Statement of Principles concerning malignant neoplasm of the testis and epididymis (Balance of Probabilities) (No. 8 of 2024)

This Statement revolves around a limited set of legal and medical concepts that determine causation for compensation and rehabilitation claims under the VEA and MRCA claim provisions identified in s 5. The central legal concept is a Statement of Principles under s 196B(3) of the VEA. That mechanism produces a determinative statement of the factors that, on the balance of probabilities and on the medical‑scientific evidence available to the Repatriation Medical Authority (RMA), establish a nexus between a disease (or death from the disease) and relevant service (see ss 3, 8 and 9).

Key definitional concepts are set out in s 7 and Schedule 1. The instrument defines, for its own application, "malignant neoplasm of the testis and epididymis" (s 7(2)). This definition includes a list of included tumour categories, and an express list of exclusions (s 7(2)(b)-(c)). The instrument also clarifies the meaning of death from the disease: death from malignant neoplasm of the testis and epididymis includes death from a terminal event or condition that was contributed to by the person’s malignant neoplasm of the testis and epididymis (s 7(5)). Schedule 1 provides the definition of "terminal event" (for example, pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function) to operationalise death claims.

"Relevant service" is defined within the Schedule 1 dictionary and thus delineates the subset of military service contexts to which the Statement can be applied: 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 (Schedule 1). The Schedule notes that MRCA and VEA are also defined therein.

On causation, the Statement adopts a binary requirement: at least one of two enumerated factors in s 9 must exist for a positive connection to be drawn on the balance of probabilities. The factors are medical/health history attributes: (1) prior infection with HIV before clinical onset of the testicular/epididymal malignancy; or (2) inability to obtain appropriate clinical management before clinical worsening of the malignancy. The form of these factors is functional: they are factual states or events that, if present and shown to be related to relevant service under s 10, satisfy the causal test in relation to service for the purposes of the relevant claim provisions.

Section 10 imposes a temporal and causal link requirement: a factor in s 9 must be related to the person’s relevant service. Section 10(2) contains a specific constraint on factor 9(2): it applies only to material contribution or aggravation of the malignancy where the person’s malignancy was suffered or contracted before or during (but did not arise out of) the person’s relevant service. This provides a structural rule distinguishing primary causation arising out of service from aggravation or material contribution.

The Statement also contains a cross‑statement application mechanism: if one of the s 9 factors refers to an injury or disease covered by another Statement of Principles, then the factors in that other Statement apply according to its terms (s 11). This creates a networked approach whereby overlapping medical conditions are governed by their own Statements when relevant.

Finally, the instrument clarifies the relationship between ICD‑10‑AM coding and the legal definition: although C62 and C63.0 are the relevant ICD‑10‑AM codes, the Statement’s legal scope is the textual definition in s 7(2), not the codes alone (ss 7(3)-(4)).

These concepts determine which medical facts must be established for a claim to be found to have a causal connection to service under the statutory claim provisions referenced in s 5.

This Statement affects persons who make claims to which section 120B of the VEA or section 339 of the MRCA applies (s 5). The instrument governs the legal assessment of whether malignant neoplasm of the testis and epididymis, or death from that condition, is connected with a claimant’s "relevant service" as that term is defined in Schedule 1. Relevant service is limited to 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, the direct population affected comprises veterans or members of the Forces whose service falls within those enumerated categories and who lodge claims under the cited statutory provisions.

Decision‑makers who must apply Statements of Principles when assessing claims under the VEA or MRCA are also affected because they must use this instrument in applying the causation test set out in ss 9-10 whenever a claim involves malignant neoplasm of the testis and epididymis or death from it. The Repatriation Medical Authority is the authorising body that has determined this Statement (s 3). The instrument also affects clinicians and medico‑legal advisers who provide evidence for claims, because the Statement prescribes the specific factual elements (for example, prior HIV infection, inability to obtain appropriate clinical management) that evidence must address (s 9).

The instrument also affects claims that intersect with other Statements of Principles. Section 11 provides that where a factor in s 9 refers to an injury or disease covered by another Statement determined under s 196B(3) of the VEA, then the factors in that other Statement apply. That mechanism means parties involved in claims must identify and apply not only this Statement but potentially other Statements as well where cross‑referenced conditions are implicated.

Indirectly, this instrument affects the administration of entitlements arising under the VEA and MRCA because it alters the legal framework used to establish service connection for a specific disease class. By repealing the earlier 2015 Statement (s 4), it removes the decision‑making framework that previously governed such claims and replaces it with the present set of inclusions, exclusions and causation factors. The instrument defines "malignant neoplasm of the testis and epididymis" for its application and lists explicit exclusions (s 7(2)(c)), so claimants with excluded diagnoses (for example, vas deferens tumours, certain lymphomas, soft tissue sarcoma or leukaemic infiltrates) will not have causation assessed under this Statement.

Finally, the instrument affects death claims where the death was from a "terminal event" contributed to by the malignancy. Schedule 1 defines examples of terminal events (for example, pneumonia, respiratory failure, cardiac arrest), which clarifies the factual matters needed to bring a death within the scope of the Statement (s 7(5) and Schedule 1).

This Statement itself does not create new statutory entitlements or duties in the sense of imposing criminal obligations; rather, it prescribes the causation framework decision‑makers must use when considering whether malignant neoplasm of the testis and epididymis, or death from it, is connected with a person’s relevant service for the purposes of claims under the VEA and MRCA (see ss 5, 8-10). Key duties and rights to note, drawn from the instrument, are as follows.

Rights and evidentiary thresholds

• A claimant has the right to have their claim assessed under this Statement where the claim falls within the statutory sections specified in s 5. The Statement stipulates the factual elements that, if established on the balance of probabilities, warrant finding a connection with relevant service (s 9). The causal standard invoked is "more probable than not" in the Authority’s view of the medical‑scientific evidence (s 8), and the operational test for claim assessments is that "at least one" of the factors in s 9 must exist.

• For death claims, a claimant has the right to have the contribution of the malignant neoplasm to death assessed through the terminal event concept in s 7(5) and its definition in Schedule 1. The Statement makes clear that death "from" the disease includes death from a terminal event or condition that was contributed to by the disease.

Duties for claimants and providers of evidence

• Claimants, or those presenting evidence on their behalf, must establish that at least one of the factors in s 9 existed and that it was related to the person’s relevant service as required by s 10. The second factor,that inability to obtain appropriate clinical management existed before clinical worsening,will require factual and medical evidence that documents both the inability to obtain appropriate care and the timing of clinical worsening.

• Where a factor in s 9 refers to an injury or disease subject to another Statement, parties must apply the factors in that other Statement in accordance with its terms (s 11). That creates a duty on claimants and their advisers to identify potentially applicable Statements and to marshal evidence that meets those other Statements’ criteria.

Administrative duties

• Decision‑makers applying s 120B of the VEA or s 339 of the MRCA must use this Statement’s definitions, inclusions, exclusions and factors when determining whether the disease or death is connected with service (s 5). The Authority has set out the RMA’s position that the medical‑scientific evidence supports the probability of service connection (s 8), and decision‑makers must treat this Statement as the appropriate evidence base for causation in the context of those claim provisions.

Limits and constraints

• The Statement constrains causation findings to factors set out in s 9 and to the relationship rules in s 10. In particular, s 10(2) limits the operation of s 9(2) to circumstances where the malignancy was suffered or contracted before or during (but did not arise out of) relevant service and where the factor can be shown to have materially contributed to or aggravated the condition.

• The textual definition of the disease in s 7(2), together with the express exclusions in s 7(2)(c), means that where a claimant’s diagnosis falls within an excluded category, the claimant cannot rely on this Statement to establish causation. Those exclusions are therefore a substantive limitation on rights under the Statement.

No criminal penalties or enforcement powers are contained in the instrument itself. The Statement functions as evidence of causation for statutory claims and thus acts within the administrative process under the VEA and MRCA, rather than creating independent civil or criminal liabilities. That said, the duty on claimants to produce evidence demonstrating the existence of the s 9 factors and their relationship to relevant service is implicit in the application of the Statement to claims (ss 5, 9-10).

The instrument contains no express criminal, civil penalty, or enforcement provisions. It is a determinative administrative instrument , a Statement of Principles , made under subsection 196B(3) of the VEA and designed to be applied in the assessment of claims under specified statutory provisions (s 3 and s 5). Its legal effect is to set the causal factors and definitions that decision‑makers must use when deciding whether malignant neoplasm of the testis and epididymis, or death from it, is connected to relevant service for the purposes of those claims (see ss 8-10). The Statement therefore functions as evidential guidance or a prescriptive causation standard in the administrative adjudication of entitlements under the VEA and MRCA.

Enforcement in practice will occur through the statutory claims processes governed by the VEA and MRCA because the Statement is applied only where a claim "to which section 120B of the VEA or section 339 of the MRCA applies" is made (s 5). The instrument itself does not set out administrative review routes, appeal mechanisms, or enforcement steps; those mechanisms are found in the underlying Acts mentioned in s 5. The present text does not alter or specify those adjudicative or review procedures.

Because this Statement repeals the prior Statement No. 4 of 2015 (s 4), the enforcement environment for decisions concerning malignant neoplasm of the testis and epididymis will change to the extent decision‑makers replace the former factors with the present factors when they make new decisions or reconsider claims; no transitional or penalty provisions are included in the instrument.

The Authority’s statement that, "on the sound medical‑scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that malignant neoplasm of the testis and epididymis and death from malignant neoplasm of the testis and epididymis can be related to relevant service" (s 8) is an evidentiary posture rather than an enforcement instruction. It provides the medical‑scientific basis for the causation factors but does not itself create sanctions.

In summary, enforcement of this Statement comes through its application by decision‑makers when adjudicating claims under the specified sections of the VEA and MRCA. The instrument imposes factual criteria claimants must satisfy but does not create separate penalty regimes or enforcement powers within its text.

The Statement is made under the legislative power granted by subsection 196B(3) of the VEA (s 3). Its operational effect is limited to claims to which section 120B of the VEA or section 339 of the MRCA applies (s 5). Therefore, the primary statutory interaction is with the VEA and the MRCA claims frameworks: the Statement provides the RMA’s determinative factors that decision‑makers must apply when assessing causation within those statutory claim provisions.

The instrument also cross‑references other Statements of Principles as a mechanism for handling overlap between medical conditions. Section 11 provides that where a factor in this Statement refers to an injury or disease covered by another Statement determined under subsection 196B(3) of the VEA, the factors in that other Statement apply according to the terms of that other Statement. This creates a legal network where multiple Statements can interact: one Statement may incorporate or lean on the factors of another Statement when a referenced disease or injury is implicated. Practically, this means claimants and decision‑makers must identify and apply potentially multiple Statements where comorbidities or causative chains interlink diseases covered under different Statements.

The instrument also addresses classification systems without giving those systems primacy over the textual definition. Section 7(3) states that while the disease attracts ICD‑10‑AM codes C62 and C63.0, the meaning for the Statement's purposes is the textual definition at s 7(2). Section 7(4) explains that a reference to an ICD‑10‑AM code is a reference to the code assigned in the specified ICD‑10‑AM edition. This indicates that ICD coding may assist identification but does not expand or contract the Statement’s legal scope beyond the statute’s textual definition.

Schedule 1 defines "relevant service" and thereby excludes particular service categories for the purposes of this Statement (for example, operational service, hazardous service, and British nuclear test defence service are excluded from the VEA categories listed). The effect is to create an interaction between the meaning of "relevant service" in this Statement and the service classifications in the underlying Acts: only those service types enumerated in Schedule 1 fall within the Statement’s scope. Any application of the Statement outside those service categories would fall outside its defined scope.

The repeal in s 4 removes a prior Statement of Principles (No. 4 of 2015) from the regulatory landscape. Where that prior Statement has been used in the past for decisions, new decisions after commencement will use the new Statement. The instrument does not supply transitional provisions governing earlier decisions, nor does it set out how appeals or reviews that are already underway should be treated; any such interactions must be resolved in accordance with the VEA, the MRCA and applicable administrative law principles, which are not restated in the instrument.

Finally, the Statement’s role is evidentiary and deterministic within the statutory claim processes: it prescribes the causation factors to be applied as part of the legal determinations made under the VEA and the MRCA. It does not purport to amend, suspend or otherwise change other substantive rights, duties or procedures contained in those Acts beyond providing the causation framework to be used in adjudicating claims under the cited sections.

This instrument replaces a prior Statement and records its own dates of signature and commencement. The document is the Statement of Principles concerning malignant neoplasm of the testis and epididymis (Balance of Probabilities) (No. 8 of 2024), dated 22 December 2023 (front matter, signature block). Section 2 states that the instrument commences on 22 January 2024.

Section 4 expressly repeals the Statement of Principles concerning malignant neoplasm of the testis and paratesticular tissues No. 4 of 2015 (Federal Register of Legislation No. F2014L01815) made under subsection 196B(3) of the VEA. The instrument therefore constitutes a direct replacement of that 2015 Statement. The instrument does not record any other amendments, variations, or historical changes beyond the repeal of the 2015 Statement and the adoption of the new instrument.

No transitional provisions, savings, or grandfathering clauses are contained in the text. The instrument does not specify whether or how decisions made under the repealed 2015 Statement are to be treated and does not provide explicit retrospective or prospective application directions beyond the commencement date. The practical effect is that, from its commencement date, this Statement is the operative Statement of Principles for the disease class described, and the 2015 Statement is withdrawn.

The Schedule 1 dictionary contains the definitions that support the present instrument; any future amendments to those definitions would require a further instrument made under subsection 196B(3) of the VEA. The text does not catalogue prior amendments to the 2015 Statement, nor does it provide a legislative history beyond the single repeal and replacement.

For users of the instrument, the only recorded change in the document is the replacement of the 2015 Statement by this instrument and the establishment of an effective date. Any subsequent changes to the content, scope, or definitions in this Statement would be set out in later instruments made under the same statutory authority; none are referenced in the current text.

The instrument contains no references to any judicial decisions, appeals, or litigation arising from either this Statement or the Statement it repeals. It does not record any case law, nor does it cite or rely on any court or tribunal decisions. The document therefore provides no litigation history within its text.

Because the instrument is an administrative determinative instrument made under subsection 196B(3) of the VEA, disputes arising from its application would be litigated, if at all, in the forums and by the routes established by the VEA, MRCA and general administrative law, but the present Statement contains no record of such matters. Where s 11 cross‑references other Statements of Principles, disputes about overlapping application may give rise to contestation in individual claim reviews or appeals; the instrument itself does not reference any past or pending litigation that would illuminate interpretive points. The absence of litigation history in the text means practitioners must look to administrative decisions, internal appeal outcomes, or judicial reviews outside this instrument to learn how its provisions are being interpreted in contested cases.

In sum, there is no litigation history recorded in the instrument; any case law or administrative review outcomes relevant to the interpretation or application of this Statement would need to be sought from external sources not included in the present text.

This Statement contains a number of features and drafting choices that can produce practical points of contention or procedural complexity. The following are concrete, source‑grounded issues to watch for based on the instrument’s text.

1. Narrow and specific causation factors (s 9). The instrument requires that at least one of two factors exist: prior HIV infection before clinical onset, or inability to obtain appropriate clinical management before clinical worsening. A claimant whose clinical history does not fit within those precise fact patterns cannot rely on this Statement to establish causation, even if other plausible medical explanations exist. Practitioners should note the confined nature of s 9’s factors.

2. Relationship to service requirement (s 10). Any factor in s 9 must be related to the person’s relevant service. The Statement does not define what "related to the relevant service" means in evidentiary terms; therefore, claimants must provide evidence linking the factor to their particular service. The absence of expressive guidance in the instrument about how strong that relationship must be can create disputes about sufficiency of evidence.

3. Temporal and causal restriction on s 9(2) (s 10(2)). The second factor,"inability to obtain appropriate clinical management",applies only in circumstances where the malignancy was suffered or contracted before or during (but did not arise out of) relevant service and must relate to material contribution to, or aggravation of, the condition. That creates a layered proof requirement: (a) disease suffered or contracted before or during service but not arising out of service, (b) inability to obtain appropriate management before clinical worsening, and (c) evidence that this inability materially contributed to or aggravated the condition. Each element has to be shown.

4. Exclusions to the disease definition (s 7(2)(c)). The instrument expressly excludes vas deferens tumours, soft tissue sarcoma, non‑Hodgkin lymphoma, Hodgkin lymphoma and leukaemic infiltrates from the definition of malignant neoplasm of the testis and epididymis for this Statement. Claims based on diagnoses falling within these exclusions must be considered outside the present Statement’s scope; practitioners should check whether other Statements of Principles exist for those conditions.

5. ICD codes are informative but not determinative (ss 7(3)-(4)). The instrument notes that ICD‑10‑AM codes C62 and C63.0 are attracted but emphasises that the legal meaning is the textual definition in s 7(2). Reliance on ICD coding alone may be insufficient; the diagnosis must be shown to fit the textual definition.

6. Death claims and terminal events (s 7(5) and Schedule 1). Death from the malignancy is included only where death is from a terminal event or condition that the malignancy contributed to. Schedule 1 lists examples of terminal events (for example, pneumonia). Practitioners should be careful to document causation between the malignancy and the terminal event rather than assuming any death following a cancer diagnosis is automatically within scope.

7. Cross‑Statement complexity (s 11). If a s 9 factor refers to a disease covered by another Statement, the factors in that other Statement apply. This creates the need to identify and apply multiple Statements, potentially increasing evidentiary and interpretive complexity. Parties must know how to find and use those other Statements and address any inconsistency between them.

8. Service definition exclusions in Schedule 1. "Relevant service" excludes certain types of service categories (for example, operational service, hazardous service and British nuclear test defence service in the VEA categories listed). The consequence is that a claimant’s entitlement to rely on this Statement depends on their precise service classification.

9. No transitional instructions on repeal (s 4). The instrument repeals the 2015 Statement without specifying transitional arrangements. If a claim was assessed or partially assessed under the repealed Statement, the instrument is silent on which Statement governs any ongoing review or appeal; parties should check the underlying Acts and administrative practice to determine whether the new Statement applies to existing matters.

10. Evidentiary burden implicit, not spelled out. The Statement prescribes the factual elements to be established but does not set out procedural rules about what evidence suffices. Demonstrating inability to obtain appropriate clinical management or establishing prior HIV infection in the timeframe required will typically require contemporaneous clinical records or credible expert evidence; preparing that evidence is a practical challenge not addressed in the instrument.

Each of these points arises directly from the text of the instrument (see especially ss 7-11 and Schedule 1) and identifies where factual proof, definitional detail, or cross‑instrument application are likely to produce disputes or require careful evidence management.

Compliance in this context means preparing and presenting the factual and medical evidence necessary to establish, on the balance of probabilities, that malignant neoplasm of the testis and epididymis or death from it is connected with relevant service in accordance with this Statement. The Statement identifies two discrete factors (s 9), a relationship‑to‑service requirement (s 10), and various definitional constraints (s 7 and Schedule 1). Practical steps for claimants, medical practitioners, and advisers follow from those provisions.

1. Confirm the claim falls within the Statement’s scope (s 5). Before assembling evidence, confirm that the claim is one "to which section 120B of the VEA or section 339 of the MRCA applies" (s 5). Also confirm that the claimant’s service meets the Schedule 1 definition of "relevant service" (eligible war service other than operational service; defence service other than hazardous service and British nuclear test defence service; or peacetime service under the MRCA). If the claimant’s service falls outside these categories, the Statement does not apply.

2. Establish the medical diagnosis according to the textual definition (s 7(2)). Ensure the diagnosis fits the Statement’s textual definition of malignant neoplasm of the testis and epididymis. Prepare pathology reports, histology, imaging, oncology records and contemporaneous clinical notes that demonstrate the tumour type (for example, germ cell tumour, seminoma/non‑seminoma, sex cord stromal carcinoma, epididymis carcinoma, rete testis carcinoma). If the diagnosis falls within an excluded category listed at s 7(2)(c) (for example, vas deferens tumour, soft tissue sarcoma, certain lymphomas, leukaemic infiltrates), do not rely on this Statement and identify any other applicable Statements.

3. Decide which s 9 factor is relied upon and collect targeted evidence.

• For s 9(1) (HIV infection before clinical onset): obtain clinical records demonstrating HIV infection and the date of diagnosis or laboratory confirmation, and medical evidence establishing the date of clinical onset of the malignant neoplasm. Evidence must show HIV infection preceded clinical onset. If a s 9(1) factor refers to another disease or injury covered by a different Statement, identify that Statement per s 11 and ensure compliance with its factors.

• For s 9(2) (inability to obtain appropriate clinical management before clinical worsening): obtain contemporaneous records documenting attempts to obtain appropriate clinical care, records of referrals, waiting lists, denials of care, treatment delays, or barriers to care, together with clinical notes showing the timing of clinical worsening. Because s 10(2) limits the application of s 9(2) to cases where the malignancy was suffered or contracted before or during (but did not arise out of) relevant service and where the inability materially contributed to or aggravated the condition, gather medical expert evidence addressing material contribution or aggravation and the temporal sequence.

4. Demonstrate relation to relevant service (s 10). For whichever factor is relied upon, compile evidence linking that factor to the claimant’s relevant service. The Statement requires the factor in s 9 be "related to the relevant service rendered by the person" (s 10(1)). Practically this could include service medical records, contemporaneous complaints or reports, service exposures documented in service records, or expert opinion connecting the factor (for example, inability to obtain care while on base or during deployment) to specific aspects of relevant service.

5. For death claims, document the causal chain to a terminal event (s 7(5) and Schedule 1). If the claim is for death, obtain the death certificate, clinical records showing the terminal event (for example, pneumonia or respiratory failure), and an expert opinion that the malignant neoplasm of the testis and epididymis contributed to the terminal event. The Statement’s expressly included concept of death requires contribution to the terminal event, not merely contemporaneity.

6. Address cross‑referenced Statements (s 11). If a s 9 factor refers to an injury or disease governed by another Statement, obtain and apply the factors from that other Statement in accordance with its terms. This may require separate evidence streams to satisfy both Statements’ requirements.

7. Prepare expert medico‑legal evidence tailored to the Statement. Given the Statement’s narrow factual factors and the relational requirement in s 10, obtain tailored expert reports that explicitly address: (a) whether the diagnosis fits s 7(2), (b) whether the relevant s 9 factor existed and when, (c) whether that factor was related to the claimant’s relevant service, and (d) in cases relying on s 9(2), whether inability to obtain appropriate management materially contributed to or aggravated the malignancy.

8. Organise chronological evidence. Because the Statement draws heavily on temporal sequencing (for example, HIV infection must precede clinical onset; inability to obtain care must precede clinical worsening; s 10(2) requires the malignancy to have been contracted before or during service for s 9(2) to apply), present a clear timeline of medical and service events with corroborating documents.

9. Anticipate evidentiary exclusions. Remember that ICD codes C62/C63.0 are useful identifiers but that the Statement’s legal scope is the textual definition at s 7(2). Confirm that pathology and clinical descriptions align with the textual list of included tumour types rather than relying solely on coding.

10. Check for prior decisions under the repealed Statement. The instrument repeals the 2015 Statement (s 4). If a claim is part of ongoing proceedings or a reconsideration, investigate administrative practice or guidance about whether and how the new Statement applies to matters commenced before its commencement date; the instrument itself does not provide transitional directions.

Following these steps aligns evidentiary preparation with the requirements in ss 5-11 and Schedule 1. The Statement imposes factual and relational proof requirements rather than procedural ones; thus compliance is achieved by assembling the medical, service and expert evidence necessary to satisfy the Statement’s specified factors and the relation‑to‑service rules.