Statement of Principles concerning non-freezing cold injury (Balance of Probabilities) (No. 6 of 2018)

Primary users are veterans, members of the Forces, and decision‑makers administering claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The instrument explicitly applies to claims to which s 120B of the VEA or s 339 of the MRCA apply (s 5). That means individuals lodging claims that allege non‑freezing cold injury, or death from such injury, in the course of qualifying relevant service, will be assessed against the factors listed in s 9 and relatedness tests in s 10.

Secondary affected parties include medical practitioners and experts who prepare medico‑legal reports for claims, because the RMA's textual definition and the specific exposure and timing criteria become the focal points of medical opinion. The RMA frames the condition with a statutory definition that takes precedence over the ICD code for the purposes of application of this instrument (s 7(3) and (4)), so clinicians and report writers must align their opinions to the instrument's formulation when addressing causation for claims.

Administrative agencies charged with adjudicating entitlements, primarily the Department of Veterans' Affairs and other decision‑makers under the VEA and MRCA, will use this Statement as the authoritative specification of the medical‑causation factors. The RMA made the Statement under statutory power (s 3); it does not itself make entitlements decisions but supplies the causation rubric those decision‑makers must apply.

Other affected groups include legal advisers, insurers that may be engaged in litigation over entitlements, and employers or units who prepare service records that may bear on exposure. The Schedule narrows the kind of "relevant service" that can ground a claim to 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 (Schedule 1). That definition therefore excludes certain forms of service from being "relevant service" for the purposes of connecting non‑freezing cold injury to service under this instrument.

The Statement imposes no duties on private parties in the form of criminal or civil prohibitions. Its substantive effect is normative for administrative decision‑making. The principal "duties" it creates are directed at decision‑makers and claimants through evidentiary expectations.

Decision‑makers are to apply the Statement when assessing whether non‑freezing cold injury or death from it is connected with relevant service, taking the RMA's medical view that causation is established on the balance of probabilities where at least one of the s 9 factors exists and is related to relevant service (s 8 and s 9). The instrument defines the factual and medical markers decision‑makers must look for: the exposure threshold (moisture and non‑freezing temperatures below 21 degrees Celsius for at least ten hours within the 24 hours prior to clinical onset) or inability to obtain appropriate clinical management (s 9). Decision‑makers must also apply the relationship test in s 10: factors must be related to the person's relevant service (s 10(1)) and the limited operation of s 9(2) where the condition was contracted before or during, but not as a result of, service (s 10(2)).

Claimants have the "right" to have their medical condition assessed against the Statement's specified criteria; in practice that means claimants must present evidence supporting one of the listed factors and show the factor is tied to the relevant service period. The Statement clarifies that death claims are covered where the non‑freezing cold injury contributed to a terminal event listed in the Schedule (s 7(5) and Schedule 1). Clinicians and medical experts have the obligation, if engaged in claims work, to frame their opinions in terms that answer the statutory elements (the specified exposure pattern, the timing, issues about clinical management, and the relationship to relevant service).

Where a factor in s 9 cross‑refers to an injury covered by another Statement of Principles, the other Statement's factors apply per its own terms (s 11). That creates a procedural duty for decision‑makers to identify overlapping Statements and to apply those Statements in accordance with their provisions. The instrument confers no express private right of action; its legal force is as an administrative determinative instrument for entitlements decisions under the VEA and MRCA.

The Statement of Principles contains no offence provisions, fines, or enforcement mechanisms. It is an evidentiary and medical‑causation instrument rather than a regulatory instrument that imposes penalties. Its enforcement is administrative: decision‑makers will apply it when determining whether a condition is connected with relevant service under the VEA or MRCA. The instrument does not specify any investigative powers, sanctions, or disciplinary processes. The RMA's role under subsection 196B(3) of the Veterans' Entitlements Act 1986 is to make Statements of Principles; it does not, in this instrument, impose penal consequences (s 3).

Consequently, "enforcement" occurs through entitlement determinations and any downstream administrative or judicial review of those determinations. The Statement establishes the factual and medical thresholds the decision‑maker must apply; if a decision‑maker departs from the Statement without lawful basis, the departure may be susceptible to administrative review or judicial scrutiny in the relevant review fora, though the instrument itself contains no procedural directions for review. The instrument does not confer coercive investigatory powers on anyone, nor does it create penalties for non‑compliance by clinicians, units or individual service members. The Schedule and sections make clear which service categories qualify as "relevant service" and so are critical to whether the Statement can be invoked in adjudication (Schedule 1).

This Statement is subordinate to the Veterans' Entitlements Act 1986. It is made under s 196B(3) of the VEA (s 3) and expressly applies to claims falling under procedural provisions in that Act and the Military Rehabilitation and Compensation Act 2004 (s 5). The instrument revokes a prior Statement on immersion foot (No. 26 of 2009) so that determinations under the VEA and MRCA will use the new textual formulation instead of the revoked instrument (s 4). The Schedule cross‑references the VEA and MRCA and defines "relevant service" by reference to categories under those Acts (Schedule 1). Where factors in s 9 point to an injury or disease that is the subject of another Statement of Principles, s 11 requires application of that other Statement in accordance with its terms. That creates an inter‑Statement hierarchy in practice: overlapping medical issues are to be resolved by applying the respective Statements as structured.

The Statement also interacts with clinical coding systems by referencing ICD‑10‑AM code T69.0 for non‑freezing cold injury, but it unambiguously fixes the statutory meaning to the textual description in s 7(2) rather than the code alone (s 7(3) and (4)). That matters when medical records reference ICD codes; decision‑makers must interpret those codes in light of the instrument's definition.

Practically, the Statement becomes an evidentiary instrument within the claims framework established by the VEA and MRCA. It does not amend entitlements provisions, but it shapes the causation assessment required by the statutory claims processes in s 120B of the VEA and s 339 of the MRCA (s 5). Decision‑makers must therefore reconcile the instrument with other statutory and regulatory obligations, for example any procedural time limits, evidentiary standards elsewhere in the VEA or MRCA, or policy guidance that governs how medical evidence is gathered and weighed. The instrument does not itself modify those other procedural provisions; it provides the medical‑causation content to be applied within those legal frameworks.

The instrument records its making date as 22 December 2017 and its commencement date as 29 January 2018 (front matter and s 2). It expressly revokes the prior Statement of Principles concerning immersion foot No. 26 of 2009 (s 4). No other amendments, variations, or historical iterations are supplied in this text.

The revocation indicates that the RMA replaced the 2009 immersion foot Statement with this Statement of Principles concerning non‑freezing cold injury (No. 6 of 2018). The instrument does not list earlier amendments to the 2009 instrument, and it contains no subsequent amending provisions. The Schedule notes relevant statutory cross‑references such as MRCA and VEA definitions, but it does not record any transitional or savings clauses for claims made before commencement; decision‑makers seeking to apply the instrument to claims lodged around the commencement date will need to consult the parent statutes and any administrative guidance for transitional practice because this instrument on its face simply commences on 29 January 2018 and revokes the earlier Statement (s 2 and s 4).

For practitioners advising clients or agencies, the absence of a recorded amendment trail in this text means the operative instrument to consult for non‑freezing cold injury claims from 29 January 2018 onwards is this Statement. Any use of earlier Statements must be checked against the revocation in s 4 and any external legislative instruments or administrative policies not reproduced here.

The text of the Statement contains no references to litigation, judicial decisions, or appeals. It does not list cases, prior adjudicative interpretations, or examples of how courts or tribunals have applied the RMA's previous or current Statements. The instrument is a primary administrative determination of medical causation; disputes about its application in particular claims would arise in the ordinary course through administrative review mechanisms under the VEA or MRCA and, potentially, judicial review or merits review processes available under those Acts. Those review processes are not described in this Statement.

Because the instrument sets evidentiary criteria (for example, the ten‑hour exposure within 24 hours requirement in s 9(1) and the inability to obtain appropriate clinical management in s 9(2)), litigation risk in practice will centre on factual disputes about exposure, timing and medical management, and on medical expert disagreement about whether the RMA's stated criteria are met in a given case. The Statement itself records the RMA's view that, on the available medical‑scientific evidence, it is more probable than not that the condition can be related to relevant service (s 8). Challenges in litigation or review are likely to involve arguments about the sufficiency or interpretation of the evidence relative to the statutory criteria rather than disputes about the RMA's authority to make the Statement, because the instrument was made under s 196B(3) of the VEA (s 3). The Statement does not provide a litigation history to analyse; practitioners must therefore rely on administrative decisions and case law outside this text to chart how tribunals and courts actually apply these factors in contested claims.

The instrument contains a number of precise criteria and definitional limits that can be decisive in claims, and those are common sources of claim failure if not addressed with targeted evidence.

1. Exposure duration and timing. Section 9(1) requires exposure to moisture and non‑freezing temperatures below 21 degrees Celsius for at least ten hours within the 24 hours before clinical onset. That is a highly specific temporal and environmental test. Where a claimant cannot show the ten‑hour continuous or cumulative exposure within the 24‑hour window prior to clinical onset, the exposure factor will not be satisfied. The Statement does not provide flexibility for shorter or more intermittent exposures. Decision‑makers will look for evidence that meets these exact parameters (s 9(1)).

2. Temperature threshold. The instrument sets the qualifying temperature at below 21 degrees Celsius (s 9(1)). The RMA notes non‑freezing cold injury is most commonly associated with temperatures just above freezing (s 9 Note 1), but the statutory hook remains the explicit <21 degrees Celsius threshold. Records that show temperatures above that threshold will not meet the statutory exposure factor even if clinically plausible. Practitioners must therefore obtain contemporaneous meteorological data, service logs or similar evidence.

3. Moisture requirement. The exposure test combines moisture with non‑freezing cold. Proof that extremities were wet is a necessary element of the exposure factor; dry cold exposure is not captured by s 9(1). The presence of moisture must therefore be evidenced in records or reports.

4. Clinical management factor limited in scope. Section 9(2) covers inability to obtain appropriate clinical management. Section 10(2) confines this factor to material contribution to, or aggravation of, non‑freezing cold injury where the injury was suffered or contracted before or during, but did not arise out of, the person's relevant service. That means the clinical management factor cannot be used to establish causation where the injury itself arose out of service in the first place. Applicants and advisers must be precise about timing and whether the injury arose out of service at all (s 10(2)).

5. Definition of relevant service. The Schedule defines relevant service in limited terms and excludes certain service categories. For example, defence service is qualified by the exclusion of hazardous service and British nuclear test defence service (Schedule 1). If an applicant's service is outside the Schedule definition, the Statement cannot be invoked to connect the condition to service.

6. Overlap with excluded conditions. The instrument excludes tropical immersion foot, chilblains, frostnip and frostbite (s 7(2)(b)). If medical records or experts diagnose those excluded conditions, the claimant must establish that the condition is instead the form of non‑freezing cold injury defined in the instrument.

7. Death claims require contribution to terminal events. For death claims, it is not enough that a person had a non‑freezing cold injury; the condition must have contributed to a terminal event or condition as defined in the Schedule (s 7(5) and Schedule 1). Causation evidence must therefore connect the injury to the proximate or ultimate cause of death.

8. Reliance on ICD code is subordinate to definition. Although the instrument notes the ICD‑10‑AM code T69.0, it clarifies that the statutory meaning is the text in s 7(2) (s 7(3) and (4)). Medical documentation that relies solely on coding without addressing the instrument's definition may be insufficient.

Practitioners and claimants should not assume general statements about "cold exposure" or "foot injury" will satisfy the Statement; the statutory elements are granular and require tailored evidence.

For claimants and advisers

1. Map the timeline. Establish clinical onset with as much precision as possible and demonstrate exposure to moisture and non‑freezing temperatures below 21 degrees Celsius for at least ten hours within the 24 hours before that onset (s 9(1)). Use unit logs, exercise orders, weather station data, witness statements, after‑action reports, medical notes recording symptoms on presentation, and any available photographic or radio messaging evidence.

2. Document moisture. Provide contemporaneous or corroborative evidence that extremities were wet during the qualifying exposure period. Witness affidavits from comrades or supervisors that record wet clothing or immersion are potentially useful because the exposure factor requires moisture as well as temperature (s 9(1)).

3. Medical records and expert reports. Obtain clinical records that describe the presenting symptoms consistent with the instrument's description (coldness, numbness followed by pain/redness on rewarming, ongoing cold sensitivity or neuropathic pain) and request expert opinions that expressly address the RMA's criteria, including the ten‑hour exposure and the <21 degrees Celsius threshold (s 7(2) Note 2; s 9(1)). Ensure experts reference the instrument's statutory definition rather than only ICD‑10 coding (s 7(3)‑(4)).

4. If reliance is on s 9(2) inability to obtain appropriate clinical management, assemble contemporaneous evidence of denied or unavailable treatment, evacuation records, medical facility notes, or written orders. Remember s 10(2) limits s 9(2) to cases where the injury was suffered or contracted before or during, but did not arise out of, relevant service; be precise about when the injury originated (s 10(2)).

5. Establish relevant service. Confirm that the period and type of service fall within the Schedule's definition of relevant service (Schedule 1). If service falls outside these categories, the claimant cannot rely on this Statement.

For decision‑makers and medical officers

1. Apply the Statement's elements strictly. Evaluate whether at least one of the s 9 factors is satisfied on the balance of probabilities and whether the satisfied factor is related to relevant service as required by s 10(1).

2. Seek targeted evidence. Where the exposure element is relied on, request contemporaneous documents: weather records, unit orders, transport manifests, duty rosters, and witness statements to establish duration, moisture and temperature. For the clinical management element, obtain medical facility notes, evacuation or treatment refusal records, and contemporaneous evidence of unavailability.

3. Use properly framed medical opinion. Request that treating clinicians or independent experts explicitly address the RMA's definitional elements, including whether the clinical picture matches the statutory description and whether temporality and exposure thresholds are met. Ensure experts comment on whether the non‑freezing cold injury contributed to a terminal event in death claims (s 7(5) and Schedule 1).

4. Consider overlap with other Statements. If a factor points to another Statement of Principles, apply that Statement as required by s 11 and ensure consistency across Statements.

5. Document reasoning. Where a claim is accepted or rejected, record how the Statement's factors were weighed on the balance of probabilities and how relevant service was established or not. This is important for administrative review and to demonstrate adherence to the RMA's instrument.

6. Transitional and historical cases. For conditions allegedly arising before the commencement date or involving the revoked 2009 Statement, consult the VEA and MRCA for transitional provisions and administrative policy. The instrument revokes the earlier Statement (s 4) and commences on a fixed date (s 2), so clarify which Statement applies to claims spanning the transition.

In all cases, align evidence and expert opinion specifically to the statutory language of the Statement rather than relying on general clinical descriptions or ICD coding alone (s 7(3)‑(4)).