Statement of Principles concerning hiatus hernia (Reasonable Hypothesis) (No. 60 of 2022)

The central concept is "hiatus hernia" as defined in subsection 7(2). The definition has three parts. First, the positive definition: an acquired protrusion of intra-abdominal tissue through the oesophageal hiatus of the diaphragm into the thoracic cavity. This means it is not a congenital condition but develops after birth. Second, the inclusive part: it covers mixed sliding and paraoesophageal hiatus hernia, paraoesophageal hiatus hernia, and sliding hiatus hernia. These correspond to classifications used in clinical practice (types I through IV, as noted in the Note). Third, the exclusions: congenital hiatus hernia, eventration of the diaphragm, and physiological herniation during swallowing. These are separate conditions not covered by this SoP.

The instrument distinguishes between "clinical onset" and "clinical worsening". Sections 9(1) through 9(8) deal with clinical onset factors. Sections 9(9) through 9(17) deal with clinical worsening factors. Clinical worsening factors apply only to material contribution to or aggravation of a hiatus hernia that was suffered or contracted before or during the person's relevant service but did not arise out of that service (section 10(2)). This distinction matters for veterans whose hernia predated service but was worsened by service conditions.

"Relevant service" is defined in the dictionary and includes operational service, peacekeeping service, hazardous service, and British nuclear test defence service under the VEA, as well as warlike service and non-warlike service under the MRCA. The instrument does not apply to peacetime service under the VEA alone or to non-eligible service.

"Being overweight or obese" is defined as having a BMI of 25 or greater. BMI is calculated as weight in kilograms divided by height in metres squared. This is a bright-line test. A person with BMI 25 for at least two years before clinical onset or clinical worsening meets that factor. The same definition applies for both onset and worsening.

"Acute abdomen" is defined in the dictionary as any severe abdominal condition of abrupt onset, usually associated with pain, due to inflammation, perforation, obstruction, infarction, rupture or other pathology of intra-abdominal organs. This definition is narrower than colloquial use and requires acute pathology, not just severe pain.

The reasonable hypothesis standard itself is not defined in this instrument but is embedded in the VEA case law. The instrument expresses the RMA's view that there is sound medical-scientific evidence linking hiatus hernia to relevant service, which triggers the authority to make the SoP.

The instrument directly affects serving and former members of the Australian Defence Force, as well as veterans of peacekeeping and hazardous operations, who suffer from hiatus hernia or have died from it. It applies to those who rendered operational service, peacekeeping service, hazardous service, or British nuclear test defence service under the VEA, and those who rendered warlike or non-warlike service under the MRCA. Where the claim is for death from hiatus hernia, the dependants of the deceased member are affected, as the instrument determines whether the death is service-related for pension and compensation purposes.

The instrument also directly affects the decision-makers who assess claims under the VEA and MRCA. These include delegates of the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and later the Administrative Appeals Tribunal and the courts. The SoP binds these decision-makers in their assessment of whether a reasonable hypothesis is raised. They cannot accept a claim for hiatus hernia unless at least one factor in section 9 exists and is related to relevant service.

Medical practitioners preparing reports for claimants are indirectly affected because they must tailor their evidence to the defined factors. A report that does not address whether the claimant was overweight for two years before onset, or whether a surgical procedure involved the oesophageal hiatus within two years, will not assist the claim. Lawyers and advocates representing veterans must understand the factor definitions and the temporal requirements to frame their arguments.

The instrument affects current and future claimants by repealing the previous SoP (No. 68 of 2014). Any claim decided after 25 July 2022 must be assessed under this new instrument. The factors have changed; for example, the new instrument includes systemic sclerosis and kyphosis/kyphoscoliosis as factors. Claimants who relied on older factors may need to re-evaluate their position.

Veterans with hiatus hernia who do not have any recognised factor will find their claims rejected even if they believe the hernia is related to service. The instrument thus has a gatekeeping effect that limits compensation eligibility to those whose condition factually meets the listed criteria.

The duties and rights arising from this instrument are largely procedural and evidentiary, operating within the broader framework of the VEA and MRCA. The key duty on a claimant is to prove that at least one of the factors in section 9 exists and that the factor is related to their relevant service. This is not a discretionary assessment; the claim fails if no factor can be established, regardless of other medical evidence. The standard of proof is the reasonable hypothesis standard under section 120 of the VEA, but the SoP acts as a precondition.

Claimants have a right to rely on any factor that applies. For clinical onset, the factors are: surgical procedure within 2 years involving the oesophageal hiatus region or affecting supporting structures; blunt or penetrating injury to that region within 5 years; acute elevation of intra-abdominal pressure within 7 days due to acute abdomen, anti-G straining manoeuvre, lifting heavy weights, significant gagging or vomiting, or underwater diving; overweight or obese for at least 2 years; pregnancy at the time of onset; chronic elevation of intra-abdominal pressure due to ascites or chronic peritoneal dialysis; systemic sclerosis; kyphosis or kyphoscoliosis of the thoracic spine; or inability to obtain appropriate clinical management.

For clinical worsening, the factors are identical in substance but apply to worsening of a pre-existing hernia. However, section 10(2) limits these factors: they apply only to material contribution to or aggravation of hiatus hernia where the hernia was suffered or contracted before or during relevant service but did not arise out of that service. This means a claimant whose hernia first appeared after service cannot use the worsening factors; only the onset factors are available.

Section 11 creates an interaction duty: if a factor refers to an injury or disease covered by another SoP (for example, systemic sclerosis is itself a disease for which an SoP exists), then the factors of that other SoP apply as in force from time to time. This means a claimant relying on systemic sclerosis as a factor must also establish that the systemic sclerosis itself is related to service under its own SoP. This can create cumulative hurdles.

Decision-makers have a duty to apply the SoP exactly. They cannot add or remove factors. They must apply the definitions in the dictionary strictly. For instance, "being overweight or obese" requires BMI of 25 or greater for at least two years before the relevant event. A temporary weight gain close to onset does not satisfy the factor if the two-year duration is not met.

This instrument itself does not create penal offences. Its enforcement operates through the claims determination process. If a claimant or their representative provides false or misleading information in an attempt to establish a factor, they may face penalties under the VEA or the Criminal Code for fraud against the Commonwealth. For example, fabricating medical records or misrepresenting surgical history could lead to prosecution. However, the more common enforcement mechanism is the rejection of the claim if factors are not properly established.

The instrument enforces a strict causal framework. The decision-maker must determine whether each factor exists on the balance of probabilities (or to the reasonable hypothesis standard at the threshold stage). If the claimant fails to provide evidence satisfying the definition, the claim is refused. There is no discretion to waive the factors even if the condition appears service-related on other grounds. The SoP therefore enforces medical-scientific orthodoxy over individualized assessment.

If a claim is refused, the claimant has review rights. They can request internal review by the Repatriation Commission (or MRCC), then apply to the Veterans' Review Board, and later to the Administrative Appeals Tribunal and the Federal Court on questions of law. At each stage, the decision-maker and tribunal are bound by the SoP. The tribunal cannot accept a hypothesis that is not consistent with the SoP. This is the enforcement mechanism: consistent application of the factors across all claims.

The instrument also has an indirect enforcement effect on medical practitioners. A doctor who certifies that a veteran's hiatus hernia is related to service without reference to the SoP factors may find their opinion disregarded. This can affect the doctor's reputation with DVA and their future involvement in compensation cases. There is no direct penalty for the doctor, but their evidence may be given less weight.

The instrument does not impose time limits for claiming beyond those in the VEA and MRCA. However, the temporal requirements within the factors themselves (2 years, 5 years, 7 days, 2 years for overweight) effectively enforce a time limit on the events that can be linked to service. Older events outside those windows cannot be used.

This instrument is made under subsection 196B(2) of the Veterans' Entitlements Act 1986. It operates within the framework of Part II of that Act, particularly sections 120 and 120A. Section 120 sets the standard of proof for operational service claims: a reasonable hypothesis must be raised connecting the disease to service. Section 120A then requires that the hypothesis be consistent with a Statement of Principles determined by the RMA. This SoP is that standard. For claims under the MRCA, section 338 imposes a similar requirement. Thus the SoP is the bridge between the medical evidence and the legal standard.

The instrument repeals the previous Statement of Principles No. 68 of 2014. Any claim decided after 25 July 2022 must be assessed under this new instrument. Claims that were remitted back to DVA for reassessment after that date will also be assessed under the new instrument, unless transitional provisions in the VEA preserve the old standard. The instrument does not contain its own transitional provisions, so the general rule applies: the law in force at the time of decision governs.

Section 11 of the instrument creates an interaction with other Statements of Principles. If a factor refers to an injury or disease for which another SoP has been made under subsection 196B(2), then the factors in that other SoP apply. For example, systemic sclerosis is a factor in this SoP. If systemic sclerosis itself is the subject of an SoP (which it is), then a claimant relying on that factor must also satisfy the systemic sclerosis SoP's requirements to show that the systemic sclerosis is service-related. This creates a chain of causation that can be difficult to establish.

The instrument interacts with the definition of "relevant service" under the VEA and MRCA. Those Acts define operational service, peacekeeping service, etc. The SoP adopts those definitions by reference. If a person's service does not fall within one of those categories (for example, peacetime service only under the VEA), the SoP does not apply and the claim must be assessed under a different standard.

The instrument does not interact with state workers' compensation laws. It is a unique scheme for Commonwealth military personnel. However, it may affect claims under the Safety, Rehabilitation and Compensation Act 1988 for Defence civilians or ADF members not covered by VEA/MRCA, but only indirectly as a medical standard that DVA may consider authoritative.

The institution binding. The RMA is an independent statutory body. Its SoPs are disallowable legislative instruments subject to parliamentary scrutiny. The Federal Court can review the RMA's decisions to make an SoP on jurisdictional grounds, but the merits of the SoP are not reviewable.

This instrument, the Statement of Principles concerning hiatus hernia (Reasonable Hypothesis) (No. 60 of 2022), is a standalone legislative instrument that repeals and replaces the earlier SoP No. 68 of 2014 (registered on the Federal Register of Legislation as F2014L00924). The earlier instrument was made under the same subsection 196B(2) of the VEA. The instrument itself notes its commencement date as 25 July 2022.

There is no amendment history within the instrument itself; it is the current version. However, the instrument may be amended in future by a new SoP that repeals this one, as happened with the 2014 instrument. The RMA periodically reviews SoPs and updates them based on new medical-scientific evidence. The change from 2014 to 2022 likely reflects new research on the aetiology of hiatus hernia, including the addition of factors such as systemic sclerosis and kyphosis/kyphoscoliosis, which were not present in the 2014 version. (This is inference from the text, not stated directly.)

The instrument is a legislative instrument and is subject to disallowance by either House of the Commonwealth Parliament within 15 sitting days of tabling. If disallowed, it would be void. No such disallowance has occurred.

The instrument has not been amended since its commencement. Any future amendment would need to be made by a new determination under the same provision. The instrument does not provide for self-amendment or sunset clauses. It remains in force until repealed.

The instrument itself does not cite any litigation, and no cases are mentioned. However, this type of instrument has been the subject of significant litigation in the Federal Court and AAT. The leading case on the reasonable hypothesis standard is Repatriation Commission v Deledio (1998) 83 FCR 82, which established a four-step test: a reasonable hypothesis must be raised by the material; it must be consistent with an SoP; the SoP must not be shown to be unreasonable; and the claim must not be disproved beyond reasonable doubt. This instrument operates at step two of the Deledio test.

The definitions in this instrument have been interpreted in AAT cases. For example, "clinical onset" has been taken to mean when the condition became clinically apparent and could be diagnosed. "Clinical worsening" requires a material deterioration that is more than the natural progression of the disease. The temporal requirements (within 2 years, 5 years, 7 days) have been strictly applied; the AAT has rejected claims where the event occurred outside those windows even if the link is plausible.

"Being overweight or obese" with BMI 25 for at least two years has been interpreted as requiring continuous overweight status, not just at two separate points. The definition uses "for at least the 2 years before", implying a continuous duration. Litigation has confirmed that temporary weight fluctuations do not satisfy this factor.

The instrument's exclusion of congenital hiatus hernia may be litigated in cases where the distinction between congenital and acquired is contested. Medical evidence on the timeframe of development may be needed.

The interaction with other SoPs under section 11 may be litigated where a claimant relies on a factor such as systemic sclerosis but cannot establish that systemic sclerosis is service-related. The chain of causation must be proven for each link.

There has been no reported litigation specifically on this 2022 instrument as of early 2025, given its recent commencement. The litigation history of the 2014 and earlier SoPs will likely inform how this instrument is interpreted.

Several provisions in this instrument contain traps for the unwary. The first is the definition of "acute abdomen". It is not simply severe abdominal pain. It requires a severe abdominal condition of abrupt onset due to inflammation, perforation, obstruction, infarction, rupture or other pathology of intra-abdominal organs. A simple bout of gastroenteritis or constipation will not qualify. The condition must be acute and involve definable pathology.

The temporal requirements are extremely tight for some factors. Acute elevation of intra-abdominal pressure must occur within the 7 days before clinical onset or worsening. That is a very narrow window. A single episode of heavy lifting or vomiting more than a week before onset does not satisfy the factor. For most claimants, this factor will be difficult to prove unless the hernia appeared almost immediately after the event.

The overweight factor requires the claimant to have BMI of 25 or greater "for at least the 2 years before" the clinical onset or worsening. This is a continuing state, not an event. A claimant who reached BMI 25 only a few months before onset does not satisfy the factor. Medical records showing weight and height over at least a two-year period are essential. Many veterans may not have such records.

The surgical procedure factor requires that the procedure "involves the region of the oesophageal hiatus or affects the structures supporting the oesophageal hiatus". The note gives examples including bariatric surgery, coronary artery bypass grafting, gastrectomy, oesophagectomy, and pulmonary lobe resection. But the list is not exhaustive. A claimant must prove that the specific surgery they had involved that region or affected those structures. A surgeon's report may be necessary.

The pregnancy factor applies only if the claimant was pregnant "at the time of the clinical onset" or "at the time of the clinical worsening". Pregnancy is a temporary state. If the hernia was first diagnosed after childbirth, the factor may not apply, because the onset was after pregnancy, not at the time of pregnancy.

The chronic elevation of intra-abdominal pressure factor is limited to two causes: ascites or chronic peritoneal dialysis. Other causes of chronic increased abdominal pressure, such as obesity (covered separately), chronic cough, or constipation, are not included. Claimants with those conditions cannot use this factor.

The systemic sclerosis factor does not require a temporal connection beyond the condition being present at the time of onset. However, because section 11 incorporates the systemic sclerosis SoP, the claimant must also prove that the systemic sclerosis is service-related under its own SoP. This double chain is a significant hurdle.

The kyphosis factor requires kyphosis or kyphoscoliosis of the thoracic spine at the time of onset. The definition does not specify severity. But medical evidence must confirm the diagnosis and that it affects the thoracic spine.

The inability to obtain appropriate clinical management factor (17) applies to both onset and worsening. However, for onset, it may be difficult to argue that a lack of management caused the initial development of a hernia. For worsening, it is more plausible. The phrase "inability to obtain" suggests a service-related barrier, such as being posted to a location without adequate surgical services. General non-compliance with medical advice is not the same as inability.

Finally, section 10(2) is a major trap for worsening claims. The clinical worsening factors apply only if the person's hiatus hernia was suffered or contracted before or during relevant service but did not arise out of that service. If the hernia first arose after service, the worsening factors cannot be used. The claimant must use the onset factors instead. If the onset factors cannot be met, the claim fails even if service clearly worsened the condition.

Compliance with this instrument is about satisfying the requirements for a successful claim or, for a decision-maker, properly applying the instrument. For a claimant or their representative, the process begins with identifying which factor or factors in section 9 may apply. This requires a careful history of the claimant's medical and service background, including surgeries, injuries, weight history, pregnancy, and other conditions.

Step one: Confirm that the claimant has relevant service as defined in the dictionary. This includes operational, peacekeeping, hazardous, or British nuclear test defence service under the VEA, or warlike or non-warlike service under the MRCA. If the service is peacetime only under the VEA, the SoP does not apply and the claim must be assessed under section 120 without an SoP requirement, though the standard may differ.

Step two: Determine whether the claim is for clinical onset (the hernia first appeared during or after service) or for clinical worsening (the hernia existed before or during service but got worse). This distinction decides whether to use factors 9(1)-(8) or 9(9)-(17), and section 10(2) limits worsening factors.

Step three: Gather evidence for each potential factor. For the overweight factor, obtain medical records showing weight and height over the two years before onset or worsening. BMI calculations must be shown. For surgical factors, obtain operation reports and surgeon evidence that the procedure involved the oesophageal hiatus or supporting structures. For acute pressure factors, obtain contemporaneous medical records showing the acute abdomen or the specific cause (anti-G manoeuvre, heavy lifting claim, etc.) and the timing within 7 days. For pregnancy, provide antenatal records. For systemic sclerosis or kyphosis, obtain diagnostic reports.

Step four: Ensure the evidence shows the factor is related to the person's relevant service. For factors like carrying heavy weights or anti-G straining manoeuvre, the activity must have occurred during service. For pregnancy, it is related only if the claimant became pregnant during service or due to service circumstances. The "inability to obtain appropriate clinical management" factor requires showing that the inability was due to service circumstances, such as being posted to a location without adequate medical facilities or being denied treatment due to service requirements.

Step five: If relying on a factor that refers to another disease or injury (e.g., systemic sclerosis), separately establish that the underlying condition is service-related under its own SoP. This may require a separate claim or evidence.

Step six: Present the evidence in a structured way that maps each factor to the definitions and temporal requirements. A medical report that simply says "the hernia is service-related" is insufficient. The report must address the specific factor and confirm the timeframe.

For decision-makers, compliance means checking that the material before the decision-maker raises at least one factor and that the factor is related to relevant service. The decision-maker must apply the exact definitions from the dictionary. If the factor is "being overweight", the decision-maker must confirm the BMI of 25 for two years. If the evidence is insufficient, the claim must be refused. The decision-maker cannot accept a hypothesis based on general causation.

Both claimants and decision-makers should refer to the RMA's website for the current consolidated version of the SoP and any amending instruments. The instrument is subject to repeal and replacement, and the version in force at the time of decision is the applicable one.