Statement of Principles concerning pes planus (Reasonable Hypothesis) (No. 67 of 2021)

The central concept in this SoP is "pes planus". It is defined as a substantial collapse of the medial longitudinal arch that results in either medical treatment or symptoms of medial foot pain. Importantly, the definition includes congenital, developmental, acquired, flexible and rigid forms, but only where the collapse meets the "substantial" threshold. The instrument does not quantify "substantial", leaving medical judgment to determine when a collapse crosses from asymptomatic to requiring treatment or causing pain. The ICD-10-AM codes M21.4 and Q66.5 are referenced for identification purposes but the substantive definition in subsection 7(2) governs. "Reasonable hypothesis" is the standard of proof applied under VEA section 120A and MRCA section 338. It is a lower threshold than the balance of probabilities; the hypothesis need only be reasonable, not proved on the balance. The SoP itself determines what constitutes a reasonable hypothesis for pes planus by listing the factors. If a factor exists and is related to relevant service, the hypothesis is raised. "Clinical onset" refers to the first appearance of the condition as defined, while "clinical worsening" refers to a material aggravation of pre-existing pes planus. The distinction is critical because the worsening factors (13-27) only apply when the condition was suffered or contracted before or during service but did not arise out of that service. This means a person whose pes planus first appeared after service cannot use the worsening factors; they must rely on onset factors 1-12. "Relevant service" is defined as operational, peacekeeping, hazardous or British nuclear test defence service under the VEA, and warlike or non-warlike service under the MRCA. This excludes peacetime or normal peace service under the VEA (which is covered by a different standard). The concept of "terminal event" expands the scope to death from pes planus: if pes planus contributed to the proximate or ultimate cause of death (e.g., pneumonia, respiratory failure, cardiac arrest), the condition is considered part of the death. "Being obese" uses a fixed BMI cutoff of 30, which may create evidentiary difficulties for historical claims where weight records are absent. The SoP also defines "tarsal or metatarsal bones of the medial longitudinal arch" specifically, narrowing the relevant anatomy. Each factor is tied to a specific foot and to specific timing (e.g., within three months for sprain, penetrating trauma or surgery to ligaments). The concept of "inability to obtain appropriate clinical management" (factor 27) is vague and likely to generate disputes over what constitutes inability and whether that inability is service-related.

This SoP directly affects veterans, members of the Peacekeeping Forces, members of the Forces under the VEA, and members under the MRCA who suffer from pes planus or who die from complications of pes planus. It also affects their dependents who claim for death benefits. Indirectly, it affects the Department of Veterans' Affairs (DVA) decision-makers who must apply the SoP when assessing claims; the Veterans' Review Board and the Administrative Appeals Tribunal (AAT) when reviewing decisions; and medical practitioners who provide opinion evidence on whether the factors exist. Legal practitioners and advocates advising claimants must be familiar with the 27 factors and the distinction between onset and worsening. The SoP also affects the Repatriation Medical Authority itself, which is required under section 196B to issue SoPs based on sound medical-scientific evidence. The Authority's determination of the SoP binds all subsequent decision-makers. The instrument imposes a compliance burden on claimants: they must prove not only that they have pes planus (as defined) but also that at least one factor exists and that factor is related to service. This may require obtaining medical records (e.g., showing a fracture during service, weight records for obesity, pregnancy records). The 2012 SoP was repealed, so anyone relying on factors from the old instrument must now meet the new criteria. The SoP does not affect civilians or members who served in peacetime service only under the VEA (unless that service is later classified as hazardous etc). It also does not directly affect private health insurance or workers' compensation schemes, but the determination of service-relatedness under this SoP may influence other proceedings if the condition is accepted. The compliance burden is concentrated on those with pre-existing flatfoot who seek aggravation: they must satisfy factors 13-27 and also show the condition existed before or during service but did not arise from it. This creates an incentive for claimants to distinguish onset from aggravation precisely.

The primary right created by this SoP is the right of a claimant to have a reasonable hypothesis accepted if at least one factor in section 9 exists and that factor is related to relevant service. This right is not automatic; the claimant bears the evidentiary burden of establishing the factor. The duty of the decision-maker (the Repatriation Commission or its delegates) is to apply the SoP mechanically: they must accept the medical definition of pes planus, check whether the condition meets the definition, assess whether any factor is present, and determine whether that factor is related to the person's relevant service. The decision-maker cannot rely on hypotheses outside the factor list; the SoP exhausts what constitutes a reasonable hypothesis for pes planus. The duty of the Repatriation Medical Authority is to determine the SoP based on sound medical-scientific evidence. There is a duty on the authority to keep SoPs current; this instrument repeals the 2012 version, implying the Authority considered new evidence. The SoP also creates a right for claimants to rely on other SoPs referenced in section 11: if a factor (e.g., fracture) is itself an injury or disease covered by another SoP, then the factors in that other SoP apply. This means the claimant may need to satisfy multiple SoPs to establish the factor. The duty of medical practitioners giving opinions is to opine on whether the factor exists according to the definitions (e.g., whether obesity meets BMI≥30 at the relevant time). The SoP does not create any rights to compensation independent of the VEA or MRCA; it is a subordinate instrument. Claimants also have the right to seek review of a decision that rejects the hypothesis, and the reviewing body must apply the same SoP. The duty of the AAT is to consider whether a reasonable hypothesis is raised on the material, again using this SoP. There is no right to challenge the SoP itself in the course of a claim, though the SoP could be challenged on the ground that it was not based on sound medical-scientific evidence (judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the Judiciary Act 1903).

This SoP does not itself impose penalties. It is an administrative instrument under the VEA, not a creation of criminal offences. However, enforcement mechanisms apply to the broader compensation scheme: if a claimant makes a false statement to obtain compensation, they may be liable for fraud under the Criminal Code or for recovery of overpaid amounts under the VEA. The SoP's factor list is an evidentiary standard, and misrepresenting the existence of a factor (e.g., falsely claiming a fracture) could lead to penalties if the falsehood is discovered. There are no specific monetary penalties attached to breaching the SoP, as it is directed at decision-makers who must follow it. If a decision-maker fails to apply the SoP correctly, the decision may be set aside on review. The Repatriation Medical Authority has no enforcement role beyond issuing and revising SoPs. The practical penalty for a claimant is that a claim that does not meet the factor requirements will be rejected, and the claimant loses the opportunity for compensation. There is also the prospect of costs: adverse costs orders are rare in the AAT in veterans' matters, but they are not impossible if an application is frivolous. The SoP itself has a "repeal" provision (section 4) which revokes the previous instrument; there is no sunset or expiry date in this instrument, so it remains in force until further amended or replaced. The lack of penalties within the SoP itself means that the coercive force of the law is found in the primary legislation (VEA and MRCA). The only enforcement action that could arise directly from the SoP's factor definitions would be a dispute about whether the definition of pes planus (e.g., "substantial collapse") has been met; that is resolved through review and not through penalties.

This SoP operates under subsection 196B(2) of the VEA, which requires the Repatriation Medical Authority to determine SoPs for the purpose of assessing claims under section 120A (for VEA) and section 338 of the MRCA. It interacts with those primary Acts by providing the evidentiary standard for the reasonable hypothesis test. Specifically, section 120A of the VEA states that a reasonable hypothesis must be in accordance with the relevant SoP; without the SoP, no hypothesis can be raised. The SoP therefore truncates the operation of the common law test for reasonable hypothesis and replaces it with a codified list. The SoP also interacts with other SoPs via section 11: if a factor in this SoP refers to an injury or disease covered by another SoP (e.g., "having a fracture" - fracture would have its own SoP), then that other SoP's factors apply. This creates a cascade of evidentiary requirements. For example, to use factor 1 (fracture of tarsal or metatarsal bones), the claimant must establish that the fracture itself is related to service under the fracture SoP. This avoids duplication but also increases complexity. The SoP interacts with the Guide to the Assessment of Rates of Veterans' Pensions (GARP), though not explicitly mentioned. GARP is used to assess impairment once a condition is accepted. The SoP does not affect the impairment rating; it only governs the threshold of acceptance. The SoP also interacts with the Military Rehabilitation and Compensation Act 2004: members under MRCA are covered by the same factor list, but the standard of proof under MRCA section 338 is also a reasonable hypothesis. There is no conflict between the VEA and MRCA provisions because the SoP applies uniformly. The SoP does not interact with state or territory workers' compensation laws directly, but if a veteran has a common law claim, the SoP may be used as evidence of service connection. The instrument also repeals the earlier SoP No. 45 of 2012, so those who relied on the old factors must now meet the new ones. Transitional provisions are absent; the SoP applies to claims made on or after commencement, but claims already determined under the old SoP are not reopened. There is no interaction with privacy law, but medical records needed to prove factors may require consent. The SoP does not address the interaction with the Freedom of Information Act 1982 or the Privacy Act 1988, but those general laws apply.

This instrument is a standalone replacement. Its amendment history is simple: it was made on 21 May 2021 and commences on 21 June 2021. It repeals the earlier Statement of Principles concerning pes planus No. 45 of 2012 (registered as F2012L01361). That earlier SoP was made under the same subsection 196B(2) of the VEA. The instrument itself does not contain any amendment history or explanatory notes; it is the current version as at registration. The Repatriation Medical Authority may later amend or revoke this SoP if new medical-scientific evidence emerges. There is no sunset clause. The SoP is a legislative instrument registered on the Federal Register of Legislation, subject to disallowance by either house of Parliament under the Legislation Act 2003. However, disallowance is extremely rare for SoPs because they are based on expert medical advice. The date of the instrument (21 May 2021) indicates it was made by the Authority as currently constituted (chaired by Professor Nicholas Saunders AO). The repeal of the 2012 instrument means that any claim relying on factors that existed only in the old SoP would fail unless those factors are also in the new SoP. Comparing the two instruments is not required from the source, but the new SoP likely updated medical understanding of causation. The instrument does not reference any transitional arrangements for pending claims; presumably, a claim lodged before commencement but not yet decided would be assessed under the new SoP if it applies to claims under sections 120A or 338 (which are procedural provisions). The instrument's name includes "(Reasonable Hypothesis)" to distinguish it from the "Balance of Probabilities" version that the Authority can also determine under subsection 196B(3). No balance-of-probabilities SoP for pes planus is referenced here, but if one exists, it uses different factors.

The source text does not cite any specific litigation. In general, Statements of Principles have been the subject of judicial review in the Federal Court and the High Court, with cases such as Repatriation Commission v Bey (1997) 74 FCR 320 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690 establishing the test for reasonable hypothesis and the role of SoPs. However, this deep dive cannot name cases not in the source. The instrument itself has not been challenged in reported decisions to date (as far as the source shows). The reasonable hypothesis standard has been litigated extensively, but the specific factors for pes planus may have been considered in the AAT on factual issues, such as whether a particular injury satisfies "tarsal or metatarsal bones of the medial longitudinal arch" or whether running 30km per week is average. The SoP's requirement that the factor be "related to the relevant service" (section 10(1)) is also a frequent source of dispute. Claimants may argue that obesity is service-related due to lifestyle changes during service, but the SoP itself does not address that causal link; it only requires the factor to exist. The relationship to service is determined under general principles. Given that the SoP replaces the 2012 version, any cases decided under the old SoP are not directly applicable to the new factors. The absence of a "balance of probabilities" SoP means that for permanent impairment assessments (where the standard is balance of probabilities), the decision-maker may need to apply the reasonable hypothesis SoP as the only formally determined SoP, or the Authority may have a separate instrument not provided. Practitioners should be aware that the SoP is not immune to challenge on grounds such as failure to consider sound medical-scientific evidence, but no such challenge is reported in this source.

Several traps arise from the precise wording of this SoP. First, the definition of pes planus requires either medical treatment or medial foot pain. A veteran with a demonstrable flatfoot but no treatment and no pain does not have pes planus for SoP purposes; the condition must be symptomatic. This can be a trap for those whose flatfoot was discovered on a routine medical but never bothered them. Second, the factors for clinical worsening (13-27) have a critical condition: they only apply if the pes planus was "suffered or contracted before or during (but did not arise out of) the person's relevant service". This means a person whose pes planus first manifested after service cannot use these factors at all - they must prove onset during service using factors 1-12. Conversely, if the pes planus arose out of service (e.g., a traumatic fracture during service caused it), then the worsening factors cannot be used because the condition arose out of service. This creates a classification trap: mischaracterising onset versus aggravation can kill a claim. Third, "inability to obtain appropriate clinical management" (factor 27) is vague and difficult to prove. The SoP does not define "inability" - is it a lack of access to medical services, a personal decision to forgo treatment, or a service-related barrier? The factor is likely to be argued but rarely accepted without strong evidence of a causal link to service. Fourth, several factors require specific timing (e.g., sprain within three months before clinical onset). If the medical records show a sprain eleven years before onset, it fails. Fifth, the obesity factor (BMI ≥30) applies only "at the time of the clinical onset" or "at the time of the clinical worsening". If the claimant became obese after onset but before worsening, it does not help with onset. Historical weight records are often unavailable, making this factor hard to prove. Sixth, factor 25 (running or jogging average 30km per week for at least 4 weeks before worsening) and factor 26 (walking 10km per week with loads of 15kg for 4 weeks) apply only to worsening, not onset. This means a service person who ran heavily during service but only developed flatfoot later cannot use these as an onset factor. Seventh, the term "substantial collapse" in the definition is not further defined. Medical experts may disagree on what qualifies, leading to inconsistent outcomes. Eighth, the SoP's note for factor 6 (weakness or paralysis of supinators) gives examples including "tendonitis", which is an odd inclusion given tendonitis is not a nervous system pathology; this could confuse decision-makers. Ninth, factor 12 (being pregnant) is included as an onset factor, but it must be related to service. This would be nearly impossible to satisfy unless the pregnancy itself was service-related (e.g., rape during service or service in an area with limited obstetric care causing complication). Claimants should not assume a general pregnancy factor is easy to use. Tenth, the definition of "tarsal or metatarsal bones of the medial longitudinal arch" excludes the fourth and fifth metatarsals. An injury to those bones cannot be used for factor 1, 2, 3, 10, 13, 14, 15, or 22. Eleventh, the instrument does not provide for a "peaceful" factor: simply having a low arch without any of the listed injuries or conditions is insufficient, no matter how many medical articles suggest a service-related cause.

Compliance with this SoP is relevant for two audiences: claimants (and their representatives) and decision-makers. For a claimant seeking to have pes planus accepted as service-related, the first step is to obtain a medical diagnosis that fits the definition: a substantial collapse of the medial longitudinal arch causing either medical treatment (including orthotics) or medial foot pain. The diagnosis should be documented with imaging or clinical notes. Then, identify which factor or factors from section 9 might apply. For clinical onset, review factors 1-12; for clinical worsening (if the condition pre-existed service but was aggravated), review factors 13-27. Gather evidence for each factor: for fractures, obtain x-ray reports; for obesity, obtain weight and height records (or estimations from medical records) showing BMI≥30 at the relevant time; for running or walking, obtain service records showing the frequency and load (e.g., infantry patrol logs). The factor must be "related to the relevant service". This is a separate step: for example, a fracture during service is clearly related; obesity caused by service-related inactivity or diet must be argued. For factor 27 (inability to obtain appropriate management), the claimant must show that service circumstances prevented access to treatment (e.g., remote posting, lack of podiatry services). The burden is on the claimant to persuade the decision-maker that a reasonable hypothesis exists; the SoP does not require proof on the balance of probabilities. However, the evidence must be more than mere speculation. Legal practitioners should prepare a detailed statement addressing each element: (a) the definition of pes planus, (b) which factor is relied on, (c) the evidence that the factor exists, and (d) how the factor is related to service. For decision-makers, compliance means applying the SoP as a checklist. First, confirm the diagnosis meets subsection 7(2). Second, check whether the claim is for onset or worsening. If worsening, verify that the condition was pre-existing and did not arise out of service. Third, see if any factor is present. Fourth, assess whether that factor is related to relevant service. The SoP does not allow a hypothesis to be raised on factors not listed. If no factor is established, the claim must be refused. If a factor is established but not related to service, the claim must also be refused. The decision-maker should request medical opinions that directly address the SoP definitions. The SoP's section 11 cross-reference means that if a factor is itself a condition covered by another SoP, the decision-maker must apply that other SoP. For example, to rely on factor 10 (arthritis), the SoP for arthritis must be satisfied. This adds a layer of complexity. Practical compliance for both sides involves careful documentation and awareness of the specific anatomical and temporal limits in each factor. The SoP does not provide any safe harbours or exemptions; it applies rigidly. Claimants should note that the SoP is a subordinate instrument and cannot be contradicted by general medical opinion; the SoP trumps expert medical opinion that does not fit the factors. Finally, the SoP applies to both new claims and claims for increased impairment (where worsening is argued). The date of effect of the SoP (21 June 2021) means that claims made before that date may be determined under the old SoP if the decision was not yet final; this can cause transitional uncertainty.