Statement of Principles concerning multiple sclerosis (Balance of Probabilities) (No. 12 of 2020)

The central concept is "clinical onset" versus "clinical worsening". Clinical onset is the first appearance of symptoms of multiple sclerosis that meet the definition in section 7(2). For onset, only five factors are identified: acute infectious mononucleosis, smoking at least ten pack-years (with cessation within five years of onset), second-hand smoke exposure for at least 10,000 hours, vitamin D deficiency (serum 25-hydroxyvitamin D below 50 nanomoles per litre for at least one year and occurring more than two years before onset), and obesity (BMI 30 or greater) for at least five years when aged under 30 and within fifteen years before onset. These factors are not interchangeable with the worsening factors; a claimant seeking connection for initial onset cannot rely on a stressor or infection timing.

Clinical worsening is defined implicitly: it refers to a material increase in the severity of symptoms or progression of the disease. Section 10(2) clarifies that factors 9(6) through 9(19) apply only to material contribution to, or aggravation of, multiple sclerosis where the person's multiple sclerosis was suffered or contracted before or during (but did not arise out of) their relevant service. This means these worsening factors are relevant only for claims of aggravation, not for initial causation. For worsening, the instrument lists timing windows: within five weeks before or two weeks after a viral or bacterial infection; within five years of smoking cessation; being exposed to second-hand smoke; within one year of tumour necrosis factor alpha antagonist treatment; within six months of granulocyte colony-stimulating factor or interferon treatment; within four months of immune checkpoint inhibitor treatment; within three months of death of a significant other, category 1A, 1B, or 2 stressors, life-threatening medical illness or injury, hormonal assisted reproductive therapy (women only), or therapeutic radiation for cancer; and inability to obtain appropriate clinical management.

The "balance of probabilities" standard is the key legal threshold. Unlike the reasonable-hypothesis standard used for operational service, this standard requires that a factor be more likely than not to have contributed to the condition based on the evidence. The SoP itself prescribes which factors are sufficient; the decision-maker does not weigh other possible causes except as they bear on whether the listed factor is established.

The dictionary defines critical terms: "category 1A stressor" covers life-threatening events, serious physical attack or assault (including rape and sexual molestation), and being threatened with a weapon, held captive, kidnapped or tortured. "Category 1B stressor" includes killing or maiming a person, being an eyewitness to a person being killed or critically injured, witnessing atrocities, participating in clearance of corpses, or viewing a corpse or critically injured casualty as an eyewitness. "Category 2 stressor" covers chronic negative life events such as social isolation, relationship problems, workplace bullying, legal issues, severe financial hardship, a family member's health deterioration, or being a full-time caregiver. The instrument treats these stressors as potentially service-related, but note 1 to section 9(15) says a category 2 stressor can arise in the course of service, from separation from service, or in the transition to civilian life in the years following separation.

The SoP directly affects four groups. First, claimants who are veterans or members of the Forces with relevant service as defined: 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. They must establish a connection between multiple sclerosis and that service to access compensation and medical treatment benefits. The instrument circumscribes the evidence they can rely on; if they cannot prove one of the listed factors linked to service, their claim will fail even if other unlisted factors are strongly associated with their MS.

Second, decision-makers within the Department of Veterans' Affairs and the Military Rehabilitation and Compensation Commission. They are bound to apply this SoP when assessing claims for multiple sclerosis under the balance-of-probabilities pathway. The SoP removes much of their discretion; if a factor is proved and related to service, they must accept the connection. Conversely, they cannot accept a connection based on factors not listed, regardless of medical opinion, unless the claimant successfully argues that the SoP is invalid or that a different standard applies. This rigid structure is intended to ensure consistency but shifts discretion from human judgment to the text of the instrument.

Third, medical practitioners who provide evidence for claims. They must understand the specific definitions: pack-years (one pack-year equals 7,300 cigarettes or 7.3 kg of smoking tobacco), second-hand smoke exposure (enclosed space, inhaling smoke from burning tobacco or exhaled smoke; accumulated hours), vitamin D deficiency (serum 25-hydroxyvitamin D less than 50 nmol/L for a continuous year), obesity (BMI 30 or greater), and stressor categories. They may need to reconstruct historical exposures retrospectively, which carries clinical and reputational risk.

Fourth, legal practitioners and advocates who represent claimants. They need to match the evidentiary record to the precise temporal and quantitative requirements. For example, smoking at least ten pack-years must have occurred before clinical onset, and if the claimant ceased smoking, onset must be within five years of cessation. If the claimant smoked fifteen pack-years but stopped ten years before onset, the factor is not met. Similarly, vitamin D deficiency must have occurred more than two years before onset and persisted for at least one continuous year. Each factor has a degree of specificity that invites dispute over measurement and timing. The instrument also affects accountants and compliance professionals indirectly if they are advising on compensation structuring or on trusts that may be impacted by veteran's disability payments.

The instrument does not create duties or rights directly but operates within a broader legislative framework. The key duty imposed by the SoP is on the decision-maker: to accept that multiple sclerosis is connected with relevant service if at least one factor in section 9 is established and related to that service. The decision-maker has no power to reject a claim that meets the criteria on the ground that they do not believe the medical plausibility of the factor, because the RMA has already determined that on sound medical-scientific evidence it is more probable than not that the condition can be related to service. The decision-maker's only task is to verify whether the factor exists factually and whether it is related to service.

For the claimant, the instrument confers a right to have their claim assessed using the specified factors. However, this right is circumscribed by the evidentiary burden. Claimants must produce evidence that proves each element of the factor on the balance of probabilities. For example, to rely on smoking, they must document the number of pack-years (often requiring self-reporting or service records of rationed cigarettes if from defence force stores), the date of clinical onset, and the date of cessation if applicable. For second-hand smoke, they must demonstrate at least 10,000 hours of exposure in an enclosed space, which may require hours of service in barracks, mess halls, or vehicles where others smoked. For stressors, claimants must show the specific event occurred, that it qualifies under the detailed definition, and that it happened within three months before clinical worsening.

Section 10 requires that the existence of any factor must be related to the relevant service rendered by the person. This means the smoking, infection, stressor, or other factor must have occurred as a result of or during the period of service. For example, smoking that began before enlistment and continued through service but was not caused or exacerbated by service may not be "related to" service. The instrument does not define "related to" beyond requiring the factor to exist in connection with service; case law may fill the gap. Section 10(2) imposes a further limitation: for factors 9(6) to 9(19), they apply only to material contribution to or aggravation of multiple sclerosis where the person's MS was suffered or contracted before or during (but did not arise out of) relevant service. This means if the MS was contracted during service as a direct result of service (arising out of it), then only the onset factors apply, not worsening factors. Worsening factors are reserved for cases where MS pre-existed service or was contracted during service but not caused by service.

The instrument also incorporates other SoPs by reference. Section 11 says if a factor refers to an injury or disease covered by another SoP, the factors in that other SoP apply. For example, if a factor refers to "having acute infectious mononucleosis", and that condition itself has its own SoP, then to prove the infectious mononucleosis factor for MS, the claimant must also satisfy the factors in the infectious mononucleosis SoP. This creates a chain of proof.

The SoP itself does not impose penalties. It is a rule for determining entitlement, not a code of conduct. However, it operates within a framework of penalties for fraud and false statements under the VEA and MRCA. Section 47 of the VEA and section 131 of the MRCA impose criminal penalties for making false statements to obtain compensation. If a claimant falsely claims to have smoked ten pack-years or to have experienced a category 1A stressor to meet the SoP factors, they may be prosecuted. The maximum penalty under the VEA for obtaining payment by false representation is imprisonment for six months; under the MRCA it is twelve months.

Compliance for the RMA is assured by the fact that the instrument is a legislative instrument registered on the Federal Register of Legislation. It is binding on decision-makers under section 120B(2) of the VEA, which provides that the Commission must be satisfied on the balance of probabilities that an injury, disease or death is war-caused or defence-caused only if the SoP upholds a causal connection. If the SoP does not apply or the factors are not met, the claim must be refused. There is no intermediate discretion.

Enforcement of the instrument occurs through merits review and judicial review. Claimants who are dissatisfied with a decision applying the SoP can apply to the Veterans' Review Board (VRB) for merits review, then to the Administrative Appeals Tribunal (AAT). The AAT is bound by the SoP; it cannot make a decision inconsistent with the factors. If the SoP itself is alleged to be invalid (e.g., for failing to take into account relevant medical evidence), a claimant could seek judicial review in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 or the Constitution. However, the RMA's determination is rarely overturned on validity grounds because the RMA is an independent statutory body with broad discretion.

The SoP creates no compliance costs for businesses. It imposes indirect costs on the government through the claims process: each claim that meets the SoP likely results in a liability for disability pension under the VEA or permanent impairment payment under the MRCA. For claimants, the compliance cost is the burden of obtaining historical medical and service records to satisfy the precise requirements. This may be particularly difficult for second-hand smoke exposure (accumulated hours in enclosed spaces) or for stressor events that occurred decades ago. The instrument incentives careful record-keeping during service, but also incentivises claimants to reconstruct histories in a self-serving manner, which is a moral hazard.

The SoP is a legislative instrument made under Part XIB of the VEA. It interacts directly with the VEA sections 120B and 120C, which govern the standard of proof for claims involving relevant service. Section 120B(3) provides that the RMA may determine Statements of Principles for the purposes of subsection (2) (for operational service) and subsection (3) (for these SoPs). This SoP is made under subsection 196B(3), which is the balance-of-probabilities track. That means it applies to claims where the claimant rendered eligible war service (other than operational service) or defence service (other than hazardous service). For operational service, a different SoP under subsection 196B(2) using a reasonable-hypothesis standard applies; that SoP is not this instrument and would have different factors.

The SoP also interacts with the MRCA, which has its own provisions for peacetime service claims. Section 339 of the MRCA mirrors section 120B of the VEA. The dictionary defines MRCA and relevant service to include peacetime service under that Act. So the same factors apply identically to MRCA peacetime claims. If a person has both VEA and MRCA service, the decision-maker must determine which service is relevant and which SoP applies to each segment.

The instrument interacts with the International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification (ICD-10-AM). Section 7(3) provides that while multiple sclerosis attracts code G35, the meaning of multiple sclerosis is that given in subsection 7(2), not the ICD-10-AM definition. This prevents the ICD-10-AM classification from enlarging the scope of the SoP to include excluded conditions that may share a code.

Section 11 provides that if a factor in this SoP refers to an injury or disease that has its own SoP, the factors in that other SoP apply. For example, "acute infectious mononucleosis" may have a separate SoP; a claimant relying on factor 9(1) would also need to satisfy the factors in that SoP to prove the infectious mononucleosis was service-related. This creates an interlocking system of RMA instruments.

The VEA itself contains offence provisions for false claims; the SoP does not override those. The Privacy Act 1988 may affect how medical records are obtained to prove factors. The Social Security Act 1991 interacts because veteran disability payments are not income tested under the same rules as social security; the SoP indirectly affects eligibility for other benefits if disability is compensated differently.

There is no interaction with state workers' compensation law because the VEA and MRCA are Commonwealth legislation covering specific service. A veteran could also have a common law claim against a third party (e.g., a tobacco company for smoking-related MS) but the SoP is irrelevant to that tort claim.

The SoP repeals the previous Statement of Principles concerning multiple sclerosis No. 101 of 2011 (Federal Register of Legislation No. F2011L01738), which was made under subsections 196B(3) and (8) of the VEA. The 2011 instrument was itself an update of earlier SoPs; the RMA periodically reviews the medical scientific evidence and issues new SoPs. This 2020 version includes factors not present in 2011, such as the specific inclusion of category 1A, 1B, and 2 stressors for clinical worsening (factors 13-15), which were not in the 2011 instrument. The 2020 version adds hormonal assisted reproductive therapy (factor 17), therapeutic radiation for cancer (factor 18), and inability to obtain appropriate clinical management (factor 19). The previous version had fewer worsening factors.

The 2020 instrument also revised the definition of multiple sclerosis to explicitly exclude Balo concentric sclerosis and Schilder disease, which may not have been listed in the 2011 version. The pack-year calculation is now defined precisely (1 pack-year = 7,300 cigarettes or 7.3 kg of tobacco), which tightens the evidence chain.

The instrument commenced on 23 March 2020, meaning any claim lodged on or after that date must be determined under this SoP. The 2011 SoP remains relevant for claims lodged before that commencement date, unless a later date is required.

There is no separate "reasonable hypothesis" version for multiple sclerosis; that would be a different instrument under subsection 196B(2). This SoP is exclusively for the balance-of-probabilities track.

The RMA does not state why particular factors were added or removed; it simply states it acts on sound medical-scientific evidence. No explanatory memorandum accompanies the instrument, but the RMA's reasoning might be inferred from published medical literature reviews. The amendment history shows an evolution towards more detailed and specific factors, which increases certainty for claimants but also raises the compliance burden.

The source instrument contains no reference to litigation history. The Federal Court and the AAT have considered challenges to RMA Statements of Principles generally, but this specific instrument (No. 12 of 2020) has not been tested in court based on the source. The previous 2011 SoP may have been litigated, but that is separate. The instrument itself is relatively recent (commenced 2020) and the progression of multiple sclerosis cases through the claims system, the VRB and the AAT takes several years.

It is notable that the stressor definitions are very detailed; past litigation under earlier SoPs for PTSD and other conditions has considered the meaning of "eyewitness" and "corpse" definitions. The same definitions appear here, so case law interpreting those terms in other SoPs would likely be applied by analogy. For example, a person observing a body bag might be excluded from "eyewitness" to a corpse (the dictionary says seeing a closed body bag is excluded). If that has been litigated elsewhere, the same reasoning would apply here.

Claimants may challenge whether a particular stressor event meets the category 1A or 1B definition. The definition of category 2 stressor is broad: "negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry." Claimants who experience chronic bullying in the workplace (a category 2 stressor defined in paragraph (c)) but cannot show it relates to service may lose.

The instrument does not specify what evidence meets the 10,000-hour second-hand smoke requirement; litigation may arise over whether estimates from service history are sufficient. There is also potential for challenge on the vitamin D deficiency continuous period: how does one prove a continuous year of serum levels below 50 nmol/L decades later? There is no case cited in the instrument.

The RMA's determination is protected from judicial review on the merits; courts can only review for jurisdictional error. A challenge would need to argue that the RMA failed to consider relevant evidence or considered irrelevant material. That is a high bar.

Several gotchas are embedded. First, the definition of multiple sclerosis in section 7(2) explicitly excludes clinically isolated syndrome (CIS) and radiologically isolated syndrome (RIS). A diagnosis of CIS, which may progress to MS, does not satisfy the SoP. Claimants with only CIS will have their claims rejected even if they meet smoking or stressor factors. Similarly, neuromyelitis optica (NMO) is excluded, despite sharing demyelinating features. The clinician or decision-maker must confirm the precise diagnosis.

Second, the smoking factor (9(2)) requires that smoking ceased, the clinical onset must occur within five years of cessation. If a veteran smokes heavily but stops ten years before onset, the factor does not apply. Also, the 10 pack-year minimum is a hard floor; 9.9 pack-years does not suffice. The pack-year calculation is precise: 7,300 cigarettes per pack-year, or 7.3 kg of smoking tobacco. Self-reports may be contested.

Third, second-hand smoke exposure (9(3)) requires at least 10,000 hours of being "in an enclosed space" inhaling smoke from burning tobacco or exhaled by a smoker. That is roughly 416 full days of exposure. A veteran who worked in a smoky mess hall for a few years might accumulate hours, but proving the enclosed space and the hours may be difficult. The instrument does not require that the smoke came from service personnel, only that it was inhaled in an enclosed space.

Fourth, the vitamin D deficiency factor (9(4)) requires a serum level below 50 nmol/L for a continuous period of at least one year, and that deficiency must have occurred more than two years before clinical onset. This is very hard to prove retrospectively; few veterans had routine vitamin D tests decades ago. It may be almost impossible to satisfy unless there is contemporaneous medical evidence.

Fifth, the stressor definitions are narrow in some respects. For category 1A, the event must be "life-threatening" or involve serious physical attack. Being screamed at by a superior or experiencing verbal harassment is insufficient unless it meets the definition. Category 1B requires being an eyewitness (first hand) to specific events; seeing coverage on news or hearing about death is excluded. The "corpse" definition excludes closed body bags. So a medic who saw many casualties but always within bags or stretchers may not satisfy the definition.

Sixth, section 10(2) limits worsening factors to cases where MS was suffered or contracted before or during (but did not arise out of) relevant service. If a veteran contracted MS during service as a direct result of service (e.g., due to a toxin exposure that is not listed), the worsening factors cannot be used. They must rely only on the five onset factors. This subtlety can easily be missed. Many practitioners assume worsening factors can always be used.

Seventh, the "inability to obtain appropriate clinical management" factor (9(19)) is open-ended but requires proof that the inability worsened the MS. It is not defined in the dictionary; the term is vague and may require evidence of access barriers like location, cost, or refusal of treatment. It does not require a single event but may be ongoing.

Eighth, the "significant other" includes a close family bond or close personal relationship. The death of someone important must occur within three months before clinical worsening. If the grieving process extends beyond three months, no connection is established. The timing must be tight.

Ninth, for women only, hormonal assisted reproductive therapy (factor 17) requires administration within three months before worsening. The definition includes specific drugs (GnRH agonists/antagonists, FSH, hMG, CG). IVF cycles often last several weeks, but the timing window is strict.

Tenth, the instrument applies to claims under MRCA peacetime service only. If a veteran has operational service under the MRCA, this SoP does not apply; they fall under the different standard. Identifying the correct standard is critical.

For a claimant seeking to establish a service connection for multiple sclerosis on the balance of probabilities, the first step is to confirm the diagnosis meets the SoP definition. A neurologist's report should explicitly state that the conditions excluded in section 7(2) are not present, and that the diagnosis is relapsing-remitting, primary progressive, or secondary progressive MS. If the diagnosis is CIS or NMO, the claim will fail under this SoP.

Second, identify whether the claim concerns clinical onset or clinical worsening. If the MS first manifested symptoms during relevant service, or after service but before a stressor, the onset factors (1-5) are the only route. If the MS was present before or during service but not caused by service, the worsening factors (6-19) apply to show aggravation. Gather all medical records, especially those documenting first symptoms and subsequent relapses. Document any medications and treatments received.

Third, match the service history to each possible factor. For smoking: obtain records of tobacco purchases from canteens, ration provisions, or personal notes. Calculate total cigarettes smoked and compare to the 7,300 per pack-year threshold. Note the date of cessation if applicable and ensure clinical onset is within five years of that date. For second-hand smoke: reconstruct time in enclosed spaces during service; note the duration of each exposure and the type of space. Multiply hours of exposure per week by weeks of service to reach 10,000 hours. This may require affidavits from fellow service members.

Fourth, for stressors: identify whether the service involved any of the defined events: life-threatening situations, physical attacks, witnessing death, dealing with corpses, social isolation, relationship breakdown, bullying, legal issues, financial hardship, or caregiving. The event must be documented in service records, psychological/psychiatric reports, or GP notes. The timing must be within three months before clinical worsening. If the claim is for onset, stressors are irrelevant (except indirectly as evidence of something else).

Fifth, for vitamin D deficiency: if the claimant served in low-sunlight conditions or used extensive sun protection, obtain serum 25-hydroxyvitamin D tests from the relevant period. If none exist, it may be impossible to prove. Alternative factors should be prioritised.

Sixth, for obesity: calculate BMI from service medical records for periods before age 30. Document weight and height at annual medicals. Determine if the BMI was 30 or greater for at least five continuous years, and whether that period ended within 15 years before clinical onset.

Seventh, for worsening: review medical history for any infections (viral or bacterial) within five weeks before or two weeks after a relapse. Also review medication history for TNF-alpha antagonists (e.g., for rheumatoid arthritis), granulocyte colony-stimulating factor (e.g., for neutropenia), interferon, immune checkpoint inhibitors (e.g., for cancer), hormonal assisted reproductive therapy, and therapeutic radiation. Each has its own time window. Note that the factor must relate to service; if the medication was prescribed by a civilian doctor unrelated to service, the claim may fail unless the need for treatment arose from a service-related condition.

Eighth, document the inability to obtain appropriate clinical management if that factor is relied upon. Evidence of barriers: long waiting lists, denial of treatment, lack of specialist access due to location (e.g., remote posting), or refusal of care by military medical facilities. The worsening must be causally related to that inability.

Ninth, for all factors, ensure the factor is related to relevant service. For smoking, if the habit started before enlistment, argue that service exacerbated it or provided the environment for continued smoking. For stressors, link the event to a specific service episode or condition. For second-hand smoke, service may have forced enclosed working conditions. The decision-maker will apply a case-by-case test.

Finally, legal practitioners should prepare a detailed statement of facts and evidence cross-referenced to each element of the factor. Medical experts should be briefed on the exact definitions. The claim form should explicitly identify which factor(s) are relied upon and provide the calculations (pack-years, hours of second-hand smoke, dates of deficiency, BMI history). The VRB and AAT will apply the SoP strictly; a missing element cannot be cured by general medical opinion.