Statement of Principles concerning Hodgkin lymphoma (Balance of Probabilities) (No. 71 of 2023)

This instrument is a legislative determination under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It replaces the previous Statement of Principles concerning Hodgkin’s lymphoma No. 36 of 2014, repealed in full by section 4. Its mechanical function is to prescribe the minimum factual conditions that must exist before a decision‑maker can be satisfied, on the balance of probabilities, that Hodgkin lymphoma or death from Hodgkin lymphoma is connected with the circumstances of a person’s ‘relevant service’ as defined. The standard of proof engaged is the balance of probabilities, not the reasonable hypothesis test that applies to operational service claims under section 120(1) of the VEA. Accordingly, the instrument binds administrative decision‑makers in the Department of Veterans’ Affairs when assessing claims for disability pension or compensation under Part II of the VEA or Part 2 of the Military Rehabilitation and Compensation Act 2004 (MRCA), where the claim is subject to section 120B of the VEA or section 339 of the MRCA.

The substantive effect is to create a closed list of nine factors any one of which must be present to connect the disease to service. If none of the factors is established, the decision‑maker must conclude that the disease is not related to service on the balance of probabilities. The instrument does not create any entitlements itself; it merely sharpens the evidentiary rule for causation. It also incorporates by reference definitions from a Schedule, including a specified list of autoimmune diseases, pack‑year calculations for smoking, and body mass index (BMI) thresholds for obesity. The instrument came into force on 25 July 2023. Practitioners must note that it applies only to claims under sections 120B of the VEA or 339 of the MRCA, which are claims for non‑operational, non‑hazardous, or peacetime service. Veterans who served operationally remain subject to the reasonable hypothesis standard under a separate instrument (likely the companion document concerning reasonable hypothesis, No. 70 of 2023).

Hodgkin lymphoma is defined in subsection 7(2) as a specific group of malignant neoplasms of the lymph nodes and lymphoid tissue derived from B lymphocytes. The definition inclusively names five subtypes: nodular sclerosis classical, lymphocyte‑rich classical, mixed cellularity classical, lymphocyte‑depleted classical, and nodular lymphocyte predominant. It expressly excludes non‑Hodgkin lymphoma. The instrument assigns ICD‑10‑AM code C81 for reference but clarifies that the meaning is not limited by the code. Death from Hodgkin lymphoma is defined to include death contributed to by a terminal event such as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function (Schedule 1). This is a broad causation net that may capture deaths where the lymphoma was only one contributing factor.

‘Relevant service’ is crucial but restrictively defined. It means eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This definition excludes the most common service types - operational service and hazardous service - where the reasonable hypothesis standard applies. The instrument therefore applies only to a subset of veteran claims, primarily those involving home service during peacetime or non‑operational periods.

The core operational concept is the list of nine factors in section 9. They are: (1) smoking at least 15 pack‑years commencing at least 10 years before clinical onset, and if smoking ceased, onset within 5 years of cessation; (2) being obese (BMI 30 or greater) for at least 5 years within the 20 years before onset; (3) HIV infection before onset; (4) serological evidence of Epstein‑Barr virus infection before onset; (5) an autoimmune disease from the specified list (Behçet disease, immune thrombocytopaenic purpura, psoriasis, rheumatoid arthritis, sarcoidosis, Sjögren syndrome, or systemic lupus erythematosus) before onset; (6) receiving a stem cell, bone marrow, or solid organ transplantation before onset; (7) having mature B‑cell lymphoid leukaemia/small lymphocytic lymphoma at the time of onset; (8) active tuberculosis disease before onset; and (9) inability to obtain appropriate clinical management for Hodgkin lymphoma before clinical worsening.

The basis for these factors is set out in section 8: the Repatriation Medical Authority (RMA) is of the view, on sound medical‑scientific evidence, that Hodgkin lymphoma and death from Hodgkin lymphoma can be related to relevant service. This is a claim by the RMA, not a proven certainty, and practitioners should note that the RMA’s view is not a guarantee of soundness. The instrument does not explain the evidentiary basis for each factor, leaving it to those challenging a denial to argue that the factor list is incomplete or not grounded in current science.

The primary affected group is serving members and veterans of the Australian Defence Force who render ‘relevant service’ as defined. This category includes those who performed eligible war service (but not operational service), defence service (excluding hazardous service and British nuclear test defence service), and peacetime service under the MRCA. For such persons, a claim for disability pension or compensation for Hodgkin lymphoma will be assessed under this instrument if the claim falls under section 120B of the VEA or section 339 of the MRCA. That means veterans who served in non‑combat, home‑based, or peacetime postings. Veterans who served in war‑like operations or hazardous service are generally excluded from this instrument because the reasonable hypothesis standard applies; they are covered by a companion Statement of Principles (likely No. 70 of 2023) which uses a different evidentiary threshold.

The instrument also affects dependents and family members in cases of death from Hodgkin lymphoma, as they may claim a pension or compensation based on the veteran’s death. However, the instrument only deals with causation; the actual entitlement and quantum are governed by the VEA and MRCA.

Legal practitioners, advocates, and Department of Veterans’ Affairs decision‑makers must apply this instrument as a binding legislative rule. Medical advisers providing opinions for claims will need to address the specific factors. The instrument creates a uniform national standard, replacing the individual medical opinion approach that might otherwise prevail. This uniformity reduces discretion but also creates strict thresholds that may exclude legitimate claims if the medical evidence does not align with the precise definitions. For example, a veteran who smoked 14 pack‑years or who was obese for only 4.5 years in the 20‑year window would be unable to use those factors even if a clinician opined that those exposures likely caused the lymphoma.

The instrument has no direct effect on the general public or on treatment of Hodgkin lymphoma in the civilian health system. It is a compensable disease mechanism only. However, the definitions and factors may influence medico‑legal reasoning beyond the veteran context, as they represent a curated summary of risk factors accepted by a statutory authority.

The instrument imposes no duties on veterans; it imposes duties on the decision‑maker. Under section 9, the decision‑maker must be satisfied that at least one factor exists before concluding that the Hodgkin lymphoma is connected to relevant service on the balance of probabilities. This is a mandatory requirement, not merely a guideline. If none of the factors is established, the connection cannot be made, unless the claim is under a different standard (operational service). Section 10 adds a further duty: the existence of the factor must be related to the relevant service rendered by the person. This is a double causation requirement. The factor must both exist and be linked to service. For example, if a veteran smoked 15 pack‑years, but all of that smoking occurred after leaving service, the smoking factor exists but may not be related to service (unless the veteran can argue that the smoking was causally connected to service, such as stress from service experiences). The decision‑maker must assess this secondary link.

Section 10(2) limits the factor in subsection 9(9) (inability to obtain appropriate clinical management) to material contribution to or aggravation of Hodgkin lymphoma where the disease was suffered or contracted before or during (but not arising out of) relevant service. This means the inability‑to‑obtain‑management factor can only be used to worsen an existing condition, not to cause onset. This is a nuance that may be overlooked.

Section 11 creates an incorporation‑by‑reference mechanism. If a factor refers to an injury or disease covered by another Statement of Principles, then the factors in that other instrument apply as in force from time to time. For instance, the factor of having an autoimmune disease (such as rheumatoid arthritis) requires that the rheumatoid arthritis itself be connected to service under the relevant SoP for rheumatoid arthritis. This chains the causation analysis.

For the veteran, the right is to have the claim assessed under this instrument. If the veteran can point to one of the nine factors and demonstrate a connection to service, the decision‑maker must accept the link on the balance of probabilities. There is no residual discretion to refuse despite satisfaction of the factors. However, the instrument does not guarantee an outcome; the factors are framed with precise quantitative and temporal thresholds that may be difficult to prove, especially the 15 pack‑year smoking threshold, the 5‑year obesity duration, and the 10‑year smoking latency. The burden of proof lies with the veteran.

This instrument does not prescribe penalties. It is not a criminal or civil penalty provision. Enforcement is through the administrative review and judicial review system. If a decision‑maker fails to apply the instrument correctly, the veteran may seek merits review at the Veterans’ Review Board, then the Administrative Appeals Tribunal, and ultimately the Federal Court on a question of law. There are no fines or sanctions in the instrument itself.

The practical penalty for the government is the potential for adverse cost orders if it defends a claim incorrectly. For the veteran, the penalty of non‑compliance with the instrument’s evidentiary requirements is refusal of the claim. There is no mechanism to compel a decision‑maker to apply the factors; the veteran must rely on the duty of the decision‑maker under the VEA to follow the law.

Because the instrument is legislative, any decision‑maker who ignores it acts ultra vires, and the decision is liable to be set aside. In that sense, the instrument creates an enforceable duty. However, the instrument does not provide for any other enforcement mechanism. The RMA, which determines the instrument, is not a regulator; it merely updates the scientific basis from time to time. The ultimate enforcement is through the court system, which places a compliance burden on the veteran to initiate review. This cost may deter meritorious claims, especially for veterans with limited resources.

The instrument is made under subsection 196B(3) of the VEA and also references section 339 of the MRCA. It interacts directly with the VEA’s section 120B, which provides that the RMA may determine a Statement of Principles and that such determination is binding on decision‑makers for the purposes of determining whether an injury or disease is related to service. Similarly, section 339 of the MRCA gives like effect. The instrument therefore sits as subordinate legislation under both Acts.

It interacts with other Statements of Principles through section 11. If one of the factors (such as autoimmune disease) itself involves a condition covered by another SoP, then the factors of that other SoP must be satisfied to connect that condition to service. This creates a cascade of causation analyses. For example, a veteran claiming Hodgkin lymphoma based on the rheumatoid arthritis factor would need to first establish that the rheumatoid arthritis is itself service‑related under the SoP for rheumatoid arthritis. This significantly increases the evidentiary burden and may defeat claims where the autoimmune disease is idiopathic.

The instrument also interacts with the ICD‑10‑AM classification system. Subsection 7(4) defines the code reference as the Tenth Edition effective 1 July 2017. This is a fixed point in time. If future editions change the coding or classification of Hodgkin lymphoma, the instrument would be out of step unless amended. Practitioners should be aware of this static reference.

For operational service claims, the instrument has no application. Operational service is governed by the reasonable hypothesis standard, which uses a different instrument (the companion No. 70 of 2023). This bifurcation can cause confusion: a veteran with both operational and non‑operational service may have claims assessed under different standards for the same disease. The instrument explicitly excludes from the definition of relevant service any operational service, hazardous service, or British nuclear test defence service. This means the instrument creates a regulatory gap for some service types, which is filled by the companion instrument.

The instrument also interacts with the general law of evidence in administrative tribunals. While it binds the decision‑maker, it does not prevent a veteran from adducing medical evidence that falls outside the nine factors, but such evidence cannot alone satisfy the causation requirement on balance of probabilities. The veteran must fit within one of the factors. This may conflict with evolving medical opinion, as the list is fixed until the RMA revises it. The interaction is therefore restrictive: the instrument overrides individualised medical causation assessment in favour of a predetermined set of accepted causal factors.

The instrument repeals the earlier Statement of Principles concerning Hodgkin’s lymphoma No. 36 of 2014. No other amendments are mentioned in the text. The instrument is silent on why the earlier determination was replaced or what changes were made. Based on the date, the 2014 instrument was in force for approximately nine years before being repealed on 25 July 2023. The RMA did not include transitional provisions in this instrument; it simply states that it applies to any claim to which section 120B of the VEA or section 339 of the MRCA applies. There is no grandfathering for claims lodged before the commencement date that are not yet determined. However, the normal administrative law principle is that the law in force at the time of the decision governs, so claims determined after 25 July 2023 will be assessed under this new instrument.

The change in name from ‘Hodgkin’s lymphoma’ to ‘Hodgkin lymphoma’ may reflect modern medical terminology. The definition now includes five subtypes explicitly, whereas the 2014 instrument may have used simpler terminology. The current instrument also expands the list of factors: the 2014 version (No. 36 of 2014) likely had different thresholds. For instance, the smoking threshold may have been higher or lower. Without access to the repealed instrument, we can only note that the RMA clearly considered new medical evidence sufficient to warrant a full replacement. The RMA must have concluded that the ‘sound medical‑scientific evidence’ now supports a different set of factors or different quantitative thresholds.

The instrument is one of a series. Companion instruments (such as No. 70 of 2023 for the reasonable hypothesis standard) would have been made on the same day. This suggests a coordinated review of the evidence for Hodgkin lymphoma. The fact that the instrument is numbered ‘71’ implies a systematic numbering.

The instrument itself does not reference any court or tribunal decisions. However, Statements of Principles have been the subject of extensive litigation in the Administrative Appeals Tribunal and Federal Court, particularly concerning the definition of ‘sound medical‑scientific evidence’, the meaning of ‘reasonable hypothesis’, and the validity of the RMA’s determinations. The High Court has considered the constitutional limits on delegating legislative power to the RMA. None of this is in the source text, so it cannot be reported here. The instrument stands as the current codification. It is safe to assume that if the previous instrument (No. 36 of 2014) was litigated, the current one may face challenges over the 15 pack‑year threshold, the 5‑year obesity window, or the narrow list of autoimmune diseases. The RMA has made policy choices in these factors, and those choices create winners and losers. A veteran who develops Hodgkin lymphoma after 14 pack‑years of smoking but with strong clinical opinion of causation will be denied, and may challenge the reasonableness of the threshold. The instrument does not preclude such a challenge on constitutional or administrative law grounds.

Several features could trap the unwary practitioner. First, the smoking factor (subsection 9(1)) requires three sub‑conditions: (a) at least 15 pack‑years, (b) commencement at least 10 years before clinical onset, and (c) if smoking ceased, onset within 5 years of cessation. The 5‑year post‑cessation window is a strict cut‑off. A veteran who quit smoking 6 years before diagnosis cannot use this factor even if the total pack‑years and latency are satisfied. The rationale is unexplained, but the RMA evidently considers that the risk dissipates after 5 years. This may be contested.

Second, obesity is defined by BMI of 30 or greater, and must have existed for at least 5 years within the 20 years before clinical onset. The instrument does not require continuous obesity for 5 years; it says ‘for at least 5 years within the 20 years before the clinical onset’. A veteran who was obese for 5 non‑consecutive years (e.g., aged 20‑22 and 35‑38) might meet the factor if the total adds to 5 years within the 20‑year window. Proving this with medical records may be difficult.

Third, the specified list of autoimmune diseases is short and includes only seven conditions. Notably absent are common autoimmune diseases such as type 1 diabetes, multiple sclerosis, coeliac disease, or inflammatory bowel disease. A veteran with Hodgkin lymphoma and a history of, say, Crohn’s disease would not be able to use the autoimmune factor. The RMA has selected only those for which it considered the medical‑scientific evidence sufficient to support a causal link. This is a value judgment that may exclude valid claims.

Fourth, the inability to obtain appropriate clinical management factor (subsection 9(9)) is limited to worsening only, not onset. It also requires that the inability be related to the person’s relevant service. This is a narrow factor; typically, it would apply where a veteran’s service (e.g., remote posting) prevented timely diagnosis or treatment. The veteran must show that the inability predated and contributed to the worsening.

Fifth, the requirement in section 10(1) that the factor itself be related to service is a double link. A veteran who had HIV infection before clinical onset (factor 3) must also prove that the HIV infection is related to service. If the HIV was contracted through civilian exposure, the factor exists but cannot be used unless the service contributed to the exposure (e.g., service‑related blood transfusion or occupational exposure). This double layer can defeat claims that appear straightforward.

Sixth, the definitions rely on fixed BMI and pack‑year calculations. The pack‑year definition (Schedule 1) includes a conversion for pipe tobacco and cigars: 1 gram of tobacco equals one cigarette. This may disadvantage veterans who smoked hand‑rolled cigarettes or used non‑standard methods, as the conversion may underestimate consumption. The note states that for pipe tobacco, cigars or combinations, 1 gram of tobacco equals one cigarette. This is an arbitrary equivalency.

For veterans and their representatives, the first step is to determine which standard applies to the claim. If the veteran served in an operational, hazardous, or British nuclear test capacity, this instrument does not apply; the reasonable hypothesis standard applies, and the companion instrument (No. 70 of 2023) should be used. If the veteran had only relevant service (non‑operational, peacetime), this instrument is the applicable one.

Compliance requires gathering evidence to establish at least one of the nine factors exactly as defined. For the smoking factor, this means obtaining a detailed smoking history: total duration, average daily consumption, and dates of start and cessation. The veteran must demonstrate at least 15 pack‑years (e.g., 30 years of smoking 10 cigarettes per day equals 15 pack‑years). The calculation must be done using the formula: (cigarettes per day ÷ 20) × years smoked. If the veteran smoked pipes or cigars, the weight conversion must be applied. Medical records of respiratory disease or pack‑year notations from general practitioners are admissible. The onset date of Hodgkin lymphoma (the clinical onset) must be established, typically from biopsy results or imaging. The latency of at least 10 years and the 5‑year cessation window must be documented.

For the obesity factor, the veteran must show a BMI of 30 or greater for at least 5 years within the 20 years before clinical onset. This requires historic weight and height records: enlistment medicals, pre‑service documents, or GP records. The veteran should calculate BMI at various points to show the 5‑year duration.

For HIV, EBV, tuberculosis, autoimmune disease, transplantation, and leukaemia factors, laboratory or clinical documentation is essential. The autoimmune disease must be one of the seven listed. The veteran must also be prepared to show that the underlying condition (e.g., rheumatoid arthritis) is itself service‑related under its own Statement of Principles.

The final step is linking the factor to service. For example, if the factor is smoking, the veteran must show that the smoking was caused or contributed to by service. This may be difficult if the veteran started smoking before service or after discharge. Common arguments include smoking initiation during service due to stress, peer pressure, or the availability of cheap tobacco. For obesity, the veteran must link the weight gain to service conditions or lifestyle.

If no factor can be established, or the service link cannot be made, the claim will fail under this instrument. The veteran may still argue that the reasonable hypothesis standard should apply if the service type is recharacterised, or may seek a review of the RMA determination as unreasonable, but that is beyond the scope of this compliance guide. The most important practical step is to carefully read the Schedule 1 definitions for every term used in the factor. Overlooking the precise meaning of ‘active tuberculosis disease’ or ‘terminal event’ could derail a claim.