Statement of Principles concerning malignant neoplasm of the small intestine (Balance of Probabilities) (No. 81 of 2023)

This instrument is a Statement of Principles (No. 81 of 2023) determined by the Repatriation Medical Authority under subsection 196B(3) of the Veterans' Entitlements Act 1986, and it comes into force on 26 September 2023 (ss 1-3, 2). Mechanically, it replaces the prior Statement of Principles concerning malignant neoplasm of the small intestine No. 2 of 2015 (s 4). The instrument defines the meaning of the condition for the purposes of claims, lists the medical and temporal factors that must exist before a connection with relevant service can be accepted on the balance of probabilities, and clarifies how certain provisions operate where other Statements of Principles cover related injuries or diseases (ss 7-11; Schedule 1).

The instrument applies to claims brought under the statutory schemes referenced: claims to which section 120B of the VEA or section 339 of the Military Rehabilitation and Compensation Act 2004 apply (s 5). The Authority states its view that, on the sound medical‑scientific evidence available, it is more probable than not that malignant neoplasm of the small intestine and death from that condition can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the MRCA (s 8). That statement of scientific view is the Authority’s express basis for setting out the factors in the instrument.

Substantively the Statement does three things. First, it defines the scope of the disease covered: a primary malignant neoplasm arising from epithelial cells of the small intestine, with specified exclusions (s 7(2)). Second, it prescribes the specific antecedent conditions or circumstances that must exist for a positive link to service on the balance of probabilities (s 9). These include Crohn disease of the small intestine, longstanding coeliac disease, adenoma of the small intestine, a period of ileostomy or ileal pouch in specified circumstances, and inability to obtain appropriate clinical management prior to clinical worsening (s 9(1)-(5)). Third, it sets relationship-to-service rules, including a limitation on how the factor about inability to obtain appropriate clinical management may be used where the disease was suffered before or during, but did not arise out of, service (s 10).

The instrument also provides definitional detail in Schedule 1, including the definitions of relevant service, terminal event, MRCA and VEA, and confirms that while malignant neoplasm of the small intestine attracts ICD‑10‑AM code C17, the statutory meaning for this instrument is the textual definition provided (s 7(3)-(4); Schedule 1). The Statement does not itself create new offences, penalties or a separate compensation regime; it functions as an evidentiary framework to be applied in claims under the referenced statutory provisions (s 5, s 3).

The Statement rests on a small number of interlocking legal and medical concepts, all set out in the instrument text. The primary legal concept is that the Repatriation Medical Authority (the Authority) may, under subsection 196B(3) of the Veterans' Entitlements Act 1986, determine Statements of Principles that identify medical factors relevant to linking disease to service. This instrument is such a Statement and therefore functions as an evidentiary tool in adjudicating claims under certain provisions of the VEA and MRCA (s 3, s 5).

The medical concept defined with care is "malignant neoplasm of the small intestine". The instrument defines it as a primary malignant neoplasm arising from the epithelial cells of the small intestine and expressly excludes soft tissue sarcoma, non‑Hodgkin lymphoma and Hodgkin lymphoma, and carcinoid tumour (s 7(2)(a)-(b)). The instrument notes that although ICD‑10‑AM code C17 normally applies, the meaning in this instrument is dictated by the textual definition (ss 7(3)-(4)). The geographic anatomical reference is provided in a Note: the small intestine extends from the lower border of the pyloric sphincter to the ileocaecal junction, including the duodenum, jejunum and ileum (s 7 Note).

Causation is framed by the "balance of probabilities" standard. The Authority states that, on the sound medical‑scientific evidence available, it is more probable than not that malignant neoplasm of the small intestine and death from it can be related to relevant service (s 8). The instrument therefore sets out the discrete factors which, if present and related to relevant service, will satisfy the onus of connection on that standard (s 9). The factors are threshold requirements; at least one must exist before a finding of connection with relevant service can be made on the balance of probabilities (s 9 opening).

The factors themselves are medical antecedents or circumstances, several with explicit temporal requirements: Crohn disease of the small intestine prior to clinical onset (s 9(1)); coeliac disease of at least five years' duration before clinical onset (s 9(2)); adenoma of the small intestine before clinical onset (s 9(3)); for adenocarcinoma of an ileostomy or ileal pouch only, at least two years of an ileostomy or ileal pouch before clinical onset (s 9(4)); and inability to obtain appropriate clinical management for malignant neoplasm of the small intestine prior to clinical worsening (s 9(5)). The instrument requires that any of these factors, if relied upon, must be related to the person's relevant service (s 10(1)). A specific interpretive constraint applies to the factor in s 9(5): it is limited to material contribution to, or aggravation of, the disease where the person’s small intestine malignant neoplasm was suffered or contracted before or during (but did not arise out of) relevant service (s 10(2)).

The instrument affects four identifiable groups by function and legal relationship, as defined or reflected in the text.

1. Claimants under the VEA and MRCA: The Statement applies to claims to which section 120B of the VEA or section 339 of the MRCA applies (s 5). Claimants in those statutory processes who assert that malignant neoplasm of the small intestine or death from it is connected with their relevant service will be affected because adjudicators will apply the factors in this Statement when determining whether, on the balance of probabilities, the disease is related to service (s 9; s 8).

2. Veterans, members of the Forces and members under MRCA: The Schedule defines "relevant service" to include eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA (Schedule 1). Therefore, persons whose service falls within those enumerated categories and who have a qualifying medical history may be affected when seeking a finding that their disease is service‑related.

3. Decision-makers administering the VEA and MRCA statutory claims processes: The Statement is designed to be applied in those claims. While the Authority sets the scientific view and the factors, the legal application to particular claims will be undertaken by the decision-makers operating under the referenced statutory provisions (s 3, s 5). The Statement provides the evidentiary framework they must use to assess causal connection on the balance of probabilities (s 9).

4. Medical experts and treating clinicians: Because the Statement specifies particular antecedent medical conditions and timing requirements (s 9), clinicians and medico‑legal experts who supply evidence in claims will need to report on the presence, chronology and clinical management of the conditions identified, including whether Crohn disease, coeliac disease of at least five years' duration, adenoma, a qualifying ileostomy/pouch period, or inability to obtain appropriate management occurred before clinical onset or worsening (s 9; s 10).

Those seeking to rely on a factor must demonstrate its existence and relation to relevant service (s 10(1)). The instrument narrows the universe of medical histories that will suffice to establish a service connection by providing explicit categories and temporal thresholds. It also excludes certain histological or disease entities from the definition of malignant neoplasm of the small intestine (soft tissue sarcoma, non‑Hodgkin lymphoma and Hodgkin lymphoma, and carcinoid tumour), which will affect claimants whose pathology falls within those excluded categories (s 7(2)(b)).

The Statement sets out a set of evidentiary duties and delineates the conditions under which a claimant can have the disease linked to relevant service. These are not expressed as statutory obligations in the instrument but operate as threshold legal requirements for a finding of service connection under the VEA and MRCA claims processes that reference the Statement (s 5). The core duties and rights are as follows.

Rights to a connection finding: A claimant has the right to have the Statement applied in assessing whether malignant neoplasm of the small intestine or death from it is connected with relevant service. The Authority’s view,expressed as the scientific basis for determining the Statement,is that the disease can be related to relevant service on the balance of probabilities (s 8). Practically, if a claimant establishes that at least one factor in s 9 existed and that factor is related to their relevant service (s 10(1)), then, on the Authority’s view, the claim can be accepted as connected with service where the balance of probabilities is met.

Duty to demonstrate a factor exists: The Statement requires that at least one of the enumerated factors in s 9 must exist before a finding of service connection can be made on the balance of probabilities. These factors include diagnosed Crohn disease of the small intestine prior to clinical onset, coeliac disease of at least five years prior to clinical onset, an adenoma of the small intestine prior to clinical onset, specified duration of an ileostomy or ileal pouch for adenocarcinoma of those stomas/pouches, or inability to obtain appropriate clinical management prior to clinical worsening (s 9(1)-(5)). The temporal language "before the clinical onset" or "for at least X years before the clinical onset" makes clear that the duty is to provide evidence of chronology as well as diagnosis.

Duty to show relationship to relevant service: Even if a qualifying factor exists, s 10(1) requires that the existence of the factor must be related to the relevant service rendered by the person. The Statement does not spell out the particular types of proof required to show that relationship; it states the requirement and leaves the assessment to the claims process. For the special factor in s 9(5) (inability to obtain appropriate clinical management), s 10(2) limits its application to situations of material contribution or aggravation where the disease “was suffered or contracted before or during (but did not arise out of) the person’s relevant service.”

Duty to consult other Statements where applicable: Section 11 requires that where a factor in s 9 refers to an injury or disease already subject to another Statement of Principles, the factors in that other Statement apply according to its terms. That imposes a duty on decision-makers and claimants to consult and apply additional Statements as necessary.

The Statement of Principles instrument contains no provisions creating offences, monetary penalties, administrative fines, or other enforcement mechanisms within its text. It is an evidentiary instrument issued by the Repatriation Medical Authority under subsection 196B(3) of the VEA and designed to be applied within claims under specified provisions of the VEA and the MRCA (s 3; s 5). The instrument therefore does not itself purport to penalise behaviour or prescribe enforcement processes.

Enforcement in the sense of operational application occurs through the claims processes to which the Statement applies. That is, decision-makers processing claims under section 120B of the VEA or section 339 of the MRCA will apply the Statement in making determinations of whether malignant neoplasm of the small intestine or death from it is connected with relevant service (s 5). The instrument sets the evidentiary thresholds and temporal requirements that decision-makers must take into account when resolving disputes about causation on the balance of probabilities (s 9; s 10). Any consequences that follow from a finding of connection, such as entitlement to benefits, are matters governed by the substantive provisions of the VEA or MRCA and by the administrative procedures and appeal mechanisms those Acts establish. Those entitlement or appeal mechanisms are not set out in this Statement.

Because the Statement cross‑references other Statements of Principles where relevant (s 11), its application may require enforcing or applying factors contained in other Authority instruments. In that sense, enforcement is operational: the Statement is a binding input to the statutory decision process for claims covered by the referenced sections. However, the Statement itself contains no sanctioning powers.

The Authority’s assertion of the underlying scientific basis is framed as its view “on the sound medical‑scientific evidence available” that the disease can be connected to relevant service on the balance of probabilities (s 8). That scientific judgment is the statutory basis for the instrument. There is no internal provision in the Statement detailing review or appeal of the Authority’s determination; any legal challenge to the application of the Statement in an individual claim would proceed via the legal and administrative review mechanisms provided under the VEA or MRCA or applicable administrative law processes, none of which are set out here.

In short, the instrument imposes no new criminal or civil penalties, nor does it establish enforcement agencies. Its operational effect is to require that decision-makers use its factors when deciding claims under the specified statutory provisions.

The Statement is an instrument made under subsection 196B(3) of the VEA (s 3), and it expressly applies to claims to which section 120B of the VEA or section 339 of the MRCA apply (s 5). Its legal function is to supply a medical/evidentiary framework for connecting malignant neoplasm of the small intestine to relevant service within those legislative schemes. The instrument therefore operates as a subordinate, specialised evidentiary text that must be applied in the adjudication of claims under the parent Acts.

The instrument also cross‑links into the Authority’s broader corpus of Statements. Section 11 mandates that if a factor in s 9 refers to an injury or disease covered by another Statement of Principles determined under subsection 196B(3) of the VEA, then the factors in that other Statement apply in accordance with its terms as in force from time to time. Practically, this creates an interaction between Statements: decision-makers must consult not only this instrument but also any other Statement that governs an antecedent condition referenced here (for example, a Statement dealing with coeliac disease, Crohn disease, adenoma, ileostomy complications, or other named conditions). The legal effect is that multiple Statements can jointly determine whether a factor exists and how it should be treated in a particular claim.

The instrument addresses classification systems by reference to the ICD‑10‑AM. It notes that malignant neoplasm of the small intestine attracts ICD‑10‑AM code C17 but clarifies that for the purposes of the Statement the meaning is the textual definition given in s 7(2), and it defines "reference to an ICD‑10‑AM code" as a reference to the edition and effective date specified (The International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification, Tenth Edition, effective 1 July 2017) (ss 7(3)-(4)). This means that while the instrument recognises the code as classificatory context, the operational scope is textual.

Schedule 1 defines "relevant service" in a way that aligns with the definitions and service categories used within the VEA and MRCA: eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA. The Statement therefore interfaces with the eligibility criteria and service definitions in those Acts when applied to claims (Schedule 1). The instrument does not alter the definitions in the Acts themselves, but it conditions how connection to those forms of service is to be supported medically for the specified disease.

The instrument records a single immediate amendment action: repeal of the earlier Statement. It repeals the Statement of Principles concerning malignant neoplasm of the small intestine No. 2 of 2015 (Federal Register of Legislation No. F2014L01810) made under subsection 196B(3) of the VEA (s 4). The instrument itself is dated 25 August 2023 and commences operation on 26 September 2023 (s 1; s 2). The Common Seal and the Chairperson’s name are recorded on the face of the instrument, indicating formal execution by the Authority.

Beyond the repeal, the instrument does not include a schedule of past amendments to this text because it is itself the replacing instrument. The instrument does not include a mechanism for amendment within its own text; it is made under the statutory power in s 196B(3) of the VEA and any future amendment would have to be effected by a further determination of the Authority under that same power. The text notes that where it references other Statements of Principles, those other Statements apply “as in force from time to time” (s 11), which implies that changes to other Statements will take effect when applying this instrument to the extent those other Statements are invoked.

Chronology provided in the instrument:

• Determination dated 25 August 2023 (instrument heading).
• Commencement on 26 September 2023 (s 2).
• Repeal of the 2015 Statement (s 4).

The Schedule provides definitional content rather than amendment history. There is no provision in the instrument for transitional application of the old Statement to claims made before this instrument’s commencement. The repeal clause is unqualified and the application clause binds the instrument to the statutory claims processes specified (s 4; s 5). As the instrument is a replacement determination, any comparative differences between the 2015 Statement and the 2023 Statement would need to be identified by direct comparison of the two texts; that comparison is not contained within this instrument.

The instrument contains no references to judicial decisions, cases, appeals, or previous litigation about its subject matter. It does not cite any tribunal or court determinations, and it does not identify any precedents or litigation testing the Authority’s approach. The only legal references included are to the enabling provision (subsection 196B(3) of the Veterans' Entitlements Act 1986) under which the Authority has determined the Statement, and to the statutory claim provisions to which it applies (section 120B of the VEA and section 339 of the MRCA) (s 3; s 5).

The instrument frames the Authority’s position as a medical‑scientific view, stating that “on the sound medical‑scientific evidence available” it is of the view that it is more probable than not that the condition can be related to relevant service (s 8). There is no record within the instrument of litigation that produced that view, nor of judicial review decisions about the Authority’s determinations. There is also no mention of the Authority’s prior determinations being the subject of adjudication; the instrument simply repeals the earlier Statement of 2015 (s 4).

Practically, absence of litigation references in the text means the instrument does not purport to rely on court-developed doctrines or to modify judicial rulings. Any litigation involving the application of this Statement would occur under the VEA or MRCA claim processes and potentially in courts or tribunals with jurisdiction to review administrative decisions, but the instrument does not identify or record such proceedings.

Users of the Statement should therefore be aware that the instrument is a stand‑alone administrative determination and that any history of contestation or appellate consideration of its predecessor or this instrument is not captured within the instrument’s text. If litigation or judicial consideration has occurred or occurs, that history will be external to this instrument and must be found in the decisions of tribunals or courts rather than in the Statement itself.

The instrument contains a number of features and textual nuances that can catch practitioners, claimants and medical experts if not noted carefully.

1. Narrow textual definition of the disease: The instrument defines malignant neoplasm of the small intestine narrowly as a primary malignant neoplasm arising from epithelial cells of the small intestine and expressly excludes soft tissue sarcoma, non‑Hodgkin lymphoma and Hodgkin lymphoma, and carcinoid tumour (s 7(2)(a)-(b)). Even though the ICD‑10‑AM code C17 is noted, the instrument insists that the textual definition governs (s 7(3)-(4)). Practitioners should not rely solely on an ICD code without confirming that the pathology matches the instrument’s textual definition.

2. Temporal thresholds matter and vary by factor: The factors in s 9 include specific timing requirements. Coeliac disease must have been present for at least five years before clinical onset (s 9(2)). An ileostomy or ileal pouch must have existed for at least two years before clinical onset when the cancer is adenocarcinoma of an ileostomy or pouch (s 9(4)). Crohn disease and adenoma must exist before clinical onset (s 9(1) and s 9(3)). The factor in s 9(5) concerns inability to obtain appropriate clinical management before clinical worsening. Missing or vague documentation on dates and duration can therefore be decisive.

3. Relationship to relevant service is required, not automatic: The Statement requires that any factor relied upon must be related to the person's relevant service (s 10(1)). The instrument does not state how that relationship is to be established. Accordingly, claimants must be prepared to show, by evidence, a link between the antecedent factor and the service admitted as relevant. The instrument leaves the precise evidentiary sufficiency to the claims process.

4. Special limit on the "inability to obtain appropriate clinical management" factor: Section 10(2) constrains the application of s 9(5) to material contribution or aggravation only where the disease was suffered or contracted before or during, but did not arise out of, the person’s relevant service. That is a narrow operationalisation. If the disease arose out of service, s 9(5) does not apply in that manner; if the disease was contracted after service, the factor will not be usable unless the timing condition in s 10(2) is satisfied.

5. Cross‑reference to other Statements may introduce additional or different requirements: Section 11 requires that where a factor refers to an injury or disease covered by another Statement, the factors of that other Statement apply according to its terms. Practitioners must check for other potentially relevant Statements (for example, a Statement on Crohn disease or coeliac disease) because that other Statement may impose different diagnostic or temporal thresholds that must also be met.

Compliance with the Statement of Principles is compliance with an evidentiary framework that claimants and their advisers must satisfy when pursuing relevant claims under the VEA and MRCA. The instrument prescribes factual and medical facts that must be established and certain relationship requirements. The following practical steps, tied to the instrument text, indicate how a claimant, adviser, or medical witness should prepare evidence and position a claim.

1. Confirm applicability to the claim: Verify that the claim is one to which section 120B of the VEA or section 339 of the MRCA applies (s 5). If the claim falls outside those provisions, this Statement will not be the determinative Statement of Principles for that claim.

2. Establish the correct pathology: Demonstrate that the tumour is a primary malignant neoplasm arising from epithelial cells of the small intestine, not one of the excluded categories (soft tissue sarcoma; non‑Hodgkin lymphoma; Hodgkin lymphoma; carcinoid tumour) (s 7(2)). Provide histopathology reports, surgical pathology, and expert pathology opinion confirming histogenesis and primary site. Because the instrument’s textual definition governs over the ICD classification, ensure histology aligns with s 7(2)(a) rather than relying solely on an ICD code (ss 7(2)-(4)).

3. Identify and document a qualifying factor: At least one of the factors in s 9 must exist. Evidence should be gathered to confirm:

   • Crohn disease of the small intestine existed before the clinical onset of the malignant neoplasm (s 9(1)). Provide historical clinical records, imaging, endoscopy, histology and treating clinician notes establishing diagnosis and dates.

   • Coeliac disease existed for at least five years before clinical onset (s 9(2)). Supply serology, biopsy reports, dietary history where relevant, and contemporaneous clinical documentation demonstrating diagnosis date and course for at least five years before cancer onset.

   • An adenoma of the small intestine existed before clinical onset (s 9(3)). Provide endoscopic, histological and surgical records establishing presence and timing.

   • For adenocarcinoma of an ileostomy or ileal pouch, evidence that the ileostomy or ileal pouch was present for at least two years before clinical onset (s 9(4)). Include surgical notes documenting the stoma/pouch creation date and subsequent pathology.