means a change in the nature of asthma resulting in one or more of the following:
(a) a persistent change from well controlled to poorly controlled asthma;
(b) a persistent increase in the requirement for treatment to prevent asthma from becoming uncontrolled;
(c) an episode of severe asthma resulting in status asthmaticus, cerebral hypoxia or death; or
(d) an increase in the requirement for hospitalisation for management of the manifestations or complications of asthma.
clinically significant means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.
Note: To warrant ongoing management does not require that any actual management was received or given for the condition.
having been exposed to second-hand smoke means having been in an enclosed space and inhaling smoke from burning tobacco products or smoke that has been exhaled by another person who is smoking.
immunologic or non-immunologic stimulus means an allergenic or irritant substance, an activity or an environment that can cause inflammation of the airways and bronchial hyperresponsiveness.
Note: Examples of immunologic or non-immunologic stimuli include:
(a) air pollutants;
(b) cereal dusts;
(c) chemical fumes;
(d) cold air;
(e) drugs;
(f) exercise;
(g) irritant gases (including mustard gas);
(h) metals;
(i) moulds;
(j) proteins derived from animals, insects and fish;
(k) respiratory infections; and
(l) wood dusts.
MRCA means the Military Rehabilitation and Compensation Act 2004.
one pack-year means the amount of tobacco consumed in smoking 20 cigarettes per day for a period of 1 year, or an equivalent amount of tobacco products.
Note 1: An equivalent amount of tobacco products is 7,300 grams of smoking tobacco by weight, either in cigarettes, pipe tobacco or cigars, or a combination of same. For pipe tobacco, cigars or combinations of multiple tobacco types, 1 gram of tobacco is considered to be equal to one cigarette.
Note 2: Pack-years are calculated by dividing the number of cigarettes smoked per day by 20 and multiplying this number by the number of years the person has smoked. For example, smoking 10 cigarettes per day for 10 years is equal to 5 pack-years, and smoking 40 cigarettes per day for 10 years is equal to 20 pack-years.
reactive airways dysfunction syndrome means an asthma-like condition satisfying the following criteria:
(a) absence of pre-existing asthma symptomatology;
(b) onset of asthma symptoms after a single specific inhalational exposure or accident;
(c) exposure to an irritant substance in very high concentrations;
(d) onset of asthma symptoms within 24 hours after the exposure with persistence of symptoms for at least three months;
(e) presence of airflow limitation with a significant bronchodilator response, or the presence of nonspecific bronchial hyperresponsiveness to histamine/methacholine; and
(f) exclusion of other pulmonary disorders that can explain the symptoms or simulate asthma.
Note: Reactive airways dysfunction syndrome is also known as acute-onset, irritant-induced asthma.
relevant service means:
(a) eligible war service (other than operational service) under the VEA;
(b) defence service (other than hazardous service and British nuclear test defence service) under the VEA; or
(c) peacetime service under the MRCA.
Note: MRCA and VEA are also defined in the Schedule 1 - Dictionary.
sensitising exposure to an allergen means an exposure to an allergen without the occurrence of symptoms where the clinical onset of asthma occurs within the 24 hours of a subsequent exposure to the same allergen.
Note: The initial sensitising exposure to an allergen may have occurred months to years before the re-exposure that has resulted in the asthma.
specified list of drugs means:
(a) beta-blockers;
(b) non-steroidal anti-inflammatory drugs; or
(c) paracetamol.
terminal event means the proximate or ultimate cause of death and includes the following:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.
VEA means the Veterans' Entitlements Act 1986.
Note: Endnotes
Note: Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Note: Endnote 2—Abbreviation key
o = order(s)
ad = added or inserted
Ord = Ordinance
am = amended
orig = original
amdt = amendment
par = paragraph(s)/subparagraph(s)
c = clause(s)
/sub‑subparagraph(s)
C[x] = Compilation No. x
pres = present
Ch = Chapter(s)
prev = previous
def = definition(s)
(prev…) = previously
Dict = Dictionary
Pt = Part(s)
disallowed = disallowed by Parliament
r = regulation(s)/rule(s)
Div = Division(s)
exp = expires/expired or ceases/ceased to have
reloc = relocated
effect
renum = renumbered
F = Federal Register of Legislation
rep = repealed
gaz = gazette
rs = repealed and substituted
LA = Legislation Act 2003
s = section(s)/subsection(s)
LIA = Legislative Instruments Act 2003
Sch = Schedule(s)
(md) = misdescribed amendment can be given
Sdiv = Subdivision(s)
effect
SLI = Select Legislative Instrument
(md not incorp) = misdescribed amendment
SR = Statutory Rules
cannot be given effect
Sub‑Ch = Sub‑Chapter(s)
mod = modified/modification
SubPt = Subpart(s)
No. = Number(s)
underlining = whole or part not
commenced or to be commenced
Note: Endnote 3—Legislation history
Name
Registration
Commencement
Application, saving and transitional provisions
Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021)
9 March 2021F2021L00220
5 April 2021
Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022)
26 August 2022F2022L01123
19 September 2022
Veterans' Entitlements (Statements of Principles—definition of "one pack-year") Amendment Determination 2022 (No. 94 of 2022)
26 August 2022F2022L01128
19 September 2022
Note: Endnote 4—Amendment history
Provision affected
How affected
Section 2……………….
rep LA s 48D
Section 4……………….
rep LA s 48C
Subsection 9(1A)………
ad No. 93 of 2022
Schedule 1 – Dictionary – sensitising exposure to an allergen…………..