Statement of Principles concerning diverticular disease of the colon (Reasonable Hypothesis) (No. 51 of 2025)

The Statement of Principles concerning diverticular disease of the colon (Reasonable Hypothesis) (No. 51 of 2025) is a legislative instrument made under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (VEA). It replaces its predecessor (No. 15 of 2016) and commences on 19 May 2025. Its mechanical function is to specify the medical and lifestyle factors that the Repatriation Medical Authority (RMA) considers, on sound medical-scientific evidence, can establish a reasonable hypothesis linking diverticular disease of the colon (including its complications - abscess, bleeding, stricture, fistula, perforation) to relevant service rendered by veterans, members of Peacekeeping Forces, members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (MRCA). In practice, this SoP is a mandatory checklist for decision-makers at the Department of Veterans’ Affairs and the Veterans’ Review Board (and, on appeal, the Administrative Appeals Tribunal). If a claimant can point to at least one factor listed in section 9 and show that factor is related to their service, then a reasonable hypothesis is deemed to exist, and the standard of proof shifts to the “reasonable satisfaction” test for the claim to succeed. The instrument therefore directly governs which claims for diverticular disease will be accepted as service-related, and it circumscribes the medical opinion that can otherwise be considered. It also revokes the earlier SoP, meaning that pending claims and future applications must be assessed against this new version. The economic effect is that the listed factors expand or contract the pool of accepted claims relative to the old SoP, depending on whether new factors were added or old ones removed. For individual veterans, each factor imposes a factual and temporal threshold that must be met with evidence; failure to satisfy any factor means the claim is unlikely to succeed unless the decision-maker finds the evidence justifies departing from the SoP (which requires strong rebuttal). The SoP does not grant any new rights beyond those in the VEA or MRCA, but it operationalises them. It applies to both operational and peacetime service categories (warlike and non-warlike under MRCA; operational, peacekeeping, hazardous and British nuclear test defence service under VEA). It also applies to clinical worsening of a pre-existing condition, but only where the condition was suffered or contracted before or during service and did not arise out of that service (section 10(2)). Thus, it prevents a claim based on worsening unless the worsening factor is established and related to service.

The central concept is the “reasonable hypothesis” standard. Under sections 120A of the VEA and 338 of the MRCA, the decision-maker must determine whether there is a reasonable hypothesis connecting the injury, disease or death with the circumstances of service. The SoP defines the medical and factual conditions that, if satisfied, will be accepted as raising that hypothesis. Key concepts include “clinical onset” and “clinical worsening”. Clinical onset is the point at which the disease first becomes manifest to the person (symptoms or diagnosis). Clinical worsening means a material increase in severity or the development of a new complication (such as perforation or bleeding) that represents a worsening of the underlying condition. The SoP uses these temporal anchors to link factors to the disease.

Another concept is the “terminal event” definition: pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. If death is contributed to by diverticular disease, the SoP covers it as “death from diverticular disease of the colon”. This is important for claims by dependants.

The disease itself is defined narrowly as “acquired herniation of the mucosa and submucosa through the muscular layer of the colon wall”, and includes diverticulosis (without inflammation) and diverticulitis (with inflammation). It also explicitly includes diverticular abscess, bleeding, stricture, diverticulitis complicated by bowel obstruction or fistula, and perforation of a diverticulum. The definition is broader than simple diverticulosis; it captures complications that are more likely to lead to disability or death. The SoP references ICD-10-AM codes K57.2 and K57.3 but states the meaning in the instrument prevails.

The factors in section 9 are each linked to either clinical onset or clinical worsening, and often to specific complications. For example, factor 3 (diabetes mellitus) applies “at the time of clinical onset or clinical worsening of diverticular bleeding” - not for other complications. Factor 7 (immunosuppressive medication) applies only within 30 days before clinical onset or clinical worsening of “diverticular perforation, abscess or fistula” - not for diverticulitis without those complications. This granularity reflects the RMA’s view of the medical evidence. Factor 21 (inability to obtain appropriate clinical management) is notably broad and applies only to clinical worsening, not onset. It could cover failure to provide standard care (e.g., antibiotics, surgical referral) while on service.

The concept of “relevant service” is defined in the dictionary and includes operational, peacekeeping, hazardous and British nuclear test defence service under VEA, and warlike and non-warlike service under MRCA. This means the SoP covers both combat and non-combat service, including peacetime service where the member was injured or exposed to a factor.

The primary individuals affected are veterans and members of the Australian Defence Force (ADF) who render relevant service as defined in the VEA and MRCA. This includes former members, current members, and in some cases, their dependants claiming in respect of a death. The SoP applies to claims under Part II of the VEA (pensions) and under the MRCA (military rehabilitation and compensation). It does not apply to members of the Reserves on non-operational service unless that service is captured under the MRCA definitions. It also affects peacekeepers (including Australian Federal Police? No, only members of Peacekeeping Forces under VEA). The SoP is binding on decision-makers in the Department of Veterans’ Affairs, the Veterans’ Review Board, and the Administrative Appeals Tribunal. Medical professionals who provide evidence will need to understand the specific temporal and quantitative thresholds (e.g., BMI ≥25 for at least 5 years, fibre intake <30g/day for 5 consecutive years within 10 years before onset, red meat ≥200g/day for 5 years, smoking ≥10 pack-years within 10 years of onset, alcohol ≥180 kg within 10 years). The SoP also affects veterans’ advocates and legal representatives who must gather evidence to meet these specific criteria.

On the supply side, the instrument affects medical practitioners who treat veterans, as they may be asked to provide opinions on, for example, the date of clinical onset, the duration of obesity, or the precise daily fibre intake over a period of years. This imposes a compliance burden on both the veteran and the healthcare system. For the Department of Veterans’ Affairs, the SoP reduces discretion but also creates a detailed set of rules that can be gamed or contested. The economic consequences include the cost of processing claims, funding pensions and medical treatment for accepted conditions, and the opportunity cost of resources diverted from other areas. If the SoP is overly inclusive (e.g., the broad “inability to obtain appropriate clinical management” factor), it may increase the number of accepted claims, increasing government expenditure. If it is too restrictive, it may shift costs to the veteran or the public health system. The instrument also affects private insurance markets indirectly: if veterans receive compensation for diverticular disease, they may be less reliant on private health insurance or Medicare.

Finally, the instrument affects the RMA itself, which must review the SoP periodically and update it based on new evidence. The SoP is a form of delegated legislation that constrains the executive government’s claims assessment. It also affects the courts and tribunals that interpret it.

The SoP creates no direct duties on private individuals. Instead, it imposes evidentiary obligations on claimants who wish to succeed in a claim for diverticular disease. The claimant must establish that at least one of the factors in section 9 existed and was related to their service. The decision-maker’s duty is to apply the SoP; if a reasonable hypothesis is raised, the decision-maker must then determine whether the claim is satisfied on the balance of probabilities (reasonable satisfaction). The SoP effectively creates a rebuttable presumption in favour of the claimant if the factor is proven.

The factor regarding “inability to obtain appropriate clinical management” (factor 21) is a notable right: it allows the veteran to claim that a lack of proper medical care on service led to a worsening of diverticular disease. However, the duty is not on the military to provide such care; the factor simply recognises that if appropriate clinical management was unavailable, that may justify the claim. This could be used by veterans who experienced delayed diagnosis or treatment while deployed.

The factor regarding “contact with a foreign object or extraneous material at the affected site at the time of clinical worsening” (factor 20) is a direct causal link: if a veteran, for example, ingested a chicken bone that perforated a diverticulum while on service, that single event can establish the connection. This factor does not require a long-term exposure; it is an acute trigger.

The definition of “terminal event” in the dictionary gives a right to claim death benefits if the death was contributed to by diverticular disease. The estate or dependants must show that the disease was a contributing cause, not necessarily the sole cause.

The SoP also gives the right to rely on any factor that refers to another injury or disease (e.g., systemic sclerosis, diabetes, chronic renal failure) only if that other condition itself meets the service connection test under its own SoP. This is a qualification on the right: the intermediate condition must be service-related. So a veteran with diabetes acquired after service cannot use factor 3 unless the diabetes is related to service (e.g., due to Agent Orange or other exposure). This prevents bootstrapping.

The SoP does not create any duty on the RMA to review or update the factors; that is already in the parent Act. The duty of the decision-maker is to apply the SoP as in force at the time of the decision. The SoP itself does not create a right to review; that exists under the VEA and MRCA.

The SoP itself contains no penalties. However, it is a legislative instrument made under the VEA, and the penalty for non-compliance by a decision-maker is that a decision may be overturned on review. There is no criminal penalty for a veteran who makes a false claim, but general fraud provisions in the Criminal Code apply if a claimant knowingly provides false evidence to meet a factor (e.g., fabricating a smoking history). The more relevant enforcement mechanism is the internal review and merits review process. If the decision-maker incorrectly applies the SoP (e.g., misinterprets “inability to undertake any physical activity greater than 3 METs for at least 5 years”), the veteran can appeal to the Veterans’ Review Board or the Administrative Appeals Tribunal. The SoP is binding in the sense that it cannot be ignored; but the tribunal can consider whether a factor exists based on the evidence. There is no penalty for the RMA if the SoP later proves to be based on flawed medical evidence; amendment history shows the SoP is updated periodically.

The practical enforcement is through the evidentiary burden. If a veteran claims factor 17 (consuming at least 180 kg of alcohol within 10 years before clinical onset), they must produce evidence such as medical records, hospital notes, or a reliable history. The decision-maker may accept the veteran’s sworn statement but often requires corroboration. Failure to provide sufficient evidence means the claim is rejected. The SoP does not create a penalty for the veteran in that case; the claim simply fails.

For medical practitioners, there is no penalty for providing an opinion that the decision-maker does not accept, but if a practitioner knowingly provides false evidence in support of a claim, they may be liable under the Health Insurance Act or professional misconduct rules.

The economic efficiency of enforcement is questionable: the SoP creates highly specific quantitative thresholds (e.g., at least 180 kg of alcohol, at least 30 g/day fibre for 5 consecutive years, at least 200 g/day red meat for 5 years). These are difficult to prove with precision years or decades later. The compliance cost for the department in evaluating such evidence is high. The SoP incentivises veterans to reconstruct past habits, potentially overstating risk factors. The enforcement mechanism relies on the honesty of claimants and the skill of decision-makers in testing evidence.

The SoP is made under subsection 196B(2) of the VEA. It interacts with section 120A of the VEA and section 338 of the MRCA, which require the decision-maker to determine claims by reference to Statements of Principles determined by the RMA. The SoP thus overrides any general medical evidence that might otherwise suggest a connection between service and diverticular disease. A veteran cannot simply rely on a doctor’s opinion that “it might be due to service” if the doctor’s opinion conflicts with the SoP factors, unless the doctor specifically addresses one of the factors. However, the SoP itself acknowledges that it is based on “sound medical-scientific evidence” and that the RMA is of the view that such a relationship can exist; therefore, the SoP is not a complete bar but a structured framework.

The SoP also interacts with other Statements of Principles via section 11. For example, if a veteran has systemic sclerosis (factor 1) that is not related to service, factor 1 cannot be used unless the systemic sclerosis itself meets its own SoP (which would require its own service connection). This creates a cascading effect: the intermediate condition must be service-related. This prevents a veteran from relying on a condition that developed after service and was not aggravated by service.

The SoP interacts with the common law and other compensation schemes (e.g., workers’ compensation, motor vehicle accident schemes) but only indirectly. The VEA and MRCA are separate federal schemes. A veteran may also receive compensation from other sources, but the VEA includes provisions for offsetting or coordination. The SoP does not affect those.

The SoP also interacts with the Repatriation Commission’s policy guidelines and internal instructions. The Commission issues advisory documents that interpret the SoP factors, but those are not legally binding. The SoP itself is binding.

Regarding privacy and evidence gathering, the Privacy Act 1988 and the Archives Act 1983 may affect the veteran’s ability to obtain medical records to prove factors like obesity, fibre intake, or alcohol consumption. The SoP itself does not create any special powers to access information.

The SoP may also interact with the Criminal Code if a veteran fraudulently claims a factor. No interaction with the Human Rights Act because there is no such federal act in Australia, but general administrative law principles apply.

The replacement of the 2016 SoP means that claims determined after 19 May 2025 must be assessed under the new instrument. Pending claims that have not been finalised will likely be decided under the new SoP if the decision is made after commencement, unless transitional provisions apply. The SoP does not contain any transitional grandfathering, so the new factors apply immediately.

This SoP repeals and replaces the Statement of Principles concerning diverticular disease of the colon (Reasonable Hypothesis) (No. 15 of 2016) (Federal Register of Legislation No. F2016L00265). That earlier SoP was also made under subsection 196B(2) of the VEA. The new SoP is No. 51 of 2025. The 2016 SoP would have had its own set of factors; any changes between the two are not detailed in the new instrument, but it is reasonable to assume the RMA updated the factors based on new medical evidence. The new SoP includes several factors not obviously present in the 2016 version, such as: systemic sclerosis, chronic renal failure, solid organ transplant, immunosuppressive medications (specifically listed), antiplatelet medications explicitly including aspirin, menopausal hormone therapy, and the detailed quantitative thresholds for red meat, fibre, and alcohol. The 2016 SoP may have had fewer subfactors or different temporal requirements. The new SoP also explicitly includes “inability to obtain appropriate clinical management” as a factor for clinical worsening; that may have been present in the old one, but its inclusion here suggests the RMA considers it relevant. The amendment history also reflects ongoing review by the RMA; the SoP is allocated a number each year. There is no further amendment history given, but the instrument notes that it is determined under subsection 196B(2) - the reasonable hypothesis standard (as opposed to the reasonable satisfaction standard under subsection 196B(3), which would be a different SoP). It is possible that a parallel “reasonable satisfaction” SoP exists for diverticular disease, but only the reasonable hypothesis version is before us.

The commencement date of 19 May 2025 gives a month between the determination date (15 April 2025) and effect. This allows the Department of Veterans’ Affairs and stakeholders to adjust. For legal certainty, the repeal of the 2016 SoP means that any previous accepted interpretations or delegated legislation no longer apply.

This specific instrument, No. 51 of 2025, cannot have litigation history as it was made on 15 April 2025 and commences on 19 May 2025. No court or tribunal has yet considered it. However, predecessor SoPs (e.g., No. 15 of 2016) have been litigated in the Administrative Appeals Tribunal and the Federal Court. The general pattern is that veterans challenge decisions where the Department has rejected a claim based on the SoP. Veterans argue that a factor exists that the decision-maker failed to recognise or misinterpreted. For example, disputes about what constitutes “inability to obtain appropriate clinical management” or “inability to consume an average of at least 30 grams per day of fibre” are likely. The Federal Court has held that the SoP is binding and must be applied; the tribunal cannot disregard it. However, the tribunal can find that a particular factor is satisfied based on the evidence. There is also litigation on the constitutional validity of the RMA’s power to make SoPs, but that has been upheld.

Given the new SoP includes factors with precise timings and quantities (e.g., 180 kg of alcohol, 200 g red meat), it is highly likely that litigation will arise over whether the veteran can prove these amounts over specific periods. For example, what evidence is sufficient to prove “at least 5 consecutive years within the 10 years before clinical onset” of fibre intake below 30g/day? The tribunal may accept self-reporting backed by medical records or may require contemporaneous diet diaries. Similarly, proving BMI of 25 or greater for at least 5 years before onset requires evidence of weight over time, which may be difficult if the veteran did not measure weight regularly. This SoP may generate more litigation than its predecessor because of the quantitative specificity.

No specific case names are available in the source, and we cannot invent them. But we can note the general trend: AAT decisions are published, and practitioners will need to review those that interpret similar clauses in other SoPs (e.g., for ischaemic heart disease or other gastrointestinal conditions). The factor “inability to obtain appropriate clinical management” has been litigated in other contexts; the AAT often requires evidence that clinical management was indeed unavailable and that this worsened the condition.

The so-called “terminal event” definition may also be litigated: whether the diverticular disease contributed to death where the terminal event is listed (pneumonia, etc.), and whether the deceased’s condition was a substantial cause.

Factor 19 - “inability to obtain appropriate clinical management for diverticular disease of the colon before clinical worsening” - is a trap for the unwary. It applies to clinical worsening only, not onset. If a veteran had diverticulosis before service and developed a complication (e.g., perforation) while on service due to lack of medical care, that might be covered. But if the veteran simply had no symptoms before service and first developed diverticulitis after service, this factor is irrelevant. The phrase “appropriate clinical management” is vague. Does it mean the military doctor failed to diagnose? Or that standard of care was not provided due to resource constraints in a deployed environment? The notes do not define it. This could be a broad factor that allows claims where the military’s medical system was suboptimal.

Factor 4 - “inability to undertake any physical activity greater than 3 METs for at least the 5 years before clinical onset or clinical worsening”. This is a severe limitation of physical capacity. Most people can walk at 3-4 METs; inability to do so implies significant disability (e.g., from heart failure, severe arthritis, paralysis). The veteran would need to be nearly bedridden for 5 years before onset. This is a high bar; it might be used by veterans who had a prior service-related condition that caused immobility.

Factor 2 - BMI of 25 or greater (overweight) for at least 5 years. This includes most veterans; being overweight is common. However, proving BMI over time requires height and weight records. A veteran who joined the ADF at a normal weight and gained weight post-service may not have 5 years of overweight status before clinical onset if onset occurred early. If clinical onset occurred years after service, the veteran must still show the overweight period was before onset, not necessarily during service. The factor only requires that it exist before onset/worsening; it does not require it to be service-related. So if a veteran was overweight for 5 years before onset of diverticulitis at age 50, even if that overweight period occurred after service and due to civilian lifestyle, the factor is satisfied as long as it is related to service? Wait - section 10(1) says: “The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.” So the factor itself (e.g., being overweight) must be related to service. That is a major gotcha. The veteran cannot simply be overweight; the overweight condition must have been caused or contributed to by service (e.g., due to an injury that led to reduced mobility, or due to psychological factors from service). This is often difficult to prove. The same applies to other lifestyle factors: smoking, alcohol consumption, fibre intake, red meat consumption. They must be related to service. This means that even if a veteran meets the quantitative threshold, they must still argue that their service caused them to smoke more, drink more, eat more red meat, or eat less fibre. That adds a layer of causation that is not obvious from the factor alone. Many veterans will be tripped up by this.

Compliance is with the evidentiary requirements to succeed in a claim. The veteran and their representatives must follow these steps:

1. Identify the specific complication of diverticular disease claimed (e.g., acute diverticulitis, perforation, bleeding, abscess, fistula, stricture, or just diverticulosis). The factors are sometimes linked to specific complications; if the complication is not listed (e.g., simple diverticulitis without perforation), the broader factors (e.g., obesity, smoking, fibre, alcohol) may still apply.

2. Determine the date of clinical onset and/or clinical worsening. This is critical, as many factors require the existence of the factor for a defined period before that date. Collect medical records showing first symptoms or diagnosis. If there is clinical worsening (e.g., from uncomplicated diverticulitis to perforation), note that date.

3. Assemble evidence to satisfy at least one factor from section 9. For each potential factor, check the temporal requirements:

   • Factor 2 (BMI≥25): proof of weight and height over at least 5 years before onset/worsening. Military medical records, enlistment records, routine health assessments. If weight gain is due to service, obtain evidence of service-related injury or psychological condition.
   • Factor 4 (inability to undertake activity >3 METs): medical evidence of severe functional limitation (e.g., heart failure, spinal injury) lasting at least 5 years before onset/worsening. Link that limitation to service.
   • Factor 5 (chronic renal failure): lab results showing GFR <15 for 3 months, or dialysis records, before onset/worsening.
   • Factor 7/8 (immunosuppressive medication): prescription records for corticosteroids, transplant rejection drugs, TNF inhibitors, chemotherapeutic agents, interleukin-6 inhibitors, within 30 days before onset/worsening of perforation/abscess/fistula.
   • Factor 9/10 (NSAIDs): evidence of continuous daily NSAID use (excluding aspirin/paracetamol) for at least 4 weeks, with last dose within 7 days before onset/worsening of bleeding, perforation, abscess, fistula.
   • Factor 11/12 (antiplatelet medication): evidence of taking aspirin, clopidogrel, dipyridamole, etc., with last dose within 7 days before onset/worsening of diverticular bleeding.
   • Factor 13 (opioid): continuous opioid use for at least 4 weeks before clinical worsening, last dose within 7 days before worsening.
   • Factor 14 (menopausal hormone therapy): prescription or medical history of hormone therapy for at least 1 year before clinical onset.