Statement of Principles concerning dental malocclusion (Balance of Probabilities) (No. 20 of 2019)

Dental malocclusion is defined in subsection 7(2) as acquired malposition of maxillary or mandibular teeth resulting in abnormal contact. It expressly includes acquired dental hyperocclusion, which is defined in the Dictionary as premature contact between any maxillary and mandibular teeth during oral cavity closure that manifests as bite sensitivity or occlusal trauma. The definition excludes congenital malocclusion - only acquired conditions are covered. The ICD‑10‑AM codes K07.2 and K07.4 are referenced but are not exhaustive; the meaning is the statutory one, not the classification code. The SoP also covers death from dental malocclusion where a terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function) was contributed to by the malocclusion.

Clinical onset and clinical worsening are the two temporal triggers. The factors in subsections 9(1) to 9(9) apply to clinical onset - the first appearance of the condition. The factors in subsections 9(10) to 9(18) apply to clinical worsening - a material deterioration of a pre‑existing dental malocclusion. Critically, the worsening factors are available only where the person’s dental malocclusion was suffered or contracted before or during relevant service but did not arise out of that service. If the condition arose out of service, the onset factors apply and the worsening factors are redundant; if the condition was unrelated to service at inception, worsening can still be linked via the enumerated events.

Relationship to service is a separate requirement under section 10. The existence of a factor (e.g., a jaw fracture from a motor vehicle accident) must itself be related to the person’s relevant service. That means the fracture must have occurred during, or as a consequence of, eligible war service, defence service, or peacetime service. The factor is not sufficient by itself; the causal connection between the factor and service must be established.

Relevant service is defined in the Dictionary 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 excludes operational service, hazardous service, and British nuclear test defence service - presumably because different presumptions or SoPs apply to those categories. A note reminds the reader that the VEA itself defines these terms, but the SoP narrows which categories of service trigger this particular instrument.

Section 11 cross‑references other Statements of Principles: if a factor in section 9 refers to an injury or disease that itself has a SoP under s196B(3), then the factors in that other SoP also apply. This creates a layered causation framework. For example, if factor 9(1) requires an injury resulting in fracture of the mandible, and that fracture is subject to its own SoP, the claimant must satisfy both sets of factors. This prevents the SoP from being read in isolation.

Finally, the balance of probabilities standard is embedded in the title and the authority: the RMA determines the factors on the basis that it is more probable than not that the condition can be related to service. This is the standard of proof for the decision‑maker, not a standard of scientific certainty. The RMA’s view is conclusive for the purposes of the VEA and MRCA unless and until a new SoP is made.

The primary class affected is veterans and members of the Forces who have rendered relevant service as defined - essentially, those with eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. Their dependants are also affected where the veteran has died from dental malocclusion. For these claimants, the SoP determines whether compensation for dental malocclusion is payable. If the condition is accepted as service‑related, it can lead to ongoing pension or lump‑sum payments, as well as access to medical treatment under the VEA or MRCA health arrangements.

The Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission are the primary decision‑makers. They must apply the SoP when assessing claims. This imposes a compliance burden: staff must be trained to recognise the factors, seek supporting medical evidence, and make findings on each element. Failure to correctly apply the SoP exposes decisions to review and potential remittal, increasing administrative costs. The SoP also affects medical professionals who provide reports to support claims. A dentist or oral surgeon must understand the precise definitions - for example, what constitutes “advanced periodontitis” (not defined further, leaving room for interpretation) or “peripheral odontogenic fibroma” (defined histologically). The requirement to document usage patterns for mandibular repositioning appliances (at least five hours per night, five days per week, for at least four months) imposes a record‑keeping burden on both the claimant and the treating clinician.

The Repatriation Medical Authority itself is affected as the maker; it may be required to revisit the SoP as medical evidence evolves. The instrument does not set a review date, but it replaces a 2011 determination, suggesting periodic revision.

Taxpayers are affected indirectly: any expansion of compensable conditions through the SoP increases the expected cost of the veterans’ compensation system. Conversely, a restrictive SoP may reduce claims. The instrument does not include any cost‑benefit analysis, but the RMA’s determination is based on “sound medical‑scientific evidence” - which may or may not account for economic trade‑offs.

Independent dental practitioners who provide services to veterans may see changes in demand: if a condition is accepted as service‑related, treatment costs are borne by the government, which may relieve veterans of out‑of‑pocket expenses but also may shift utilisation patterns. Private dental insurance markets are not directly affected, but the SoP may influence treatment recommendations if veterans prefer to pursue funded care rather than private options.

The key duty falls on the decision‑maker: to apply the SoP correctly and to give reasons consistent with it. Under section 9, if at least one factor exists and that factor is related to relevant service, the decision‑maker must find the connection made out on the balance of probabilities - unless contrary evidence outweighs it. The decision‑maker has a right to request further medical evidence to verify the existence of a factor.

Claimants have the right to rely on any of the listed factors. They are not required to prove causation from first principles; the SoP provides a shortcut. Claimants also have the right to have their claim assessed under the current SoP, which commenced on 25 March 2019. If a claim was previously rejected under the 2011 SoP, it may be reopened if the new factors are more favourable - though the instrument does not address transitional arrangements beyond the repeal.

Claimants have the right, under the VEA and MRCA, to seek review of a decision in the Veterans’ Review Board and then the Administrative Appeals Tribunal or the Federal Court. On review, the SoP remains binding. The tribunal or court cannot substitute its own view of medical‑scientific evidence for the RMA’s; it must apply the factors as written. This limits the claimant’s ability to argue a novel causal pathway not listed.

The duty to provide evidence lies primarily with the claimant. For factor 19 (inability to obtain appropriate clinical management), the claimant must show that clinical management was not available or not provided for a reason related to service - a potentially difficult evidentiary burden. The SoP does not specify what constitutes “inability”, leaving scope for dispute.

Medical practitioners owe no direct duty under the SoP, but their reports become crucial. A practitioner who fails to record details such as the duration of tooth loss or the pattern of appliance use may inadvertently prejudice a claim. There is no statutory right for practitioners to be paid for providing such reports, though the Department typically reimburses reasonable costs.

Section 11 creates a duty on the decision‑maker to also consider any other SoP that applies to a factor: for example, if the factor is “having a maxillofacial disease”, and that disease (e.g., acromegaly) has its own SoP, the decision‑maker must apply that SoP’s factors as well. This imposes an obligation to maintain awareness of the interlocking SoP framework.

The SoP itself does not create penalties. It is a rule determining entitlement, not a prohibition. However, the VEA and MRCA contain general penalty provisions for fraudulent claims: making a false or misleading statement to obtain compensation is an offence under the Criminal Code and may result in prosecution, fines, imprisonment, and repayment of amounts received. The SoP indirectly affects enforcement by defining what qualifies as a valid connection. If a claimant fabricates evidence of a factor (e.g., falsely claiming long‑term use of a mandibular repositioning appliance), they face those penalties.

There is no specific penalty for a decision‑maker who misapplies the SoP. However, a decision that fails to follow the SoP is open to review and may be set aside. Persistent misapplication could lead to internal disciplinary action or adverse findings by the Commonwealth Ombudsman. The Administrative Appeals Tribunal may remit a decision with directions; failure to comply with directions could amount to contempt of the Tribunal, but this is rare.

The instrument does not include a sunset clause, so it remains in force until repealed or replaced. The RMA is not subject to a penalty for failing to update the SoP as medical evidence changes, but the authority is under a general duty under the VEA to keep Statements of Principles under review. A failure to update could be challenged by judicial review if it leads to unreasonable outcomes, but that requires a high threshold.

Enforcement of the SoP in practice relies on the internal review and merits review processes. Applicants who are dissatisfied may seek review without cost penalty, but the time and effort involved act as a barrier. The SoP does not provide for legal costs, so claimants must fund their own representation. This creates an uneven enforcement landscape: well‑resourced claimants (e.g., those with union or legal aid support) may more effectively challenge misapplication.

This SoP is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It interacts directly with section 120B of the VEA and section 339 of the MRCA, which require the decision‑maker to apply any relevant Statement of Principles when determining whether an injury or disease is service‑related. The SoP does not override the VEA or MRCA; it operates as a delegated instrument that fills out the causation standard.

The SoP repeals the earlier Statement of Principles concerning dental malocclusion No. 18 of 2011. Any claim pending on 25 March 2019 is determined under the new instrument. Pre‑2019 claims that were finally determined remain closed unless the new factors give rise to a fresh claim (e.g., on the basis of clinical worsening not previously considered). The instrument does not contain transitional provisions, so the usual principle applies: the law in force at the time of the decision governs.

The SoP references ICD‑10‑AM codes K07.2 and K07.4. The ICD‑10‑AM Tenth Edition is a classification system used for hospital morbidity and mortality data. The SoP does not incorporate the ICD‑10‑AM definitions of malocclusion; it gives its own definition (subsection 7(2)), and the code reference is for administrative convenience only. This prevents classification changes from altering the substantive meaning of the condition.

Section 11 creates interaction with other Statements of Principles. If a factor in section 9 refers to an injury or disease (e.g., a fracture of the mandible is an injury that may have its own SoP), then the factors in that other SoP apply. This means that establishing factor 9(1) may require the claimant to satisfy two SoPs: one for the fracture and one for the malocclusion. The reference to “Statement of Principles … as in force from time to time” means that the other SoP may be amended or replaced independently, creating dynamic complexity.

The SoP does not interact with state workers’ compensation schemes or motor vehicle accident schemes. Veterans’ entitlements are a federal no‑fault scheme intended to be exclusive; claimants generally cannot receive compensation from both federal and state sources for the same condition. The SoP therefore indirectly affects the allocation of liability between governments.

The SoP is silent on its interaction with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) or the Military Rehabilitation and Compensation Act 2004 beyond the MRCA reference. Since the MRCA covers peacetime service and the VEA covers war‑related service, the SoP applies to a subset of military personnel. Members covered by the SRCA for civilian‑type employment injuries are not covered unless they have a separate VEA or MRCA claim.

This instrument is the current version; it does not contain a history of amendments. It repealed the Statement of Principles concerning dental malocclusion No. 18 of 2011 (F2011L00499). That earlier SoP was made under the same subsection 196B(3) and had been in force since its registration in 2011. The 2011 version presumably contained a different list of factors, though the source does not specify the differences. The repeal means that decisions made after 25 March 2019 must apply the new factors. Claims that were finally determined under the 2011 version are not reopened unless a new claim is made based on the new instrument (e.g., if a factor not previously listed can now be established).

The instrument does not provide any explanatory memorandum or supplementary material. The RMA is not required to publish reasons for changes, though it typically does so in practice. The absence of an amendment history in the source means we cannot identify what specific changes were made in 2019 compared to 2011. We can infer that the RMA reviewed the medical evidence and determined that the previous list was incomplete or no longer sound.

The instrument is a legislative instrument registered on the Federal Register of Legislation. It is subject to disallowance by either House of the Commonwealth Parliament. If disallowed, it would cease to have effect and the 2011 SoP would presumably be revived (subject to the repeal being set aside). No disallowance motion is reported in the source.

There is no indication of any amendment to this SoP since its commencement. It has not been re‑issued or consolidated; the version shown is the sole text. Practitioners must rely on the version as at the date of the claim. The RMA may issue a new SoP at any time, but until it does, this instrument governs.

The source does not cite any cases or litigation. This does not mean no litigation exists; it means the instrument itself does not reference judicial decisions. As a legislative instrument, the SoP can be challenged only on administrative law grounds: e.g., that the RMA failed to take into account relevant medical evidence or acted unreasonably. Such challenges are rare. More commonly, litigation arises over the application of the SoP to individual facts, not over the instrument’s validity.

In the Veterans’ Review Board and the Administrative Appeals Tribunal, parties may argue about the interpretation of defined terms - for example, whether a particular condition constitutes “maxillofacial disease” or whether a “mandibular repositioning appliance” fits the definition. These matters are decided on a case‑by‑case basis and do not result in authoritative precedents that bind the RMA. The SoP itself is a disallowable instrument and may be judicially reviewed, but the source provides no examples.

The absence of named cases in the source means we cannot cite specific litigation history. However, observers may note that previous Statements of Principles on other conditions have been the subject of AAT and Federal Court decisions concerning the interpretation of similar language (e.g., “clinical onset” or “clinical worsening”). The 2011 predecessor SoP may have generated such cases, but we are not permitted to invent them.

Several aspects of this SoP can trap unwary claimants or decision‑makers.

Definition of dental malocclusion is limited to acquired conditions. If a person had congenital malocclusion (e.g., a jaw deformity present at birth), it is not covered. The SoP explicitly says “acquired malposition.” A claimant with a pre‑existing congenital issue who later experiences worsening may still use the worsening factors (9(10)-9(18)), but the condition must be “suffered or contracted before or during (but did not arise out of) the person’s relevant service.” Congenital conditions are “suffered” before service, so they can be worsened if a factor is present. However, the worsening must be material and must be proven to be due to the factor.

Duration requirements are strict. Factor 9(3) requires loss of one or more teeth for at least the two years before clinical onset. Factor 9(9) requires macroglossia for at least two years. Factor 9(6) requires use of a mandibular repositioning appliance for at least five hours per night, on at least five days per week, for at least four months. Missing one day or using it for 4 hours on a night could disqualify the factor. These are not mere guidelines; they are legal requirements.

“At the time of” factors are ambiguous. Factors 9(4), 9(5), 9(7), 9(8), and their worsening counterparts require the condition (maxillofacial disease, fibroma, ill‑fitting device, advanced periodontitis) to exist “at the time of” clinical onset or worsening. This raises the question: how long before or after that moment? The SoP does not define “at the time”. A strict reading might require simultaneous existence, but medical evidence may show that the condition preceded the malocclusion by weeks or months. Decision‑makers may differ on the interpretation.

Factor 19: inability to obtain appropriate clinical management. This is a catch‑all for cases where none of the specific factors apply. However, “inability” is undefined. It could mean that clinical management was not available in the person’s location, that the person was financially unable to obtain it, or that the person was prevented by service‑related reasons (e.g., posting to a remote area). The burden of proof is on the claimant to show that the inability is due to service. This factor is rarely used and may be a litigation trap.

Worsening factors only apply if the condition did not arise out of service. If a person’s dental malocclusion was already accepted as service‑related, the worsening factors are irrelevant; the person can claim worsening based on the original acceptance. But if the condition was not service‑related at its onset, the claimant may be tempted to use a worsening factor. However, they must prove that the pre‑existing condition was “suffered or contracted before or during (but did not arise out of)” service. This requires showing that the pre‑existing condition was unrelated to service - possibly a difficult proposition.

Cross‑referencing other SoPs (s.11) can create invisible hurdles. A factor like “having a maxillofacial disease” may require that disease itself to be linked to service via another SoP. Claimants may not realise they need to satisfy two or more SoPs. The decision‑maker must identify all relevant SoPs; failure to do so may lead to an erroneous acceptance or rejection.

Terminal event definition is exhaustive. The SoP lists pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. If death results from a different terminal event (e.g., sepsis from tooth infection), it may not be covered unless that event falls within one of the five categories. The definition does not include sepsis, even though dental infection can cause sepsis. Claimants’ legal representatives must check this closely.

Definition of dental hyperocclusion includes “manifestation as bite sensitivity or occlusal trauma” - both subjective symptoms. Objective signs of malocclusion are required under the primary definition (abnormal contact), but the hyperocclusion element adds a symptom‑based component. This may lead to reliance on self‑reporting, which is hard to verify.

For the decision‑maker (the Department of Veterans’ Affairs or the Military Rehabilitation and Compensation Commission), compliance means ensuring that every claim for dental malocclusion is assessed against this SoP, not the repealed 2011 version. The decision‑maker must read each factor in section 9 and determine whether any factor exists in the claimant’s case. For each candidate factor, the decision‑maker must verify that the factor is related to the claimant’s relevant service under section 10. For worsening factors (10-18), the decision‑maker must first determine whether the dental malocclusion was suffered or contracted before or during (but did not arise out of) service. If it arose out of service, the worsening factors do not apply; the claim should be assessed under the onset factors or through the original acceptance of the condition.

The decision‑maker must check all definitions in the Schedule 1 Dictionary. For example, “mandibular repositioning appliance” is defined with a functional test: an oral device that splints the upper airway open mechanically by anterior displacement of the mandible. A device that does not displace the mandible (e.g., a tongue retainer) would not qualify. Similarly, “macroglossia” is defined simply as “excessive size of the tongue” - not further quantified. The decision‑maker may need expert evidence to determine whether the tongue size is excessive.

When a factor involves duration (e.g., two years of tooth loss, four months of appliance use), the decision‑maker must obtain precise dates from medical records or the claimant’s history. If the evidence is insufficient, the factor may not be established. The burden is on the claimant to produce the evidence, but the decision‑maker has an obligation to consider all available material.

If a factor refers to a disease or injury that has its own SoP, the decision‑maker must apply that SoP as well (section 11). For instance, if factor 9(1) is “injury resulting in fracture of the maxilla or mandible”, and there is a SoP for that fracture (e.g., “Fracture of the maxilla or mandible”), the decision‑maker must check whether that SoP’s factors are satisfied. This requires maintaining an up‑to‑date knowledge of all current SoPs. It may be prudent to create a checklist that cross‑references every factor to any relevant other SoP.

For claimants, compliance is about assembling proof. Medical records must show:

• The date of clinical onset (or worsening) of dental malocclusion.
• For each claimed factor: the specific event or condition, with timing.
• For factor 6 or 15 (mandibular repositioning appliance): a diary or report from the sleep physician documenting the hours of use.
• For factor 7 or 16 (ill‑fitting restoration): evidence that the restoration was applied to the affected tooth or teeth, and that it was ill‑fitting at the relevant time.
• For factor 3 or 12 (tooth loss): evidence that the tooth or teeth were lost at least two years before onset or worsening.

For medical practitioners providing reports, compliance with the SoP requires understanding the definitions. For example, “advanced periodontitis” is not defined; the dentist should specify the diagnostic criteria used (e.g., clinical attachment loss, bone loss). For “peripheral odontogenic fibroma” and “peripheral ossifying fibroma”, the definitions are histological, so the report should reference a biopsy result. Avoid using lay terms; use the exact language from the schedule.

In cases where no specific factor applies, consider factor 19: inability to obtain appropriate clinical management. The claimant must show that clinical management was not available or not provided for a reason related to service, and that this inability contributed to the onset or worsening of malocclusion. This is a high hurdle. It may be useful to obtain a statement from the treating dentist explaining why a particular treatment (e.g., orthodontic intervention) was not feasible due to the claimant’s service‑related circumstances (e.g., frequent deployments, limited access to specialists).

Finally, keep records of all correspondence and medical reports. The SoP does not prescribe a time limit for claims, but the VEA and MRCA have their own limitation periods. If a claim is rejected because a factor is not established, the claimant may seek review and potentially obtain new evidence. The SoP does not prevent a later claim if circumstances change (e.g., a new factor arises after the decision).