Statement of Principles concerning neurocognitive disorder with Lewy bodies (Balance of Probabilities) (No. 36 of 2019)

The core concept is neurocognitive disorder with Lewy bodies as defined in subsection 7(2). This definition draws heavily on the DSM-5, which is separately defined in the Schedule 1 Dictionary as the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013). The definition has four components: evidence of major or mild neurocognitive disorder; insidious onset and gradual progression; at least two of the four listed diagnostic features; and exclusion of primary causation by other specified conditions. Major neurocognitive disorder is defined as significant cognitive decline from a previous level, documented by standardised neuropsychological testing or qualified clinical assessment, where the deficits interfere with independence in everyday activities (requiring assistance with complex instrumental activities such as paying bills or managing medications). Mild neurocognitive disorder is defined as modest cognitive decline from a previous level, documented by standardised neuropsychological testing, but without the requirement that independence is impaired.

Relevant service is defined restrictively under Schedule 1. It means eligible war service (other than operational service) under the VEA; defence service (other than hazardous service and British nuclear test defence service) under the VEA; or peacetime service under the MRCA. This definition explicitly excludes operational service, hazardous service, and British nuclear test defence service. The practical effect is that this SoP applies only to certain categories of peacetime or non-combat service. Veterans who served in combat or hazardous environments would fall under different SoP standards (typically the reasonable hypothesis standard under s 196B(2) of the VEA).

Terminal event is defined as the proximate or ultimate cause of death and includes pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This is relevant because the SoP covers death from NCDLB, defined as death from a terminal event or condition contributed to by the person’s NCDLB. The instrument also references ICD-10-AM code G31.3 with F02.8 for administrative classification purposes, but makes clear that the meaning of NCDLB is solely that given in subsection 7(2), not the ICD code. The SoP includes a cross-referencing provision (section 11) that incorporates other Statements of Principles if a factor in this SoP refers to an injury or disease covered by another SoP. This creates a chain of causation where a factor can be satisfied by meeting the factors of a different SoP.

The SoP directly affects veterans and members of the Forces who have relevant service as defined - that is, those who performed eligible war service (other than operational), defence service (other than hazardous or British nuclear test), or peacetime service under the MRCA. These individuals can use this SoP to support a claim for compensation for NCDLB or death from NCDLB. The instrument does not apply to veterans with operational service, hazardous service, or British nuclear test defence service; those persons must rely on different SoP standards. The SoP also affects members of the Australian Defence Force who served in peacetime and are covered by the MRCA.

The instrument affects the Repatriation Commission and its delegates who must apply this SoP when determining claims. Medical assessors and specialist neurologists or psychiatrists who provide expert opinions in support of claims will need to align their diagnostic conclusions with the DSM-5 criteria specified in the SoP. The instrument also affects private health professionals who provide clinical management to veterans with NCDLB, because factor (2) - inability to obtain appropriate clinical management - may depend on what treatment was reasonably available and whether service-related circumstances prevented access.

Legal representatives for claimants must understand that only two factors exist, both confined to aggravation not initial onset. This significantly narrows the pool of potential claimants. Accountants and compliance professionals advising veteran support organisations or Department of Veterans Affairs contractors need to understand the diagnostic boundaries and factor requirements to avoid incorrect claims or payments. The repeal of the Alzheimer-type dementia SoP No. 23 of 2010 may also affect claimants previously relying on that instrument - though the subject matter is different, the repeal removes a potential alternate pathway if NCDLB was previously considered under the Alzheimer SOP (the instrument does not explain the relationship).

The SoP does not create duties on private persons directly; it establishes a decision-making standard for the Repatriation Commission. The key right for claimants is the right to have their claim assessed with reference to this SoP where it applies. The claimant’s duty is to adduce evidence that at least one of the two factors exists and that the factor is related to their relevant service. The instrument does not list any factors for establishing that NCDLB itself was caused by service - only factors for worsening or material contribution to a pre-existing condition. This means a claimant who developed NCDLB for the first time during service but not as a result of service cannot use this SoP to establish a connection. The right to compensation for initial onset would need to rely on a different legal basis, possibly a reasonable hypothesis SoP under s 196B(2) (which is not before us).

Factor (1) - being treated with an antipsychotic drug at the time of the clinical worsening of NCDLB - imposes a factual burden on the claimant to prove both the treatment and the timing. The phrase “at the time of the clinical worsening” is ambiguous: it could mean the worsening occurred while the claimant was being treated with the antipsychotic, or it could mean the antipsychotic must have been administered when the worsening was observed. The instrument does not require proof that the antipsychotic caused the worsening, only temporal coexistence. This is a relatively low causation hurdle, but the factor applies only to aggravation, not initial onset. Factor (2) - inability to obtain appropriate clinical management - is broader. It requires the claimant to show that they could not obtain appropriate management for NCDLB and that this inability is related to service. This factor might cover situations where service-related circumstances (e.g., posting to a remote location, lack of access to specialists due to service demands) prevented proper care. However, the term “appropriate clinical management” is not defined, leaving scope for interpretative dispute.

The relationship to service provision in section 10 requires that the factor must be related to the relevant service rendered. For factors (1) and (2), section 10(2) clarifies they apply only where the disorder was suffered or contracted before or during (but did not arise out of) relevant service. So the disorder must be pre-existing relative to the service event that caused the worsening, or must have commenced during service but not due to service. This imposes a temporal sequence requirement.

This SoP does not contain any penalty provisions. It is not a regulatory instrument with criminal or civil penalty consequences. Enforcement is through the claims determination process under the VEA and MRCA. If a claimant fails to satisfy the factors in section 9, the Repatriation Commission must refuse the claim unless another pathway applies. There is no penalty for making a false claim beyond the general provisions of the VEA (which are not in this instrument). The instrument provides a legal standard that the Commission must apply; failure to apply it correctly could lead to review by the Administrative Appeals Tribunal or the Federal Court. The practical enforcement risk for the government is that incorrect application could result in successful appeals and back-payments, or conversely, invalid payments if claims are improperly accepted.

For claimants, the enforcement mechanism is the right to seek review. The instrument itself does not create any new review rights - those arise under the VEA and MRCA. The primary cost of non-compliance for a claimant is denial of compensation. For the Commission, the cost of misapplying the SoP is potential litigation and administrative burden. There is a trade-off: the narrow, two-factor design reduces discretion and may reduce erroneous payouts but also increases the chance that valid claims are denied, leading to appeals and tribunal costs. The instrument’s balance of probabilities standard means the claimant bears the onus of proof on the balance of probabilities, but the Authority has already determined, as a general proposition, that it is more probable than not that NCDLB can be related to relevant service. That general finding does not relieve the claimant of proving the specific factors.

This SoP is made under subsection 196B(3) of the VEA. Section 120B of the VEA requires that the Commission must be satisfied, on the balance of probabilities, that an injury, disease or death is related to service, and in doing so must apply any relevant Statement of Principles determined under subsection 196B(3). Similarly, section 339 of the MRCA incorporates the same requirement for claims under that Act. This SoP therefore binds the Commission for claims falling within its scope. The instrument does not apply to claims under the reasonable hypothesis standard (subsection 196B(2)), which is used for operational service claims. The interaction with other SoPs is governed by section 11: if a factor in this SoP refers to an injury or disease covered by another SoP (e.g., if being treated with an antipsychotic drug involved a condition like Parkinsonism that has its own SoP), then the factors of that other SoP apply. This creates a cascade where meeting a factor in this SoP may require satisfying an entirely separate SoP for an underlying condition. The repeal of the Alzheimer-type dementia No. 23 of 2010 could create confusion if claimants previously used that instrument to cover Lewy body dementia; however, the current SoP is specific and self-contained.

The diagnostic criteria in subsection 7(2) incorporate the DSM-5 and ICD-10-AM coding, but the ICD code is for administrative reference only; the legal meaning is exclusively per the DSM-5 definition. This means the SoP is consistent with standard psychiatric classification but may diverge from general medical practice if doctors use other diagnostic criteria. The instrument does not interact with state workers’ compensation schemes or private insurance, but it does affect calculation of benefits under the VEA and MRCA, including disability pension, permanent impairment payments, and dependency benefits. Clinical management factor (2) may intersect with the Department of Veterans’ Affairs health care arrangements; if a veteran was unable to obtain neurologist care because of DVA policy or delays, that could be related to service. However, the instrument does not define “appropriate”, leaving room for argument about what constitutes reasonable management in the circumstances.

This instrument, No. 36 of 2019, is the original version. It was made on 1 March 2019 and commenced on 25 March 2019. It has not been amended. It repeals the Statement of Principles concerning Alzheimer-type dementia No. 23 of 2010. The repeal is notable because that earlier instrument addressed Alzheimer-type dementia, a different condition. The reason for the repeal is not stated. It is possible that the earlier instrument was considered to have inadvertently covered Lewy body dementia, or that there was a change in diagnostic classification. The instrument does not contain transitional provisions for claims pending under the repealed SOP. The operative effect is that, from 25 March 2019, the balance of probabilities standard for NCDLB is governed solely by this new SoP. No other amendments to this instrument have been identified in the text. The instrument itself does not contain a review or sunset clause. The Repatriation Medical Authority has power to determine further SOPs under s 196B(3), so this instrument could be replaced or amended by a later instrument. The current version appears to be in force as at the date of the text. For practitioners, it is important to check the Federal Register of Legislation for any subsequent amendments or replacement instruments that may have been made after 2019.

The instrument text itself does not cite any litigation. No cases are mentioned in the preamble, definitions, or factors. Because this is a relatively recent instrument from 2019, there may be AAT or Federal Court decisions interpreting its provisions, but the instrument does not reference any. The predecessor Alzheimer-type dementia SOP may have been the subject of litigation, but that is not relevant here. The key litigation risks arise from the ambiguous wording of factor (1) - “being treated with an antipsychotic drug at the time of the clinical worsening” - which could be contested regarding what constitutes “at the time”. A claimant might argue that treatment within a window before worsening is sufficient; the Commission might argue strict contemporaneity. Similarly, factor (2) “inability to obtain appropriate clinical management” may generate disputes over what clinical management is “appropriate” and whether the inability was truly caused by service factors versus general health system limitations. The definition of neurocognitive disorder with Lewy bodies may also be litigated where claimants have atypical presentations that do not neatly meet the DSM-5 criteria or where the cognitive deficits are primarily due to other causes that must be excluded. The exclusionary criteria in subsection 7(2)(D) - requiring that deficits are not primarily due to other specified conditions - may be a common battleground, especially where the claimant has multiple comorbidities such as cerebrovascular disease or Alzheimer pathology. Litigation may also address the scope of “relevant service” - whether a particular type of defence service qualifies as “peacetime service” under the MRCA. The instrument does not provide guidance on that question. Without case law, the interpretation of these provisions remains uncertain, and litigation will likely shape their application.

The most significant trap is that the SoP only covers aggravation or material contribution to pre-existing NCDLB, not initial causation. Section 10(2) explicitly states that factors 9(1) and 9(2) apply only where the disorder was suffered or contracted before or during (but did not arise out of) relevant service. If a veteran develops NCDLB for the first time during service and the service directly caused it, none of the listed factors will be satisfied unless the case fits the aggravation pathway. The only way such a claim could succeed is if the basis for causation is found elsewhere, such as through a reasonable hypothesis SOP under s 196B(2) (for operational service) or through a different factor not in this instrument. This is a major gap in coverage.

The second trap is the definition of “relevant service”. The SoP excludes operational service, hazardous service, and British nuclear test defence service. Many veterans with combat experience will fall outside the scope. They must rely on a different SOP under the reasonable hypothesis standard, which uses a lower threshold but different factor sets. Practitioners must carefully identify which service type a veteran rendered before assuming this SoP applies. The definition of “relevant service” is in Schedule 1 and is not immediately obvious from the main body.

Third, the two factors are extremely narrow and both depend on clinical worsening. Factor (1) requires an antipsychotic drug at the time of worsening. This likely catches cases where medication caused or exacerbated the condition, but many veterans with NCDLB may never have been prescribed antipsychotics, or the worsening may have occurred without such treatment. Factor (2) - inability to obtain appropriate clinical management - is vague and may be difficult to prove, especially if the veteran had access to the general health system. The phrase “inability to obtain” suggests a barrier beyond mere inconvenience, but no standard is given. The bar might be high.

Fourth, the diagnostic criteria are strict. The condition must meet DSM-5 definition, including exclusion of other primary causes. Many veterans may have mixed pathologies (e.g., Alzheimer disease plus Lewy bodies), and the SOP requires that the deficits be not primarily due to those other conditions. If the primary cause is Alzheimer disease, the claim fails under this SOP. The requirement for “insidious onset and gradual progression” may also exclude acute presentations following trauma or infection.

Fifth, the repeal of the Alzheimer-type dementia SOP No. 23 of 2010 could create transitional issues for claims lodged before 25 March 2019 that were still pending. The instrument does not address whether the old SOP continues to apply to those claims. Under general principles, a repeal usually applies from commencement, but the VEA may have specific provisions about pending claims. Practitioners should check whether any claim was made before 25 March 2019.

For claimants and their representatives, compliance begins with establishing the diagnosis. The claimant must obtain evidence from a neurologist or psychiatrist that the DSM-5 criteria in subsection 7(2) are met. This requires neuropsychological testing to document the cognitive decline relative to a previous level, and clinical evidence of at least two of the four diagnostic features (fluctuating cognition, visual hallucinations, Parkinsonism with delayed onset, REM sleep behaviour disorder). The clinician must also exclude primary causation by the listed conditions (delirium, other mental disorders, cerebrovascular disease, other neurodegenerative diseases, etc.). A post-mortem diagnosis of Lewy body disease might assist but the clinical criteria remain the standard.

Once the diagnosis is established, the claimant must prove at least one of the two factors. For factor (1), they need medical records showing treatment with an antipsychotic drug (any drug in that class) and evidence that clinical worsening occurred at the time of that treatment. The precise timing will be critical: the worsening must be simultaneous or near-simultaneous with the drug administration. A temporal correlation without other causes may suffice, but the factor does not require causation, only coexistence. For factor (2), the claimant must show inability to obtain appropriate clinical management. This could include evidence that they were denied access to a specialist neurologist, that recommended treatments were unavailable due to service posting, or that the DVA health system failed to provide timely care. The claim must relate the inability to the service - for example, a remote posting that limited access to neurologists, or service-related injury that prevented attendance at appointments. The “appropriate” standard is undefined; claimants should argue that clinical management consistent with best practice guidelines (e.g., from the Royal Australian and New Zealand College of Psychiatrists) was not accessible.

Decision-makers at the DVA must apply the SoP strictly. They should first confirm that the claimant’s service is relevant per the definition (eligible war service other than operational, defence service other than hazardous/British nuclear test, or peacetime MRCA service). They should then verify the diagnosis against the DSM-5 criteria, possibly seeking independent specialist opinion. For factor (1), they should check that the antipsychotic was prescribed and that the worsening occurred during the treatment period. For factor (2), they should assess whether the inability to obtain management was service-related - this may require evidence about availability of services in the veteran’s location and any service-imposed barriers. If the claim relies on factor (1) or (2), the decision-maker must confirm that the disorder was pre-existing before or during (but not arising out of) the relevant service, per section 10(2). The easiest way to comply is to ensure that medical reports explicitly address each element of the definition and the chosen factor, preferably with a clear statement that the factor is related to service. Preparedness to appeal an adverse decision is part of compliance; the AAT will apply the same SoP.