Statement of Principles concerning endometriosis (Reasonable Hypothesis) (No. 51 of 2021)

The central concept is the “reasonable hypothesis” standard. Under the VEA and MRCA, a claim for an injury or disease on operational, peacekeeping, warlike or non‑warlike service is decided by applying the reasonable hypothesis test unless certain exceptions apply. This SoP defines what factors, if related to service, are sufficient to raise that hypothesis for endometriosis. The test is not that the factor caused the condition, but that there is a plausible medical link - a hypothesis that is not contrary to proven medical facts or so far‑fetched as to be untenable. The SoP’s factors are the minimum combination the RMA considers necessary for such a hypothesis. The instrument distinguishes between “clinical onset” and “clinical worsening”. Onset factors (1-8) apply when the condition first becomes symptomatic or diagnosable; worsening factors (9-13) apply where the condition pre‑existed and was aggravated by a factor during relevant service. Section 10(2) restricts worsening factors to cases where the endometriosis was suffered or contracted before or during (but did not arise out of) the person’s relevant service. This creates a conceptual boundary: if the endometriosis itself was caused by service, only onset factors need be considered; if it was pre‑existing and unrelated to service, a worsening factor must be shown. The instrument defines “relevant service” narrowly - operational, peacekeeping, hazardous, British nuclear test defence service under the VEA, and warlike or non‑warlike service under the MRCA. Peacetime domestic service that does not fall within these categories is excluded from the SoP’s scope. The dictionary defines key terms with precision. “Being underweight” means a BMI of 18.5 or less; this is a simple objective measure, but the factor requires that it persisted for at least one year while the person was aged 18 or younger. “Severe childhood abuse” is defined as serious physical, emotional, psychological or sexual harm, or serious neglect, while a child aged under 16, perpetrated by a parent, care provider, adult who works with or around that child, or any other adult in contact with that child. The definition does not include abuse by siblings or peers unless they qualify as “other adult”, which is unlikely. “Menopausal hormone therapy” means administration of hormone preparations to offset a hormone deficiency following surgically induced or naturally occurring menopause. This is limited to estrogen‑only therapy for the purposes of the factors. “Terminal event” is a closed list of five causes of death that must have been contributed to by the endometriosis. The instrument also incorporates the ICD‑10‑AM code N80 for administrative reference, but the meaning of endometriosis for the SoP is the one given in subsection 7(2), which may differ from the ICD code’s scope. The concept of “inability to obtain appropriate clinical management” is not defined, leaving open questions about what constitutes “appropriate” and when the inability is due to service circumstances. This factor applies only to worsening, not onset.

The primary group affected is veterans, members of the Peacekeeping Forces, and members of the Forces under the VEA, as well as members under the MRCA, who have “relevant service” as defined. That definition excludes many who served in peacetime reserve or regular service without operational, peacekeeping, hazardous, British nuclear test, warlike or non‑warlike elements. A substantial subset of former Australian Defence Force personnel will therefore be outside the instrument’s coverage, and their claims for endometriosis cannot rely on this SoP to establish a reasonable hypothesis. For those within scope, the instrument directly affects the success or failure of compensation claims for endometriosis and death from endometriosis. Dependents making a claim for death from endometriosis are also affected, as the definition includes death contributed to by endometriosis through a terminal event. The instrument also affects decision‑makers: delegates of the Repatriation Commission, the Veterans’ Review Board, and the Administrative Appeals Tribunal are bound to apply the SoP when assessing claims. They must ensure that at least one factor exists and is related to service; they cannot accept a hypothesis based on factors outside the list, even if medical opinion suggests a plausible link. The RMA itself is affected as the maker of the instrument; it must keep the SoP under review, but the instrument does not impose a continuing obligation. Lawyers, advocates, and medical practitioners who advise veterans must understand the defined factors and the strictures of the dictionary. For example, a veteran who experienced severe childhood abuse must show that the abuse was perpetrated by a person within the specified categories - a parent, care provider, adult who works with or around the child, or any other adult in contact. If the abuse was by a teenage sibling, the definition is not met. Clinicians diagnosing endometriosis must be careful to exclude adenomyosis, because the instrument specifically excludes it; a misdiagnosis could lead to a failed claim if the decision‑maker relies on the SoP. The instrument also affects the Repatriation Commission and the Department of Veterans’ Affairs as administrators: they must consider whether a claimant’s inability to obtain appropriate clinical management for endometriosis is attributable to service, which may create an incentive to ensure adequate access to treatment for service‑related conditions.

The instrument imposes a duty on the RMA to determine SoPs based on “sound medical‑scientific evidence”, which it states it has done for this instrument. Once made, the duty on decision‑makers under the VEA and MRCA is to apply the SoP when determining whether a reasonable hypothesis exists. They must accept that if at least one factor in section 9 exists and is related to relevant service, a reasonable hypothesis is raised. They may not add additional requirements beyond the minimum. Conversely, if no factor exists, they must conclude that no reasonable hypothesis can be raised, regardless of other evidence. This is a binding rule, not a guideline. Claimants have a right to have their claim assessed under the SoP. They have a right to adduce evidence that one of the factors exists and that it is related to their service. For example, a claimant can argue that they were unable to breastfeed for at least three cumulative months due to service‑related circumstances, or that they experienced severe childhood abuse that is linked to service (such as abuse by a military parent while the family was posted). The factor of “inability to obtain appropriate clinical management” gives claimants a right to argue that the Department’s failure to provide proper treatment for endometriosis contributed to worsening. This right is significant because it is a direct service‑failure factor, not dependent on a personal health event. However, the burden of proof lies on the claimant to establish the factor and its connection to service. The instrument does not specify what standard of proof applies to the existence of the factor itself; the usual rules for evidence under the VEA and MRCA will apply. The instrument also gives the RMA the right to repeal earlier instruments, which it exercised by revoking the 2012 SoP. The dictionary definitions create a right for claimants to rely on objective criteria - for example, the BMI cut‑off for being underweight removes ambiguity. However, the definition of “severe childhood abuse” restricts the right to rely on abuse perpetrated only by certain categories of person, which may exclude valid cases. Section 11 creates a duty to incorporate by reference factors from other SoPs if the endometriosis factor refers to another injury or disease. This means that if, for example, factor (1) (penetrating trauma or surgery) itself involves a condition that has its own SoP, the factors of that SoP must be satisfied as well. This layered requirement can increase the evidentiary burden on the claimant.

This instrument does not create offences or pecuniary penalties. Its function is to define the conditions for entitlement to compensation. Non‑compliance by a decision‑maker - failing to apply the SoP correctly - could lead to a jurisdictional error, giving grounds for judicial review. A decision that does not consider whether a factor exists when the claimant has raised it, or that imposes a higher threshold than a minimal existence, would be reviewable. Similarly, a decision that accepts a hypothesis without any factor being present would be in error. The primary enforcement mechanism is through the Veterans’ Review Board, the Administrative Appeals Tribunal, and the Federal Court. The RMA has no enforcement role; it is a rule‑maker. The instrument does not provide any direct penalty for claimants who misrepresent facts, but general provisions of the VEA and MRCA about false statements would apply separately. For the Department of Veterans’ Affairs, failing to properly administer claims in accordance with the SoP could lead to multiple appeals and potential cost orders. The instrument is silent on any compliance auditing or monitoring. The real “penalty” for a claimant is the denial of compensation if they cannot bring themselves within the factors, even if their endometriosis is genuinely service‑related in a way not captured by the SoP. This is an inherent feature of the system: the SoP may not cover every plausible causal pathway. The instrument’s repeal of the 2012 SoP means that earlier decisions based on the old factors are not reopened unless the claimant makes a new claim or application for review. For claims assessed after 24 May 2021, the new SoP must be used; there is no transitional provision in the instrument. The instrument does not specify any penalty for the RMA if its determination is later found to be unsupported by sound medical‑scientific evidence, but such a finding could invalidate the SoP on judicial review. Enforcement of the instrument’s requirements ultimately rests on the willingness of claimants and their representatives to challenge incorrect decisions.

The SoP is made under subsection 196B(2) of the VEA and is expressed to apply to claims under section 120A of the VEA and section 338 of the MRCA. That means it operates within the framework of those two Acts and their standards of proof. For claims under the VEA, the standard for operational service is reasonable hypothesis for connection to service; for other kinds of service the standard is reasonable satisfaction. The SoP only addresses the reasonable hypothesis limb. For claims where the higher standard applies, the SoP’s factors may still be relevant but are not determinative in the same way. The instrument explicitly interacts with other SoPs through section 11. If a factor in this SoP refers to an injury or disease for which another SoP exists, then the factors of that other SoP must be satisfied. For example, factor (1) requires “penetrating trauma or surgery involving the site of subsequent endometriosis”. If that trauma itself is a condition (e.g., a penetrating wound), and there is a SoP for that wound, the claimant must meet the factors of that SoP as well. This prevents a claimant from relying on an undefined or unsupported condition. The instrument also interacts with the ICD‑10‑AM classification, but the definition of endometriosis in subsection 7(2) takes precedence over the code. This means a diagnosis that falls within the ICD code but does not meet the instrument’s definition (e.g., asymptomatic endometriosis discovered incidentally) might not be covered. The instrument does not interact with state workers’ compensation schemes or private insurance; it is exclusive to the military compensation system. It does not interact with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for Commonwealth employees, as that Act has its own mechanism. However, a claimant may also have entitlements under other legislation, such as the Disability Discrimination Act 1992, but those are not relevant to the SoP. The instrument does not override any provision of the VEA or MRCA; it operates within their bounds. For example, section 120B of the VEA requires the Minister to consult the RMA about SoPs, but that consultation is not reflected in this instrument. The instrument also does not interact with state medical practice laws; it only affects how medical evidence is used in compensation claims.

This instrument was made on 23 April 2021 and commenced on 24 May 2021. It repeals the previous Statement of Principles concerning endometriosis No. 41 of 2012 (registered as F2012L01355). There are no subsequent amendments recorded in the source text. The instrument is relatively recent and has not been amended as of the date of this analysis. The RMA did not include an explanatory statement in the provided text, so the specific evidence or changes from the 2012 version are not available. However, the fact of repeal indicates that the RMA considered the medical‑scientific evidence had developed sufficiently to warrant new factors. The instrument does not contain any transitional provisions; it applies to all claims made after its commencement, regardless of when the service occurred. The earlier 2012 SoP would have applied to claims made before 24 May 2021, unless the decision was not yet final. Because the instrument is a legislative instrument, it is subject to registration and tabling in Parliament under the Legislation Act 2003. The instrument itself does not reference any disallowance period, but it would be subject to disallowance within 15 sitting days. There is no indication that it was disallowed. The instrument is expressed to be made under subsection 196B(2) of the VEA, which is the provision for determining SoPs in relation to injuries or diseases. There is no amendment history within the instrument; it is a single‑version text.

The instrument itself does not mention any litigation. However, Statement of Principles determinations generally have been subject to judicial review in the High Court and Federal Court. For example, challenges have been made on the grounds that the RMA failed to take into account relevant medical evidence or that the factors are not based on sound medical‑scientific evidence. Such challenges can lead to the SoP being set aside or remade. Since this particular SoP is recent (2021), there may be limited recorded litigation specific to it. The earlier 2012 SoP may have been litigated, but the source text does not provide that information. In practice, claimants and decision‑makers must be aware that the SoP is binding but not immune to challenge. If a claimant can demonstrate that the RMA acted beyond power or on an unreasonable basis, the SoP could be invalidated. However, the threshold for such a challenge is high. The instrument does not provide any guidance on how litigation interacts with the factors. It is silent on whether any court interpretation of similar terms in other SoPs should apply. The only safe conclusion is that the instrument, as a legislative instrument, is subject to ordinary principles of statutory interpretation and judicial review. The absence of any litigation mentioned in the source text means the instrument has not been judicially considered in this document.

Several traps exist within this instrument. First, the definition of endometriosis expressly excludes adenomyosis. Many medical diagnoses may use overlapping terms; if a claimant’s condition is adenomyosis, this SoP does not apply, and they must rely on a different SoP. Second, the factor of “severe childhood abuse” requires that the abuse be perpetrated by a parent, care provider, adult who works with or around the child, or any other adult in contact with the child. Abuse by a sibling who is also a minor, or by a non‑adult peer, is not captured. This is a narrow definition that may exclude many experiences of childhood trauma. Third, “being underweight” requires a BMI of 18.5 or less for at least one year while aged 18 or younger. That is a relatively low BMI and a specific age window; a veteran who became underweight in adulthood due to service stress cannot use this factor for onset. Fourth, the “inability to breastfeed” factor only applies to parous women and requires a cumulative period of at least three months. The term “inability” is not defined; if a woman chose not to breastfeed for reasons related to service, it may not qualify as inability. Fifth, the worsening factors (9-13) only apply if the endometriosis was suffered or contracted before or during (but did not arise out of) the person’s relevant service. This means that if a veteran developed endometriosis as a direct result of service, the worsening factors are irrelevant - they must rely on the onset factors to claim compensation. But if they developed endometriosis during service but from a non‑service cause (e.g., unrelated illness), they could still use the worsening factors for later aggravation. Interpreting “did not arise out of” can be litigious. Sixth, the factor of “inability to obtain appropriate clinical management” is undefined. What constitutes “appropriate”? Standard treatment guidelines? What if the veteran refused treatment? The factor is likely to be contested. Seventh, the SoP is exhaustive - if a veteran has a plausible medical link that does not match any factor, no reasonable hypothesis can be raised. For example, a veteran who develops endometriosis after exposure to a toxic chemical while on service would not be covered unless that exposure falls within one of the factors (it does not). The RMA may have considered such evidence and rejected it, but the instrument does not say. Eighth, the requirement that each factor be “related to the relevant service” means the factor itself must be attributable to service. For instance, taking tamoxifen for a non‑service‑related condition would not count unless the tamoxifen use was itself caused by service (e.g., prescribed for a service‑related cancer). Ninth, the instrument does not apply to all veterans - only those with the defined “relevant service”. Many veterans with only peacetime domestic service cannot use this SoP. Tenth, the instrument incorporates by reference other SoPs via section 11. A claimant may need to meet the factors of multiple SoPs, increasing complexity.

For claimants and their representatives, compliance means systematically checking each factor against the veteran’s history. Gather documentary evidence of the chosen factor: medical records of penetrating trauma or surgery, obstetric records showing caesarean section within five years before onset, documented BMI measurements below 18.5 for at least one year while aged 18 or younger, prescription records for estrogen‑only menopausal hormone therapy or tamoxifen, evidence of inability to breastfeed for three cumulative months (possibly documented by lactation consultants or medical notes), records of pelvic inflammatory disease or endometritis, and evidence of severe childhood abuse (police reports, counselling records, child protection orders). For the childhood abuse factor, ensure the perpetrator fits the required categories. For the worsening factors, show that the condition pre‑existed or arose during service but not out of service, and that the factor occurred during service time. For the inability to obtain appropriate clinical management factor, document unmet treatment needs: delays in diagnosis, refusal of referrals, lack of access to specialists, or inadequate pain management attributable to service circumstances. Claimants should also exclude adenomyosis from the diagnosis. For decision‑makers, compliance requires applying the SoP as a checklist. Do not accept a hypothesis that is based on a factor not listed. Verify that the factor existed and is related to service. For example, if a veteran claims severe childhood abuse, check that the abuse involved a qualifying perpetrator. If the factor refers to another condition (e.g., pelvic inflammatory disease), check whether that condition has its own SoP and whether the claimant meets its factors. Ensure the correct distinction between onset and worsening claims. If the claim is for death, confirm that the terminal event was contributed to by endometriosis. Keep a record of the reasoning, citing the specific subsection of section 9 used. The Department of Veterans’ Affairs should maintain consistency by training delegates on the definitions and case law interpreting them. The instrument itself does not prescribe record‑keeping requirements, but good practice suggests documenting each factor’s satisfaction. If a claim fails because no factor exists, the decision letter should state clearly that no reasonable hypothesis can be raised under the SoP. Claimants should be advised of the option to request a review of the SoP’s validity if they believe the RMA overlooked evidence, but that is a rare course. Overall, compliance is about strict adherence to the text, not creative interpretation.