Statement of Principles concerning tinea (Reasonable Hypothesis) (No. 55 of 2024)

The central concept is that of a "reasonable hypothesis" connecting tinea or death from tinea with relevant service. Under the VEA standard of proof, a hypothesis is reasonable if there is some material that points to a connection, but the hypothesis must be consistent with known medical-scientific evidence. This instrument defines the conditions under which such a hypothesis can be raised: at least one factor listed in section 9 must exist in the applicant's case. The Repatriation Medical Authority states in section 8 that it considers there is sound medical-scientific evidence that tinea can be related to relevant service. That statement is a conclusion, not a justification; the instrument itself does not cite any studies or data, and the basis for that conclusion is not disclosed in the text.

"Tinea" is defined in subsection 7(2) as a fungal infection of the skin, hair or nails caused by specified dermatophytes. The definition includes a range of clinical presentations (tinea barbae, capitis, corporis, cruris, pedis, unguium, etc.) and also includes Majocchi's granuloma and Id reactions (allergic rashes distant from the infection site). It expressly excludes tinea versicolour, tinea flava, tinea nigra, tinea blanca, tinea amiantacea, and any fungal infection involving mucous membranes or systemic fungal infection. That exclusion means those conditions cannot be claimed under this instrument, even if they might share some clinical similarities. The ICD-10-AM code B35 is referenced as a guide, but the instrument's own definition is controlling.

"Clinical onset" and "clinical worsening" are not separately defined in the dictionary, but the factors refer to these concepts. Clinical onset means the first appearance of the condition; clinical worsening means a material aggravation or deterioration. The factors are divided: some apply to both onset and worsening, some only to worsening. For example, factor (1) (contact with sources of infection) applies "between 2 days and 3 weeks before the clinical onset or clinical worsening". Factor (3) (diabetes mellitus) applies only "at the time of clinical worsening". The distinction is important because a claimant who already had tinea before service can only rely on the worsening factors, and those factors must have contributed to a material aggravation of the pre-existing condition.

"Relevant service" is defined in the dictionary to include operational service, peacekeeping service, hazardous service, and British nuclear test defence service under the VEA, plus warlike and non-warlike service under the MRCA. This is a broad category, but it does not include peacetime service that is not classified under one of those headings. The instrument is silent on how to prove service exposure; it is assumed that the decision-maker will determine that from the applicant's service records and testimony.

The instrument also incorporates the concept of "death from tinea", which includes death from a terminal event contributed to by tinea. "Terminal event" is defined in the dictionary as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This means that if tinea (or its complications) was a contributing factor to one of those terminal events, death may be accepted as caused by tinea for claim purposes. The note suggests that a claimant need not prove that tinea directly killed the person; a causal contribution to one of these proximate causes suffices.

The primary group affected are current and former veterans, members of the Peacekeeping Forces, and members of the Forces as defined under the VEA, and members under the MRCA, who claim compensation or other benefits for tinea or for death attributable to tinea. This includes persons who served in operational, peacekeeping, hazardous, British nuclear test defence, warlike, or non-warlike service. The instrument also affects their dependents who may claim on the basis of death from tinea.

The instrument directly affects decision-makers and tribunals: the Repatriation Commission, the Veterans' Review Board, and the Administrative Appeals Tribunal. They must apply this instrument as a binding rule when assessing claims. Medical advisers and medical panels who provide opinions for these decision-makers must ensure their reports address the factors in section 9 and the definitions in the dictionary. If a medical opinion does not address a relevant factor, the decision-maker may find the hypothesis not reasonable.

Legal practitioners representing claimants or the Commission must become familiar with the twelve factors and the timing windows. They need to distinguish between factors that apply to clinical onset and those that apply only to clinical worsening. They also need to be aware of the exclusions from the definition of tinea, because a claim might be rejected if the condition is actually tinea versicolour or another excluded entity. The instrument also affects other medical specialists, such as dermatologists and infectious disease physicians, who may be asked to opine on causation.

Indirectly, the instrument affects the cost and administration of the veterans' compensation system. It sets the threshold for what counts as a reasonable hypothesis. If the factors are relatively easy to satisfy, more claims may succeed; if they are strict, fewer claims will succeed. The instrument does not contain any economic analysis or regulatory impact statement, so the compliance burden on the system must be inferred. Claimants must now gather evidence of the specific factors, which may require medical records from service (e.g., evidence of diabetes, peripheral artery disease, or shaving habits) that might not have been documented. This imposes a search cost on individuals and the Department of Veterans' Affairs.

The instrument does not impose duties on individuals; it is a rule of evidence that conditions the acceptance of a causal link. The principal "duty" lies with the decision-maker to apply the instrument correctly: they must ensure that at least one factor listed in section 9 exists and that that factor is related to the person's relevant service as per section 10. If the decision-maker fails to consider a relevant factor or misinterprets a definition, the decision may be set aside on review.

For claimants, the instrument confers a procedural right: if they can satisfy one factor and relate it to service, they are entitled to have their claim assessed on the basis that a reasonable hypothesis exists. That does not guarantee acceptance of the claim; other elements (such as the standard of proof for connection to service) remain. But it does prevent the decision-maker from simply rejecting the hypothesis as unreasonable without engaging with the factor. The note in subsection 7(2) says the SoP should be invoked separately for each instance of tinea in each separate location and each separate time. That means a claimant with recurrent or multiple-site tinea may need to establish a factor for each episode, increasing the evidentiary burden.

The instrument also provides a right to rely on factors that refer to another injury or disease covered by another Statement of Principles. Section 11 says that if a factor (e.g., diabetes mellitus) refers to a disease for which another SoP exists, then the factors in that other SoP apply. This is a cross-referencing mechanism; it means that to establish the factor "having diabetes mellitus at the time of clinical worsening", the claimant must also satisfy the reasonable hypothesis standard for diabetes under its own SoP. This is a significant interaction: a claimant cannot simply assert they have diabetes; the diabetes itself must be service-related under its own SoP. This cascades the causal chain.

Section 10(2) provides a limitation on the clinical worsening factors: they apply only to material contribution to or aggravation of tinea where the tinea was suffered or contracted before or during (but did not arise out of) the person's relevant service. This means if the tinea arose during service (e.g., from a foot wound), then the worsening factors are not needed; but if the tinea existed before service and was aggravated by service, the worsening factors must be related to service. This distinction can be crucial for timing.

This instrument does not itself create any penalties or offences. It is not a coercive law; it is a legislative rule that guides administrative decision-making. Enforcement is indirect: if a decision-maker fails to apply the instrument correctly, the claimant may seek merits review at the Veterans' Review Board or the Administrative Appeals Tribunal, or judicial review in the Federal Court on a question of law. The instrument can be challenged on the grounds that the Repatriation Medical Authority exceeded its power under s196B(2) of the VEA, or that the factors are not based on sound medical-scientific evidence. However, such challenges are rare and face a high threshold because the Authority has broad discretion.

The instrument replaces the previous SoP (No. 11 of 2015) and will itself be replaced when the Authority decides to issue a new version. There is no sunset clause; it continues until repealed. Non-compliance by a veteran (e.g., failure to provide evidence of a factor) will result in the claim being rejected, but that is not a penalty, it is a consequence of insufficient evidence. There are no criminal sanctions for misrepresenting a factor, though general fraud provisions in the VEA and Criminal Code could apply if a person knowingly makes a false statement in support of a claim.

The instrument creates no obligations on the Authority itself beyond specifying the factors. The Authority's statement in section 8 that it believes there is sound medical-scientific evidence is self-serving; it is not enforceable. A claimant cannot sue the Repatriation Medical Authority for setting factors that are too narrow or based on flawed science. The only remedy is to persuade the Authority to issue a new SoP, which is a political and administrative process, not a legal one.

The instrument operates within a larger legislative framework. It is made under subsection 196B(2) of the VEA, which empowers the Repatriation Medical Authority to determine Statements of Principles for the purposes of the reasonable hypothesis standard. That standard is set out in section 120A of the VEA (for operational service claims) and corresponding provisions in the MRCA (section 338). The instrument is not a standalone code; it is one piece of the evidence rules that decision-makers must apply. For example, if the claimant also has another condition, such as post-traumatic stress disorder, this SoP does not affect that claim, but if tinea is part of the claim, this SoP is binding.

The instrument explicitly interacts with other Statements of Principles through section 11. If a factor in section 9 refers to another injury or disease (e.g., diabetes mellitus, chronic renal failure, peripheral artery disease), then the factor is only established if the claimant satisfies the reasonable hypothesis standard for that other condition under its own SoP. This means that a veteran with tinea who also has diabetes must show that the diabetes is service-related under the diabetes SoP before the diabetes factor can be used to support the tinea claim. This creates a layered causation analysis that can be complex and resource-intensive.

The instrument also interacts with the general law of evidence and administrative law. The Veterans' Entitlements Act and MRCA contain provisions about standard of proof, burden of proof, and procedural fairness. The instrument does not alter those. It is also subject to the Legislation Act 2003 for tabling, disallowance, and scrutiny; it is a disallowable legislative instrument.

The consistency with the previous SoP (No. 11 of 2015) is unknown without a full comparison. The repeal means the old instrument no longer applies, but claims pending at commencement may be determined under the new instrument if not yet decided. Transitional provisions are not mentioned; presumably, the instrument applies to claims made after commencement or to decisions made after commencement on claims made earlier. This could create unfairness if a claim was filed under the old rules and the evidence did not address the new factors.

The only amendment history disclosed by the instrument is the repeal of the previous Statement of Principles concerning tinea (No. 11 of 2015) made under subsection 196B(2) of the VEA. That instrument was registered as F2014L01814. The new instrument is No. 55 of 2024 and commences on 23 July 2024. The instrument does not provide a transitional provision, so it presumably applies to any claim determined after commencement regardless of when the claim was lodged. There is no note explaining what changes were made from the 2015 version. Without the old text, one cannot tell which factors were added, removed, or modified. This lack of a legislative history note is a deficiency for practitioners trying to understand the change in policy. The instrument also does not refer to any earlier SoPs before 2015, so the lineage is unknown.

The Repatriation Medical Authority does not set out a schedule of amendments; it simply repeals and replaces. This is standard for SoPs. The instrument is not subject to a sunset clause or review date, so it will remain in force until the Authority determines another SoP. The Authority has a practice of periodically revising SoPs, but the cycle for tinea is not apparent.

This instrument is new as of 23 July 2024, so there is no litigation history directly concerning it. However, the previous SoP (No. 11 of 2015) may have been the subject of AAT or Federal Court decisions. Because the instrument does not cite any relevant cases, and because we must not invent, we cannot comment on specific disputes. More broadly, Statements of Principles are frequently litigated on grounds including: whether a factor has a sound medical-scientific basis; whether the Authority correctly applied the definition of "reasonable hypothesis"; and whether the decision-maker properly considered the factors. The Repatriation Medical Authority's findings of fact are generally given deference, but errors of law (e.g., misinterpreting "skin maceration" or "clinical worsening") can lead to decisions set aside. The instrument's definition of tinea and its exclusions may also generate disputes: for example, whether a precisely diagnosed tinea infection falls within the inclusions or exclusions. The note about Id reactions could be contentious.

If a claimant argues that their tinea is covered but the Commission says it is excluded (e.g., tinea amiantacea), the proper interpretation of subsection 7(2) will be central. Because the instrument is relatively new, practitioners will be watching for AAT guidance. The previous SoP's judicial history may provide analogies, but that is speculative.

Several provisions in this instrument may catch practitioners off guard. First, the definition of tinea excludes tinea versicolour, tinea nigra, tinea blanca, and other conditions. A veteran who has a fungal skin condition diagnosed broadly as "tinea" may actually have an excluded variant. The ICD-10-AM code B35 is a guide, but the definition controls. If the clinical notes say "tinea versicolour", the claim must be rejected even if the condition is similar. Second, the time windows are strict: for factor (1) (unprotected physical contact with infected sources), the contact must occur between 2 days and 3 weeks before clinical onset or worsening. If the contact was 4 weeks before onset, that factor does not apply. There is no allowance for incubation periods outside that range. Third, factor (12) is "inability to obtain appropriate clinical management for tinea before clinical worsening". This may be hard to prove because the claimant must show that clinical management was not obtained (e.g., due to lack of access during service). But note: this factor only applies to clinical worsening, not onset, and the inability must be before the worsening. If the veteran did not seek treatment, it may not count as "inability"; it could be a personal choice. The dictionary does not define "inability".

Fourth, factor (2) (skin maceration) requires maceration at the affected site between 2 days and 3 weeks before clinical worsening (not onset). The definition of skin maceration is "softening of the skin by soaking in aqueous liquids or sweat". This is a factual determination that may require medical evidence of maceration, such as from military training in wet conditions. The note provides examples (prolonged occlusive footwear, heavy sweating, prolonged water exposure) but those are not conclusive. Fifth, the clinical worsening factors (diabetes, lowered immune function, topical glucocorticoid, chronic renal failure, risankizumab/guselkumab, peripheral artery disease, chronic venous insufficiency, varicose veins, shaving) only apply if the veteran already had tinea that was either pre-existing or contracted during service but not arising out of service. If the tinea itself first arose during service, then those factors are irrelevant; only the contact factors or inability to obtain care would be relevant. This is easy to overlook.

Sixth, section 11 cross-references other SoPs. If a factor refers to diabetes, the diabetes must itself satisfy its own SoP. That may be difficult for older veterans who developed diabetes after service; the diabetes may not be accepted as service-related. This could make the tinea claim unprovable even if tinea itself is clearly service-related. Seventh, the note to subsection 7(2) says the SoP should be invoked separately for each instance of tinea. This increases the administrative burden: a veteran with tinea pedis and tinea corporis at different times may need to establish separate factors for each. Decision-makers must carefully delineate episodes.

Eighth, the term "unprotected physical contact" is defined only by examples; it includes contact sports and unarmed physical combat for contact with a person. But for animals, objects, surfaces, soil, or the same body, the meaning may be broader. "Unprotected" likely refers to absence of barrier clothing, but it is not defined. This ambiguity could lead to disputes. Ninth, factor (7) refers to risankizumab and guselkumab, which are biologic drugs used for psoriasis and other inflammatory conditions. They are listed as factors at the time of clinical worsening. This is very specific and may catch veterans who are on these medications and have tinea worsening. It is unclear why these two drugs alone are listed; other immunosuppressants (e.g., TNF inhibitors) are not, except through the general "substantially lowered immune function" factor, which requires a specific list. The list in factor (4) includes glucocorticoids (other than inhaled), solid organ transplant, stem cell transplant, and HIV, but not biologics like adalimumab. Factor (7) only covers two drugs. The omission of others may be intentional or an oversight. Practitioners should check if any other medication is causing immune suppression; it may need to be argued under factor (4)(b) if it is a glucocorticoid, but otherwise not.

Compliance with this instrument is not a matter of following a checklist of actions; rather, it is about ensuring that any claim for tinea or death from tinea is assessed in accordance with its terms. For a claimant, the path to compliance is to gather evidence that at least one factor in section 9 exists and that the factor is related to their relevant service. The practical steps are: (1) identify the specific location(s) and episode(s) of tinea; (2) obtain medical records confirming the diagnosis and the date of clinical onset or worsening; (3) for onset cases, find evidence of unprotected physical contact with an infected source within 2 days to 3 weeks before onset, including potential service exposures such as communal showers, contact sports, or soil contamination; (4) for worsening cases, collect evidence of one of the predisposing conditions (diabetes, immune suppression, chronic renal failure, etc.) and its temporal relationship; (5) for the "inability to obtain appropriate clinical management" factor, document the circumstances that prevented access to treatment (e.g., deployment to a remote area, lack of medical supplies, or combat operations). Claimants should be aware that clinical management includes antifungal treatment; inability might be shown by service records indicating no medical visits or by testimony that treatment was unavailable. However, the factor only applies to worsening, so the veteran must have had tinea before that period.

For decision-makers (delegates, VRB, AAT), compliance means applying the instrument literally. They should first confirm that the claimed condition falls within the definition in subsection 7(2) and is not excluded. Then they must examine each factor to see if there is any evidence to support it. If no factor is raised, they must reject the reasonable hypothesis. If a factor is raised, they must assess whether it is related to service under section 10. For worsening factors, they must also ensure that the tinea was suffered or contracted before or during (but did not arise out of) service. Decision-makers should be wary of the cross-referencing in section 11: if a factor involves another condition, they must apply that condition's SoP. They should also note the separate-invocation note for multiple instances. For claims of death from tinea, the terminal event must be one of the listed ones and contributed to by tinea.

Medical advisers preparing reports should address each potentially relevant factor in their written opinions. They should not simply opine on general causation but should consider the specified factors. For example, if the veteran had diabetes at the time of clinical worsening, the report should confirm the diabetes diagnosis and whether it meets the diabetes SoP. The adviser should also comment on timing: for contact factors, they should state whether the incubation period is plausible based on medical literature; but the instrument's time window is fixed, so if the evidence shows contact 4 weeks prior, it must be excluded.

Lawyers should be prepared to challenge decision-makers who fail to consider a factor or misinterpret a definition. They should also be alert to the possibility that the Authority's sound medical-scientific evidence claim can be contested, though this is difficult. For those advising the Department, ensuring consistency across claims is important; they should create internal guidelines on how to apply each factor, especially the ambiguous ones like "inability to obtain appropriate clinical management". They should also maintain a list of current SoPs for cross-referenced conditions.

There are no reporting or registration requirements under this instrument. Compliance is integrated into the claim determination process. The main cost is the time and effort to collect the necessary evidence, which may include obtaining records from decades earlier. For veterans with service in remote or hostile environments, contemporary medical records may be scarce, making factors like skin maceration or inability to obtain care difficult to prove. This could cause some legitimate claims to fail simply due to lack of documentary evidence, which is a compliance risk inherent in the instrument's design.