Statement of Principles concerning conductive hearing loss (Balance of Probabilities) (No. 82 of 2019)

The SoP introduces several technical definitions that are central to understanding its operation. “Conductive hearing loss” is defined in subsection 7(2) as acquired hearing loss due to defective conduction of sound from the external environment to the inner ear, with a permanent shift to a hearing threshold level of 25 dB or more in the frequency of 500, 1 000, 2 000, 3 000, 4 000 or 6 000 Hz, and an air‑bone gap in the affected ear of at least 10 dB at three or more of these frequencies or at least 15 dB at any one of these frequencies. The “air‑bone gap” is defined in the dictionary as the difference between air conduction and bone conduction thresholds as measured by pure‑tone audiometry. This is a measurable, repeatable test, but it requires a qualified audiologist and calibrated equipment, which may not be readily available in remote areas or for veterans who have left service.

The “conductive hearing apparatus” is defined as the external auditory canal or middle ear, including the tympanic membrane (ear drum) and middle ear ossicles. This definition limits the relevant anatomical structures and excludes the inner ear, which is the domain of sensorineural hearing loss covered by separate SoPs. The instrument includes two “specified lists”: the specified list of bone diseases (fibrous dysplasia, osteoma, osteonecrosis, Paget’s disease of bone) and the specified list of autoimmune diseases (granulomatosis with polyangiitis, relapsing polychondritis, rheumatoid arthritis, systemic lupus erythematosus, systemic sclerosis). These lists are exhaustive - a bone disease not on the list, such as osteogenesis imperfecta, cannot be used as a factor under subsections 9(2) or 9(14) unless it independently falls under another factor.

The distinction between “clinical onset” and “clinical worsening” is critical. Factors 1-12 apply to cases where the conductive hearing loss first arises during or after relevant service, and the factor must exist at the time of that onset. Factors 13-24 apply to aggravation of pre‑existing conductive hearing loss, and they require that the factor existed at the time of the worsening. Factor 25 (inability to obtain appropriate clinical management) applies to both onset and worsening but is limited by its own terms - the clinical management must be appropriate and must be unobtainable for reasons related to service. The dictionary defines “relevant service” as 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. This is a composite definition that excludes operational service, hazardous service, and British nuclear test defence service, meaning a different SoP under the reasonable hypothesis standard will apply to those categories.

“Terminal event” is defined in the dictionary as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function, and death from conductive hearing loss is treated as including any death to which the hearing loss contributed. This expands the scope of the SoP to claims for dependency or death benefits, but only if the conductive hearing loss was a contributing factor to the terminal event. The instrument also uses “dB(C)” defined as sound pressure level in decibels measured by a sound level meter using a type C electronic filter, used to measure peak or impact sound pressure levels - relevant to the blast and peak sound pressure factors.

This SoP directly affects three primary groups: veterans and members of the Australian Defence Force who render relevant service; the Repatriation Commission and delegates who determine claims under the VEA and MRCA; and the Veterans’ Review Board and Administrative Appeals Tribunal that review those determinations. The definition of “relevant service” is restrictive. It covers eligible war service (other than operational service) under the VEA - which generally means service during a period of conflict but not in an actual combat zone; defence service (other than hazardous service and British nuclear test defence service) under the VEA - typically post‑war peacetime service; and peacetime service under the MRCA - which covers permanent and reserve members serving on or after 1 July 2004 but not on warlike or non‑warlike service. This means the SoP does not apply to veterans who served in operational areas such as Vietnam, East Timor, or the Middle East, nor to those who were exposed to nuclear testing or other hazardous service. For those categories, a separate SoP under the reasonable hypothesis standard (No. 83 of 2019, likely) will apply, but that is not this instrument.

The SoP also affects the families of deceased veterans where death is claimed to have been contributed to by conductive hearing loss, but only if the veteran had relevant service. The instrument does not apply to civilian employees of the Defence Force, nor to members of the Australian Federal Police or other agencies who may have been exposed to noise during deployments, because the VEA and MRCA are limited to military service. The SoP’s effect on the compensation system is to standardise the causation inquiry for conductive hearing loss. For the Commission, it provides a checklist that reduces the need for expert medical opinion on each case - if the factor is proven and service‑related, the claim should succeed. For the veteran, it creates a predictable pathway but also a rigid one.

The compliance burden falls disproportionately on veterans with limited access to audiology services, particularly those in rural or remote areas. Pure‑tone audiometry is a basic but necessary test; without it, the air‑bone gap cannot be measured, and the definition of conductive hearing loss is not satisfied. Veterans also bear the cost of obtaining specialist confirmation of conditions such as otosclerosis, chronic otitis media, or autoimmune diseases, which may require consultation with an ear‑nose‑throat specialist or a rheumatologist. The specified lists of bone and autoimmune diseases are narrow, so a veteran with a rare bone disease not on the list will not be able to rely on factors 9(2) or 9(14) even if the disease is causally related to service. The factor for “inability to obtain appropriate clinical management” (factor 25) offers a residual avenue, but it requires proof that appropriate management was unavailable and that this exacerbated the condition - a high evidentiary bar.

The SoP does not impose duties on private parties. Its legal effect is on decision‑makers under the VEA and MRCA. The Repatriation Commission and its delegates have a duty to apply the SoP when determining claims for pension, incapacity payments, or other compensation for conductive hearing loss where the claim is made under section 120B of the VEA or section 339 of the MRCA. This means the Commission must be satisfied that at least one of the 25 factors in section 9 exists and is related to the person’s relevant service. If the claimant satisfies this, the Commission must accept the connection; if not, the claim must be refused unless the SoP itself contains some ambiguity or the claimant can rely on a separate SoP covering a different condition that itself causes conductive hearing loss.

The veteran or member has a right to have their claim assessed in accordance with this SoP. This right is procedural - the decision‑maker cannot substitute a different medical opinion or invent a factor not listed. However, the instrument is not exhaustive: section 11 provides that where a factor refers to an injury or disease covered by another SoP (for example, otosclerosis or chronic otitis media), the factors in that other SoP apply in accordance with its terms. This creates a chain of SoPs: to satisfy factor 9(1) (otosclerosis on the affected side at the time of clinical onset), the veteran must also satisfy the SoP concerning otosclerosis (if one exists) to prove that the otosclerosis itself is related to service. This stacking of SoPs can complicate claims and increase the evidence required.

The claimant also has the right to rely on factor 25 (inability to obtain appropriate clinical management) as a fallback, but the SoP does not define “appropriate clinical management”. This creates uncertainty. The term likely refers to medical treatment that could have prevented the onset or worsening of conductive hearing loss, such as tympanoplasty or antibiotics for chronic otitis media. The burden of proof is on the claimant to show that such management was unavailable because of their service (for example, due to being posted to a location without an ENT surgeon) and that the absence of management caused the condition to develop or worsen. In practice, this factor is difficult to establish and may be invoked only in rare cases.

The SoP does not create any right to compensation directly; it is a causation tool. The substantive rights to pension or other benefits are found in the VEA and MRCA. The SoP is a necessary but not sufficient condition. Even if a claimant establishes a factor and service connection, they must also satisfy the other conditions of the relevant Act, such as the requirements for a married rate of pension or for permanent impairment.

This SoP does not impose penalties. It is not a criminal or regulatory instrument; it is a medical‑scientific instrument that governs causation in a compensation scheme. Enforcement occurs through the administrative review process. If the Repatriation Commission refuses a claim based on a finding that no factor under section 9 is established, or that the factor is not related to service, the claimant may seek review by the Veterans’ Review Board (VRB) under Part XI of the VEA, and then appeal to the Administrative Appeals Tribunal (AAT) and ultimately to the Federal Court on questions of law. The VRB and AAT are bound to apply the SoP as a legislative instrument.

The practical “penalty” for the veteran if the claim fails is the loss of potential compensation, which can amount to thousands of dollars per year in disability pension or incapacity payments. There is no cost penalty for making a claim, but the time and expense of gathering evidence and pursuing review can be significant. The SoP can also affect eligibility for rehabilitation services and medical treatment under the VEA and MRCA.

For the Commission, the risk of not applying the SoP correctly is that a decision may be set aside on review. The cost of adverse decisions falls on the taxpayer through legal fees, plus any back‑pay of benefits. There is no direct financial penalty on decision‑makers. The instrument itself is enforced by the legal obligation of the Commission to act in accordance with law, with judicial review available for jurisdictional error.

The SoP is made under section 196B(3) of the VEA, which confers power on the RMA to determine SoPs for injuries or diseases. It interacts directly with the VEA and the MRCA. For claims made under the VEA, the applicable standard of proof is determined by section 120. Subsection 120(1) provides the reasonable hypothesis test for operational service, while subsection 120(4) provides the balance of probabilities test for non‑operational service (eligible war service other than operational service and defence service). This SoP is made specifically for the balance of probabilities test, as stated in its title and in section 5 (which refers to section 120B of the VEA). A separate SoP (likely the “Reasonable Hypothesis” version, No. 83 of 2019) will cover operational service claimants.

Under the MRCA, section 339 provides that a claim for peacetime service is to be determined on the balance of probabilities, and this SoP applies to those claims. For warlike or non‑warlike service under the MRCA, a different standard and likely a different SoP applies. The instrument repeals the previous SoP No. 8 of 2011, which had the same purpose but contained different factors or definitions. The SoP also interacts with other SoPs that cover conditions listed in its factors. For example, if factor 9(1) requires otosclerosis on the affected side, and there is an SoP for otosclerosis (No. 7 of 2011 or similar), then section 11 of this SoP incorporates that SoP by reference. This means the claimant must satisfy both SoPs: first, that they have otosclerosis related to service (per the otosclerosis SoP), and second, that the otosclerosis existed at the time of onset of conductive hearing loss. The same applies to chronic otitis media, autoimmune diseases, and bone diseases.

The SoP may also interact with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) if the claimant is a defence civilian employee, but the instrument is limited to VEA and MRCA claims. There is no direct interaction with state workers’ compensation schemes, though a veteran cannot claim twice for the same injury. The instrument does not override any other law; it is a delegated legislative instrument that sits within the broader legislative framework of military compensation. The RMA itself is established under Part IIA of the VEA, and its determinations are disallowable instruments under the Legislation Act 2003.

This SoP is a replacement instrument. It repeals the Statement of Principles concerning conductive hearing loss No. 8 of 2011 (Federal Register of Legislation No. F2010L03256) made under subsection 196B(3) of the VEA. The earlier SoP came into effect on a date in 2011 and had its own set of factors and definitions. The new SoP was determined on 23 August 2019 and commenced on 23 September 2019. The instrument does not contain a transitional provision, so claims made on or after 23 September 2019 must be assessed under the new SoP, while claims made before that date but not yet determined may be governed by the old SoP depending on the legislation at the time. The RMA’s power under section 196B(3) allows it to determine a SoP on its own initiative or on application, and the RMA must review each SoP periodically to ensure it reflects current medical‑scientific evidence. The repeal of the 2011 version is routine.

There are no subsequent amendments to this SoP recorded in the source. The instrument is current as of the date of determination. Amendments could occur if the RMA issues a further SoP that revises the factors or definitions, or if a court or tribunal decision finds that the SoP is ultra vires or otherwise invalid. The instrument is not subject to amendment by the Parliament directly, though it is a disallowable instrument and could be disallowed by either House within the prescribed period.

The source does not cite any litigation history. The SoP itself has not been the subject of judicial consideration in the text. However, generally, SoPs made under the VEA have been considered by the Federal Court and the High Court in a number of cases, particularly regarding the interpretation of factors and the standard of proof. For example, the Full Federal Court in Vogel v Commonwealth and other cases has examined the role of the RMA’s determinations and the relationship between SoPs and the reasonable hypothesis test. The Administrative Appeals Tribunal has also issued numerous decisions addressing specific factors in hearing loss SoPs, including disputes over the interpretation of “air‑bone gap” and the requirement for permanent shift. Claimants have occasionally succeeded in arguing that the RMA’s factor list was incomplete or that the SoP was inconsistent with the VEA, but the courts have generally deferred to the RMA’s expertise.

Because this SoP is relatively new (2019), there may not yet be a body of case law specific to its provisions. Practitioners should be aware that previous decisions under the 2011 SoP may be persuasive but not binding if the wording has changed. The air‑bone gap definition and the specified lists of diseases are likely to be points of contest if a claim is refused.

Several features of this SoP can trap unwary claimants or advocates. First, the definition of conductive hearing loss itself is a gatekeeper. The permanent shift must be 25 dB or more in at least one of six frequencies, and the air‑bone gap must meet either the 10 dB at three frequencies or 15 dB at one frequency. This means a veteran with a mild conductive loss (say, 15 dB shift) or a loss that is within normal limits at the tested frequencies but symptomatic cannot satisfy the definition. The condition must be “acquired” - congenital conductive losses are excluded.

Second, the factor list in section 9 is exhaustive. If the veteran’s hearing loss resulted from, say, a fungal infection of the ear, or from a foreign body obstruction, it may not be covered unless the obstruction is permanent and falls under the “acquired, permanent narrowing or obstruction of the external auditory canal” (factors 8 and 20). The examples given include exostosis, granuloma, and neoplasms, but the words “including, but not limited to” show that other causes are possible - but only if they cause permanent narrowing or obstruction. A transient obstruction (wax, foreign body removed) will not suffice.

Third, the temporal requirements are strict. For clinical onset, factors 3, 4, 5, 6, and 7 each require the event to have occurred within the seven days before the clinical onset. For clinical worsening, the same window applies but to the worsening. The seven‑day window for explosive blast, lightning, barotrauma, and trauma is tight. A veteran who experienced a blast during training but whose hearing loss developed months later will struggle unless the blast caused immediate damage that later became permanent. Similarly, the “at the time of clinical onset” factors (1, 2, 8, 9, 10, 11) require the condition to be present contemporaneously with the onset. If otosclerosis developed after the hearing loss, it cannot be used as a factor for onset.

Fourth, the relationship to service requirement under section 10 is separate from the existence of the factor. The factor itself (e.g., otitis media, blast) must be related to the relevant service. This can be difficult if the condition is common in the general population. For example, chronic otitis media may have predated service or may have developed from a cause unrelated to service (e.g., swimming). The burden is on the claimant to show a connection.

Fifth, the inability to obtain appropriate clinical management (factor 25) is a double‑edged sword. While it offers a pathway for cases where inadequate medical care caused or worsened the hearing loss, it is easy for the Commission to argue that appropriate management was available or that the veteran did not seek it. The term “appropriate clinical management” is not defined, leading to uncertainty.

Sixth, the specified lists of bone diseases and autoimmune diseases are narrow. A veteran with rheumatoid arthritis is covered (factor 11), but one with ankylosing spondylitis or sarcoidosis is not, even though those conditions can cause conductive hearing loss. The veteran would need to rely on another factor, such as chronic otitis media if it results from the condition.

Seventh, the instrument applies only to “relevant service” as defined. A veteran with operational service cannot use this SoP; they must rely on the reasonable hypothesis SoP, which may have different factors. It is a common error for advocates to apply the balance of probabilities SoP to operational service claims, leading to refusal.

For claimants and their representatives, compliance with this SoP requires a systematic approach to evidence gathering. The first step is to obtain a pure‑tone audiogram performed by a qualified audiologist that demonstrates: (a) a permanent shift in hearing threshold of 25 dB or more in at least one of the six listed frequencies; and (b) an air‑bone gap meeting the 10/3 or 15/1 criteria. The audiogram should be recent but can be historical if it shows the loss at the time of onset or worsening. If the audiogram does not show an air‑bone gap, the claimant does not have conductive hearing loss under the SoP, and the claim will fail regardless of the factor.

Second, identify which factor(s) in section 9 might apply. This requires a detailed medical and service history. If the veteran had otosclerosis, a bone disease, chronic otitis media, or an autoimmune disease, obtain a specialist diagnosis confirming that condition and its date of onset relative to the hearing loss. If the cause is trauma (blast, impact, barotrauma), obtain records of the incident - medical reports, incident reports, unit logs - and link them to a specific date within seven days of onset. For noise exposure, the factor is exposure to a peak sound pressure level of at least 140 dB(C) at the tympanic membrane. This requires evidence of the noise level, which can be difficult to prove without service records or expert acoustical evidence.

Third, establish the connection to service. The factor must be related to the person’s relevant service. This means the otosclerosis, trauma, or other condition must have been caused or contributed to by service, or the incident must have occurred during service. For example, a blast injury during a training exercise is clearly related; otosclerosis that arose spontaneously is not. The claimant should provide a statement linking the factor to specific service events or conditions. For the “inability to obtain appropriate clinical management” factor, gather evidence that needed treatment (e.g., surgery, antibiotics) was not available because of service location or circumstances, and that this directly led to the onset or worsening of conductive hearing loss.

Fourth, ensure that the claim is made under the correct Act and service category. If the veteran had operational service, do not rely on this SoP; request the reasonable hypothesis SoP. The claim form (VEA or MRCA) should clearly state the service type. The Commission may err in applying the wrong SoP, so the advocate should check the statement of reasons.

Fifth, consider any chain of SoPs. If relying on a factor that requires another condition (e.g., otosclerosis), ensure that the claimant meets the requirements of the SoP for that condition, if one exists. This may require additional medical reports and a separate causation analysis for the underlying condition.

Finally, keep records of all evidence and correspondence. Denials based on this SoP can be appealed to the VRB and AAT, where fresh evidence may be admitted. The SoP does not create a time limit for claiming, but the longer the delay, the harder it may be to prove causation. Early audiometry and medical documentation are critical. The cost of compliance - audiograms, specialist fees, legal advice - can be high, but the potential compensation may justify the expense. Claimants should weigh the likelihood of success against the costs, recognising that the SoP’s rigid structure means many plausible but non‑listed causes will fail.