Statement of Principles concerning hiatus hernia (Balance of Probabilities) (No. 61 of 2022)

This instrument is a Statement of Principles (SOP) made by the Repatriation Medical Authority under subsection 196B(3) of the Veterans' Entitlements Act 1986, specifying the factual and medical factors that, on the balance of probabilities, may connect hiatus hernia (including death from hiatus hernia) with relevant service for the purposes of claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument is named in s 1, dated 24 June 2022, and commences on 25 July 2022 (s 1; s 2). It expressly repeals the earlier Statement of Principles concerning hiatus hernia No. 69 of 2014 (s 4).

Mechanically the SOP does three principal things. First, it defines the medical condition that the SOP covers: an acquired protrusion of intra‑abdominal tissue through the oesophageal hiatus of the diaphragm into the thoracic cavity and its listed subtypes, while excluding congenital hiatus hernia, eventration of the diaphragm and physiological herniation during swallowing (s 7(2)(a)-(c)). Second, it sets out the threshold evidentiary factors which must exist before it can be said, on the balance of probabilities, that hiatus hernia or death from hiatus hernia is connected with a person’s relevant service (s 9). Those factors include specific surgical and injury events, periods of obesity, pregnancy at onset or worsening, and inability to obtain appropriate clinical management, with timing windows tied to clinical onset or clinical worsening (s 9(1)-(9)). Third, it prescribes how the listed factors interact with the person’s relevant service and with other SOPs: each factor must be related to the person’s relevant service (s 10(1)), and where a listed factor refers to an injury or disease already covered by another SOP, the terms of that other SOP apply (s 11).

The instrument is explicitly procedural and evidentiary rather than substantive in the sense of establishing entitlements. It applies to claims that fall under s 120B of the VEA or s 339 of the MRCA (s 5). The SOP therefore functions as a medical‑scientific determinative aid for decision makers administering those statutory claim processes and for claimants assembling evidentiary materials. The Repatriation Medical Authority states its view that on sound medical‑scientific evidence it is more probable than not that hiatus hernia and death from hiatus hernia can be related to relevant service (s 8); that view provides the basis for issuing the SOP.

Practically, the instrument alters the medical criteria used in adjudicating service connection for hiatus hernia claims by replacing SOP No. 69 of 2014 with the new criteria in this instrument (s 4). It sets objective markers (for example BMI thresholds and defined time windows) that will be applied when assessing whether a claimant has satisfied the causation or contribution element required for statutory claims under the VEA or MRCA (Schedule 1; s 9; s 10). The instrument does not itself confer or deny benefits; it operates as part of the statutory claims machinery under the VEA and MRCA by guiding medical causation assessments.

The instrument uses a compact set of medical and temporal concepts to link hiatus hernia and death from hiatus hernia to relevant service. These concepts are defined in s 7 and in Schedule 1 and are the operative vocabulary for causation findings.

Hiatus hernia: The SOP defines hiatus hernia as an acquired protrusion of intra‑abdominal tissue through the oesophageal hiatus into the thoracic cavity (s 7(2)(a)). It expressly includes mixed sliding and paraoesophageal, paraoesophageal, and sliding types (s 7(2)(b)(i)-(iii)) and excludes congenital hiatus hernia, eventration of the diaphragm, and physiological herniation during swallowing (s 7(2)(c)(i)-(iii)). The instrument also records clinical features that can be present without creating an exhaustive list: heartburn, regurgitation, chest pain, postprandial fullness, nausea and retching (Note to s 7(2)). The definition is therefore condition‑specific and delimits the phenotype to which the SOP applies.

Death from hiatus hernia: The SOP treats death from hiatus hernia as including death from a terminal event or condition that was contributed to by the person’s hiatus hernia (s 7(3)). The term terminal event is defined in Schedule 1 to include proximate or ultimate causes such as pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function (Schedule 1, terminal event). This connects pathophysiological failure modes with the condition where contribution can be shown.

Relevant service and statutory application: The SOP applies to claims to which s 120B of the VEA or s 339 of the MRCA applies (s 5). Schedule 1 defines relevant service as eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA. The instrument is therefore specifically targeted at non‑operational or peacetime service pathways within the veterans’ entitlements regime.

Factors and timing: Section 9 is the core conceptual map of causation. It lists nine alternative factors, at least one of which must exist to support a finding of connection on the balance of probabilities. They are framed with temporal relationships to either the clinical onset of hiatus hernia (s 9(1)-(4)) or to clinical worsening of pre‑existing hiatus hernia (s 9(5)-(9)). The first two factors refer to invasive surgical procedures or blunt/penetrating injury to the oesophageal hiatus region within the two years before clinical onset (s 9(1)-(2)). Factor 3 requires being obese for at least the two years before clinical onset, with obesity defined as BMI 30 or greater and BMI calculated as W/H2 in Schedule 1. Factor 4 is pregnancy at the time of clinical onset (s 9(4)). Factors 5-8 mirror 1-4 but with the two‑year windows and pregnancy timed to clinical worsening rather than initial onset (s 9(5)-(8)). Factor 9 covers inability to obtain appropriate clinical management for hiatus hernia (s 9(9)).

Directly affected persons are claimants who seek to establish that hiatus hernia, or death from hiatus hernia, is connected with relevant service for the statutory purposes listed in s 5. The instrument explicitly applies to claims to which s 120B of the VEA or s 339 of the MRCA applies. Those statutory provisions determine eligibility for entitlements under their respective schemes; the SOP therefore affects veterans, former members of the Forces, and current members whose service meets the Schedule 1 definition of relevant service (eligible war service other than operational service, defence service other than hazardous or British nuclear test defence service, and peacetime service under the MRCA).

Decision makers within the Department of Veterans’ Affairs and other administrative or medical panels applying the VEA and MRCA will use this SOP as the medical standard to assess whether hiatus hernia is connected with relevant service. The Repatriation Medical Authority is the decision‑maker with authority to issue the SOP (s 3), but the SOP’s practical effect is to constrain or guide the medical findings used in adjudication by claims assessors and medical officers.

Healthcare providers and surgeons whose treatment histories feature in claims will be indirectly affected. The SOP lists certain surgical procedures that "can involve the region of the oesophageal hiatus or affect the structures supporting the oesophageal hiatus", including bariatric surgery, coronary artery bypass grafting, gastrectomy, oesophagectomy and pulmonary lobe resection (notes to s 9(1) and s 9(5)). Where such procedures fall within the stipulated two‑year windows before clinical onset or worsening, they are a listed factor that may support connection. Thus surgical and hospital record keeping that documents dates and anatomical regions affected will be material to claim outcomes, even though the SOP does not impose duties directly on clinicians.

Next‑of‑kin and estates are affected to the extent a claim involves death from hiatus hernia. The SOP treats death as included where a terminal event or condition was contributed to by the person’s hiatus hernia (s 7(3)). Schedule 1 supplies examples of terminal events. For survivors and representatives seeking entitlements arising from death, the SOP sets the factual pathways by which contribution to a terminal event will be assessed.

Administrators and legal advisers assisting claimants or representing the Department will be affected in forensic terms: the SOP establishes a finite list of alternative factual predicates that must be shown. For claimants, the practical burden is to show that at least one of the s 9 factors existed and was related to relevant service (s 9; s 10(1)). For claimants with pre‑existing hiatus hernia, s 10(2) limits the application of the worsening factors to circumstances where the condition existed before or during service but did not arise out of service. That distinction is material in claims where onset and aggravation overlap with service dates.

This instrument does not create new criminal offences or administrative sanctions. Instead, it prescribes the medical and factual criteria that adjudicators must consider when determining whether hiatus hernia or death from hiatus hernia is connected with a person’s relevant service for claims under the VEA and MRCA (s 5; s 3). The key legal duties and rights flow from that procedural role.

Duty to apply the SOP in relevant claims: Decision makers assessing claims to which s 120B of the VEA or s 339 of the MRCA apply will use this SOP as the determinative medical guide. The Repatriation Medical Authority’s view that the relationship is more probable than not (s 8) provides the evidentiary foundation that the SOP is intended to implement. While the instrument itself does not specify which office must apply it, its statutory source under s 196B(3) of the VEA (s 3) means it is the authoritative RMA statement medical assessors and administrative decision makers will use when applying the statutory causation threshold set out in the VEA and MRCA frameworks.

Claimant’s burden to establish a s 9 factor: A claimant seeking to establish that hiatus hernia or death from hiatus hernia is connected to relevant service must show that at least one of the factors in s 9 existed (s 9 opening statement). The factors are conjunctively set out in subparts but the instrument requires that at least one of them be present. Each factor is described with specific temporal or definitional elements that must be satisfied. For example, s 9(1) requires a surgical procedure involving the regional anatomy within the two years before clinical onset. Schedule 1 defines obesity numerically as BMI 30 or greater and BMI is defined by the formula W/H2; s 9(3) requires being obese for at least two years prior to clinical onset.

Duty to show relationship to relevant service: Section 10(1) requires that any factor relied upon in s 9 must be related to the relevant service rendered by the person. The SOP therefore imposes a linking obligation: it is not sufficient to establish a factor in isolation; that factor must be shown to have a nexus with the person’s relevant service, as defined in Schedule 1. The SOP does not further define the evidential standard for establishing that relationship, but it makes the relationship a precondition.

Temporal limitation on worsening factors: Section 10(2) calibrates the operation of subsections 9(5) to 9(9). Those factors apply only where the person’s hiatus hernia was suffered or contracted before or during relevant service but did not arise out of that service. This creates a discrete rule limiting the application of aggravation/worsening factors to pre‑existing or earlier contracted conditions, distinguished from conditions which originate in service. That is a substantive constraint on how aggravation is treated for claims.

The instrument itself does not create criminal offences, civil penalties or specific enforcement mechanisms. It is a statutory Statement of Principles issued under s 196B(3) of the Veterans' Entitlements Act 1986 (s 3) that functions as a medico‑scientific standard for claims assessment. The enforcement implications are therefore indirect and administrative rather than punitive: the SOP will be used by decision makers when determining whether to accept that hiatus hernia or death from hiatus hernia is connected with relevant service for the purposes of entitlement under the VEA or MRCA (s 5; s 8).

Decision enforcement: The practical enforcement mechanism is administrative application. Decision makers in the Department of Veterans’ Affairs and any medical panels required to adjudicate claims under the VEA or MRCA will apply the SOP’s factors as the medical basis for findings about service connection. Adverse findings based on an absence of a s 9 factor, or an inadequate relationship to relevant service under s 10(1), will result in the claim being rejected or downgraded under the statutory entitlement provisions. The instrument does not specify which administrative body must make these decisions; it derives its authority from the RMA and is intended to be applied across the VEA and MRCA claim pathways.

No fines or criminal sanctions: There is no provision in the instrument that imposes monetary fines, civil penalties, or criminal liability for non‑compliance by private individuals or service providers. The SOP is an evidentiary instrument to be applied in statutory decision making. Consequently, enforcement relates to claim outcomes rather than punitive measures against third parties.

Interaction with other statutory rights and remedies: The SOP does not alter the statutory review or appeal mechanisms found in the VEA and MRCA. It does not state anything about merits review, judicial review, or other procedural remedies. Those remedies, if available, will depend on the statutory frameworks under which the claim is processed; the SOP will be one component of the factual matrix that is reviewable under those frameworks. The instrument itself does not record any change to appeal rights or review procedures.

Reliance on medical evidence: Enforcement in practice will depend on the availability and quality of medical, surgical and other records that evidence the s 9 factors and their timing relative to clinical onset or worsening. The instrument sets concrete timing windows (for example, two years before clinical onset or worsening for certain factors) and numeric thresholds (BMI >= 30) that will be enforced administratively when applying the SOP. Failure to produce evidence satisfying those windows and thresholds will affect the administrative outcome of a claim.

This SOP is an instrument made under s 196B(3) of the Veterans' Entitlements Act 1986 and is therefore designed to operate within the legal architecture of the VEA and the MRCA. Section 5 explicitly states that the instrument applies to claims to which s 120B of the VEA or s 339 of the MRCA applies, anchoring the SOP to those statutory claims pathways. Schedule 1 defines the terms MRCA and VEA and what constitutes relevant service, thereby integrating the SOP’s medical findings with the statutory definitions used in those Acts.

Hierarchy and primacy: The SOP does not purport to amend or displace the substantive provisions of the VEA or MRCA. It is an authoritative RMA determination of the medical factors that should be treated, on the balance of probabilities, as capable of connecting hiatus hernia or death from hiatus hernia to relevant service (s 3; s 8). The SOP therefore functions as a technical adjunct to the VEA/MRCA causation framework rather than as a freestanding legal entitlement. Any adjudicative decision must still be made under the relevant statutory provisions; the SOP supplies the medical basis for those decisions.

Interactions with other SOPs: Section 11 creates a specific channel for cross‑instrument interaction. If a s 9 factor refers to an injury or disease that is the subject of another SOP determined under s 196B(3) of the VEA, then the factors in that other SOP apply in accordance with the terms of that SOP. This means the SOP does not operate in isolation where comorbid or antecedent conditions are governed by other SOPs; decision makers must consult and apply the relevant other SOP as the controlling medical standard for that injury or disease. The provision ensures that overlaps are governed by the existing SOP network rather than by inconsistent ad hoc approaches.

Repeal and continuity with prior instruments: Section 4 repeals the earlier Statement of Principles concerning hiatus hernia No. 69 of 2014. That repeal removes the prior RMA matrix of factors and replaces it with the current instrument’s factors. The SOP therefore has a direct temporal interaction with earlier RMA instruments by superseding them. Any claims or decisions that rely on the prior SOP will need to be reassessed under the new terms for matters arising after the commencement date, subject to the statutory rules about retrospective application (which are not addressed in the instrument itself).

Defined terms and statutory alignment: Schedule 1 supplies definitions that align with statutory categories used in the VEA and MRCA, for example relevant service and MRCA/VEA. That alignment is important to ensure that when the SOP refers to “relevant service” or to categories such as peacetime service, it is referencing the statutory meanings that feed into entitlement triggers under the Acts.

The instrument expressly records one amendment action: it repeals the earlier Statement of Principles concerning hiatus hernia No. 69 of 2014 (Federal Register of Legislation No. F2014L00925) (s 4). The new SOP is named in s 1 as "Statement of Principles concerning hiatus hernia (Balance of Probabilities) (No. 61 2022)" and is dated 24 June 2022 with commencement on 25 July 2022 (s 1; s 2). The instrument is made under the authority in subsection 196B(3) of the Veterans' Entitlements Act 1986 (s 3).

The source provides no further amendment entries, transitional provisions, or savings clauses beyond the repeal of the 2014 SOP. There is no provision in this instrument setting out transitional arrangements for claims lodged before the commencement date or preserving aspects of decisions made under the repealed SOP. The absence of explicit transitional language in the instrument itself means that the applicable statutory rules in the VEA and MRCA concerning retrospective application, transition, or administrative handling of earlier claims will govern any practical treatment of claims spanning the repeal and commencement dates; those statutory rules are not reproduced in this instrument.

The Schedule 1 definitions appear to be contemporaneous with the instrument and replace the definitional matrix of the repealed SOP for the purposes of claims after commencement. The instrument’s Notes (for example to s 7(2) and to s 9(1) and s 9(5)) supply examples such as types of surgical procedures that can involve the oesophageal hiatus region but do not alter the operative text. The instrument does not record prior amendments to the 2014 SOP nor does it provide a history of prior revisions; it only effects a repeal and replacement.

Because the instrument is an RMA determination under s 196B(3) of the VEA, future amendments would likewise be effected by further determinations made under that subsection. The instrument does not delineate a procedure for amendment other than by its statutory source; any future changes would therefore be published in the Federal Register of Legislation as separate instruments, as occurred with the 2014 SOP and this 2022 SOP. The text supplied contains no record of subsequent amendments post‑commencement.

Practitioners should therefore be aware that this instrument supersedes the 2014 SOP as at 25 July 2022 and is the operative RMA medical standard for hiatus hernia claims from that date forward. The instrument does not supply further amendment entries, so any subsequent changes would have to be checked against the Federal Register or the Repatriation Medical Authority publications to identify later instruments or replacements.

The instrument itself contains no references to litigation, judicial decisions, case law, or appeals arising from prior SOPs or the adoption of the current SOP. It does not cite any judicial authorities, nor does it summarise any court determinations that influenced the RMA’s reasoning. The only historical legal action recorded in the text is the administrative repeal of the earlier Statement of Principles concerning hiatus hernia No. 69 of 2014 (s 4). There is no indication in the instrument of any pending or concluded litigation about its content or application.

The absence of litigation references in the instrument means the RMA did not, in this text, rely upon or need to reconcile judicial decisions about the appropriate medical criteria for hiatus hernia connection. It also means that, within the four corners of this instrument, there is no supplied case law precedent creating interpretative guidance for contested applications of the listed factors, timing windows or the relationship to service that the SOP prescribes.

For practitioners, the lack of litigation history recorded in the SOP has two practical implications emerging from the instrument itself. First, the RMA’s statements in s 8 that "on the sound medical‑scientific evidence available" it is more probable than not that hiatus hernia can be related to relevant service constitute the authoritative medico‑scientific basis in the absence of judicial elaboration within the instrument. Second, because no case law is cited, interpretive disputes about the scope of terms such as "clinical onset", "clinical worsening", and "inability to obtain appropriate clinical management" are not resolved within the instrument and may therefore be matters for administrative discretion or, if tested, future litigation under the VEA or MRCA review mechanisms; the instrument itself does not discuss those review mechanisms.

Where claim decisions based on this SOP are contested before review tribunals or courts under the VEA or MRCA framework, those adjudicative bodies will be the sources of litigation history and case law. Such litigation, if it occurs, would not be reflected in this instrument; it would appear in subsequent judicial or tribunal records and may influence future amendments or RMA determinations. The SOP’s silence about litigation therefore should be read as absence of recorded litigation within the instrument rather than as evidence that litigation cannot or will not arise.

In short, this instrument contains no litigation history. Any judicially developed interpretations or appellate authority on the application of these specific factors will need to be sourced from tribunal and court decisions outside the text provided here.

This SOP contains several technical features and timing rules that can produce unexpected outcomes for claimants and decision makers if they are not carefully attended to.

1. Time windows are asymmetrical and precise. Many of the surgical and injury factors operate only if the event occurred within two years before the clinical onset (s 9(1)-(2)) or within two years before clinical worsening (s 9(5)-(6)). By contrast, the obesity factors require being obese "for at least the 2 years before the clinical onset" or "for at least the 2 years before the clinical worsening" (s 9(3), s 9(7)). The differences between "within the 2 years before" and "for at least the 2 years before" are substantive: the former looks for an event occurring in the 24 months immediately prior to onset/worsening, while the latter requires a sustained two‑year period of obesity prior to onset/worsening. Practically, small errors in dating clinical onset, surgical procedures, injuries, or BMI measurements can move a claim from within to outside the prescribed windows and thus be determinative.

2. Clinical onset and clinical worsening are pivotal terms that are not defined in Schedule 1. The SOP repeatedly references "clinical onset" and "clinical worsening" as the temporal anchors for the factors (s 9; s 10(2)). The instrument does not provide working definitions of these concepts. Because the two‑year windows and obesity durations hinge on these temporal labels, disputes may arise over how to identify the date of clinical onset or when clinical worsening occurred. Administrative decision makers will need to address this interpretive gap, and claimants should be aware that the SOP supplies no express definition to guide dating.

3. Relationship to relevant service is required for every factor. Section 10(1) makes clear that any factor found under s 9 must be related to the person’s relevant service. Establishing that relationship is not automatic even where a s 9 factor is present. The SOP does not specify the evidentiary criteria for establishing that relationship, so decision makers and claimants must apply statutory and administrative approaches outside the SOP to demonstrate nexus. This linkage requirement can be decisive where, for example, a qualifying surgical procedure occurred but was not demonstrably connected to the person’s military service.

4. Aggravation factors limited by pre‑existence rule. Section 10(2) limits the operation of subsections 9(5)-(9) to situations where the hiatus hernia was "suffered or contracted before or during (but did not arise out of) the person's relevant service." In plain terms, the worsening factors are not applicable to conditions that arose out of service. This creates a potential evidentiary pitfall where a claimant’s hiatus hernia both arose and worsened during service; the SOP’s worsening factors will not apply to support material contribution or aggravation in such circumstances. Practitioners will need to parse the factual history carefully to determine whether the condition "arose out of" service or was merely present.

Compliance, in the context of this SOP, means ensuring that a claim submitted under the VEA or MRCA demonstrates the factual and medical elements the instrument requires for a finding that hiatus hernia or death from hiatus hernia is connected with relevant service. The SOP itself prescribes the necessary elements and their temporal relationships; it does not prescribe discrete procedural steps or evidence rules. The operative compliance tasks for claimants and their advisers, grounded in the instrument’s requirements, are the following.

1. Identify that the claim falls within the SOP’s application. Confirm that the claim is to which s 120B of the VEA or s 339 of the MRCA applies (s 5). Verify that the person’s service meets the Schedule 1 definition of relevant service (eligible war service other than operational service, defence service other than hazardous service and British nuclear test defence service, or peacetime service under the MRCA).

2. Establish the medical condition per s 7. Ensure the condition claimed is within the SOP’s definition of hiatus hernia: an acquired protrusion through the oesophageal hiatus and not one of the expressly excluded conditions such as congenital hiatus hernia, eventration of the diaphragm, or physiological herniation during swallowing (s 7(2)(a)-(c)). If the claim concerns death, demonstrate that death was from or contributed to by a terminal event or condition as defined in Schedule 1 (s 7(3); Schedule 1, terminal event).

3. Demonstrate at least one s 9 factor existed with the required timing. The SOP requires that at least one factor listed in s 9 be present. Each factor contains factual and temporal components:

   • For surgical procedures: show the person had a surgical procedure involving the region of the oesophageal hiatus or affecting supporting structures within the two years before clinical onset (s 9(1)). The instrument’s notes list examples such as bariatric surgery and coronary artery bypass grafting.

   • For injuries: show a blunt or penetrating injury to the same region within the two years before clinical onset (s 9(2)).

   • For obesity: show the person was obese, meaning BMI 30 or greater, for at least the two years before clinical onset (s 9(3); Schedule 1).

   • For pregnancy: demonstrate pregnancy at the time of clinical onset (s 9(4)).

   • For clinical worsening: the mirror set of requirements apply for clinical worsening (s 9(5)-(9)).