Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022)

Thoracic outlet syndrome (TOS) is defined in subsection 6(2) as a collection of symptoms and signs arising from compression of the subclavian artery, subclavian vein, or the nerves of the brachial plexus as these structures exit the thoracic cavity above the first rib and pass through the anatomical spaces of the thoracic outlet. The instrument identifies three subtypes, each with its own definition in the dictionary:

• Arterial TOS - partial or complete impairment of blood flow to the upper limb due to compression of the subclavian artery, including complications such as mural thrombus or aneurysm.
• Neurogenic TOS - compression of brachial plexus nerves causing symptoms or signs of nerve damage.
• Venous TOS - partial or complete impairment of blood flow from the upper limb due to compression of the subclavian vein, including complications like recurrent venous thromboembolism or pulmonary thromboembolism.

The instrument includes non-exhaustive notes listing typical symptoms for each, but the formal definition is the controlling one. Note 4 clarifies that the anatomical spaces involved include the scalene triangle, the costoclavicular space, and the pectoralis minor space.

Clinical onset and clinical worsening are not defined in the instrument, implying reliance on ordinary medical usage. However, the factors specify timeframes: for onset, factors refer to events occurring within 1 year (for trauma or surgery), at the time of onset (for space-occupying lesions), or within 2 months of cessation of repetitive activities after a 6-month cumulative period. For worsening, the same timeframes apply.

Relevant service is defined in the dictionary to mean:

• 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; or
• peacetime service under the MRCA.

This is a critical limitation. It excludes operational service (which uses a different standard) and hazardous service or British nuclear test defence service, meaning those classes of service are not covered by this SoP.

Balance of probabilities is the standard of proof applied. The RMA states in section 7 that it is of the view, on sound medical-scientific evidence, that it is more probable than not that TOS and death from TOS can be related to relevant service. This is the basis on which the factors were determined.

Factor definitions are highly prescriptive. “Repetitive and forceful activities” must average at least 40 hours per month over a cumulative period of at least 6 months. “Trauma involving the upper chest, shoulder or neck” requires a discrete event, significant force, damage, symptom onset within 24 hours, and persistence of symptoms for at least 7 days unless medical intervention occurs. That threshold is deliberately high; minor strains or delayed-onset symptoms do not qualify. “Acquired space-occupying lesion” is exemplified by neoplasms, hypertrophied muscles, fibrous scar tissue, haematomas, cysts, and bony callus. The altitude factor (8(5) and 8(11)) applies only to arterial or venous TOS, requiring at least 24 continuous hours at 3,000 metres within 30 days of onset or worsening.

The primary affected groups are current and former members of the Australian Defence Force who have rendered relevant service as defined, and who have developed thoracic outlet syndrome or died from it. This includes veterans with eligible war service (non-operational), persons with defence service (excluding hazardous service and British nuclear test defence service), and members with peacetime service under the MRCA. Because the instrument applies only to claims under section 120B of the VEA or section 339 of the MRCA, it does not cover those with operational service, who are assessed under the reasonable-hypothesis standard (section 120(1) VEA). That divide creates a two-tier system: operational veterans have a lower threshold for connection; non-operational veterans must satisfy the SoP factors.

The instrument also directly affects decision-makers within the Department of Veterans’ Affairs, the Military Rehabilitation and Compensation Commission, and the Veterans’ Review Board. They are bound to apply the SoP when determining claims. A decision that departs from the factors (without persuasive evidence that the factors are not exclusive) would be legally reviewable. Also affected are medical practitioners who provide reports for claims: they need to structure their assessments to match the definitions, particularly for trauma, repetitive activities, and subtype classification. Lawyers and advocates advising clients must understand the precise factor requirements, especially the strict timeframes and the distinction between onset and worsening factors.

Indirectly, the instrument imposes costs on the taxpayer through compensation payouts. Because the SoP increases the certainty of acceptance for those who meet a factor, it may also reduce administrative litigation for borderline cases. However, it may also incentivise claimants to frame their history to fit a factor, potentially encouraging over-claiming of repetitive activities or exaggerating trauma. The compliance burden falls on the individual veteran or member, who must produce evidence of hours spent on repetitive tasks, exact timing of symptoms, and medical documentation of trauma. For many, especially those with long service records, this may be difficult or impossible. The State (via the RMA) has effectively decided that only these specific pathways are accepted, limiting the ability of a veteran to succeed on a novel theory not captured by the factors.

The instrument imposes no duties directly; it is a rule of evidence for decision-makers. However, it confers a right: if a claimant can establish at least one factor from section 8 and that the factor is related to their relevant service (section 9(1)), then the decision-maker must accept that TOS or death from TOS is connected with service on the balance of probabilities. Section 8 is structured as a set of necessary conditions: “At least one of the following factors must exist before it can be said … that … thoracic outlet syndrome … is connected with the circumstances of a person’s relevant service.” This means the factor is not merely indicative; it is determinative. If a factor is present and service-related, the decision-maker has no discretion to deny the connection for other medical reasons.

Section 9(2) adds a nuance for worsening claims. Factors 8(7) to 8(13) apply only to material contribution to, or aggravation of, TOS where the person’s TOS was suffered or contracted before or during (but did not arise out of) their relevant service. This means that if TOS first arises out of service (i.e., during service and due to service conditions), the onset factors (8(1)-(6)) apply, and the worsening factors may still apply if the condition later worsens. But if the TOS pre-existed service and was asymptomatic, worsening factors must be used. This creates a potential trap for claimants: if they claim worsening but the evidence suggests the TOS was actually first incurred during service, the wrong factor set might be applied, leading to a rejection.

The duty of the RMA under subsection 196B(3) VEA is to determine a Statement of Principles based on sound medical-scientific evidence. The instrument asserts compliance with that duty in section 7. However, the SoP is binding only if it covers the claimed condition exactly as defined. If a person has TOS that does not fit the definition (e.g., compression from an unusual anatomical variant not listed), the SoP may not apply, and the claim must be assessed under the general standard without the SoP’s presumptive effect.

Claimants have a right to seek review of adverse decisions, including internal review, the Veterans’ Review Board, the Administrative Appeals Tribunal, and ultimately the Federal Court. The instrument itself does not confer appeal rights; those arise from the VEA and MRCA.

This instrument does not create penalties or offences. It operates solely as a rule for determining entitlement to compensation. However, the consequences of failing to establish a factor are effectively punitive for the claimant: they will be denied benefits for TOS-related incapacity, medical expenses, or death benefits. The enforcement mechanism is the claims assessment process. A claim must be determined by a delegate, who applies the SoP. If the delegate decides the factors are not met, the claimant may request reconsideration or apply to the Veterans’ Review Board for merits review. The Board is bound by the SoP. The Administrative Appeals Tribunal also applies the SoP on review. Judicial review is available for legal error, such as misinterpreting a factor or misapplying the definition.

There is no penalty for making a false claim under this SoP specifically, but the general law on fraud and the provisions of the VEA and MRCA concerning false statements apply. For example, section 208 of the VEA creates an offence for obtaining payment by false or misleading statements, carrying penalties of imprisonment. The stringent definitions in the SoP (such as the 24-hour and 7-day requirements for trauma) may reduce the scope for fabricated claims, but they also increase the cost of verification. The instrument does not impose reporting obligations on medical practitioners, but they may be required to provide statements that could be tested.

The practical enforcement risk is that decision-makers will apply the definitions rigidly, leading to denials even where medical evidence plausibly links TOS to service but does not fit the precise factor criteria. This is a cost of the bright-line approach: it reduces administrative discretion but may produce unjust outcomes in individual cases. The only safety valve is factor 13: “inability to obtain appropriate clinical management for thoracic outlet syndrome.” That factor is not further defined, creating uncertainty. If a claimant had TOS that was aggravated by a failure to receive proper treatment while in service, factor 13 might cover it. But what constitutes “inability” and “appropriate clinical management” is left open, inviting litigation.

This SoP is made under subsection 196B(3) of the VEA and applies to claims under section 120B of that Act or section 339 of the MRCA. It is subordinate legislation that has the force of law for those claims. Where the SoP applies, it overrides the general test of causation under the common law or the usual balance-of-probabilities standard. The VEA and MRCA themselves require that the RMA’s SoPs must be applied by decision-makers; a claimant cannot bypass the SoP and argue direct causal connection on other evidence.

Section 10 of the instrument provides that if a factor in section 8 refers to an injury or disease in respect of which another SoP has been determined under the same provision, then the factors in that other SoP apply in accordance with its terms as in force from time to time. This means that if a factor such as “trauma involving the upper chest” requires evaluation of a specific injury (e.g., fracture of clavicle), and a separate SoP for fracture of clavicle exists, the decision-maker must apply that fracture SoP to determine whether the trauma factor is satisfied. This is a cross-referencing mechanism that can cascade multiple SoPs into the one TOS claim. It adds complexity, as the claimant may need to satisfy factors from two different SoPs.

The instrument does not interact with State workers’ compensation laws or private insurance, except indirectly through the Veterans’ Entitlements Act’s provisions on offsetting payments. The SoP is specific to federal military compensation.

The instrument also defines “relevant service” in a way that excludes certain categories: operational service, hazardous service, and British nuclear test defence service. Those categories are governed by different standards of proof under the VEA (section 120(1) for operational service) and separate SoPs or no SoPs. This means that a veteran with TOS who has both operational and non-operational service may need careful apportionment. The SoP only helps for the non-operational period.

The Military Rehabilitation and Compensation Act 2004 also provides for rehabilitation and compensation; this SoP interacts with that Act’s s339, which applies the balance-of-probabilities standard for peacetime service claims. The MRCA itself has its own scheme, but the SoP is binding.

The instrument is No. 48 of 2022. It was made on 29 April 2022 and commences on 30 May 2022. The text provides no information about earlier SoPs for thoracic outlet syndrome or any amendments. The RMA regularly issues new SoPs to reflect updated medical evidence. It is possible that this instrument supersedes an earlier SoP on the same condition, but the document does not state that. Practitioners should check the Federal Register of Legislation for any historical predecessors or subsequent amendments. Given the instrument’s recency (2022), it is the current version. Any future amendments will be published as amending instruments.

The authority for the instrument is subsection 196B(3) of the VEA, which requires the RMA to determine a SoP when it is of the view that there is sound medical-scientific evidence that a particular kind of injury, disease, or death can be related to relevant service. The instrument was sealed by the Chairperson, Professor Terence Campbell AM, on behalf of the RMA. The instrument’s commencement date of 30 May 2022 is 31 days after it was made, which is standard. There is no indication of retrospective effect.

The instrument itself does not reference any litigation. There is no case list or mention of court decisions in the text. As an administrative instrument, it may have been tested in the Administrative Appeals Tribunal or the Federal Court, but the source does not provide that information. In general, SoPs under section 196B are subject to judicial review for legal error, such as misinterpretation of the VEA or failure to consider sound medical-scientific evidence. However, courts are generally deferential to the RMA on the content of the factors. Notable cases involving other SoPs (e.g., Repatriation Commission v Gosewinkel, Repatriation Commission v Bawden) establish principles of interpretation, but they are not cited here.

Given that this SoP is relatively new (2022), there may not yet be significant case law on its specific provisions. The most likely source of future litigation is the definition of “trauma” (the 24-hour and 7-day requirements) and factor 13 (inability to obtain appropriate clinical management). Claimants may argue that the trauma definition is too narrow or that the RMA failed to include other plausible factors. The RMA’s note to section 8 acknowledges that delayed onset can occur from callus formation and scar tissue, which suggests an awareness of complexity, but the factor itself requires a discrete event, which may exclude cumulative microtrauma. That could be a contested area.

Several aspects of the instrument are traps for the unwary, particularly claimants and their representatives.

Trauma definition is extremely strict. The term “trauma involving the upper chest, shoulder or neck of the affected side” in the dictionary requires a discrete event with “significant physical force”, damage to that area, symptoms within 24 hours, and persistence for at least 7 days (unless medical intervention occurs). Many common injuries would not qualify. For example, a heavy lifting episode that causes immediate neck pain but resolves in 3 days without medical intervention would not meet the persistence requirement. A fall that produces immediate shoulder pain but the person takes analgesics and the pain is masked for 24 hours may fail the 24-hour onset rule if the first recorded symptoms are after the analgesic wears off. The definition also demands “damage” (not just pain), which may be hard to prove without imaging. Medical intervention only qualifies if it is immobilisation, corticosteroid injection, or surgery - not just prescribing painkillers or rest.

Repetitive activities threshold is high. The claimant must show an average of at least 40 hours per month over a cumulative 6 months. This is not just full-time work; many service roles may not reach that threshold. The examples given (lifting, carrying heavy loads, overhead throwing, swimming, rowing, playing musical instruments) are specific. Activities that are repetitive but not forceful (e.g., typing, light lifting) do not count. The factor also requires that if the activities ceased before clinical onset, the onset must occur within 2 months. This imposes a short window.

Altitude factor limited to arterial/venous TOS only. Neurogenic TOS, the most common subtype, cannot be linked to high altitude exposure under this SoP. Only arterial or venous subtypes qualify for that factor. That may reflect that altitude changes affect vascular compression more than neural compression, but claimants with neurogenic symptoms and altitude exposure cannot rely on it.

Factor 13 is undefined and may be double-edged. “Inability to obtain appropriate clinical management” is not defined in the dictionary. It could mean that the person was denied proper treatment while in service, leading to worsening. But what is “inability”? Is it a failure of the military medical system, a lack of available specialists, or the person’s own refusal of treatment? The ambiguity could lead to prolonged disputes. Decision-makers may interpret it narrowly to avoid opening a floodgate.

Worsening factors only apply if TOS pre-existed service or arose during service but not out of service. Section 9(2) states that factors 8(7) to 8(13) apply only to material contribution or aggravation where TOS was suffered or contracted before or during (but did not arise out of) relevant service. The phrase “did not arise out of” is crucial: if TOS first appeared during service and was caused by service activities, then the onset factors apply, not the worsening factors. Claimants may confuse onset and worsening, leading to the wrong factor being argued and the claim rejected.

Death must be contributed to by TOS. Subsection 6(3) extends the SoP to death from a terminal event contributed to by TOS. The dictionary defines “terminal event” as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This list is exhaustive. If death is from another cause (e.g., sepsis, suicide) and TOS is only a secondary factor, it may not qualify.

Cross-referencing to other SoPs under section 10 can multiply requirements. If a factor like trauma (which is defined as causing damage) involves a condition such as fracture of clavicle, and there is a separate SoP for fracture of clavicle, the claimant must also satisfy that SoP’s factors. This can create multiple hurdles.

Compliance with this instrument is not a matter of fulfilling regulatory obligations; rather, it is about successfully navigating the claims process. The following steps are useful for claimants, their representatives, and medical practitioners.

For claimants and advocates:

1. Obtain a proper diagnosis. Ensure the condition is classified as one of the three subtypes: arterial, neurogenic, or venous. The treating doctor should document the specific subtype and the anatomical basis (which space is compressed). The diagnosis must be consistent with the definition in subsection 6(2). If the diagnosis is “non-specific TOS” or “disputed TOS”, it may not satisfy the SoP.

2. Identify the most applicable factor(s). Review section 8 carefully. For a new-onset claim, options are trauma (8(2)), surgery (8(3)), space-occupying lesion (8(4)), or repetitive activities (8(1)). For arterial/venous subtype only, altitude (8(5)) or arteriovenous fistula (8(6)) are possible. For worsening, the equivalent factors 8(7)-8(12) apply, but only if TOS existed before the worsening event and that worsening is due to service.

3. Gather objective evidence. For trauma: obtain contemporaneous medical records showing the event, symptoms within 24 hours, and persistence of symptoms for at least 7 days (or evidence of medical intervention as defined). For repetitive activities: document the type of activity, hours per month, and the cumulative 6-month period. Pay slips, duty rosters, unit records, or testimony from superiors may be needed. The activity must be both repetitive and forceful.

4. For altitude factor: prove the person was at 3,000 metres or above for a continuous 24 hours within 30 days before onset or worsening. This may require flight records, postings to high-altitude locations, or similar.

5. Relate the factor to relevant service. The factor must be linked to the person’s eligible war service, defence service (excluding hazardous/British nuclear), or peacetime service under MRCA. Civilian activities do not count unless they occurred during service (e.g., off-duty recreational swimming may count if it is during a service period, but it must be shown to be part of service circumstances).

6. Consider factor 13 only if other factors cannot be established and the person can show that the military health system failed to provide appropriate clinical management, leading to worsening. This is a last resort and should be supported by evidence of referrals declined, delays, or inadequate treatment.

For medical practitioners:

• Use the precise language of the SoP in reports. For trauma, describe the force, the damage, the timeline of symptoms, and whether medical intervention (splinting, injection, surgery) occurred.
• For repetitive activities, quantify hours per month and note when the activities ceased relative to symptom onset.
• Diagnosis should distinguish between neurogenic, arterial, and venous TOS, and note the affected side.

For decision-makers:

• Apply the definitions strictly. Do not accept a factor unless all elements are proven.
• If the claimant relies on a factor that refers to another injury (e.g., fracture), apply the relevant SoP for that injury under section 10.
• If factor 13 is claimed, seek clarification on what “inability” means and why clinical management was not available, and whether it was appropriate.

Compliance ultimately requires careful documentation and a willingness to test each element against the dictionary definitions. The instrument leaves little room for discretion, so a claim that misses any detail is likely to fail.