Statement of Principles concerning trigeminal neuralgia or trigeminal neuropathy (Balance of Probabilities) (No. 85 of 2024)

This instrument is a Statement of Principles (SoP) determined by the Repatriation Medical Authority under subsection 196B(3) of the Veterans' Entitlements Act 1986 (VEA). It sets out the medical‑scientific factors that must exist before a decision‑maker can find, on the balance of probabilities, that trigeminal neuralgia or trigeminal neuropathy (or death from either condition) is connected with the circumstances of a person’s relevant service for the purposes of the VEA or the Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument operates as a mandatory rule for claims to which section 120B of the VEA or section 339 of the MRCA apply. It replaces two earlier SoPs: the Statement of Principles concerning trigeminal neuropathy (No. 80 of 2015) and trigeminal neuralgia (No. 78 of 2015). The instrument commences on 19 November 2024.

Mechanically, the SoP defines two distinct clinical conditions - trigeminal neuralgia and trigeminal neuropathy - and then lists a series of factors (section 9) that must be present for a positive connection determination. The factors are specific: for example, vascular compression, mass lesions, multiple sclerosis, infections, dental/surgical trauma, radiation, trichloroethylene exposure, or inability to obtain appropriate clinical management. Each factor includes time windows linking the factor to clinical onset or worsening (e.g., within 3 months, 6 months, 30 days). The instrument also provides that a factor must be related to the person’s relevant service, and that clinical worsening factors apply only where the condition was suffered or contracted before or during (but did not arise out of) relevant service. The SoP includes a dictionary defining key terms, including “relevant service” (eligible war service other than operational service, defence service other than hazardous service, or peacetime service under the MRCA) and “terminal event” for death claims.

The instrument does not create new rights or duties outside the claims process. It functions as a delegated legislative instrument that constrains the discretion of decision‑makers in the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission. It does not directly regulate private conduct or impose obligations on individuals; rather, it prescribes the medical evidence that must be considered when assessing a claim. The practical effect is that a veteran or member cannot rely on a general medical opinion alone - they must satisfy at least one of the enumerated factors, with the factor itself being related to service and supported by evidence.

The SoP defines two separate but related conditions: trigeminal neuralgia and trigeminal neuropathy. Trigeminal neuralgia is a clinical facial pain syndrome with recurring paroxysmal attacks of severe, electric shock‑like pain in the distribution of one or more trigeminal nerve divisions, precipitated by innocuous stimuli, lasting a fraction of a second to two minutes. It includes classical and secondary forms. It explicitly excludes dental/periodontal pain, facial presentations of primary headache disorders, glossopharyngeal neuralgia, postherpetic neuralgia, SUNCT, and trigeminal neuropathy. Trigeminal neuropathy is continuous or near‑continuous facial pain characterised by burning, squeezing, aching or pins and needles in the trigeminal distribution, and/or symptoms or signs of impaired motor, sensory or autonomic functioning. It includes neuropathy confined to the trigeminal nerve, neuropathy with other cranial nerve disorders, and trigeminal sensory neuropathy. It excludes persistent idiopathic facial pain and trigeminal neuralgia. Both definitions include clinical notes about the trigeminal nerve anatomy and function.

Factor is the core concept in section 9. There are 23 factors (including sub‑factors) that must exist at least one before a connection can be found. Factors are grouped by mechanism: barotrauma, traumatic injury, dental/surgical/laser injury, treatment procedures for trigeminal neuralgia (such as gamma knife radiosurgery or microvascular decompression), therapeutic radiation, osteoradionecrosis, bisphosphonate‑related osteonecrosis, vascular compression, mass lesions, cervical spine conditions, inflammatory connective tissue diseases, sarcoidosis, infections (including specific bacterial, fungal, viral infections), acute herpes zoster, multiple sclerosis, Charcot-Marie-Tooth disease, cerebrovascular accident (stroke involving brainstem), trichloroethylene exposure (either cumulative or acute intoxication), and inability to obtain appropriate clinical management.

Relevant service is defined restrictively: under the VEA it means eligible war service (other than operational service) or defence service (other than hazardous service and British nuclear test defence service); under the MRCA it means peacetime service. This is important because the SoP applies only to these categories of service - claims relating to operational service or hazardous service fall under a different standard of proof (reasonable hypothesis) and different SoPs. The instrument does not cover those.

and are not explicitly defined in the dictionary but are used throughout the factors with specific timeframes (e.g., “within the 3 months before clinical onset or clinical worsening”). The distinction matters: clinical worsening factors in section 9 apply only where the condition was suffered or contracted before or during (but did not arise out of) the person’s relevant service (section 10(2)). So if a person already had trigeminal neuralgia before service, a worsening factor could support a claim for aggravation, but they must show the factor itself is related to service.

The instrument directly affects veterans and members of the Australian Defence Force (ADF) making claims under the VEA or the MRCA for trigeminal neuralgia or trigeminal neuropathy, and their dependants in death claims. Specifically, it applies to claims where the standard of proof is the balance of probabilities, meaning claims related to eligible war service (other than operational service), defence service (other than hazardous service), and peacetime service under the MRCA. These categories typically cover peacetime service, reserve service, and non‑operational deployments. It does not apply to claims relating to operational service (where the standard is reasonable hypothesis) or hazardous service/ British nuclear test defence service - those are governed by separate SoPs (presumably the “reasonable hypothesis” versions, though they are not referenced in this instrument).

The instrument also indirectly affects medical practitioners who provide reports for claims, as they need to be aware of the defined conditions and the specific factors when formulating opinions. It affects claims decision‑makers in the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission, who must apply the SoP strictly unless they reject it on a reasonable hypothesis basis for operational service claims (but that is outside this instrument’s scope). The SoP is binding for balance‑of‑probabilities determinations.

The instrument does not affect private health insurance or workers’ compensation claims outside the military compensation systems. However, it may influence medical assessment guidelines used by other tribunals or courts by providing a reference point for what constitutes accepted medical‑scientific factors for causation.

The instrument’s repeal of the 2015 SoPs means that previous decisions made under those instruments are not automatically invalidated, but new claims from 19 November 2024 must be assessed under this instrument. Applicants with pending or unresolved claims may be affected if their claim is decided after commencement.

The instrument does not affect the general public or most healthcare providers directly, but it defines the clinical boundaries between trigeminal neuralgia and neuropathy in a way that might be cited in other contexts (e.g., clinical practice guidelines). However, the definitions are specifically for the purposes of this SoP and the Acts it references.

The instrument does not impose duties on private individuals; rather, it sets out duties on decision‑makers. Under section 120B of the VEA and section 339 of the MRCA, the relevant decision‑maker (the Repatriation Commission, the Military Rehabilitation and Compensation Commission, or a delegate) must determine that a condition is related to service if the SoP’s factors are satisfied, unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (for balance‑of‑probabilities claims). The duty is to apply the SoP as a mandatory consideration.

For a claimant, the right is to have their claim assessed under the correct SoP. They do not have a duty to provide evidence, but to succeed they must demonstrate at least one factor from section 9 exists and that the factor is related to their relevant service. The instrument gives the claimant the right to rely on the enumerated factors, but also restricts them from relying on other causal factors not listed (the SoP is exhaustive for the balance‑of‑probabilities standard). There is a potential escape: if the claimant’s condition is not covered by the definitions (e.g., if the pain does not meet the paroxysmal or continuous criteria), the SoP does not apply and the general provisions of the VEA/MRCA would govern.

The instrument also creates a right for claimants to argue that inability to obtain appropriate clinical management (factor 12(j) or (k)) is the operative factor. This factor is unique because it does not require a specific medical event; it is a systemic factor. However, it only applies to clinical worsening, not initial onset. So a claimant who developed trigeminal neuralgia during service but could not get treatment and worsened could rely on this factor, but must show that the inability to obtain management is related to service (e.g., because of remote posting, lack of medical resources, or service‑related barriers).

The instrument gives the Repatriation Medical Authority the power to determine such SoPs under section 196B(3). It also implicitly creates a duty on the Authority to base its determinations on sound medical‑scientific evidence, which it states it has done.

There is also a duty on the decision‑maker to apply the SoP in accordance with its terms, noting that if a factor refers to an injury or disease covered by another SoP (section 11), then the factors in that other SoP apply as in force from time to time. This creates a dynamic referencing system, meaning a decision‑maker must check whether a factor involves a condition (e.g., multiple sclerosis, stroke) and then apply that condition’s own SoP to determine if it is related to service.

This instrument does not itself impose penalties. It is a Statement of Principles made under the VEA, and it does not create criminal offences or civil penalties. Enforcement mechanisms are found in the VEA and MRCA, not in this instrument.

However, there are indirect consequences for non‑compliance by decision‑makers. If a decision‑maker fails to apply the SoP correctly, their decision may be set aside on review by the Veterans’ Review Board or the Administrative Appeals Tribunal. In extreme cases, a decision‑maker could be subject to administrative sanctions for failing to follow a mandatory direction. But the SoP itself does not contain penalty provisions.

For claimants, there is no penalty for making a false claim - the VEA contains its own offence provisions for fraud and false statements (e.g., section 207 of the VEA makes it an offence to make a false or misleading statement to obtain a benefit). Those provisions apply independently of this SoP. The SoP simply defines the medical criteria for a valid claim.

The instrument is a legislative instrument and is subject to disallowance by either House of Parliament (under the Legislation Act 2003). The Act it is made under provides for judicial review if the Authority acted outside power or the instrument is ultra vires. But these are general constitutional enforcement mechanisms, not specific to this SoP.

The practical enforcement risk is to the claimant: if they cannot satisfy one of the factors, their claim will be refused. This is not a penalty, but a strict evidentiary requirement. The instrument does not offer any waivers or alternatives.

The instrument is subordinate to the VEA and the MRCA. Section 3 states it is made under subsection 196B(3) of the VEA. Section 5 limits its application to claims under sections 120B of the VEA or 339 of the MRCA. It does not apply to claims under other provisions (e.g., section 120 for operational service, where the reasonable hypothesis standard applies). For operational service claims, the Authority has determined separate SoPs under subsection 196B(2). This SoP is the “balance of probabilities” counterpart for non‑operational service.

The instrument interacts with other Statements of Principles through section 11. If a factor (e.g., having multiple sclerosis) refers to an injury or disease for which another SoP has been determined under subsection 196B(3), then the factors in that other SoP apply. This means a decision‑maker must effectively apply two SoPs: one for the trigeminal condition and one for the intermediate condition (e.g., MS). The other SoP must be the one in force at the time of decision, as it says “as in force from time to time.”

The instrument’s definitions of trigeminal neuralgia and neuropathy reference ICD‑10‑AM codes (G50.0 for trigeminal neuralgia, and presumably for neuropathy it would be G50.8 or G50.9, though not stated). The instrument says it is not bound by the ICD code - the meaning in subsection 7(2) prevails. This means the clinical definition is paramount, not the classification code. If a medical report uses a different code, it may be disregarded if the clinical features match the SoP’s definition.

The instrument repeals the 2015 SoPs (No. 80 of 2015 and No. 78 of 2015) from its commencement date. Those instruments no longer have effect for new claims. However, any claims finalised under the old SoPs remain valid. Appeals from pre‑commencement decisions may still be decided under the old SoPs if the original decision was made before commencement, depending on transitional provisions in the VEA (not contained in this instrument).

The dictionary defines “relevant service” by reference to VEA categories: eligible war service (other than operational service) and defence service (other than hazardous and British nuclear test defence service). It also includes peacetime service under the MRCA. This means the instrument does not apply to hazardous service (e.g., service in a specified hazardous area, or British nuclear tests) - those would be covered by a separate SoP under the higher standard.

The instrument does not interact with state workers’ compensation laws, private insurance, or tort law. It is exclusive to the Commonwealth military compensation system.

This instrument is a new, standalone Statement of Principles. It has no amendment history because it is an original instrument as of 18 October 2024. It will be registered on the Federal Register of Legislation. The instrument itself contains a repeal clause (section 4) that revokes the earlier SoPs: Statement of Principles concerning trigeminal neuropathy (No. 80 of 2015) and trigeminal neuralgia (No. 78 of 2015). Those were made under subsection 196B(3) as well. The instrument does not explain why the earlier ones were replaced - the Authority presumably determined that new sound medical‑scientific evidence justified a new instrument.

The instrument’s commencement date is 19 November 2024, 31 days after the date of making. This is typical to allow for disallowance period and publication.

The instrument does not contain any transitional provisions, savings, or grandfathering for pending claims. However, section 5 states it applies to a claim to which sections 120B of the VEA or 339 of the MRCA apply. That would include claims made before commencement but not yet decided? The instrument does not explicitly say. The general rule under the Acts Interpretation Act is that instruments apply to future acts and matters unless contrary intent appears. A claim is a “matter” - the decision would be made after commencement, so the new SoP would apply. This creates potential unfairness if a claimant had prepared evidence under the old factors and the new factors are different. For example, the old trigeminal neuropathy SoP (No. 80 of 2015) might have had different factors; the new instrument may have added or removed factors. A claimant who satisfied a factor under the old SoP but not under the new may be prejudiced. The instrument does not address this.

The new SoP combines two previously separate SoPs (one for trigeminal neuralgia, one for trigeminal neuropathy) into one instrument covering both conditions. The structure is unified, with separate sub‑definitions. This simplifies administration.

The source text does not reference any court or tribunal decisions. As a legislative instrument, it has no litigation history itself. However, previous SoPs have been the subject of litigation in the AAT and Federal Court, usually concerning whether the Repatriation Medical Authority complied with its statutory duty to base the SoP on sound medical‑scientific evidence, or whether a specific factor was supported. For example, in Repatriation Commission v Hill (2002) 69 ALD 581, the Federal Court considered the role of SoPs. But that is not mentioned in this instrument.

We cannot invent litigation history. The instrument is new (commencing November 2024), so there is no litigation specific to it. Users should be aware that the instrument may be challenged if an affected party claims the Authority did not have sound evidence for a particular factor, or that the definition is ultra vires. The factors in section 9 are detailed, and some involve controversial causal associations (e.g., trichloroethylene exposure, cervical disc prolapse at C4 or above). Future litigation may test these.

1. Definitional traps: The instrument sharply distinguishes trigeminal neuralgia from trigeminal neuropathy. A misdiagnosis can lead to the wrong set of factors being considered. Claimants with mixed features may need to argue which condition is dominant. The definitions are clinical and include exclusions; if a condition fits an exclusion (e.g., persistent idiopathic facial pain), the SoP does not apply at all, and the claim would be assessed under general law.

2. Time windows: Almost every factor includes a specific period before clinical onset or worsening (e.g., “within the 3 months”, “within the 30 days”). A claimant who contracted trigeminal neuralgia from a head injury but the injury occurred 4 months before onset would not satisfy factor 9(2) (traumatic injury within 3 months). The time windows are strict and do not have flexibility. This creates high risk for claims where the causal event is distant.

3. Clinical worsening only for some factors: Factors 12(j) and (k) (inability to obtain appropriate clinical management) apply only to clinical worsening, not initial onset. Also, section 10(2) states that clinical worsening factors apply only where the condition was suffered or contracted before or during (but did not arise out of) relevant service. So a person who first developed the condition during service cannot rely on a worsening factor; they must rely on an onset factor. This is a subtle trap.

4. “Related to relevant service” requirement: Even if a factor exists, it must be related to the person’s relevant service (section 10(1)). For example, a veteran may have multiple sclerosis (factor 9(17)) which causes trigeminal neuralgia, but if the multiple sclerosis is not related to service, the factor does not help. The veteran would need to meet the SoP for multiple sclerosis to establish its service connection.

5. Death claims: Death from trigeminal neuralgia or neuropathy is included (section 7(5)), but only if the death is from a terminal event contributed to by the condition. The dictionary defines terminal events as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. A death from an unrelated cause (e.g., motor vehicle accident) would not be covered even if the person had the condition. The condition must have contributed to the terminal event.

6. Factor 9(4) lists procedures for treating trigeminal neuralgia that can themselves cause trigeminal neuropathy within 2 years. This means a person who undergoes gamma knife radiosurgery for neuralgia could later claim neuropathy as a service‑related condition if the procedure was done to treat a service‑related neuralgia. But the factor applies only to neuropathy, not to worsening of neuralgia.

Compliance with this instrument is not about obeying it directly; it is about satisfying its evidentiary requirements for a successful claim. For a practitioner advising a veteran or member, the process is:

1. Diagnosis confirmation: Obtain a specialist diagnosis that matches the definition in section 7(2) precisely. For trigeminal neuralgia, the pain must be paroxysmal, electric shock‑like, precipitated by innocuous stimuli, lasting seconds to 2 minutes, in trigeminal distribution. For trigeminal neuropathy, the pain must be continuous or near‑continuous, burning/squeezing/aching/pins and needles, with or without sensory/motor signs. Exclude the listed differentials.

2. Identify the factor: Review section 9 and identify which factor(s) could apply. Gather evidence for the specific time windows. For example, if the person had a dental extraction within 3 months before onset of trigeminal neuropathy, factor 9(3) may apply. Obtain dental records, surgical notes, imaging.

3. Establish service connection: For each factor, show that the underlying event or condition is related to the person’s relevant service. For peacetime service, this might mean the injury occurred during service, or exposure occurred due to service duties. For defence service (e.g., during training), similar. The factor itself must be related to service - not just the trigeminal condition.

4. Use the dictionary: Confirm that the person’s service qualifies as “relevant service” under the dictionary (eligible war service other than operational, defence service other than hazardous, or peacetime service). If the service is operational or hazardous, this SoP does not apply - use the reasonable hypothesis SoP instead.

5. Address clinical worsening: If claiming worsening of a pre‑existing condition, ensure section 10(2) is satisfied. The person must have had the condition before or during service (but not arising out of service). The factor causing the worsening must be related to service. Note that factors 12(j) and (k) are the only factors that explicitly mention worsening as a standalone basis; other factors apply to both onset and worsening, but the worsening aspect is still subject to section 10(2).

6. Coordinate with other SoPs: If the factor relies on another disease (e.g., multiple sclerosis, stroke), that disease itself must be service‑related under its own SoP (as per section 11). Obtain a separate service connection determination for that disease, following the requirements of its SoP.