Statement of Principles concerning diaphragmatic hernia (Reasonable Hypothesis) (No. 99 of 2022)

This instrument is a Repatriation Medical Authority (RMA) Statement of Principles titled Statement of Principles concerning diaphragmatic hernia (Reasonable Hypothesis) (No. 99 of 2022). It was determined by the RMA under subsection 196B(2) of the Veterans' Entitlements Act 1986 (VEA) (see section 3) and commenced on 21 November 2022 (section 2). The instrument is an evidentiary, medical-scientific specification that identifies the disease (diaphragmatic hernia), its exclusions, and the discrete clinical and temporal factors that the RMA regards as necessary, as a minimum, to raise a reasonable hypothesis connecting the condition (or death from it) with relevant service (sections 6-8). It explicitly applies to claims to which section 120A of the VEA or section 338 of the Military Rehabilitation and Compensation Act 2004 (MRCA) apply (section 4).

Mechanically, the Statement operates as follows. It defines the condition that the Statement covers (an acquired protrusion of intra‑abdominal tissue through the diaphragm into the thoracic cavity) and excludes congenital diaphragmatic hernia, eventration of the diaphragm and hiatus hernia (section 6(2)). It then lists the alternative factors any one of which must exist before a decision-maker may accept that a reasonable hypothesis has been raised that links the diaphragmatic hernia (or death from it) with service (section 8). The relevant factors are time-bound and condition-specific: e.g. certain surgical procedures involving the affected region (excluding the oesophageal hiatus) within 10 years before clinical onset or worsening; acute trauma to the affected region; specified acute elevations of intra‑abdominal pressure within seven days before onset or worsening; endometriosis involving the affected region; obesity for at least two years before clinical worsening; pregnancy within six weeks before clinical worsening; and inability to obtain appropriate clinical management (section 8).

The instrument records the RMA’s view that there is sound medical‑scientific evidence that diaphragmatic hernia and death from it can be related to relevant service (section 7). It also regulates the relationship of the listed factors to a person’s relevant service: each factor must be related to the relevant service rendered by the person (section 9(1)), and subsections 8(5) to (11) are confined to material contribution or aggravation where the hernia was suffered or contracted before or during (but did not arise out of) relevant service (section 9(2)). Finally, the Statement cross‑references other Statements of Principles where a listed factor refers to an injury or disease already the subject of another Statement (section 10).

The instrument is not an Act; it is an administrative determination used in adjudicating statutory claims under the VEA and MRCA. It does not itself create criminal penalties or court processes; instead, it defines medical‑fact thresholds that govern the evidentiary baseline for administrative decision-makers assessing claims under the specified provisions (sections 3-4, 6-10).

The Statement rests on a small set of interlocking concepts: the clinical definition of diaphragmatic hernia, the exclusions to that definition, the notion of a reasonable hypothesis in the statutory claims context, the discrete set of clinical or service‑related factors that may raise such a hypothesis, timing windows for those factors relative to clinical onset or clinical worsening, and the statutory linkage to “relevant service”.

Diaphragmatic hernia is defined in substantive clinical terms: for the purposes of the Statement it “means an acquired protrusion of intra‑abdominal tissue through the diaphragm into the thoracic cavity” (section 6(2)(a)). The Statement expressly excludes congenital diaphragmatic hernia, eventration of the diaphragm, and hiatus hernia from its scope (section 6(2)(b)). Death from diaphragmatic hernia is included where the terminal event or condition was contributed to by the person’s diaphragmatic hernia (section 6(3)). The Schedule defines “terminal event” broadly to include proximate or ultimate causes such as pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function (Schedule , terminal event).

The “reasonable hypothesis” concept is implicit in the instrument’s title and explicit in section 8, which specifies that at least one listed factor “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diaphragmatic hernia or death from diaphragmatic hernia with the circumstances of a person’s relevant service” (section 8). The instrument therefore provides a cumulative, alternative set of medical and factual predicates any one of which is sufficient to meet the RMA’s minimum evidentiary threshold for a reasonable hypothesis in the claims context.

The listed factors are concrete and temporally anchored. They include invasive surgical procedures involving the affected region of the diaphragm, excluding the oesophageal hiatus, within ten years before clinical onset or worsening (sections 8(1) and 8(5)); acute trauma to the affected region at any time before onset or worsening (sections 8(2) and 8(6)); acute elevation of intra‑abdominal pressure from specified causes (Heimlich manoeuvre, significant coughing, significant physical effort, underwater diving with compressed air) within seven days before onset or worsening (sections 8(3) and 8(7)); endometriosis involving the affected region before onset or worsening (sections 8(4) and 8(8)); obesity for at least two years before clinical worsening (8(9)); pregnancy within six weeks before clinical worsening (8(10)); and inability to obtain appropriate clinical management for diaphragmatic hernia (8(11)). The Schedule defines obesity by Body Mass Index (BMI) of 30 or greater and gives the BMI formula (Schedule , being obese; BMI).

The instrument is designed to affect claimants and decision-makers in the statutory veteran and military compensation schemes governed by the VEA and MRCA. It applies to “a claim to which section 120A of the VEA or section 338 of the MRCA applies” (section 4). Those provisions (referred to but not reproduced in this instrument) are the statutory mechanisms by which a “reasonable hypothesis” standard is applied in assessing whether a disease or injury is connected to service. The Schedule defines “relevant service” to include categories of military service under both the VEA and the MRCA (Schedule , relevant service), so the instrument applies to veterans and former members across those service types where they lodge claims invoking the reasonable hypothesis test.

Who pays is not specified in this Statement; the instrument does not create entitlements itself. It is an evidentiary tool used within the VEA and MRCA frameworks that, if engaged by a decision‑maker, may result in acceptance of a claim and consequent statutory benefits under those Acts. The instrument therefore directly affects claimants seeking VEA or MRCA benefits for diaphragmatic hernia or death from diaphragmatic hernia because it sets out the minimum factors the RMA regards as sufficient to raise a reasonable hypothesis tying the condition to relevant service (sections 4, 6-8).

It also affects medical practitioners whose opinions and records will be used as evidence. The factors listed are clinical or diagnostic (e.g. surgical procedures near the diaphragm, endometriosis involving the affected region, BMI measurements), event‑based (e.g. acute trauma, Heimlich manoeuvre, diving), or management‑related (inability to obtain appropriate clinical management). Practitioners and hospitals whose records capture surgical notes, trauma records, operative reports, diagnostic imaging, BMI measurements over time, pregnancy records and treatment availability will be affected because those records are the primary means of demonstrating the presence and timing of the requisite factors (sections 5, 8; Schedule , BMI/being obese).

Administrative decision-makers in the Department of Veterans’ Affairs, as well as review bodies that apply the Statements of Principles when assessing whether a disease is connected with service under the VEA or MRCA, are affected because the Statement provides a set of accepted medical-scientific predicates for the reasonable hypothesis threshold (sections 3, 7-8). The RMA’s view that there is “sound medical‑scientific evidence” is stated in section 7; decision-makers will rely on the Statement as the RMA’s determination of what factors satisfy the minimum test.

The Statement does not impose duties in the criminal sense. Rather it creates rights and procedural obligations within the claims process by specifying what facts must be established as a minimum to raise a reasonable hypothesis of connection to service. The main operative duties and rights flowing from the Statement, as drawn from the instrument itself, are the following.

Right to have the Statement applied: the Statement applies to claims under the specified statutory provisions (section 4). A claimant bringing a claim that triggers the “reasonable hypothesis” test under section 120A VEA or section 338 MRCA is entitled to have the factors in this Statement considered in assessing whether a reasonable hypothesis exists.

Duty to show a listed factor exists: the claimant bears the evidentiary onus of providing or adducing material from which at least one of the factors in section 8 “must as a minimum exist” before it can be said a reasonable hypothesis is raised (section 8). That is an evidentiary duty: the claimant must establish one or more alternative factors and the timing in relation to clinical onset or worsening.

Duty to show the factor is related to relevant service: section 9(1) requires that the existence of any factor under section 8 must be related to the person’s relevant service. The claimant will therefore need to connect the listed factor to the circumstances of their service as defined in the Schedule (e.g. operational, peacekeeping, hazardous, British nuclear test defence service under the VEA; warlike or non‑warlike service under the MRCA).

Limit on certain factors: subsections 8(5) to (11) only apply to material contribution to, or aggravation of, the condition where the person’s diaphragmatic hernia was suffered or contracted before or during relevant service but did not arise out of that service (section 9(2)). This is a procedural constraint: those specific factors are confined to claims where the hernia predates or coincides with service and where the causal pathway is one of material contribution or aggravation rather than origination in service.

Duty to account for overlapping Statements: section 10 provides that where a section 8 factor refers to an injury or disease that is the subject of another Statement of Principles under subsection 196B(2) of the VEA, the factors in that other Statement apply in accordance with its terms. This requires claimants and decision‑makers to cross‑check relevant, overlapping Statements and to apply them as instruments of evidence in the claims process.

No statutory penalties in this instrument: the Statement contains no penalty provisions or enforcement powers. Its function is to inform administrative decision-making about medical causation thresholds. The instrument therefore confers procedural rights to claimants and imposes evidentiary duties rather than criminal liabilities.

The Statement contains no penalty provisions and does not itself create enforcement mechanisms beyond its role as an evidentiary instrument within the VEA/MRCA administrative framework. The instrument is an RMA determination under subsection 196B(2) of the VEA (section 3) intended to be applied by claims assessors in determining whether a reasonable hypothesis links diaphragmatic hernia (or death from it) to relevant service (section 8). It does not purport to impose fines, criminal sanctions, or civil liabilities.

Enforcement in the operational sense occurs through administrative decision-making: if a claimant adduces evidence satisfying at least one of the section 8 factors and the factor is related to relevant service (section 9(1)), the decision-maker may accept that a reasonable hypothesis exists and proceed to apply the statutory rules governing entitlements under the VEA or MRCA. Conversely, failure to establish a listed factor means the claimant has not met the RMA’s minimum evidentiary threshold for a reasonable hypothesis under this Statement; administrative refusal of the claim may follow under the relevant statute. The Statement does not, however, itself prescribe how decision-makers must apply other statutory provisions that govern acceptance, rejection, or remedy; those processes are in the VEA and MRCA (section 4).

There is no express internal enforcement mechanism within the document for ensuring compliance with the Statement by claimants or practitioners. Similarly, there is no provision in the Statement for penalties against false statements, perjury, or fraudulent claims; any such measures would be governed by the VEA, MRCA or general law rather than by this instrument. The instrument does impart an implementation burden on decision-makers and claimants in terms of evidentiary verification: decision-makers must assess clinical and temporal facts against the Statement’s factors; claimants must produce or point to medical records and relevant service evidence to satisfy the listed predicates (sections 6-9).

The Statement’s legal weight depends on its status under subsection 196B(2) of the VEA; it is an RMA determination which decision-makers are expected to take into account when applying the “reasonable hypothesis” test in the statutory claims process. The instrument itself does not describe appeal or review routes. It does not list enforcement agencies, compliance inspectors, administrative penalties, or criminal sanctions. Any enforcement or challenge to its application in an individual claim therefore proceeds via the standard statutory review and administrative law avenues available under the VEA or MRCA and general administrative law, none of which are reproduced or modified in this Statement.

The Statement is explicitly a statutory instrument made under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (VEA) (section 3). It is expressly tied to claims assessed under particular statutory provisions: it “applies to a claim to which section 120A of the VEA or section 338 of the MRCA applies” (section 4). That link makes its primary interaction one of evidentiary content feeding into the adjudication processes created by the VEA and MRCA. The Statement does not, and cannot, alter the substantive statutory entitlements provided by the VEA or MRCA; it is a determinative medical-scientific specification intended to inform how the “reasonable hypothesis” threshold in those Acts is satisfied in relation to diaphragmatic hernia.

Section 10 sets a specific interaction rule with respect to other Statements of Principles. If a factor in section 8 refers to an injury or disease that is covered by another Statement determined under subsection 196B(2) of the VEA, then the factors in that other Statement “apply in accordance with the terms of that Statement of Principles as in force from time to time” (section 10). This creates an affirmative cross-reference mechanism: where pathologies overlap or a causative chain implicates a separate Statement, adjudicators must apply the terms of the other Statement in their current form. The instrument thereby preserves the primacy of other RMA Statements for overlapping conditions and requires cross-application.

The Schedule defines “relevant service” by reference to categories in both the VEA and MRCA (Schedule , relevant service). Thus the instrument interacts with those Acts by limiting its applicability to claims within the enumerated categories of service (e.g. operational, peacekeeping, hazardous, warlike and non‑warlike service). Any interplay with other legislation governing veterans’ entitlements flows through those statutory categories and the claim mechanisms that link medical causation to service.

The Statement’s medical-scientific predicates (e.g. surgical procedures, trauma, elevated intra‑abdominal pressure events, obesity, pregnancy, endometriosis) might also interface in practice with other regulatory or compensatory regimes , for example, workers’ compensation, private medical negligence claims, or general insurance , where the same clinical facts might be relevant. The Statement itself does not address those regimes; section 10 contemplates only other RMA Statements under subsection 196B(2) of the VEA. Any interaction with non-VEA/MRCA laws must therefore be determined by the ordinary rules governing evidence and causation in those other legal contexts; the Statement does not bind non‑VEA/MRCA decision-makers.

This instrument is identified as Statement of Principles concerning diaphragmatic hernia (Reasonable Hypothesis) (No. 99 of 2022). The instrument record in the text shows it was dated 21 October 2022 and that it came into force on 21 November 2022 (sections 1-2). Section 3 records the authority under which it was made, namely subsection 196B(2) of the VEA. No subsequent amendments, revocations or prior versions are recorded in the text supplied.

The instrument’s Schedule contains the dictionary definitions that operate with the Statement; those definitions (for example, “being obese”, “BMI”, “terminal event” and “relevant service”) are integral to interpretation and application (Schedule , definitions). The Statement therefore stands as a self-contained instrument with commencement and date entries but without internal amendment notes or schedules indicating prior versions.

As a matter of practice, RMA Statements of Principles are instruments that can be remade, updated, or superseded by later determinations under the same statutory power. This instrument contains no internal amendment history within its text. Any amendment history beyond the instrument itself is not recorded in the provided material. The instrument is numbered No. 99 of 2022, which signals its place in the RMA’s catalogue of Statements for that year; the text does not provide a registry of preceding or subsequent statements.

For users relying on this Statement, the practical implication is to check the RMA and the relevant administrative registers for any later determinations that amend, replace or repeal this instrument. The instrument itself contains no transitional provisions, savings clauses or amendment logs. The Schedule’s cross-reference rule in section 10 permits factors to import other Statements as those Statements are “in force from time to time”; in operation, that creates a dependency on the currency of other Statements and thus a requirement for claimants and decision-makers to monitor changes to related Statements as well as to this instrument.

In short, within the document supplied: determined 21 October 2022, commenced 21 November 2022, No. 99 of 2022, no internal amendment history recorded. For any post‑commencement amendments or replacement Statements, consult the RMA’s public record and the statutory instrument register; the instrument as supplied does not itself record such changes.

The instrument as provided contains no litigation history. It is a Repatriation Medical Authority determination under subsection 196B(2) of the VEA (section 3) and does not list any cases, appeals, judicial reviews, or other litigation records in its text. The Statement names no court decisions and makes no reference to any legal proceedings in its reasoning or findings.

Because the text contains no litigation history, there are no source‑grounded judicial interpretations, contradictory decisions, or precedent discussions to report from this instrument itself. The RMA expresses its view that “there is sound medical‑scientific evidence” that diaphragmatic hernia and death from it can be related to relevant service (section 7); the Statement does not, within the supplied text, cite specific studies, reports, or case law, and it does not recount any contested determinations or appellate outcomes.

Practitioners should therefore treat the absence of litigation history in the instrument as a neutral fact: the document does not assert that its reasoning has been litigated or judicially considered. If claimants or decision‑makers seek to challenge an administrative decision that applied this Statement, any litigation would proceed under the standard review mechanisms available for decisions made under the VEA and MRCA and under general administrative law; those procedures and any empirical litigation record are not set out in this instrument.

In practice, questions about the legal effect, scope or application of RMA Statements can be the subject of merits review or judicial review proceedings, but the instrument itself does not identify or summarise any such proceedings. Therefore, the source‑grounded position is that no litigation history is recorded in the provided Statement; for actual litigation records relating to this instrument, consult tribunal or court databases and the administrative records of the Department or the RMA, as such records are external to the instrument itself.

The Statement contains a number of practical traps and interpretative points that frequently affect claim preparation and decision-making. These are grounded in the instrument’s text and its deployed definitions and constraints.

1. Excluded conditions: the Statement explicitly excludes congenital diaphragmatic hernia, eventration of the diaphragm and hiatus hernia (section 6(2)(b)). If a claimant’s diagnosis is one of these excluded entities, this Statement does not apply. A coexisting or misdiagnosed condition that is excluded will not attract the Statement’s factors unless there is a separate qualifying acquired diaphragmatic hernia diagnosis.

2. “Affected region” and the oesophageal hiatus exclusion: the surgical‑procedure factors require a procedure “that involves the affected region of the diaphragm, excluding the oesophageal hiatus” within 10 years before onset or worsening (sections 8(1) and 8(5)). Practitioners and claims handlers must be precise about anatomical localisation. A procedure confined to the oesophageal hiatus (for example, some fundoplication procedures) would not, under the plain text, count towards the listed surgical factor.

3. Distinction between clinical onset and clinical worsening: the Statement uses two temporal anchors,“clinical onset” and “clinical worsening”,and attaches separate factors to each (e.g. sections 8(1)-8(4) for onset; 8(5)-8(11) for worsening). The instrument does not define “clinical onset” or “clinical worsening” within its text. That omission can create evidentiary uncertainty as to the dates that trigger the relevant windows (10 years, 7 days, 2 years, 6 weeks). Decision-makers may rely on clinical notes, imaging dates or patient reports; claimants should gather contemporaneous documentation to prove timing.

4. Tight short windows for acute pressure events: the acute elevation of intra‑abdominal pressure factors require the event (Heimlich manoeuvre, significant coughing, significant physical effort, underwater diving with compressed air) to be within seven days before clinical onset or worsening (sections 8(3), 8(7)). For late presentations, or where symptom onset is gradual, linking a prior cough or physical effort to onset within seven days may be difficult to establish.

5. Obesity defined by BMI and temporal requirement for worsening: “being obese” is defined as BMI of 30 or greater and BMI equals W/H2 in the Schedule. The obesity factor requires being obese for at least two years before clinical worsening (section 8(9); Schedule , being obese, BMI). That imposes a records‑intensive requirement: longitudinal weight/height records sufficient to establish BMI ≥ 30 over a two‑year period prior to worsening.

Compliance in this context means preparing and presenting evidence sufficient to establish, as a minimum, at least one of the factors listed in section 8 and to show that the factor is related to the person’s relevant service (section 9(1)). The following steps are grounded in the instrument’s text and the definitions in the Schedule; they are practical actions for claimants, representatives, medical practitioners and decision-makers.

1. Identify the diagnosis and exclusions. Confirm the claimant has an acquired diaphragmatic hernia (the instrument’s definition, section 6(2)(a)) and not an excluded form (congenital diaphragmatic hernia; eventration of the diaphragm; hiatus hernia) (section 6(2)(b)). Obtain definitive imaging reports, surgical findings, or specialist letters documenting the acquired nature and excluding the listed conditions.

2. Establish clinical onset and/or clinical worsening dates. The Statement differentiates between clinical onset and clinical worsening and ties specific timing windows to each (sections 8(1)-8(11)). Obtain medical records, emergency department notes, imaging dates, surgical reports and specialist clinic letters that record symptom onset dates, diagnosis dates, and any documented worsening episodes. Where dates are uncertain, contemporaneous clinical notes and allied health records can help anchor the timing.

3. Document surgical procedures involving the affected region (excluding the oesophageal hiatus). If relying on the surgical factor (sections 8(1) or 8(5)), collect full operative reports, theatre logs and discharge summaries that describe the anatomical region operated on, the date of procedure and whether the oesophageal hiatus was involved. The procedure must have involved the affected region of the diaphragm and be within ten years prior to clinical onset or worsening.

4. Document acute trauma. For factors in sections 8(2) and 8(6), obtain accident reports, trauma service records, ambulance records, imaging, hospital admission notes, and police reports where relevant. The documentation should specify the anatomical region of trauma and its timing relative to clinical onset/worsening.

5. Document acute intra‑abdominal pressure events. For factors in sections 8(3) and 8(7), compile clinical notes that record events such as employment of the Heimlich manoeuvre, episodes of significant coughing, documented strenuous physical effort, or instances of underwater diving with compressed air. Where possible, provide contemporaneous witness statements, incident reports, sports or diving logs, and medical treatment notes dated within seven days prior to the relevant clinical event.