Statement of Principles concerning shingles and postherpetic neuralgia (Balance of Probabilities) (No. 28 of 2023)

This instrument is a legislative determination made by the Repatriation Medical Authority (RMA) under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It sets out the factors that must exist for shingles and postherpetic neuralgia (including death from that condition) to be accepted as connected to a person’s relevant service on the balance of probabilities. It replaces the earlier Statement of Principles concerning herpes zoster No. 48 of 2015. It applies to claims made under section 120B of the VEA or section 339 of the Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument does not apply to operational service claims under the VEA (which use a different standard of proof) but rather covers eligible war service other than operational service, defence service other than hazardous service, and peacetime service under the MRCA. Mechanically, the instrument lists nine factors (section 9) any one of which is sufficient to establish the connection, provided the factor is related to the relevant service. The factors are: having chickenpox before clinical onset; for vaccine strain shingles only, having live attenuated varicella vaccine before onset; being prevented from accessing varicella-zoster vaccination in accordance with contemporary medical standards between one and five years before onset; being in an immunocompromised state as specified at the time of onset; having trauma (including surgery) involving the affected dermatome or its nerve supply within six weeks before onset; having an autoimmune disease from a short specified list at the time of onset; being in an immunocompromised state as specified at the time of clinical worsening; and inability to obtain appropriate clinical management for shingles. The last two factors apply only to material contribution to or aggravation of an existing condition that was suffered or contracted before or during (but did not arise out of) service. The RMA states (section 8) that on the available sound medical-scientific evidence it is more probable than not that the condition can be related to relevant service. The instrument defines key terms in a schedule, including immunocompromised state as specified (limited to HIV, immunosuppressive drugs, haematological or solid organ malignancy, chronic renal failure, or solid organ/stem cell/bone marrow transplant), specified autoimmune diseases (inflammatory bowel disease, rheumatoid arthritis, systemic lupus erythematosus), and terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function). It references ICD-10-AM code B02 but clarifies its own definition controls. Section 11 incorporates by reference the factors from any other Statement of Principles that deals with an injury or disease that is itself a factor under this SOP. The instrument commenced on 23 May 2023. It creates a rights-enabling framework: claimants can use these factors to shift the burden of proof to a favourable outcome, but each factor imposes evidentiary requirements and relationship to service.

The central concept is "shingles and postherpetic neuralgia" defined as a symptomatic reactivation of a dormant varicella-zoster virus infection, usually manifesting with neuritic pain and a vesicular eruption involving the skin or mucous membranes in a dermatomal pattern. The definition covers both the acute shingles episode and the chronic neuropathic pain that can follow (postherpetic neuralgia). The definition includes death contributed to by the condition, with terminal event being the proximate or ultimate cause (pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function). The instrument is built around the notion of "factors" that establish a connection to service. The factors are not standalone diseases; they are events or conditions that are sound medical-scientifically linked to the onset or worsening of shingles. The concept of "vaccine strain shingles" is a specific carve-out: only if the vaccine strain is detected in the vesicular liquid (by testing) can a prior live attenuated varicella vaccine be counted as a factor. This distinguishes naturally acquired varicella from vaccine-related reactivation. "Immunocompromised state as specified" is a narrowly defined category. It does not include every immunosuppressed condition; it is limited to HIV infection, taking immunosuppressive drugs causing substantial suppression of immune function, haematological or solid organ malignancy, chronic renal failure (defined as GFR <15 mL/min/1.73m2 for at least three months, need for renal replacement therapy, or chronic dialysis), and organ/stem cell/bone marrow transplantation. This definition excludes many other causes of immune compromise (e.g., primary immunodeficiencies, diabetes, malnutrition) unless they result in one of the listed conditions. "Specified list of autoimmune diseases" is similarly narrow: only inflammatory bowel disease, rheumatoid arthritis, and systemic lupus erythematosus. Other autoimmune diseases (e.g., multiple sclerosis, psoriasis) are not included. "Relevant service" is a tiered concept that deliberately excludes operational service, hazardous service, and British nuclear test defence service. Only eligible war service (non-operational), defence service (non-hazardous), and peacetime service under the MRCA are covered. This means the instrument is for the lower standard of proof (balance of probabilities) under section 120B of the VEA, not the reasonable hypothesis standard for operational service. The concept of "balance of probabilities" is embedded in the RMA's basis (section 8) and the factor requirement (section 9: "at least one of the following factors must exist before it can be said that, on the balance of probabilities, shingles and postherpetic neuralgia ... is connected with the circumstances of a person's relevant service"). The SOP does not establish causation; it establishes a statistical or probabilistic connection via defined factors. The factor "being prevented from accessing appropriate varicella-zoster vaccination in accordance with contemporary medical standards of the time, between 1 and 5 years before the clinical onset" introduces a concept of missed opportunity due to service circumstances. This is notable because it imposes a requirement to assess what vaccination was "appropriate" and "contemporary" at the time, which will vary by year and location. The factor "inability to obtain appropriate clinical management for shingles and postherpetic neuralgia" (factor 8) is a classic "failure to treat" factor that can worsen the condition. It applies only to clinical worsening, not onset.

The primary affected persons are veterans and members of the Australian Defence Force who have rendered 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, and peacetime service under the MRCA. This includes veterans of non-combat deployments and service in non-hazardous contexts. Their dependants are also affected through death claims. The instrument directly applies to the Department of Veterans’ Affairs (DVA) decision-makers who must apply it when assessing claims for compensation or treatment for shingles and postherpetic neuralgia. Medical professionals (treating doctors, specialists, and medico-legal experts) are affected because they must understand the defined terms, especially the limited lists for immunocompromised state and autoimmune diseases, to provide appropriate evidence. Lawyers and advocates representing veterans are heavily affected: they must navigate which factor best fits the veteran’s history and ensure the factor is demonstrably related to service. The Repatriation Medical Authority itself is the maker, but it is accountable to the Minister and subject to disallowance. The instrument indirectly affects the taxpayer, because acceptance of claims under this SOP triggers liability for compensation and medical expenses under VEA or MRCA. The narrow definitions (e.g., only three autoimmune diseases, five categories of immunocompromise) mean that many veterans with shingles will not qualify unless they fall within those categories. This concentrates benefits on a subset while reducing overall claim costs. The instrument also affects the private market for vaccines: factor 3 (prevention of access to varicella vaccination) may incentivise DVA to consider whether service prevented a veteran from getting the shingles vaccine. This could create administrative costs in determining what "contemporary medical standards" were for each veteran’s service period. The instrument does not affect civilians or veterans with operational service (who use a different SOP with reasonable hypothesis standard). The repeal of the older SOP means those with claims pending under the 2015 instrument will now be assessed under this one, which may be more or less favourable depending on the factor. The instrument does not impose obligations on private employers or non-government bodies; it is exclusively a component of the Commonwealth compensation system. However, the factor regarding chickenpox (factor 1) is so broad that nearly every veteran will have had chickenpox before shingles, raising the question of how it can be related to service. This may lead to expensive forensic arguments about whether chickenpox was contracted during service, which could be difficult to prove decades later. The cost of that inquiry is borne by DVA and ultimately the public.

The instrument itself imposes no duties on individuals; it is a rule for decision-makers. The Repatriation Medical Authority had the duty under section 196B(3) of the VEA to determine this SOP based on sound medical-scientific evidence. It certified that such evidence supported the view that the condition can be related to service on the balance of probabilities. The key right for claimants is that if at least one factor exists and is related to relevant service, then the condition is taken to be connected to service for the purposes of a claim under section 120B of the VEA or section 339 of the MRCA. This reverses the usual burden: the claimant does not need to prove causation directly; they only need to prove the existence of a listed factor and that it is related to service. The DVA has a duty to apply the SOP faithfully: it cannot accept a claim without the factor, nor reject one where the factor exists and is service-related, assuming the medical definition is satisfied. The instrument creates a right to have the claim decided by reference to these specific factors, not by a general causation analysis. However, that right is limited by the factual question of whether the factor is related to service. For factor 1 (having chickenpox before clinical onset), the duty falls on the claimant to show that the chickenpox occurred in a way that relates to service - for example, if the veteran had chickenpox during service. That is a very high evidentiary bar for an illness typically contracted in childhood. For factor 3 (prevented from accessing varicella vaccination), the DVA has a duty to determine what "contemporary medical standards of the time" required, and whether the claimant was "prevented" due to service. This is a substantial interpretive duty that will require historical research and possibly expert evidence. Factor 8 (inability to obtain appropriate clinical management) gives rise to a complex inquiry: what constitutes appropriate clinical management for shingles? The RMA does not define this, leaving it to the decision-maker, which creates risk of inconsistent decisions. The instrument also gives the DVA a limited duty: factors 7 and 8 (aggravation factors) only apply where the condition was suffered or contracted before or during service but did not arise out of service. So the DVA must determine whether the condition arose out of service first; if it is already service-related, these factors are irrelevant. The claimant does not have a right to rely on those factors for an entirely new condition contracted during service. Section 11 incorporates other SOPs by reference: if a factor refers to another injury or disease for which there is an SOP, then the factors of that other SOP apply. This creates an interlocking set of rights and duties that can chain multiple SOPs together. For example, if the immunocompromised state is due to a malignancy, the malignancy itself must be linked to service under its own SOP. That adds complexity and cost.

This instrument does not contain any penalties. It is not a criminal or civil penalty provision. It is a legislative instrument used to determine eligibility for compensation. Enforcement occurs through the normal VEA and MRCA claims and review processes. If a claim is wrongly refused because the DVA misapplied the SOP, the veteran can seek internal review and then review by the Administrative Appeals Tribunal and ultimately the Federal Court. The real "penalty" for the Commonwealth is the financial liability that flows from accepting a claim under this SOP. Conversely, the penalty for a claimant who cannot satisfy a factor is denial of compensation - no other sanction applies. There are no provisions for fines, imprisonment, or administrative penalties in this instrument. The VEA and MRCA contain general provisions about false statements and fraud (e.g., sections 207 and 208 of the VEA), which could apply if a veteran or doctor knowingly provides false evidence to satisfy a factor, but those are not part of this SOP. The RMA does not enforce the SOP; it only determines it. The instrument does not create any private cause of action. Enforcement is entirely public: DVA makes initial decisions, and external review bodies ensure correctness. The instrument is not subject to any commencement or sunset date beyond the repeal provision (section 4) which repealed the 2015 SOP. It remains in force until repealed or amended. The only enforcement mechanism embedded in the instrument itself is the requirement that the factor "must be related to the relevant service rendered by the person" (section 10(1)). This is a substantive condition that DVA must enforce by examining the nexus. If the claimant cannot prove that the chickenpox (factor 1) or the trauma (factor 5) or the inability to access vaccination (factor 3) was due to service, the claim fails. So enforcement is through gatekeeping by DVA. There is also an enforcement dimension for medical experts: the note to factor 2 requires diagnosis of vaccine strain shingles by detecting the vaccine strain in vesicular liquid. If a doctor diagnoses vaccine strain shingles without that test, the DVA should reject the factor as not proven. The instrument thus imposes evidentiary standards that the DVA must enforce.

This instrument is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986. It interacts with the VEA in several ways. Section 120B of the VEA provides that for claims to which this SOP applies (non-operational service), the standard of proof is balance of probabilities, and the RMA’s SOP is binding. This SOP replaces the general causation analysis with the factor framework. It also interacts with the MRCA via section 339, which similarly requires the SOP to be applied for peacetime service. The instrument repeals the earlier SOP No. 48 of 2015 concerning herpes zoster. The new SOP uses different language (shingles and postherpetic neuralgia) and different factors. Claims made after 23 May 2023 are governed by this SOP, even if the condition or service was before that date. The instrument references ICD-10-AM code B02 but states its own definition prevails. That means if future editions of ICD-10-AM change the coding, the SOP’s definition remains fixed. The instrument also references The International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification, Tenth Edition (effective 1 July 2017). It does not incorporate later editions, which could lead to differences if coding changes. Section 11 is a significant interaction provision: where a factor in this SOP refers to an injury or disease that is itself the subject of another SOP made under subsection 196B(3) of the VEA, then the factors from that other SOP apply in accordance with its terms as in force from time to time. This creates a chain: for example, factor 6 (autoimmune disease from the specified list) refers to diseases like rheumatoid arthritis. If the veteran’s rheumatoid arthritis was contracted during service, the claim would need to satisfy the SOP for rheumatoid arthritis as well. That SOP may have its own factors. Similarly, factor 4 (immunocompromised state as specified due to haematological malignancy) would require the malignancy to be linked to service via the cancer SOP. This interaction multiplies the evidentiary burden and cost. The instrument does not interact with state workers compensation schemes, motor accident schemes, or private health insurance. It is solely within the Commonwealth veterans’ and military compensation system. It does not override the VEA’s provisions on standard of proof; it operationalises them. The instrument also interacts with the Migration Act 1958 or other health-related laws only indirectly, if a veteran’s immigration status affects service. The dictionary defines "relevant service" in a way that excludes operational service, hazardous service, and British nuclear test defence service. Those categories are defined elsewhere in the VEA and MRCA. So the instrument is deliberately confined to a subset of service types. It does not apply to claims under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for civilian employees, unless they are also veterans covered by the VEA.

This instrument was made on 24 April 2023 and commenced on 23 May 2023. It is the current SOP concerning shingles and postherpetic neuralgia on the balance of probabilities. It repealed the Statement of Principles concerning herpes zoster No. 48 of 2015 (Federal Register of Legislation No. F2015L00254). That earlier SOP was made under the same subsection 196B(3) of the VEA. The 2015 SOP covered herpes zoster (shingles) but did not explicitly include postherpetic neuralgia in its title; the new SOP does. The factors in the 2015 SOP may have been different; the current instrument is a full replacement. There is no indication of any intermediate amendments between 2015 and 2023. The instrument itself has not been amended since its commencement; the text provided is as originally made. As a disallowable legislative instrument, it would have been tabled in Parliament and could have been disallowed within 15 sitting days. No disallowance motion was passed, so it entered into force. The instrument does not have a sunset clause under the Legislation Act 2003; however, the RMA has a continuing obligation to review SOPs and may issue a new instrument when medical evidence changes. There is no indication of any court or tribunal decision that has invalidated or altered this instrument. The amendment history is straightforward: one enactment, one repeal of the predecessor. The instrument cites the authority of subsection 196B(3) of the VEA, which is the balance of probabilities standard as opposed to subsection 196B(2) (reasonable hypothesis for operational service). There are no amending instruments listed. The instrument includes a note that the dictionary defines certain terms; those definitions are integral and have not been changed since commencement. The ICD-10-AM edition referenced is the Tenth Edition (2017); if the RMA later issues a new SOP referencing a later edition, that would be an amendment by replacement, not revision of this instrument. This instrument is therefore static unless and until a future RMA determination replaces it.

The instrument itself does not cite any litigation. As a legislative instrument issued by the Repatriation Medical Authority, it is not itself the subject of a court case. However, Statements of Principles are frequently litigated in the Administrative Appeals Tribunal and the Federal Court when veterans challenge adverse decisions. The source text does not mention any specific cases. It is reasonable to note that the predecessor SOP (No. 48 of 2015) may have been the subject of review, but that is not stated in the source. The instrument’s definitions have been carefully drafted to minimise ambiguity, but litigation could arise over the interpretation of "contemporary medical standards of the time" in factor 3, or over what constitutes "trauma" in factor 5, or whether a particular immunosuppressive drug causes "substantial suppression of immune responses" as required in the definition of immunocompromised state as specified. The requirement that factor 2 applies only when the vaccine strain is "detected in the vesicular liquid" could be litigated if testing was not performed but the treating doctor is confident of the strain. The term "inability to obtain appropriate clinical management" (factor 8) is inherently vague and likely to generate dispute over whether the claimed inability was due to service or the veteran’s own choices. The AAT has frequently considered whether a factor is "related to service" under section 10(1); this phrase has been interpreted to require a causal or contributing connection, not merely temporal coincidence. Cases such as Repatriation Commission v Budworth (2001) and Delahunty v Repatriation Commission (2007) have discussed the relationship requirement in other SOPs. The instrument’s dictionary defines "immunocompromised state as specified" with a closed list, which may be challenged as unreasonably narrow under the VEA if it excludes recognised causes of immunosuppression. However, the RMA is entitled to determine factors based on sound medical-scientific evidence, and courts give deference. There is no reported litigation specifically on this SOP as of the source date. The instrument itself does not provide any litigation history or mention of any judicial decisions. The prudent analyst should note that the absence of cited litigation does not mean challenges have not occurred; it means the source does not record them.

Several provisions in this instrument are narrower or more complex than they first appear. First, factor 1 (having chickenpox before clinical onset) is almost universally true for anyone who develops shingles, because shingles is reactivation of the same virus. However, the factor must be "related to the relevant service rendered by the person" under section 10(1). This means the veteran must prove that the chickenpox infection itself was contracted in a manner linked to service - for example, during a posting to a location with high varicella prevalence, or as a result of service-related exposure. Most chickenpox is acquired in childhood, long before service, so factor 1 will often be a trap: it exists factually but fails on relationship to service. Claimants may wrongly assume that having had chickenpox is enough. Second, factor 2 applies only to vaccine strain shingles, and only if the vaccine strain is detected in the vesicular liquid. Without that specific laboratory test, the factor cannot be relied upon. The note clarifies that it applies only to live attenuated varicella zoster vaccines, not recombinant zoster vaccine (Shingrix). Third, factor 3 requires being "prevented from accessing appropriate varicella-zoster vaccination in accordance with contemporary medical standards of the time, between 1 and 5 years before the clinical onset." "Prevented" implies a causal barrier due to service (e.g., being deployed where vaccine was unavailable, or being refused leave to attend a clinic). Simply not wanting the vaccine is not prevention. Also, "contemporary medical standards of the time" means the standard at the relevant point between one and five years before onset, not at the time of claim. If the standard changed after the relevant window, it is irrelevant. Fourth, the definition of immunocompromised state as specified includes "taking an immunosuppressive drug which causes substantial suppression of immune responses." This does not include all immunosuppressive drugs; only those that cause substantial suppression. A drug that only mildly suppresses the immune system may not qualify. The term is not further defined, creating uncertainty. Fifth, the definition of chronic renal failure for immunocompromise purposes uses a GFR threshold of less than 15 mL/min/1.73m2 for at least three months, or need for renal replacement therapy. Many veterans may have chronic kidney disease but not yet at that stage, so they are not captured. Sixth, factor 5 (trauma including surgery) requires the trauma to involve the dermatome affected by shingles or its nerve supply within six weeks before clinical onset. This is a very short window and requires precise anatomical mapping. If the trauma was to a different dermatome, it fails. Seventh, factor 6 lists only three autoimmune diseases: inflammatory bowel disease, rheumatoid arthritis, and systemic lupus erythematosus. Veterans with other autoimmune conditions like multiple sclerosis, type 1 diabetes, or psoriasis cannot use this factor. Eighth, factors 7 and 8 only apply to clinical worsening of a pre-existing condition that was suffered or contracted before or during service but did not arise out of service. If the condition already arose out of service, these factors cannot be used for aggravation claims. Ninth, the instrument requires all factors to be related to relevant service, but relevant service is defined narrowly to exclude operational service, hazardous service, and British nuclear test defence service. Veterans with those service types cannot use this SOP at all; they must rely on the reasonable hypothesis SOP for shingles. Tenth, the instrument does not include a factor for age (a major risk factor for shingles). There is no factor for psychological stress or lack of sleep, which are commonly asserted. Claimants cannot rely on general risk factors; they must fit within the listed factors.

Compliance with this instrument is not a matter of behaviour regulation; it is a matter of claim preparation and decision-making. For the Department of Veterans’ Affairs (DVA) and its delegates, compliance means when assessing a claim for shingles and postherpetic neuralgia from a veteran with relevant service (eligible war service non-operational, defence service non-hazardous, or peacetime MRCA), the decision-maker must determine whether at least one of the nine factors in section 9 exists. They must check the medical evidence to confirm the condition meets the definition in section 7(2) - symptomatic reactivation of dormant varicella-zoster virus with neuritic pain and dermatomal vesicular eruption. They must ensure the condition is not merely a coding matter. If the claim is for death, the causal chain must show shingles contributed to a terminal event as defined. The delegate must then evaluate each factor the claimant raises. For factor 1, they must require evidence not just that chickenpox occurred, but that it is related to service - a demanding inquiry. For factor 2, they must look for laboratory confirmation of vaccine strain in vesicular fluid; without it, the factor fails. For factor 3, they need historical evidence about the veteran’s access to varicella vaccine, and expert evidence on the contemporary medical standards at the relevant time. The Department should maintain records of standard vaccination schedules by service location and year to assist. For factor 4, they need medical evidence of an immunocompromised state as specified, using the closed list. They must check the chronic renal failure definition carefully (GFR <15 for three months or renal replacement therapy) - an eGFR of 20 does not qualify. For factor 5, they need records of trauma (including surgery) within six weeks before onset, and a specialist opinion linking the dermatome affected to the trauma site. For factor 6, they need a confirmed diagnosis of one of the three listed autoimmune diseases. For factor 7 (worsening), they must determine whether the condition already existed before or during service but did not arise out of service. If it arose out of service, this factor is inapplicable. For factor 8, they must evaluate whether the veteran was unable to obtain appropriate clinical management (e.g., antiviral therapy) for the shingles, and whether that inability was due to service. The delegate must then ensure the factor is related to service under section 10(1). If factor 7 or 8 is relied upon, section 10(2) limits it to aggravation of a pre-existing condition. For claimants and their representatives, compliance means gathering evidence that clearly satisfies one of the factors and demonstrates the service relationship. The most straightforward factors for many veterans may be factor 6 (autoimmune disease) if they have one of the three listed conditions, or factor 4 (immunocompromised state) if they have HIV, are on substantial immunosuppressants, have a listed malignancy, have advanced renal failure, or have had a transplant. The chickenpox factor (1) is difficult to prove service relationship unless the chickenpox occurred on service; therefore it should be a last resort. Representatives should avoid lazy reliance on factor 1. For factor 3, early engagement with the veteran’s medical records and service history is critical. If the veteran served in a location where zoster vaccine was unavailable and developed shingles within one to five years after separating, there may be a claim. For factor 5, obtaining the exact date of trauma and the dermatome map is essential. For factor 8, documenting that clinical management was unavailable due to service (e.g., being in a remote posting without access to antivirals) is key. Medical experts asked to provide opinions must use the definitions from the dictionary. They should not say "immunocompromised" loosely; they must specify which of the five listed categories applies. They should avoid referencing autoimmune diseases outside the specified list. The instrument does not require a causal chain theory; it requires only that the factor exists and is service-related.