Statement of Principles concerning aortic stenosis (Balance of Probabilities) (No. 14 of 2022)

The instrument is built around several interlocking concepts that any practitioner must understand to apply it correctly.

Clinical onset versus clinical worsening. The SoP treats the first manifestation of aortic stenosis differently from later aggravation. Factors 1-10 relate to clinical onset; factors 11-23 relate to clinical worsening. This bifurcation matters because the timing requirements differ. For onset, the factor must exist before the clinical onset. For worsening, the factor must exist before the clinical worsening, but section 10(2) further restricts that these worsening factors apply only if the aortic stenosis was suffered or contracted before or during (but did not arise out of) relevant service. This means a person whose aortic stenosis first manifested during service can only rely on the onset factors, not the worsening factors. Conversely, a person with pre-service aortic stenosis who claims aggravation must satisfy one of factors 11-23.

Balance of probabilities. The instrument is made under the balance of probabilities standard (subsection 196B(3) of the VEA). This means the claim succeeds if it is more probable than not that the disease is connected to service. This is a lower threshold than the reasonable hypothesis standard used for operational service. The SoP itself is grounded on the Authority’s view that “it is more probable than not that aortic stenosis … can be related to relevant service” (section 8). The closed list of factors reflects the Authority’s assessment of the sound medical-scientific evidence. The instrument does not allow decision-makers to consider other causal pathways, even if supported by expert evidence, unless a factor in the SoP is engaged.

Relevant service. This term is defined restrictively in the dictionary. It means eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. The effect is that this SoP does not apply to claims involving operational service or hazardous service, which are governed by separate SoPs under a different standard of proof. The instrument also does not apply to most peacetime injuries that do not fall within the definition. This can be a trap for claims where the service category is ambiguous.

Factor relationship to service. Section 10(1) requires that the existence of any factor in section 9 must itself be related to the person’s relevant service. It is not enough to have, say, hypertension; the hypertension must have been caused or contributed to by service. To prove that, the claimant may need to rely on another SoP (for hypertension) or on direct evidence, such as service-related stress causing high blood pressure. This two-step causal analysis significantly increases the evidentiary burden.

Dictionary definitions. Several factor conditions are defined with precise thresholds. “Chronic kidney disease” requires a glomerular filtration rate below 60 mL/min/1.73m² for at least three months, or albuminuria for at least three months, or kidney damage from biopsy or imaging, or a kidney transplant. “Dyslipidaemia” is defined by specific serum lipid cut-offs or the regular administration of drug therapy. “Being overweight or obese” uses either a BMI of 25 or greater or specific waist circumference thresholds (94 cm for males, 80 cm for females). The instrument also defines “pack-year” with an equivalency for tobacco weight, and “cumulative equivalent dose” with a reference to an ARPANSA guide. These definitions give little room for medical opinion, and a veteran whose condition narrowly misses the numeric threshold will fail the factor even if a clinician believes the condition is causative.

Severe aortic stenosis is defined for the limited purpose of factor 22 (surgery within 30 days before worsening). It requires a maximum aortic velocity of at least 4 metres/second, a mean pressure gradient of at least 40 mmHg, or an aortic valve area of 1.0 cm² or less. This ensures the surgery factor only applies to those with objectively severe disease, not to milder cases where surgical intervention might still occur.

The primary population affected by this instrument is current and former members of the Australian Defence Force who have rendered “relevant service” as defined. This excludes those who served on operational service, hazardous service, or British nuclear test defence service - those categories are covered by separate SoPs with a reasonable hypothesis standard. The instrument therefore most directly affects veterans with peacetime service, non-operational war service, or defence service (e.g., peacetime training, garrison duties). It also affects members covered by the MRCA for peacetime service.

Claimants and their legal or claims advisers bear the immediate practical burden. They must identify which factor, if any, applies to the individual’s clinical history, and then gather evidence linking that factor to service. This often requires obtaining decades-old medical records, smoking histories, weight records, and evidence of exposure to radiation or other hazards. The precision of the definitions - e.g., 15 pack-years, 5 years of obesity within 20 years before onset - demands high-quality data that may not exist or may be imprecise.

Decision-makers within the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission are bound by this SoP. They cannot apply a looser standard or accept a medical opinion that proposes a causal pathway not listed. This constrains their discretion but also provides clarity: if no factor exists, the claim is refused. The Repatriation Medical Authority itself is the author, and its determination of the factors is based on its view of the sound medical-scientific evidence, which is not open to challenge on the merits in individual claims.

Medical practitioners who provide evidence for claims must understand the definitions. A doctor’s letter stating “the veteran has chronic kidney disease” will not suffice unless it meets the specific criteria (GFR, albuminuria, or other markers) and can be dated to show it existed at the time of onset or worsening. Similarly, a diagnosis of dyslipidaemia must be matched against the numerical thresholds in the dictionary. Practitioners may need to produce lab results, not just clinical impressions.

The instrument also indirectly affects the broader veterans’ compensation system by standardising causation for one condition. It reduces the scope for individual medical judgment and increases the role of administrative rule-following. This can lead to outcomes that appear harsh: a veteran with a plausible service-related cause that does not fit any factor will be denied, while a veteran with a weaker claim that does fit a factor (and can be linked to service) will succeed.

The instrument creates a structured decision-making framework. A claimant has the right to have their aortic stenosis claim assessed against the factors in section 9. If at least one factor exists and that factor is related to relevant service, the decision-maker must find that the disease is connected to service on the balance of probabilities. Conversely, a decision-maker must refuse the claim if no factor is established or if the factor cannot be linked to service.

Duty to apply the SoP correctly. Section 120B of the VEA and section 339 of the MRCA require that the relevant authority apply any applicable Statement of Principles. This is a statutory duty. A decision-maker who fails to consider the SoP, misapplies a definition, or incorrectly determines the timing of clinical onset acts in error of law and the decision may be set aside on review.

Duty to consider all relevant evidence. The factors include both objective thresholds (e.g., BMI, pack-years, lab values) and clinically described conditions (e.g., infective endocarditis, systemic autoimmune disease). The decision-maker must weigh all evidence, but the closed nature of the factors means that expert opinion on causation outside the list is irrelevant. This can create a tension: the medical evidence may strongly support a direct causal link, but if it does not fit a factor, the claim fails.

Rights of review. A claimant who is dissatisfied with a decision can seek review by the Veterans’ Review Board and then the Administrative Appeals Tribunal. The AAT can review the merits of the decision, but it is bound by the SoP itself. The AAT cannot vary the factors or definitions; it can only determine whether the evidence establishes that a factor exists and is service-related. Questions of law, such as whether the decision-maker correctly interpreted a definition, can be appealed to the Federal Court.

Burden of proof. The claimant bears the burden of proving on the balance of probabilities that a factor exists and is service-related. This is a civil standard, but it is not trivial. The instrument’s precise definitions mean that ambiguous or incomplete medical records may result in a failure of proof. For example, if the claimant’s weight records are sporadic, the decision-maker may not be satisfied that obesity persisted for at least 5 years within the 20 years before onset. Similarly, smoking history must be quantified in pack-years; a vague “I smoked for many years” will not suffice.

Inability to obtain appropriate clinical management. Factor 23 (for worsening) and factor 10 (for onset - it appears as factor 23 for worsening and factor? Actually factor 10 is for onset and factor 23 for worsening; read carefully: factor 10 is for onset? Section 9(10) is therapeutic radiation for onset, and factor 9(23) is inability to obtain appropriate clinical management for worsening. But note: factor 23 is under the worsening sub-list. There is no equivalent onset factor for inability to obtain appropriate clinical management. That means a person who never had appropriate clinical management and therefore developed more severe stenosis cannot use this factor for the initial onset; only for worsening after onset. This is a subtle but important limitation. The instrument also does not define “appropriate clinical management”, leaving it to case-by-case interpretation. This factor is likely to be controversial because it can cover system failures, delays in diagnosis, or lack of access to surgery, but it must be service-related.

The instrument itself does not create penalties. It is a rule of entitlement, not a prohibition. However, enforcement mechanisms exist in the broader statutory framework. False or misleading statements made in support of a claim can attract penalties under the VEA (section 196X for false statements) or under the Criminal Code. A claimant or medical practitioner who knowingly provides false evidence to meet a factor (e.g., fabricated smoking history or lab results) risks prosecution.

Decisions made under this instrument are enforceable through the review system. If a decision-maker refuses a claim in error, the claimant can seek a review and, ultimately, a court order requiring the decision to be remade correctly. Conversely, a decision that wrongly grants benefits based on a misinterpretation of the SoP can be corrected on review or appeal.

The Repatriation Medical Authority is not subject to penalties for making an SoP that is under-inclusive or that does not reflect current medical evidence. The SoP can only be changed by a new determination. There is no mechanism for individual claimants to challenge the validity of the SoP itself (except on narrow jurisdictional grounds, such as ultra vires). This means that if the medical science evolves to recognise new risk factors not listed, veterans with those factors will continue to lose claims until the Authority issues a new instrument.

The practical “enforcement” reality is that the SoP operates as a gatekeeper. Thousands of claims are processed annually, and the instrument reduces the number of successful claims by excluding pathways not on the list. This has a fiscal effect: fewer payouts. But it also imposes a compliance cost on all claimants, who must invest time and money in gathering the specific evidence needed, even if they ultimately fail.

The SoP sits within a layered statutory scheme. It is made under subsection 196B(3) of the VEA, which gives the Repatriation Medical Authority power to determine Statements of Principles for the balance of probabilities standard. The instrument applies to claims under section 120B of the VEA (for eligible war service and defence service) and section 339 of the MRCA (for peacetime service). It does not apply to claims under the reasonable hypothesis standard for operational service or hazardous service; those claims are governed by SoPs made under subsection 196B(2) or separate provisions.

Section 11 of the instrument provides that if a factor refers to an injury or disease for which another Statement of Principles exists, then that other SoP applies. This is a key interaction. For example, factor 9(3) requires “having chronic kidney disease at the time of the clinical onset of aortic stenosis”. Chronic kidney disease is defined in the dictionary, but to prove that chronic kidney disease is related to service, the claimant may need to rely on the SoP for chronic kidney disease (if one exists). This creates a chain: the aortic stenosis SoP is the primary instrument, but it incorporates other SoPs for intermediate conditions. Practitioners must identify the correct instrument for each intermediate condition and ensure that its factors are met.

The instrument also interacts with the ICD-10-AM coding system. Section 7(3) notes that aortic stenosis attracts codes I35.0 or I35.2, but the meaning is not tied to the codes; the definition in subsection 7(2) is controlling. This prevents a pure coding-based claim. A medical certificate that simply notes the code will not be sufficient; the clinical features must match the instrument’s definition.

The SoP interacts with the general law of evidence and administrative law. The Administrative Decisions (Judicial Review) Act 1977 may apply to decisions under the VEA and MRCA, so a decision-maker who misapplies the SoP can be challenged. The SoP also affects the operation of the “reasonable hypothesis” standard indirectly, because a factor that fails on balance of probabilities may still be sufficient for a reasonable hypothesis in operational service claims, but that is governed by a different instrument.

State workers’ compensation laws and common law claims are not directly affected, because the instrument only applies to Commonwealth veterans’ compensation. However, the SoP’s definitions of conditions like chronic kidney disease or dyslipidaemia might be referenced by expert witnesses in other proceedings, but it has no binding force there.

The instrument repeals the Statement of Principles concerning aortic stenosis No. 22 of 2013 (F2013L00719). The 2013 instrument was also made under subsections 196B(3) and (8) of the VEA. The 2022 instrument updates the factors, definitions, and medical science. There is no section-by-section summary of changes in the provided text, but the mere fact of repeal and replacement indicates that the Authority considered the sound medical-scientific evidence had evolved since 2013.

The 2022 instrument commences on 31 January 2022. Any claim that was finally determined before that date would have been assessed under the 2013 instrument. Claims lodged or yet to be determined as at 31 January 2022 are assessed under the new instrument. This timing can cause transitional difficulties: if a claim was lodged in 2021 but evidence is gathered after the new SoP commences, the factors from the new instrument apply even if the medical events occurred years earlier. There is no grandfathering.

The Authority’s power to repeal and replace is part of its ongoing function to ensure SoPs reflect current evidence. This creates a risk for claimants who might have satisfied a factor under the old instrument but no longer satisfy the new one (or vice versa). For instance, the threshold for some factors may have changed. The only way to know the content of the 2013 instrument is to locate the repealed text, which the instrument does not provide. Practitioners must be careful to check the date of commencement of any claim.

The instrument also includes a note that the dictionary definitions may be updated by reference to external documents (e.g., the ARPANSA guide for cumulative equivalent dose). If that guide is amended, the reference in the instrument is to the version in force on 2 August 2017, by the text of the instrument. This means the instrument is static; it does not automatically incorporate future amendments to the ARPANSA guide. A change to the guide would require a new SoP to take effect. This is a common legislative drafting choice to avoid incorporation by reference of future amendments, but it means the methodology for dose calculation is frozen as at August 2017.

The source text does not name any specific court or tribunal cases. However, as a general matter, Statements of Principles have been the subject of litigation in the Administrative Appeals Tribunal and the Federal Court. Claims under the VEA and MRCA often involve disputes over the interpretation of definitions, the timing of clinical onset, and the service relationship of factors. The closed factor approach has been challenged as potentially inconsistent with the statutory requirement that the SoP be based on “sound medical-scientific evidence”. Courts have generally deferred to the Authority’s determination provided it is not irrational or capricious.

Given that this is a new instrument (2022), there is unlikely to be direct litigation on its specific terms yet. However, practitioners can expect disputes over the following: whether a condition meets the definition of aortic stenosis (particularly the exclusion of rheumatic and congenital forms); whether a person had “chronic kidney disease” as defined (e.g., whether albuminuria was present for three months); whether smoking cessation occurred within 20 years of onset; and whether a claimant genuinely could not obtain appropriate clinical management.

The “inability to obtain appropriate clinical management” factor (factor 23) is likely to be a fertile area for litigation because it is vague and undefined. Claimants may argue that a delay in diagnosis or a lack of specialist services in a remote posting constituted an inability. Decision-makers will need to determine what “appropriate” means in the context of the person’s service and whether the inability was due to service circumstances.

The instrument also creates the possibility of “chain” claims under section 11, where the intermediate condition’s SoP is itself litigated. For example, if a claimant relies on having “hypertension” before the clinical onset of aortic stenosis, the SoP for hypertension (if one exists) will determine whether that hypertension is service-related. Litigation over the hypertension SoP then affects the aortic stenosis claim indirectly.

Several features of this instrument regularly trip up claimants and practitioners.

• The exclusion of rheumatic and congenital aortic stenosis is categorical. Even if a person has clear evidence that rheumatic fever was contracted during service (e.g., while stationed in a barracks outbreak), the claim will be denied because the definition of aortic stenosis in the SoP does not cover rheumatic disease. The same applies to congenital bicuspid valve, which is a common cause of aortic stenosis in younger people. The only way around this is to argue that the condition is not “aortic stenosis” as defined, which would take the claim outside the SoP entirely - but then the standard of proof may revert to general causation, which is harder for the claimant.

• Timing traps for smoking. Factor 8 (onset) and factor 18 (worsening) require that smoking be at least 15 pack-years. But they also require that if smoking ceased before clinical onset, the onset occurred within 20 years of cessation. This means a claimant who quit smoking 25 years before their aortic stenosis was diagnosed cannot rely on that factor, even if they had a 30 pack-year history. The 20-year window is strict. Claims involving past heavy smokers who stopped many years ago will fail unless another factor applies.

• Overweight/obesity requires 5 years within 20 years. Factor 7 (onset) and factor 17 (worsening) require being overweight or obese for at least 5 years within the 20 years before clinical onset. A person who was obese for only 3 years, or who was obese for 10 years but that ended 21 years before onset, will not meet the factor. Weight records from decades ago are often unavailable, making this factor difficult to prove.

• Chronic kidney disease definition requires duration. The definition requires the GFR threshold or albuminuria to be present for at least 3 months. A single lab test below 60 mL/min/1.73m² is not enough; the condition must be persistent. Claimants with acute kidney injury or transient reduction will not qualify.

• Cumulative equivalent dose calculation methodology. Factor 9 and 19 require at least 1.0 sievert of ionising radiation to the heart. The calculation must follow the ARPANSA guide, which is referenced as in force on 2 August 2017. This is a complex technical exercise that often requires expert assessment. Many claimants will not have records of their exact radiation exposure, especially from medical procedures years ago. The note lists examples (nuclear weapons testing, medical procedures, aircrew exposure), but proving the cumulative dose to the required standard is onerous.

• Pregnancy factor only for clinical worsening and within 6 weeks. Factor 21 applies only to clinical worsening, not onset, and only if pregnancy occurred within 6 weeks before the worsening. This timeframe is very short and will rarely be met, unless the worsening occurs during the immediate postpartum period. It is a narrow factor included perhaps for completeness.

• Surgery factor only for severe aortic stenosis. Factor 22 applies only for symptomatic or severe aortic stenosis and requires surgery within 30 days before worsening. The definition of severe aortic stenosis is specific (aortic velocity ≥4 m/s, mean gradient ≥40 mmHg, valve area ≤1.0 cm²). Many surgical patients may have moderate stenosis and still undergo surgery for other reasons. They will not satisfy this factor. Also, the factor applies only to worsening, not onset. If a person develops aortic stenosis for the first time after surgery (e.g., due to anaesthetic stress), that is not covered.

• Inability to obtain appropriate clinical management. This factor is broad but demands proof of a systemic or service-related failure. It is not enough that the claimant chooses not to seek treatment; there must be an inability. The factor does not define “inability”, so decision-makers will look at whether clinical management was reasonably available. Veterans in remote postings or with service-related barriers might succeed, but most will not.

• Relevant service limitation. The instrument only applies to certain categories of service. Many claimants will have mixed service histories (e.g., some operational and some non-operational). The decision-maker must determine which service rendered is relevant and whether the factor relates to that part of service. This can lead to complex factual inquiries.

• Dictionary definitions are controlling. The instrument defines “BMI” as weight divided by height squared, but does not specify which measurement (self-reported vs measured). Similarly, “one pack-year” uses a fixed equivalent of 7,300 grams of tobacco. A claimant who rolled their own cigarettes may have a different weight. The decision-maker must apply the mathematical formula, not clinical impressions.

Compliance with this instrument is a matter of evidence gathering and careful argument. For claimants, the starting point is to obtain a definitive diagnosis of aortic stenosis that meets the definition in section 7(2). This means ensuring that the diagnosis excludes rheumatic heart disease, congenital stenosis, and supravalvular or subvalvular obstruction. An echocardiogram report stating the maximum aortic velocity and pressure gradient should be obtained.

Next, the claimant must identify which of the 23 factors might apply. For each factor, the claimant needs to establish:

• The factor existed (e.g., hypertension, smoking, radiation exposure).
• The timing: the factor must be before the clinical onset (for factors 1-10) or before the clinical worsening (for factors 11-23), and for some factors there are additional windows (e.g., smoking cessation within 20 years).
• The factor is related to relevant service. This is the most difficult step. For example, if the factor is hypertension, the claimant must prove that the hypertension was caused or contributed to by service. That may require a separate SoP for hypertension or direct evidence of service-related stress or injury.

For death claims, the claimant must prove that aortic stenosis contributed to a terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function). The death certificate and medical records should indicate the chain of causation.

For worsening claims, the claimant must first establish that the aortic stenosis existed before or during service but did not arise out of service. This may be proved by pre-service medical records or by a history of symptoms. Then the worsening factor must be linked to service.

Medical evidence is critical. Claimants should collate:

• Detailed smoking history: start and stop dates, average daily consumption, converted to pack-years using the formula.
• Weight records: heights and weights over time to calculate BMI, or waist measurements.
• Lab results: serum lipid profiles, GFR, albumin/creatinine ratio, with dates.
• Records of any infective endocarditis, autoimmune disease, diabetes, or cancer treated with radiation.
• If relying on radiation: records of all procedures involving ionising radiation, including diagnostic X-rays, CT scans, and radiotherapy, with dose estimates if possible.
• If relying on inability to obtain appropriate clinical management: evidence of what clinical management was not obtained, why it could not be obtained, and how that inability related to service (e.g., posting to a location without a cardiologist, denial of medical care, transport delays).

Decision-makers should adopt a systematic checklist approach. For each claim, they should determine:

1. Does the person have aortic stenosis as defined? (If not, this SoP does not apply; consider general causation.)
2. Was the aortic stenosis first diagnosed before or during service? If pre-service, is this a worsening claim?
3. Identify the clinical onset date and clinical worsening date (if any).
4. Run through each factor in section 9. For each, determine whether the evidence establishes the factor existed, within the required time frame.
5. If a factor is established, determine whether the existence of that factor is related to relevant service. This may involve examining other SoPs or service records.
6. If multiple factors exist, at least one must be service-related.

Practitioners should also be alert to the possibility that a factor refers to a disease covered by another SoP (section 11). For example, if the factor is “having diabetes mellitus”, and the diabetes is not obviously service-related, the claimant may need to rely on the SoP for diabetes. The decision-maker must then apply that SoP’s factors to determine if the diabetes is service-related. This can lengthen the analysis.

Finally, document all reasoning. The instrument imposes a logical structure, and the decision must be defensible on review. Errors in applying the definitions or timing are the most common grounds for appeal. Using a structured template that mirrors section 9 will reduce oversight risk.