Statement of Principles concerning incisional hernia (Balance of Probabilities) (No. 90 of 2025)

This instrument is a legislative determination known as a Statement of Principles (SoP) made under subsection 196B(3) of the Veterans' Entitlements Act 1986 (VEA). It sets out the factors that must exist before a decision-maker can find, on the balance of probabilities, that incisional hernia or death from incisional hernia is connected with a person’s relevant service. Relevant service means eligible war service (other than operational service) or defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the Military Rehabilitation and Compensation Act 2004 (MRCA). The SoP does not apply to claims involving operational service or hazardous service, which use a different standard of proof (reasonable satisfaction rather than balance of probabilities).

The SoP replaces the earlier Statement of Principles concerning incisional hernia (Balance of Probabilities) (No. 74 of 2016) which is repealed from the commencement date of 24 November 2025. It applies to claims to which section 120B of the VEA or section 339 of the MRCA applies. Those provisions require the Repatriation Medical Authority to determine factors that must exist for a disease or injury to be related to service when the claim is assessed on the balance of probabilities.

Mechanically, section 9 sets out fourteen factors, at least one of which must exist before the connection can be established. The factors are specific and time bound: for example, having an incision for a surgical procedure which penetrates the abdominal wall before clinical onset at the incision site; having a superficial infection within 30 days at the incision site in the 5 years before clinical onset; having a BMI of 25 or greater at the time of the relevant surgical procedure; or inability to obtain appropriate clinical management for incisional hernia before clinical worsening. The factors cover events before clinical onset (for initial connection) and, in the case of factor 14, before clinical worsening (for aggravation). Section 10 requires each factor to be related to the person’s relevant service.

The instrument operates as a binding standard for decision-makers at the Department of Veterans’ Affairs, the Veterans’ Review Board and the Administrative Appeals Tribunal. It does not create new duties for veterans or medical practitioners. Instead, it imposes a framework of proof: a claimant must point to medical evidence satisfying at least one factor to succeed on a balance of probabilities claim. The SoP also incorporates, by reference, any other SoP covering an injury or disease that is itself a listed factor (section 11). This avoids gap or overlap but means the decision-maker must have regard to the current version of the other SoP from time to time.

The central concept is incisional hernia (defined in section 7(2)) as a protrusion of intra-abdominal tissue through a fascial defect in the abdominal wall at the site of a previous surgical incision. It includes recurrent incisional hernia following surgical repair. The definition expressly refers to ICD-10-AM codes K43.0, K43.1 or K43.2 but the meaning of incisional hernia for the SoP is the defined clinical one, not merely the code assignment.

Death from incisional hernia (section 7(5)) is defined to include death from a terminal event or condition contributed to by the person’s incisional hernia. Terminal event is listed in the Dictionary to include pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This ensures that even if the direct cause of death is not the hernia itself, a causal contribution suffices for the SoP to apply.

The factors in section 9 are the core of the instrument. They include:

1. Worsening of Marfan syndrome before clinical onset.
2. An incision for a surgical procedure penetrating the abdominal wall before clinical onset at the incision site.
3. Superficial infection at the incision site within 30 days after surgery, provided the infection occurred in the 5 years before clinical onset.
4. Deep infection within 90 days, in the 5 years before clinical onset.
5. Wound dehiscence within 30 days.
6. Taking sirolimus or everolimus for transplant immunosuppression within 3 years following surgery before clinical onset.
7. Taking corticosteroids (other than inhaled or topical) for immunosuppression at the time of surgery.
8. Taking systemic VEGF or VEGF-receptor inhibitors within 3 months before or after surgery.
9. Increased intra-abdominal pressure at the time of or following surgery before clinical onset (examples include ascites, coughing, heavy lifting, pregnancy).
10. BMI of 25 or greater at the time of surgery.
11. Cirrhosis of the liver at the time of surgery.
12. Smoking tobacco at the time of (or during healing of) the surgery.
13. Severe malnutrition at the time of surgery.
14. Inability to obtain appropriate clinical management for incisional hernia before clinical worsening.

Each factor has a time window and must relate to the specific incision site where the hernia develops, except where the factor is general (e.g., Marfan syndrome, BMI, cirrhosis). The Dictionary defines , and precisely. involves fascia and muscle layers; involves only skin and subcutaneous tissue, excluding stitch abscess with minimal inflammation confined to suture points. means complete or partial disruption of all layers of the surgical wound including the fascia.

The primary subjects are veterans and members of the Forces under the VEA, and members under the MRCA, who have rendered relevant service as defined. Claimants under the balance of probabilities standard for incisional hernia will be directly affected. These are typically persons whose service is peacetime only, or whose eligible war service or defence service is not operational or hazardous. For operational service claims, the SoP is not directly applicable, though it may be used as a guide.

Decision-makers at the Department of Veterans’ Affairs, the Veterans’ Review Board and the Administrative Appeals Tribunal must apply the factors when determining claims for compensation or treatment for incisional hernia. The SoP binds them: they cannot find a connection on the balance of probabilities unless at least one factor exists and is related to service.

Medical practitioners who provide evidence in support of claims are indirectly affected. They must understand the factor definitions and timeframes to advise claimants whether their clinical history meets a listed factor. The SoP creates evidentiary requirements that shape medical reporting. For example, a report must specify the timing of infections relative to surgery and clinical onset, confirm BMI at time of surgery, or identify the use of immunosuppressant drugs.

Legal and claims advisors for veterans must review medical records against the fourteen factors and ensure that the relevant service component is established. They need to be alert that the SoP is not the only gateway: if the hernia is attributable to service in a way not covered by any factor, the claim will fail under the balance of probabilities standard. The SoP therefore influences the advice given to clients about prospects and the evidence needed.

Veterans’ advocates and ex-service organisations will use the SoP to assess claims before submission. The specificity of the factors (e.g., superficial infection within 30 days in the 5 years before clinical onset) reduces discretion but also narrows the scope of compensable conditions. Claimants who do not meet any factor will be denied, regardless of how strong the factual nexus might otherwise appear to a lay person.

The instrument also affects policy-makers and the Repatriation Medical Authority, which is required under s196B(3) to determine these SoPs based on sound medical-scientific evidence. The Authority’s view that it is more probable than not that incisional hernia can be related to relevant service (section 8) justifies the instrument but also means the factors represent the medical consensus.

The SoP does not create direct duties for individuals. Its legal effect is to constrain decision-makers. The key right for a claimant is to have their claim assessed in accordance with the SoP if they fall within its application. That means if they can demonstrate at least one factor exists and is related to their relevant service, the decision-maker must find the connection established on the balance of probabilities (subject to any other disqualifying provision).

The duty of the decision-maker is to consider whether any factor in section 9 is present, and if so, whether that factor is related to the person’s relevant service (section 10(1)). The decision-maker must apply the definitions in the Dictionary strictly. For example, “superficial infection” excludes stitch abscess with minimal inflammation confined to suture points. If the infection meets the definition but the timeframe of 30 days is not satisfied, the factor cannot be used.

A claimant has the right to rely on section 11, which incorporates other SoPs by reference. If a factor refers to an injury or disease covered by another SoP (e.g., cirrhosis of the liver is itself a disease with its own SoP), then the factors in that other SoP apply as in force from time to time. This creates a cascading effect: to satisfy the cirrhosis factor, the claimant must also meet the relevant SoP for cirrhosis (if they need to prove cirrhosis is related to service). However, the factor “having cirrhosis of the liver at the time of a surgical procedure” is a factual condition - the claimant need not prove the cirrhosis is service-related, only that they had it. Section 11 only applies where a factor “refers to an injury or disease in respect of which a Statement of Principles has been determined”. The factors that refer to conditions such as Marfan syndrome, wound dehiscence or infection might trigger other SoPs if those conditions are themselves injuries/diseases. But the factor “having an incision for a surgical procedure” does not refer to a disease; it is a procedure. So section 11 is triggered only where the factor language describes an injury or disease (e.g., cirrhosis, Marfan syndrome).

Obligations are placed on the Repatriation Medical Authority to keep SoPs current. The repeal of the 2016 SoP and replacement with this 2025 version reflects that obligation. The Authority must also ensure consistency across SoPs. For practitioners, there is a duty to use the correct version: claims lodged after the commencement date (24 November 2025) must be assessed under this SoP.

This SoP does not impose penalties in the usual sense. It is not a criminal or civil penalty provision. Enforcement is through the claims determination process. If a decision-maker fails to apply the SoP correctly, the claimant may seek review by the Veterans’ Review Board (VRB) and then the Administrative Appeals Tribunal (AAT). The VRB and AAT are bound to apply the SoP as a legislative instrument. A decision that does not consider the factors may be set aside for error of law.

The SoP itself does not create any offence for non-compliance by the Authority. However, subsection 196B(3) of the VEA requires the Authority to determine a SoP when it considers it is more probable than not that a disease or injury can be related to service. If the Authority fails to do so, it could be subject to judicial review. That is beyond the scope of the instrument itself.

Practically, the “penalty” for a claimant who cannot satisfy a factor is denial of their claim for compensation or treatment for incisional hernia. This is not a punishment but a consequence of the evidentiary standard. For a medical expert who provides false information to satisfy a factor, the usual laws of perjury or giving false or misleading evidence to a tribunal may apply, but those are not in the SoP.

The SoP also contains an application clause (section 5) that effectively sanctions claims that were previously determined under the old SoP: the new SoP applies only to claims made after commencement or pending claims still undetermined. Any claims finally determined before 24 November 2025 remain governed by the 2016 SoP. There is no retrospective effect.

The SoP is made under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. Its interaction with those Acts is direct: sections 120B and 339 respectively require such SoPs to be determined. The SoP supplements those provisions by providing the medical-scientific factors.

The SoP interacts with other Statements of Principles in two ways. First, the repeal of the 2016 SoP is explicit. Second, section 11 incorporates other SoPs by reference when a factor in section 9 refers to an injury or disease covered by another SoP. This is important for factors like cirrhosis, Marfan syndrome, or severe malnutrition. For example, “severe malnutrition” is not defined in the Dictionary but is a condition for which an SoP likely exists. To prove severe malnutrition at the time of surgery, the claimant must satisfy the definition and factors in that other SoP, which will include criteria like weight loss, dietary intake, etc. This creates a chain of proof.

The SoP also interacts with the standard of proof provisions in the VEA and MRCA. For claims involving operational service or hazardous service, a different SoP (under subsection 196B(2) or 196B(8)) may apply, using “reasonable hypothesis” rather than balance of probabilities. The existence of this SoP does not block claimants with operational service from using the balance of probabilities SoP if their claim is also assessed under that pathway (though operational service claims are generally assessed on reasonable satisfaction unless the claim is under a different provision). Practitioners must check the claim type.

Another interaction is with the Administrative Appeals Tribunal Act 1975 and the Veterans’ Entitlements (Administrative Appeals Tribunal) Regulations. The AAT, on review, applies the law as it stands at the time of its decision. So if a claim is decided after commencement, this SoP governs even if the claim was lodged earlier.

State workers’ compensation schemes or private health insurance are not directly affected. However, a finding that incisional hernia is service-related under this SoP may affect eligibility for treatment under the Veterans’ Medical Impairment Assessment or the Military Rehabilitation and Compensation Act’s treatment provisions. The SoP does not create a right to compensation itself; it only establishes the requisite connection. The quantum of compensation is determined by other provisions.

This SoP (No. 90 of 2025) is a new instrument that repeals and replaces the Statement of Principles concerning incisional hernia (Balance of Probabilities) (No. 74 of 2016) (Federal Register of Legislation No. F2016L01349). The 2016 SoP was itself made under the same subsection 196B(3) of the VEA. The source text provides the date of the instrument (24 October 2025) and the commencement date (24 November 2025). No further amendment history is given, but being a new instrument, any amendment from the 2016 version must be inferred from the changes in the factors.

Specifically, the previous 2016 SoP would have had factors that may have been expanded, removed or reworded. The current SoP includes new factors such as “having worsening of Marfan syndrome before clinical onset” (factor 1), which was not present in the 2016 version? The source does not list the 2016 factors, so we cannot say for certain. However, factors like taking sirolimus/everolimus, VEGF inhibitors, smoking, severe malnutrition, and inability to obtain clinical management are likely newer additions or refinements. The time windows (e.g., 5 years before clinical onset for infections) may have been adjusted.

The SoP also updates the dictionary definitions. For example, “superficial infection” now explicitly excludes stitch abscess with minimal inflammation confined to suture points. That refinement may be new. The definition of “wound dehiscence” now states “including the fascia”, whereas the 2016 version may have been less explicit.

The instrument is made under delegations: Professor Terence Campbell AM as Chairperson of the Repatriation Medical Authority signed it. The Authority is required to periodically review SoPs based on new medical evidence. This 2025 SoP likely reflects the current medical-scientific understanding of risk factors for incisional hernia. The Authority stated in section 8 that it is more probable than not that incisional hernia can be related to relevant service, which is the statutory prerequisite for making a balance of probabilities SoP.

Future amendment will occur if the Authority issues a new instrument. The SoP itself contains no sunset clause, but the Authority can repeal it at any time. Users must monitor the Federal Register of Legislation for any revision.

The source text does not provide any litigation history, nor does it cite any court or tribunal decisions. As an analyst, I must not invent cases. However, it is well known that Statements of Principles are frequently litigated in the VRB and AAT, and sometimes in the Federal Court and High Court on questions of law. The predecessor SoP (No. 74 of 2016) may have been considered in cases such as Repatriation Commission v Deledio (though that case is about standard of proof, not incisional hernia specifically). More relevantly, there may be decisions interpreting the definition of “incisional hernia”, “superficial infection”, or the timing requirements. Without source references, I cannot name specific cases.

What can be said from the instrument itself is that the definitions are precise, which suggests the Authority aimed to reduce litigation. The exclusion of stitch abscess from superficial infection is a specific example. The inclusion of “inability to obtain appropriate clinical management” is another area that has been litigated in other SoPs (e.g., for malignant neoplasms). The instrument provides no guidance on what constitutes “appropriate clinical management”, leaving that for decision-makers and tribunals.

Practitioners should be aware that the SoP’s factors are exhaustive for the balance of probabilities standard. If a claimant presents a causal connection that does not fit any factor, the claim will fail, and the only avenue is to argue that the SoP is invalid or does not apply (e.g., if the claim is operational service). The High Court has upheld the validity of SoPs in cases like Repatriation Commission v Webb (2000) but that is general background.

The instrument has a commencement date of 24 November 2025. Any litigation after that date will interpret this version. The repeal clause (section 4) suggests the Authority was confident that the new SoP reflects current evidence; therefore, challenges to the factors would likely require fresh medical evidence that the Authority failed to consider. Such challenges are uncommon but possible.

Several traps exist in this SoP that practitioners and claimants need to watch.

Factor 14 is not for initial onset. Inability to obtain appropriate clinical management applies only to material contribution to or aggravation of an incisional hernia that already existed before or during service (but did not arise out of service). If the hernia first appeared after service, factor 14 cannot be used. Many claimants may think that delayed medical care justifies connection, but the SoP expressly limits it to worsening.

The BMI factor is 25 or greater at the time of surgery. That means a claimant with a BMI below 25 at surgery cannot use this factor even if their BMI later increases. Similarly, the factor does not specify a time window after surgery for weight gain. Practitioners should obtain contemporaneous records of weight at the time of the relevant surgical procedure.

Infection timeframes are narrow. Superficial infection must occur within 30 days of surgery, and deep infection within 90 days, and both must occur in the 5 years before clinical onset of the hernia. If the hernia appears years later, but the infection occurred more than 5 years before clinical onset, it does not count. This puts a premium on establishing the date of clinical onset (the date symptoms first manifest). Claimants with delayed hernia onset may lose eligibility even if they had a post-operative infection.

Smoking factor is at the time of surgery or during healing. “Healing” is not defined. This may lead to disputes: does healing mean the period of wound closure (weeks), or the full maturation of scar (months)? The Authority’s note does not help. Expect medical evidence to be needed on typical healing times.

Increased intra-abdominal pressure factor. The examples include heavy lifting, coughing, pregnancy, ascites, constipation. But the factor requires that the increased pressure occurred at the time of or following the surgery before clinical onset. If the claimant returned to heavy lifting months later, that may not be considered “at the time of or following” if there is a gap. The phrase is ambiguous.

Marfan syndrome worsening. Factor 1 requires “worsening of Marfan syndrome before clinical onset”. Marfan syndrome is a genetic condition. The factor does not require Marfan to be related to service (it is congenital), but worsening might occur due to service activities like heavy lifting or injury. Claimants without medical records showing worsening before hernia onset will struggle.

For a claimant (or their representative), compliance with this SoP means ensuring the claim is framed around at least one of the fourteen factors. The first step is to confirm that the claim is on a balance of probabilities basis (i.e., the veteran’s relevant service is not operational or hazardous). If it is operational service, the claimant may still claim under the reasonable hypothesis SoP (if it exists) or use direct evidence.

Second, obtain the medical records for the surgical procedure where the incisional hernia developed. Establish the date of the surgery, the incision site, and the date of clinical onset of the hernia. Clinical onset is the date when symptoms first appear (pain, bulge). The factor timeframes are anchored to these dates.

Third, review the medical history against each factor. For example, check if there was a wound infection within 30 days (superficial) or 90 days (deep) after surgery, and whether that infection was documented. If the claimant had a superficial infection with minimal inflammation around sutures, check if it was a stitch abscess - if so, it is excluded. Obtain the microbiological or clinical notes.

Fourth, if using the BMI factor, obtain the weight and height recorded at the time of the surgery. Many hospitals record this in pre-operative assessments. If the records show BMI of 25 or more, factor 10 is met. If not, check other factors.

Fifth, if the claimant was on immunosuppressants (corticosteroids, sirolimus, everolimus) or VEGF inhibitors, obtain the prescription records and confirm the dosage and timing relative to surgery. The purpose of corticosteroid use must be immunosuppression; document that from the medical file.

Sixth, if using increased intra-abdominal pressure, identify the specific condition (e.g., COPD with chronic coughing, ascites, pregnancy) and that it was present at the time of or following surgery. A physiological link to the hernia development should be explained by a medical practitioner.

Seventh, for factor 14 (inability to obtain clinical management), the claimant must show that they suffered a worsening of an existing incisional hernia due to inability to get appropriate care. This requires evidence of delay in treatment, refusal of surgery, or lack of access to medical services, and that the hernia worsened as a result. The worsening must be material.

Eighth, ensure that the chosen factor(s) are related to the person’s relevant service. For most factors (e.g., infection after surgery), the surgery itself must be related to service. For example, the surgery may have been performed for a service-related condition, or the surgery occurred during service. If the surgery was for a condition unrelated to service (e.g., elective cosmetic surgery), the factor may still be used as long as the factor event (e.g., smoking at time of surgery) is related to service - but the causal chain may be weak. Section 10 requires the factor to be related to service, not necessarily the surgery. If the claimant smoked tobacco at the time of a civilian surgery, but the smoking habit is related to service (e.g., started due to service-related stress), then factor 12 could be met. This requires a nexus argument.