Statement of Principles concerning solar keratosis (Reasonable Hypothesis) (No. 79 of 2021)

Solar keratosis is defined in subsection 7(2) as a cutaneous lesion characterised by local proliferation of atypical (dysplastic) epidermal keratinocytes. It includes sun-damaged skin adjacent to a localised lesion (field cancerisation) but excludes Bowen disease, arsenical keratoses and keratoses not related to ultraviolet light. The ICD-10-AM code L57.0 is given as a reference only; the substantive definition overrides the code. The condition may regress, remain stable or transform into invasive squamous cell carcinoma.

Relevant service is defined in the Schedule 1 dictionary to cover six categories: operational service, peacekeeping service, hazardous service, and British nuclear test defence service under the VEA; and warlike service and non-warlike service under the MRCA. This defines the population to whom the SoP applies.

Unprotected skin means skin directly exposed to the sun and not protected by sunscreen, clothing or any other physical barrier. This definition excludes incidental coverage such as hats or long sleeves but does not require a particular sun protection factor.

Sunburn as specified is defined as painful erythema of the skin lasting at least 48 hours, or blistering of the skin, resulting from exposure to solar ultraviolet radiation. This is a narrow definition - mild sunburn that resolves within a day does not count.

Equivalent sunlight exposure in other latitude zones uses a latitude weighting factor schedule. For tropical areas (between 23°27' S and 23°27' N) the factor is 1.0. It declines to 0.75 for latitudes from just over 23°27' to 35°, to 0.5 for >35° to 45°, and to 0.25 for >45° to 65°. This means a person who served in higher latitudes must have proportionally more cumulative hours to meet the 2,250 hour threshold in factor 9(1). The formula multiplies hours in each zone by the weight and sums them.

PUVA means photochemotherapy with oral methoxsalen (psoralen) and ultraviolet A radiation. Factor 9(6) requires first treatment at least 5 years before clinical onset and at least 25 treatments.

Organ or tissue transplantation includes all or part of an organ or tissue, or a substance obtained from an organ or tissue, but explicitly excludes corneal transplant. This means whole-organ transplants and also grafts of bone, skin or other tissues.

Terminal event is defined for purposes of death from solar keratosis, listing pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function as proximate or ultimate causes of death contributed to by the keratosis.

Reasonable hypothesis is not defined in the instrument but is the legal standard imported from sections 120 and 120A of the VEA. It is a lower threshold than balance of probabilities: the hypothesis must be reasonable, meaning it is not fanciful, impossible or too remote, and must be consistent with the medical-scientific evidence that the Authority has considered.

Section 11 provides that if a factor in section 9 refers to an injury or disease for which another Statement of Principles exists, the factors in that other SoP apply as in force from time to time. This cross-reference ensures coverage of conditions such as organ transplant or PUVA therapy that may themselves have their own SoPs.

The instrument directly affects veterans, members of Peacekeeping Forces and members of the Forces under the VEA who have rendered operational, peacekeeping, hazardous or British nuclear test defence service, and members under the MRCA who have rendered warlike or non-warlike service, and who suffer from solar keratosis or have died from it. These claimants must meet one of the factors in section 9 to raise a reasonable hypothesis connecting their condition to service. The practical effect is to create a standardised evidentiary pathway, which may assist some claimants but impose barriers on others who cannot produce evidence meeting the specific thresholds.

Decision-makers at the Department of Veterans’ Affairs (DVA) are directly affected: they must apply the definitions and the factor list when assessing claims. The instrument reduces their discretion; they cannot accept a reasonable hypothesis based on medical opinion alone if none of the listed factors are present. The Veterans’ Review Board and the Administrative Appeals Tribunal are also bound to apply the SoP when reviewing decisions.

Medical practitioners who provide evidence in support of claims may need to familiarise themselves with the specific definitions, especially the latitude weighting schedule, the definition of sunburn (48 hours or blistering), and the required cumulative exposure hours. They may be asked to quantify historical exposure or to confirm whether a patient’s keratosis meets the definition (excluding Bowen disease etc.).

Legal representatives and advocates for veterans must understand the eight factors and the conditions attached to each. The factor on sunburn (9(2)) applies only if clinical onset of solar keratosis occurs before age 50, which limits its use for older claimants. The factor for inability to obtain appropriate clinical management (9(8)) applies only to aggravation, not initial onset, which is a potential trap for claimants with pre-existing keratosis.

Indirectly, the instrument affects the Australian Defence Force and Veterans’ Affairs policy by incentivising record-keeping of sun exposure during service, as well as medical records of sunburn and skin lesions. It also affects the compensation cost to the Commonwealth budget; the more factors that are accepted as meeting the reasonable hypothesis standard, the greater the liability for disability pension and medical treatment.

The SoP itself does not create direct duties for private individuals, but it imposes a mandatory duty on the Repatriation Commission and its delegates, and on any body reviewing decisions under the VEA or MRCA, to apply the factors in section 9 when determining whether a reasonable hypothesis exists. This duty arises from the operation of sections 120A and 196B of the VEA. The decision-maker must consider each relevant factor and determine whether any one is present and related to the person’s relevant service. If no factor exists, the claim must be rejected at the reasonable hypothesis stage (subject to later steps on standard of proof).

Claimants have a right to have their claim assessed using the framework of this SoP, but that right is procedural rather than substantive. They also have a right to rely on any of the eight factors, provided they produce supporting evidence. The instrument does not create a right to compensation; it only governs the threshold for linking the condition to service.

Section 11 gives claimants a right to rely on factors that refer to an injury or disease covered by another Statement of Principles. For example, if a claimant had an organ transplant and that transplant itself is covered by another SoP, the factors from that other SoP must be considered when assessing whether the transplant factor is satisfied. This cross-reference prevents claimants from having to prove discrete conditions outside the framework of the relevant SoP.

Factor 9(8) (inability to obtain appropriate clinical management) is unusual in that it applies only to material contribution to, or aggravation of, solar keratosis where the condition was suffered or contracted before or during but did not arise out of relevant service. This means a claimant who developed solar keratosis after service but cannot obtain clinical management due to a service-related cause may rely on this factor for aggravation claims only. It is not available for initial onset claims.

There is no explicit right to a hearing or to challenge the contents of the SoP; it is a legislative instrument subject to disallowance by Parliament. Claimants can seek judicial review of decisions that misapply the factors, but the reasonableness of the SoP itself is not directly reviewable.

This instrument contains no penalty provisions. It does not create offences or impose fines. Its enforcement is indirect through the claims process: if a claimant or representative provides false or misleading evidence to satisfy a factor, they may be liable under existing provisions in the VEA or the Criminal Code concerning false statements to obtain a benefit. For example, claiming a cumulative sunlight exposure that never occurred could lead to prosecution for fraud, but the SoP itself does not specify that.

Decision-makers who fail to apply the SoP correctly may have their decisions set aside on review. The instrument does not impose personal penalties on DVA officers; the consequence is administrative (reversal of decision and remittal for reassessment). The SoP is enforceable through the normal mechanisms of administrative law: a person affected by a decision can seek review by the Veterans’ Review Board and then the Administrative Appeals Tribunal, and ultimately judicial review in the Federal Court for jurisdictional error.

The Repatriation Medical Authority, as the maker of the instrument, is not subject to enforcement under this instrument. The Authority’s determination is based on medical-scientific evidence, and its discretion in setting factors is broad.

Because no penalty attaches directly, the instrument operates as a rule of evidence rather than a coercive law. The real cost of non-compliance falls on claimants who cannot meet the factors: their claims are rejected, and they lose the right to compensation or medical treatment for the condition. That rejection can be challenged, but the evidentiary burden is on the claimant to demonstrate that the factor exists.

For the Commonwealth, the enforcement cost lies in training decision-makers, processing claims with latitude calculations, and defending decisions on review. These are administrative compliance costs, not fines.

This SoP is made under subsection 196B(2) of the Veterans’ Entitlements Act 1986. It operates within the broader scheme of that Act, particularly sections 120 and 120A which set out the standard of proof for claims related to operational service. For claims under the MRCA, it interacts with section 338 of that Act, which applies the reasonable hypothesis standard for warlike and non-warlike service. The SoP does not override those primary provisions; it fills in the evidential detail.

The SoP replaces the earlier No. 73 of 2012. Any claim lodged on or after 26 July 2021 must be assessed under this instrument. The repeal of the earlier instrument means that factors in the 2012 version no longer apply; the new factor list, definitions and latitude weighting schedule are authoritative. Transitional provisions may apply for claims lodged before commencement, but the instrument does not address that; the effect depends on the commencement date.

Section 11 provides a cross-reference mechanism: if a factor in section 9 refers to an injury or disease for which a SoP exists under subsection 196B(2), then the factors in that other SoP apply as in force from time to time. This ties this SoP to the evolving body of SoPs for conditions such as organ transplantation or PUVA therapy. It prevents fragmentation and ensures consistency.

The instrument also interacts with the ICD-10-AM classification (Tenth Edition) for coding purposes, but the definition of solar keratosis in subsection 7(2) overrides the code. This means that a condition coded L57.0 will not automatically satisfy the SoP if it is actually Bowen disease or arsenical keratosis.

It does not interact with state workers’ compensation schemes or private health insurance, because it is specific to Commonwealth military compensation. However, a veteran who also has a private income protection policy may find that acceptance under this SoP influences the private insurer’s decision, but that is not a direct legal interaction.

The SoP also affects how the Repatriation Medical Authority exercises its power to amend or revoke. Because it replaces the 2012 instrument, it reflects the Authority’s current view of sound medical-scientific evidence. Future amendments will likewise supersede it.

This instrument (No. 79 of 2021) is a new Statement of Principles that repeals and replaces the previous Statement of Principles concerning solar keratosis No. 73 of 2012 (Federal Register of Legislation No. F2012L02084). The 2012 instrument was made under subsection 196B(2) of the VEA. This 2021 instrument was made on 25 June 2021 and commences on 26 July 2021. The source contains no other amendment history. There is no mention of any intermediate amendments or variations between 2012 and 2021. The Authority evidently determined that a fresh instrument was needed, rather than amending the existing one. The reasons for replacement are not given in the source, but the Authority’s statement of the basis for determining the factors under section 8 indicates it considered current medical-scientific evidence.

The instrument itself has not been amended as of June 2021. Any later amendments would be separate legislative instruments. For the purposes of this deep dive, the only amendment event is the repeal of the 2012 instrument and replacement by this one. Practitioners should confirm the current version on the Federal Register of Legislation.

The source contains no reference to any litigation history. The instrument itself, being made in June 2021, has not been judicially considered or challenged in the source document. That does not mean no litigation exists; but this deep dive is based solely on the provided text. The earlier 2012 instrument may have been litigated, but the source does not mention any cases. Therefore, no claims about case law can be made. A lawyer relying on this SoP should conduct independent searches for administrative review decisions involving solar keratosis and the reasonable hypothesis standard, particularly decisions of the Veterans’ Review Board and the Administrative Appeals Tribunal. The lack of litigation in the source is not unusual for a routine updating SoP.

Several provisions in this SoP are easily misunderstood or may trap unwary claimants and decision-makers.

Factor 9(1) sunlight exposure: The requirement is a cumulative total of at least 2,250 hours in a tropical area or equivalent using the latitude weighting factor schedule. This is not simply total hours in service; it must be hours of exposure to sunlight on unprotected skin. Decision-makers often confuse service hours with exposure hours. A person who served in the tropics but mostly indoors will not meet the threshold. The latitude weighting schedule can be misapplied: hours at latitude 40° must be multiplied by 0.5, doubling the needed clock hours. Also, the factor applies only before the clinical onset; episodes after onset are irrelevant.

Factor 9(2) sunburn: This is very specific. The sunburn must be “as specified” - painful erythema of at least 48 hours duration or blistering. A mild sunburn that fades in a few hours does not count. It must occur on at least 5 occasions before age 20, and at least 5 years before clinical onset. Critically, the factor only applies if the clinical onset of solar keratosis occurs before age 50. A claimant who develops keratosis at age 55 cannot use this factor, even if they had severe childhood sunburns.

Factor 9(3) prisoner of war of Japan: This is a specific category - only those held by Japan. It does not extend to POWs of other countries. The factor does not require a minimum duration or any sun exposure. It is a per se factor.

Factor 9(4) welding light: Requires 12,000 cumulative hours of exposure to welding light while arc-welding metal without skin protection. That is a very high threshold - 12,000 hours is equivalent to a full-time welder working 40-hour weeks for over 5.5 years. The protection must be absent; using leather gloves or a long-sleeve jacket invalidates the exposure count. Claimants with intermittent welding or who used protection will not meet this factor.

Factor 9(5) organ or tissue transplantation: Excludes corneal transplant. That means a person who has had a kidney or heart transplant may use this factor, but not one who had a corneal graft. The transplant must be before clinical onset; it does not matter if the transplant was due to combat injury or other reason.

Factor 9(6) PUVA therapy: Requires first PUVA treatment at least 5 years before onset and at least 25 treatments before onset. The delay element is often overlooked. The therapy must involve the affected site; PUVA for psoriasis on the arms but keratosis on the face may not qualify if the face was not exposed to the UVA.

Factor 9(7) hydroxyurea or voriconazole: The medication must be taken for at least 3 continuous months before clinical onset. Intermittent use or short courses do not count.

Factor 9(8) inability to obtain appropriate clinical management: This factor is only available for material contribution to or aggravation of pre-existing solar keratosis (subsection 10(2)). It cannot establish initial onset. The inability must be related to relevant service; for example, if a veteran was unable to see a dermatologist during a deployment. The phrase “inability to obtain appropriate clinical management” is not defined, creating potential for dispute over what is appropriate and whether management was truly unobtainable.

Definitions: “unprotected skin” requires a total absence of sunscreen, clothing or any physical barrier. A person who wore a hat but no shirt on their arms is protected on the face but not on the arms. The latitude weighting factor schedule only applies to factor 9(1), not to any other factor.

Death from solar keratosis: The instrument requires that the terminal event (e.g., pneumonia, cardiac arrest) was contributed to by the solar keratosis. This may be difficult to prove, as keratosis is rarely listed as a direct cause of death.

Section 11 cross-reference: If a factor refers to another injury or disease for which a SoP exists, the factors from that other SoP apply as in force from time to time. This means a claimant relying on organ transplant must also satisfy the organ transplant SoP. It is not enough to have had the transplant; the transplant must be related to service under the transplant SoP.

Application: The instrument applies to claims under s120A VEA or s338 MRCA, which are the reasonable hypothesis provisions. It does not apply to claims under the Safety, Rehabilitation and Compensation Act 1988 (DRCA) unless that Act is amended to refer to it.

For a decision-maker assessing a claim involving solar keratosis, compliance means working through each factor in section 9 systematically. First, confirm the definition: does the condition meet subsection 7(2)? Exclude Bowen disease, arsenical keratoses and non-ultraviolet keratoses. Obtain a medical report confirming the diagnosis and the clinical onset date.

Second, identify which category of relevant service the person rendered - operational, peacekeeping, hazardous, British nuclear test, warlike or non-warlike. The factor must be related to that service.

Third, collect evidence for each potentially applicable factor. For factor 9(1), obtain a service history showing locations and time spent outdoors with unprotected skin. Calculate cumulative hours using the latitude weighting schedule. For example, if a person served for 2,000 hours in a tropical area (latitude -10°, factor 1.0) and 1,000 hours at latitude 40° South (factor 0.5), the weighted total is 2,000 + (1,000 x 0.5) = 2,500 hours, which exceeds the 2,250 threshold. The documentary evidence might include patrol logs, duty rosters, or statements from fellow servicemen. Acceptable evidence is not specified, but medical records and lay statements are common.

For factor 9(2), gather medical records or credible statements of childhood sunburn meeting the definition (painful erythema for 48 hours or blistering). At least 5 such occasions before age 20 must be documented, and the onset of keratosis must be before age 50. The burn must be at least 5 years before onset.

For factor 9(3), establish that the person was a prisoner of war of Japan. Service records or official POW lists suffice.

For factor 9(4), welding records, unit employment records, and statements about lack of protective gear are needed. The 12,000 hour threshold requires careful counting.

For factor 9(5), medical records of organ or tissue transplant (excluding corneal) and dates.

For factor 9(6), PUVA treatment records showing at least 25 sessions with oral psoralen, first treatment at least 5 years before onset, and evidence that the affected site was exposed.

For factor 9(7), prescription records for hydroxyurea or voriconazole for at least 3 months before onset.

For factor 9(8), evidence that clinical management for solar keratosis was not obtainable due to service circumstances, and that the keratosis existed before or during service but did not arise out of service. This factor only covers aggravation.

If a factor is established, then confirm that the factor is related to relevant service - that is, the sunlight exposure occurred during service, the sunburn happened while on service, etc. This is usually straightforward for factors directly linked to service conditions.

Decision-makers must also consider section 11: if the factor references another injury or disease (e.g., organ transplant), the applicable SoP for that condition must be applied to determine if the transplant itself is related to service.

For claimants, compliance means ensuring that medical and service records clearly document the relevant exposure or event. If records are missing, sworn statements can be used, but they must be credible. The latitude weighting calculation should be checked by an expert if necessary. Claimants should not assume that a diagnosis of solar keratosis automatically qualifies; they must show one of the eight factors with supporting evidence.

Medical practitioners providing reports should use the exact definitions in the Schedule, describing sunburn as painful erythema of at least 48 hours or blistering, and specifying dates, frequency and duration. They should also state the clinical onset date precisely, as many factors depend on the timing relative to onset.

Finally, all parties should note that this SoP applies only to claims under s120A VEA or s338 MRCA. It does not cover claims under other legislation unless cross-referenced.