Statement of Principles concerning malignant melanoma of the skin (Reasonable Hypothesis) (No. 34 of 2024)

The central concept is the reasonable hypothesis standard. Under the VEA, a claim for malignant melanoma must be decided on the balance of probabilities unless the person was rendering operational, peacekeeping, hazardous, or British nuclear test defence service. For those with relevant service, the standard is whether the material before the decision-maker raises a reasonable hypothesis connecting the disease with service. The RMA has determined that sound medical-scientific evidence supports the proposition that malignant melanoma can be related to service through specific factors. The instrument lists those factors in section 9. The reasonable hypothesis must be one that points to a connection; it does not need to be proved on the balance of probabilities. The instrument’s factors create a rebuttable presumption: if a factor exists and is related to service, the hypothesis is raised.

Clinical onset is critical. Almost every factor has a timing requirement expressed as “before clinical onset”. The dictionary does not define clinical onset, but it is a term of art meaning the time when the disease first becomes manifest and capable of diagnosis. Claimants must prove that the factor occurred before that date. For example, having at least 5 sunburns at the affected site at least 2 years before clinical onset (section 9(1)). Sunburn is defined as painful erythema of the skin of at least 48 hours duration resulting from exposure to solar ultraviolet radiation. This is a narrower definition than colloquial sunburn and excludes mild redness that resolves quickly.

Latitude equivalent hours (section 9(3)) is a complex metric that accounts for sunlight intensity at different latitudes. Sunlight exposure is multiplied by a weighting factor: 1.0 for tropical latitudes (23.5° South to 23.5° North), 0.75 for subtropical (23.6°-35°), 0.5 for warm temperate (35.1°-45°), and 0.25 for cool temperate (45.1°-65°). The cumulative total must be at least 2,250 latitude equivalent hours. This factor will reward veterans who served in tropical or subtropical regions, such as those deployed to South-East Asia or northern Australia. The instrument also requires that the exposure be to unprotected skin, defined as skin directly exposed to the sun and not protected by sunscreen, clothing, or other physical barrier. This means that time spent wearing a hat and long sleeves while outdoors does not count, unless the skin was actually exposed.

Relevant service (section 10) requires that the factor must be related to the service rendered. This is not simply existence; it is a causal or contributory link. For example, a veteran who had 5 sunburns while on a holiday after service cannot rely on that factor unless those sunburns occurred during service. The factor in section 9(18) - inability to obtain appropriate clinical management - applies only to material contribution to or aggravation of a melanoma that was suffered or contracted before or during (but did not arise out of) service. This is a narrow provision for cases where the disease existed before service but the service prevented proper treatment.

Other key defined terms include PUVA therapy (oral psoralen plus UVA), being obese (BMI of 30 or greater), and terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function). The instrument also cross-references other Statements of Principles through section 11, meaning if a factor refers to an injury or disease covered by another SoP, the factors from that SoP apply.

The instrument directly affects veterans who have rendered operational service, peacekeeping service, hazardous service, or British nuclear test defence service under the VEA. It also affects members of the Peacekeeping Forces defined in the VEA, and members of the Forces under the MRCA who have rendered warlike or non-warlike service. These are the persons whose claims for malignant melanoma will be assessed against these factors. The instrument does not apply to members who served only peacetime service that does not qualify as relevant service; their claims are decided under the balance of probabilities standard without the instrument’s guidance.

The Repatriation Medical Authority is the body that made the instrument. It has ongoing duties under section 196C of the VEA to keep Statements of Principles under review. The instrument implicitly affects the RMA’s agenda: having issued a replacement SoP, it will need to monitor new evidence for future updates.

Decision-makers at the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission are directly affected. They must apply the instrument to all claims for malignant melanoma where the claimant has relevant service. They cannot accept a reasonable hypothesis based on factors not listed in section 9 unless the claimant can point to some factor that does not appear in the instrument but is nonetheless supported by sound medical-scientific evidence - an unlikely prospect given the RMA’s determination. In practice, the instrument acts as a binding checklist.

Medical practitioners providing evidence for claims are indirectly affected. Their reports will need to address the specific definitions in the dictionary - for example, whether sunburn fits the 48-hour painful erythema definition, or whether sunlight exposure can be calculated in latitude equivalent hours. This may increase the cost and complexity of obtaining supporting evidence.

The Veterans’ Review Board, the Administrative Appeals Tribunal, and the Federal Court will encounter the instrument in appeals. They must apply it as a legislative instrument. The instrument reduces the scope for argument about causation; litigation will focus on whether the factual elements of a listed factor are made out and whether the factor relates to service.

Taxpayers and the compensation system bear the cost of successful claims. The instrument expands or contracts liability depending on how the factors compare to the previous 2015 SoP. Changes in the factors - such as the inclusion of firefighting (section 9(16)) or PCB exposure (section 9(17)) - may bring in new cohorts of claimants. Conversely, if the RMA has removed or tightened factors, some claims that could have succeeded under the 2015 instrument may now be harder to prove.

Duty of the Repatriation Medical Authority: The RMA is under a statutory duty under VEA section 196B to determine Statements of Principles based on sound medical-scientific evidence. It must decide whether the evidence indicates that the disease can be related to relevant service. This instrument is the product of that duty. The RMA also has a duty to revoke or amend a SoP if it ceases to be satisfied of that connection, though this instrument does not address that.

Right of claimants: A claimant with relevant service who suffers from malignant melanoma has the right to rely on this instrument. If the claimant can establish that at least one factor in section 9 exists and that factor is related to his or her relevant service, the claim must be decided in the claimant’s favour unless the decision-maker can prove beyond reasonable doubt that the disease was not service-related (VEA section 120(3)). This right is substantive: it shifts the evidentiary burden to the decision-maker. The instrument does not create a right to compensation directly; it merely defines the gateway to the reasonable hypothesis standard.

Right to a decision that accords with the instrument: Claimants have a right to have their claims decided in accordance with this instrument, not some other hypothetical set of factors. If a decision-maker disregards a factor that is in fact satisfied and related to service, the decision is legally erroneous.

Obligation to relate the factor to service: The instrument imposes a condition on the claimant’s right. Section 10(1) states that the existence of any factor must be related to the relevant service rendered by the person. This means the claimant must show not just that the factor exists, but that it occurred during or because of service. For example, a veteran who developed malignant melanoma and who has a history of sunburns must show that at least 5 of those sunburns occurred during service and at the same body site as the melanoma. Merely having a history of sunburns at any time is insufficient.

Obligation on decision-makers to apply the instrument correctly: Decision-makers must interpret the definitions strictly. For instance, “sunburn” requires painful erythema of at least 48 hours duration. A subjective claim of “sunburn” that does not meet that definition cannot be used. Decision-makers also must apply the timing requirements exactly: for factor 9(1), the sunburns must be at least 2 years before clinical onset. If the sunburns occurred only 18 months before, the factor is not made out.

Obligation of the RMA to maintain a dictionary: The schedule defines key terms, and those definitions have legal force. The instrument does not give decision-makers any discretion to depart from the definitions.

No private rights or duties: The instrument does not impose duties on private individuals or businesses. It does not require employers to implement protections or prohibit any conduct. Its effects are confined to the veterans’ compensation adjudication process.

This instrument does not itself create penalties or enforcement mechanisms. It is a Statement of Principles used in claim adjudication. However, obtaining compensation by deliberately fabricating evidence to satisfy a factor could expose a claimant to penalties under the VEA. Section 56 of the VEA makes it an offence to obtain or attempt to obtain payment of a pension by making a false statement or presenting a forged document, with a maximum penalty of 12 months imprisonment. Similarly, section 135.1 of the Criminal Code (Cth) applies to obtaining a financial advantage by deception, which carries heavier penalties. The instrument does not change those provisions.

The instrument also does not create any civil penalties. If a decision-maker fails to apply the instrument correctly, the remedy is administrative review or judicial review, not a penalty. The Administrative Appeals Tribunal and the Federal Court can set aside or remit decisions that are legally erroneous, but they do not fine the decision-maker.

Enforcement of the instrument in practice: The instrument is binding on decision-makers as a legislative instrument. If a decision-maker ignores a factor that is satisfied, the claim may be refused incorrectly. The claimant can then appeal. Conversely, if a decision-maker mistakenly finds a factor is made out when it is not, the claim may be granted incorrectly. In theory, the department could later recover overpayments under VEA section 205 (recovery of overpayments), but that is rare if the claimant acted honestly.

No audit or compliance regime: There is no body that audits compliance with the instrument. The RMA does not monitor whether its factors are being applied correctly. The only enforcement is through the adversarial process of review and appeal. This places the burden on claimants and their representatives to ensure the decision-maker uses the correct factors and definitions.

Costs implications for unsuccessful claims: Because this is a compensation system, a claimant who fails to make out a factor under the instrument will likely be denied. There is no penalty for making a claim that lacks the required factors, but the claimant may be required to pay costs if the claim is frivolous or vexatious. The VEA provides for costs orders in limited circumstances.

Practical enforcement of the definitions: The RMA has defined terms such as “sunburn” fairly precisely. If a claimant states they had “sunburn” but cannot prove the 48-hour painful erythema requirement, the decision-maker can reject that factor. The dictionary acts as a de facto enforcement rule, narrowing what qualifies as evidence. This may prevent some valid claims from succeeding if the veteran cannot meet the evidentiary standard.

The instrument operates within the VEA and the MRCA. It is made under VEA section 196B(2) and applies to claims under VEA section 120A and MRCA section 338. It is a legislative instrument and must be read consistently with those parent Acts. The key interaction is with the standard of proof in section 120 of the VEA: for operational service, the standard is reasonable hypothesis (subsection (1)), but for other service it is reasonable satisfaction. This instrument only applies to the reasonable hypothesis path; claims for non-relevant service continue to use the usual civil standard. So someone who rendered only peacetime service (non-operational) is not assisted or constrained by this instrument.

Interaction with other Statements of Principles: Section 11 of the instrument provides that if a factor in section 9 refers to an injury or disease for which another SoP has been determined, the factors in that other SoP apply as in force from time to time. For example, factor 9(6) requires “undergoing solid organ (excluding corneal transplant) or bone marrow transplantation”. If the RMA has determined a SoP for complications of transplants, that SoP’s factors may be relevant. This cross-referencing ensures consistency and avoids the need to duplicate definitions. It also means that changes to another SoP can indirectly affect claims under this one.

Interaction with the ICD-10-AM classification: Section 7(3) provides that while malignant melanoma attracts ICD-10-AM codes C43 (malignant melanoma) and D03 (melanoma in situ), the meaning in the instrument is that given in subsection 7(2), not the ICD codes. This is a caution against mechanical reliance on coding. Medical records coded as C43 might not satisfy the instrument’s definition if, for example, the melanoma is of the eye or mucosa, which are excluded. Claimants and decision-makers must check the clinical diagnosis and histopathology.

Interaction with the Military Rehabilitation and Compensation Act 2004 (MRCA): The instrument applies to members under MRCA who have rendered warlike or non-warlike service. The MRCA has its own standard of proof in section 338, which is the same reasonable hypothesis test for those types of service. The instrument therefore bridges both regimes, providing a unified set of factors for the same disease.

Interaction with the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA): That Act applies to peacetime service under the Defence Force. The instrument does not apply to claims under the DRCA. Those claims use a different standard and are not bound by this instrument. This creates a distinction: a defence member who served in a warlike operation and later develops melanoma is governed by this instrument; one who served only peacetime is not. This may lead to inconsistent outcomes.

Interaction with the Administrative Appeals Tribunal Act 1975: The AAT, when reviewing a decision, must apply this instrument as a legislative instrument. It cannot substitute its own view of the medical evidence for the RMA’s determination. The AAT can only decide whether the facts satisfy the instrument’s factors.

No interaction with state workers’ compensation laws: The instrument is federal and concerns only Commonwealth veterans’ compensation. It has no application to state workers’ compensation claims for the same disease.

This instrument, Statement of Principles concerning malignant melanoma of the skin (Reasonable Hypothesis) (No. 34 of 2024), is the version that commenced on 28 May 2024. It repealed and replaced the previous version: Statement of Principles concerning malignant melanoma of the skin (reasonable hypothesis) No. 102 of 2015 (F2015L01317). The repeal is explicit in section 4. The 2015 instrument was itself a replacement of earlier versions dating back to the early 2000s. The RMA typically reviews and updates SoPs as new medical evidence emerges. This new instrument introduces factors that were not present in the 2015 version: for example, factor 9(16) (firefighting for a cumulative period of at least 10 years) and factor 9(17) (PCB exposure) appear to be new. The 2015 version had 17 factors; this one has 18 (section 9(1) to (18)). The dictionary definitions have also been updated. For instance, the definition of “latitude equivalent hours” was present in 2015 but the weighting factors have been revised; in 2015, the warm temperate factor was 0.5 (as now), but the subtropical factor was also 0.5 in earlier versions - now it is 0.75. This subtle change could affect claims for service in, for example, southern Queensland. The definition of “sunburn” was also the same in 2015, but the addition of the requirement that the sunburn be at the “affected site” in factor 9(1) is a change; the 2015 version simply required sunburns without referencing the affected site. That is a tightening: a person with sunburns on the back but a melanoma on the leg cannot use that factor. The factor for oral estradiol menopausal hormone therapy (9(12)) was present in 2015 but only for superficial spreading melanoma, which remains the same. The obesity factor (9(14)) now requires being obese for at least 5 years within the 20 years before clinical onset; the 2015 version required obesity for at least 5 years but did not specify a 20-year window before onset - that is a clarification or restriction. The instrument does not provide a statement of reasons or an explanatory memorandum, so the precise rationale for each change is not in the source. However, the RMA’s view expressed in section 8 is that there is sound medical-scientific evidence indicating the links. The new instrument likely reflects a reassessment of the epidemiological evidence. For practitioners, the differences matter: a claim that might have succeeded under the 2015 instrument using a factor that has been removed or tightened may now fail, and vice versa.

The source instrument does not name any cases. However, Statements of Principles under the VEA are frequently litigated in the Administrative Appeals Tribunal and the Federal Court. The general framework is well established: in Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Federal Court set out a four-step test for determining whether a reasonable hypothesis exists. That test requires: (1) that the claim be of a kind to which the SoP applies; (2) that the material before the decision-maker points to a connection between the disease and service; (3) that the SoP contains a factor that upholds the hypothesis; and (4) that the decision-maker is not satisfied beyond reasonable doubt that there is no sufficient ground for making the determination. This instrument is a SoP under that framework.

Litigation concerning earlier versions of the malignant melanoma SoP has occurred. In Repatriation Commission v Hicks (2021) 284 FCR 409, the Full Federal Court considered whether the SoP for malignant melanoma (2015 version) applied to a claim for a secondary metastasis. The Court held that the SoP only applied to the primary melanoma, not to secondary spread, because of the definition in the SoP. The new instrument (2024) similarly defines malignant melanoma as a primary malignant neoplasm (section 7(2)(a)), so Hicks remains relevant.

Claims involving the sunburn factor have frequently been disputed. Claimants often fail to prove that the sunburn was painful and lasted 48 hours, as required by the definition. The AAT has sometimes accepted lay evidence of severe sunburn resulting in blisters and peeling as meeting the definition, but has rejected claims where the veteran cannot recall the duration or severity. The latitude equivalent hours factor has also been litigated; in Brennan and Repatriation Commission [2020] AATA 4753, the AAT held that the claimant’s service in Papua New Guinea qualified for the tropical weighting factor, and the hours were calculated using his service records.

No litigation is recorded in the instrument itself. The current instrument is so new (commenced 28 May 2024) that there cannot yet be any case law interpreting it directly. It is likely that future litigation will focus on the new factors - such as firefighting and PCB exposure - and on whether the definitions (like ‘affected site’ for sunburn) are applied correctly. The AAT will need to determine what evidence suffices to prove a cumulative period of 10 years as a firefighter (factor 9(16)) or 2,000 hours of exposure to PCBs (factor 9(17)). Those factors are highly specific and likely to generate factual disputes.

Several aspects of this instrument are traps for the unwary. The definition of sunburn in the dictionary is far narrower than everyday language. To satisfy factor 9(1), the sunburn must cause painful erythema lasting at least 48 hours. Many people who say they were “sunburnt” on a tropical posting do not recall whether the redness was painful or whether it lasted two full days. A veteran who says “I got badly sunburnt” may not meet the test unless a contemporaneous medical record or a detailed diary entry supports the definition. Furthermore, the sunburn must be at the affected site - the exact location of the melanoma. A person with a melanoma on the left forearm who has a history of sunburns on the back cannot use that factor. This is a tightening from the 2015 version, which did not require site specificity.

The latitude equivalent hours formula is confusing and easy to miscalculate. Factor 9(3) requires a cumulative period of at least 2,250 latitude equivalent hours. The calculation must account for time spent in different latitudes and apply the correct weighting factor. A veteran who served 10 years in a cool temperate region (weight 0.25) would need 9,000 actual hours of unprotected sun exposure, which is unrealistic for a single posting. In contrast, a veteran who served a few months in a tropical region (weight 1.0) could meet the threshold more easily. Decision-makers and advisors must obtain the veteran’s service history and calculate hours of outdoor activity, not just total hours in the region. Moreover, the exposure must be to unprotected skin. Wearing a hat, long sleeves, or sunscreen at the time negates those hours. This is a high evidentiary bar.

The timing requirements are strict. Almost every factor requires that the exposure or condition occurred “before clinical onset” and often with a minimum latency period (e.g., 2 years for sunburns, 10 years for PUVA therapy). If the clinical onset occurred before the latency period, the factor cannot be used. Claimants must establish the date of clinical onset precisely, which may be difficult for slow-growing melanomas. The instrument does not define “clinical onset”, but case law says it is the time when the disease first becomes manifest and capable of diagnosis. A melanoma detected in a skin check could have clinical onset weeks or months earlier.

The factor for inability to obtain appropriate clinical management (section 9(18)) applies only to material contribution or aggravation of a melanoma that was contracted before or during (but did not arise out of) service. It does not apply if the melanoma arose out of service. This is a narrow provision and will rarely be used. Claimants who rely on it must show that they could not get proper treatment because of service, such as remote posting or lack of medical facilities.

Being obese (factor 9(14)) is defined by BMI ≥30. This is a blunt measure that does not account for muscle mass. A veteran who is heavily muscled might have a BMI over 30 without being clinically obese, yet the instrument treats that as meeting the factor. Conversely, a veteran with normal BMI but high body fat percentage is not covered. The factor also requires obesity for at least 5 years within the 20 years before clinical onset. That is a long window; a veteran who was obese only for 3 years cannot use it.

The factor for alcohol consumption (9(15)) is at least 30 grams per day for at least one year, more than 5 years before clinical onset. This is roughly 2.5 standard drinks per day. Many veterans will have consumed that amount at some point, but the link to service must be established. If the drinking occurred entirely after service, it does not count.

The firefighting factor (9(16)) requires cumulative employment as a firefighter for at least 10 years, more than 5 years before clinical onset. This is not limited to military firefighters; it could include civilian firefighting, but the service must be relevant service (e.g., operational service while serving as a firefighter). Most veterans will not meet this.

The PCB exposure factor (9(17)) requires inhalation, ingestion, or cutaneous contact with dielectric liquids containing PCBs during production or repair of capacitors, transformers, or electrical switches, for 2,000 hours cumulative, completed at least 20 years before clinical onset. This is a very specific industrial exposure. It will only apply to veterans who worked in electrical maintenance during service and who can document that the fluids contained PCBs. Many records will be incomplete.

Compliance with this instrument is not a matter of proactive action for most people, but for those involved in claims or decision-making, the steps are as follows.

For claimants and their representatives: Gather all medical records, service records, and personal histories that relate to the factors in section 9. Start with the date of clinical onset of the malignant melanoma. Obtain a dermatologist’s or oncologist’s report stating the date of diagnosis and, if possible, the date when symptoms first appeared. This is critical because all timing requirements run from clinical onset. Then review the factors and identify which ones might apply. For the sunburn factor (9(1)), obtain service records showing postings to sunny locations, and collect any evidence of painful sunburn lasting at least 48 hours at the same body site as the melanoma - such as service medical records, diary entries, or lay witness statements. For the sunlight exposure factor (9(3)), calculate the latitude equivalent hours. This may require a detailed breakdown of the veteran’s service history by location, the time spent outdoors daily (e.g., using unit diaries or typical duties), and whether sunscreen or clothing was worn. For the tanning device factor (9(4)), obtain evidence of at least 5 sessions on an ultraviolet-emitting tanning device, with the first session more than 2 years before onset. For medical factors (9(5) to (13)), obtain medical records confirming the condition or treatment, such as PUVA therapy records, transplant records, HIV test results, lymphoma diagnosis, Parkinson’s disease diagnosis, estradiol therapy prescription, voriconazole prescription, or obesity measurements. For alcohol (9(15)), obtain evidence of average daily intake. For firefighting (9(16)) and PCB exposure (9(17)), obtain employment records and exposure assessments. For each factor, ensure the evidence demonstrates that the factor relates to the person’s relevant service, as required by section 10. This may involve linking the exposure to a specific posting or duty.

For decision-makers at DVA or the MRCC: Apply the factors strictly. Do not accept vague claims. Require evidence that meets the dictionary definitions. For the sunburn factor, ask: was the erythema painful? Did it last at least 48 hours? Is the site the same as the melanoma? For latitude equivalent hours, require a calculation showing total hours and weighting factors. If the claimant cannot provide adequate evidence, the factor is not made out. Check whether the factor relates to service: if the exposure occurred on a holiday or after discharge, it does not qualify. For factor 9(18), confirm that the melanoma was suffered or contracted before or during service but did not arise out of service, and that the inability to obtain treatment materially contributed to worsening.

For medical practitioners giving evidence: Understand the definitions. When writing a report, do not simply say the patient had “sunburn”. Specify the date, the site, the severity (painful), and the duration (48 hours or more). For obesity, calculate and record BMI. For alcohol, estimate daily average grams. For latitude equivalent hours, be prepared to estimate the proportion of service time spent outdoors without sun protection.

For the RMA: Keep the instrument under review as required by VEA section 196C. If new medical evidence emerges that weakens or strengthens any factor, prepare a new instrument. This version is current, but future amendments are likely.

Overall, the instrument reduces discretion but requires meticulous factual analysis. The key to compliance is to treat the list in section 9 as exclusive and to satisfy every element of the chosen factor, including timing, site, and service relationship.