Military Jet Gun Injections Transmitted Hepatitis: An Assessment of VA Claims

Jet Injectors = Jet Infectors

December 27, 2016

A Twenty-Three Year Assessment of the Nexuses Between Jet Injectors and Blood-Borne Pathogens Via Veteran Affairs Court Cases

2016 Preliminary Report – Not all 2016 BVA claims have been released.

In an August 2004 Internet post titled, Hepatitis C: Military-Related Blood Exposures, Risk Factors, VA Care, the Department of Veterans Affairs purported, “Although there have been no case reports of hepatitis C being transmitted by a jet gun injection, it is biologically plausible.”

To date the biologically plausible, or rather theoretically possible yet improbable response, has been the VA’s stance on this issue.

However, in spite of the VA’s longstanding statement, a department within the agency is finding otherwise. Within recent years the Board of Veterans Appeals (BVA), an informal court within the VA, has received an influx of jet injector cases. Veterans, lacking the more typical risk factors, are recognizing the jet injector as the only causality for his and her hepatitis C. The court’s recognition of these nexuses in a substantial number of cases debunks the possibility as being “only theoretical” and instead establishes the possibility as not only plausible but probable.

A review of case law from 1992 to 2016 found the Board of Veterans’ Appeals had ruled upon 1,571 cases that cited the jet injector. From these cases 131 were granted, 770 were denied, 602 were remanded back to the VA Regional Office to seek another medical opinion, and 68 cases were granted but needed to be excluded from the rest of the data because either the judicial rendering did not mention the jet injector, the judicial rendering specifically excluded the jet injector, or the veteran’s symptoms of hepatitis C were documented inservice and therefore service-connection was automatically granted and an etiological cause was unneeded.

The graph below demonstrates trends overtime concerning jet injector cases that were decided by Veteran Law Judges.
bva-jet-injector-cases-1993-2016-1bva-jet-injector-cases-1993-2016-2bva-jet-injector-cases-1993-2016-3

From 2003 to 2008 there was a surge of jet injector decisions, most of which were denied. Despite the fact that these cases were denied, a majority of these cases should have been granted as the Veterans Law Judge failed to appropriately recognize the jet injector as a risk factor and failed to appropriately apply the Benefit of Doubt Law (38 U.S.C.S. § 5107(b)) or the analogous Reasonable Doubt Law (38 C.F.R. § 3.102). When the positive and negative evidence of a case is in equipoise (equal to each other), the benefit of the doubt always goes to the veteran. The veteran prevails and the case is granted. (More will be discussed on this in a future blog post).

Since 2008 there has been a surge in remanded decisions. Meaning the Veteran Law Judges are remanding the case, or rather sending the case back, to the VA Regional Office (VARO), with specific instructions mandated by the BVA court. Usually remanded cases sent back request the VARO to seek another medical evaluation of the veterans’ claim file.

Most remarkably granted cases have been on a slow but gradual incline. This past year tied with 2015 as having the most claims granted despite not all of the 2016 decisions being released yet. The 2016 findings are only a preliminary look at what occurred in BVA decisions this past year.

The 131 cases that were granted can be further broken-down into separate categories. Out of these:

1.  68 cases explicitly rendered that the jet injector was the etiological cause of veterans’ hepatitis C infection. Meaning in each case medical professionals familiar with the veteran’s case and a Veterans Law Judge both found the jet injector to be the veteran’s source of infection.

These cases can be further broken-down:

  • In 32 of these 68 cases, the jet injector was the veterans only risk factor for hepatitis C. This is worth repeating, in these 32 cases the only risk the veteran ever experienced was the jet injector. Herein are 32 documented cases which substantiate the nexus between hepatitis C and military jet injector vaccinations.
  • In 36 of these 68 cases, veterans’ military jet injections were found to be a greater risk factor than other inservice and/or non-service risk factors purported. Meaning these other risk factors were deemed unlikely as the source of veterans’ hepatitis C infection when compared to these veterans’ military jet injection experiences.

2.  One case explicitly rendered that the jet injector was the etiological cause of the veteran’s hepatitis B infection.
3.  60 cases rendered that veterans’ military exposures, which included jet injector inoculations, were the etiological cause of the veterans’ hepatitis C infection. Meaning the renderings in these cases found multiple inservice risk factors were the probable source of veterans’ hepatitis C. Veterans need only prove that their inservice risk factors of acquiring hepatitis C were equal to or greater than any non-service risk factors. Therefore, determining amongst multiple inservice risk factors as the cause of hepatitis C is unnecessary.
4.  One case rendered that the veteran’s military exposure which included jet injector inoculations was the etiological cause of the veteran’s hepatitis B infection; and
5.  One case found the jet injector caused an adverse condition in a veteran’s upper arm.

Here are the case citations to all granted jet injector cases.

Therefore the statement, “Although there have been no case reports of hepatitis C being transmitted by a jet gun injection” is an outright lie. Numerous cases have cited this nexus. These cases were not granted out of sympathy. Oh contrar! Let’s look at the weighing of evidence.

The nexus between military jet injections and veterans’ hepatitis C was cited explicitly in 68 cases. Amongst these cases the evidence was weighed in—

  • 63 cases as “at least as likely or not,” or rather at least a 50 percent likelihood. (Listing of these 63 Citations)
  • 3 cases as “more likely than not,” or rather a greater than 50 percent likelihood. (see cases Citation # 0945788, # 1525003 and # 1628702).
  • 2 cases as “due to,” or rather 100 percent related. (see cases Citation # 0531165 and # 0724695).

The number of cases backlogged and awaiting decisions remains unknown. There are jet injector/hepatitis C cases that have been granted within the VA Regional Office level, however these findings are not published and therefore unknown (personally I am only aware of four such cases).
So why is this article important?

BVA cases are nonprecedential. The outcome of one BVA claim has no legal bearing in other claims.

Although this is true, VA Regulation also states, providing that “[p]rior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case” (38 C.F.R. § 20.1303). Therefore, to establish jet injectors as risk factors for HCV in your claim the following cases cited above will “reasonably relate.” Although no precedent has been set, the Court, acting as one collective body, will have to show “consistency in issuing its decisions” (38 C.F.R. § 20.1303).
How to Structure A Jet Injector Claim

Copyright Notice

© Shaun Brown and Jet Infectors, 2017. Veterans are encouraged to use these documents as evidence within their VA claims. Any other use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Shaun Brown and Jet Infectors with appropriate and specific direction to the original content.

Concern Over Use of Protector Cap Needle-Free Injectors

December 26, 2016

Jet Infectors embarked to answer one question-
Are Jet Infectors still being used today?

So far no such devices are being used to administer vaccinations. However, a preliminary investigation found discrepancies within needle-free literature which, in good faith, must be clarified.

Jet Infectors found protector cap needle-free injectors (PCNFI) are currently being used as medical instruments in a beauty clinic in Pretoria, South Africa.

The PCNFI device used in Pretoria is known as Med-Jet MBX. The device consists of a single-use disposable plastic cap which acts as a barrier in protecting the reusable nozzle, internal fluid pathway, and drug reservoir from foreign particles.

However, PCNFI devices do not eliminate the risk of disease transmission between consecutive patients. Therefore, it is imperative that the reusable nozzle, internal fluid pathway, and drug reservoir are autoclaved after use on each patient. These pieces are to be treated no different than any other surgical device in need of autoclaving.

Med-Jet MBX has been marketed worldwide for applications in dermatology, cosmetics and mesotherapy. Although the device is still awaiting FDA approval within the United States.

Med-Jet MBX is manufactured and distributed by Medical International Technologies (MIT Canada) of Saint-Laurent, Canada. Med-Jet MBX, nor MIT Canada, have ever been implicated in any outbreak. An Internet search found no complaints against Med-Jet or MIT Canada whatsoever.

Jet Infectors reached-out to Karim Menassa, President and CEO of MIT Canada who was pleasant and forthcoming about his products.

“Our user manual clearly states that the reusable portion of the fluid path must be sterilized before injecting any patients,” said Mr. Menassa. “For example, Dr. Benohanian has purchased several reusable fluid paths and sterilizes after every patient.”

Although here lies some confusion and thus the sole reason for publishing this article. A paper published by Antranik Benohanian M.D. and Danielle Brassard M.D., both of Saint-Laurent, Canada and fond advocates of the Med-Jet MBX, does not state the device must be autoclaved after being used on each patient.

“Multiple injections could still be performed on a same patient, but not on a subsequent patient unless the anticontaminant disposable device is changed to avoid cross contamination,” wrote Benohanian and Brassard (2010).

Herein the authors attribute the anticontaminant disposable device as being the protector cap and is distinguished separately from the jet injector. Nowhere was it stated the reusable components of the jet injector were to be autoclaved in between patients.

The authors reiterated, “When the tip of the nozzle comes in direct contact of the skin, the risk of cross-contamination may occur. This requires the replacement of the disposable nozzle with a sterile one before using the injector on a subsequent patient.”

Safety testing by Kelly and colleagues (2008) found a PCNFI device, manufactured by PATH and Pulse Needle Free Systems, USA, failed to prevent contamination past the protector cap barrier. In 8.2 percent of the samples, Hepatitis B was found to have gone through the protector cap and into the internal components of the jet injector. Most startling, researchers observed no visible bleeding at the injection site in 7 out of the 17 injections that tested positive for cross-contamination of the Hepatitis B virus.

At this time it remains unclear how the beauty clinic in Pretoria is using the jet injector. When asked about sterilization procedures, the beauty clinic failed to respond and ceased all further communication.

Med-Jet MBX and other PCNFI devices can be used safely as medical instruments. Although it is important for users to know replacing the disposable cap does not sterilize the jet injector. The device must be autoclaved before being used on each patient.

PCNFI devices are not to be used in administering vaccinations.

If you know of a Jet Infector currently being used please fill-out the form on the following link.

References:

  • (Benohanian and Brassard, 2010) Benohanian A, Brassard D, “Needle-Free Jet Injection Revisited”, Review Report, 2010.
  • (Kelly et al., 2008) Kelly K, Loskutov A, Zehrung D, Puaa K, LaBarre P, Muller N, Guiqiang W, Ding H, Hu D, Blackwelder WC. Preventing contamination between injections with multi-use nozzle needle-free injectors: a safety trial. Vaccine (2008) 26, 1344-1352.

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How to Structure A Jet Injector Claim

December 21, 2016

“There is no way you can prove the jet gun caused your hepatitis C,” the VA told a veteran.

Appalled by VA’s audacity, I decided to no longer keep silent. Veterans can and have proven their hepatitis C was caused by military jet injections.

Presenting a claim to the VA may seem like a daunting task. However, case law has outlined precisely how to structure such a claim.

Understanding The Hickson Element

The historical court case of Hickson v. West set a precedent upon how all service-connection claims are to be weighed within the Department of Veterans Affairs. To establish direct service connection, a veteran’s medical record must contain:

(1) medical evidence of a current disorder
(2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and
(3) evidence of a nexus between the current disorder and the in-service disease or injury.

This has become informally known as the Hickson Element.

Applying The Hickson Element

The following article has been found beneficial by some and also incomplete by others. This article is not intended to be an exhaustive and complete list to the plethora of situations that could be but is purely published to serve as a guide and brainstorming list. Have your Veteran Service Officer assist you. If you do not have a VSO, visit the National Association of County Veterans Service Officers website http://www.nacvso.org and click on “Find a Service Officer.”
In applying the Hickson Element to your claim you will need to show:

(1) Current medical records indicating you are infected with the hepatitis C virus;

(2) Medical and lay evidence of an inservice disease. This evidence should include as many of the following as possible (these are brainstorming ideas):

A. Inservice Evidence – such as, military records and/or military medical records showing any signs or symptoms of hepatitis (jaundice, fever, weight loss, flu-like symptoms, elevated blood work)

B. Post-service medical records – Both private medical records and VA medical records documenting:

• Chronicity and Continuity After Discharge – such as, past medical records demonstrating a longstanding hepatic abnormality, or infection with hepatitis C.

◦ The fact that you did not have any signs or symptoms of hepatitis C prior to your diagnosis is not dispositive to your claim. The VA’s website describes the common asymptomatic feature of hep c: “Frequent asymptomatic acute infections.” “Patients with chronic HCV may have nonspecific symptoms including fatigue and malaise. Disease course is slow, with the majority of patients showing few signs or symptoms during the first 20 years of infection.” (http://www.hepatitis.va.gov/HEPATITIS/mobile/index.asp?page=/provider/reviews/natural-history&). 

◦ The online encyclopedia Wikipedia states, “between 60 to 70 percent of people infected develop no symptoms during the acute phase.” Chronic HCV is described as, “often asymptomatic and it is mostly discovered accidentally” (https://en.wikipedia.org/wiki/Hepatitis_C). [use this info in your claim and be sure to cite sources. The sources are credible. You are not—no offense.]

◦ Therefore it is not uncommon, nor dispositive to your claim, for you to not have a hepatic abnormality prior to your HCV diagnosis. 

• A lack of typical hepatitis C risk factors. This evidence, if it exists, might be recorded within doctors notes. Demonstrating a lack of risk factors helps substantiate your claim.

◦ Look within your private medical records or VA medical records for any documentation that explicitly says, “Patient is not an injection drug user, never has had a blood transfusion, etc,” if you have not done so already. This is valuable evidence to support your claim. If this evidence does exist, quote these doctors and nurses; “Dr. X said…” and provide a copy as evidence.

◦ Cite this 1970 DoD document on military vaccinations. It states several times that the jet injector produces a bleeding at the injection site. (can be downloaded from this webpage- https://jetinfectors.wordpress.com/2016/03/19/1970-dod-report-warns-of-bleeding-following-jet-injections/

• Or, multiple risk factors. Having experienced any of the typical HCV risk factors dose not preclude you from winning a jet injection claim. You will need to demonstrate your inservice risk factors outweigh your non-service risk factors. You will need to have your gastroenterologist make such a determination by weighing the risks and writing a nexus letter, which will be discussed below in number (3).

◦ If you have experienced other inservice risk factors by all means include them. Such risks may include: Having a blood transfusion, being subjected to reused vials, reused needles for medical (non-drugging) purposes, exposure to blood or bodily fluids, unsanitary dental work, sharing of toothbrush or razors, military haircuts, and/or getting a tattoo while inservice. Any blood-to-blood exposure was a risk to contracting hep c.

◦ The mere fact that a veteran engaged in injection drug use does not forbid him or her from winning a service-connection claim for inservice risk factors, although it does drastically lessen the chances. The Board of Veterans Appeals (BVA) has granted some cases whereupon the veteran demonstrated his or her risk of acquiring hepatitis C inservice was in equipoise, that is to say equal to, their risk of acquiring hepatitis C through his or her non-service risk factor of injection drug use.

In one case, the BVA rendered the veteran’s inservice risk factors of jet injector vaccinations and his high risk sexual activity during service was in equipoise to his admission of intravenous drug use, whereupon he never shared drug needles (BVA Case # 0725073). With the case being in equipoise the benefit of the doubt went to the veteran and the case was granted.

In another case that was granted, the BVA rendered the documentation of symptoms for hepatitis C in the veteran’s military medical file was justifiable to show the veteran acquired hepatitis C prior to ever engaging in intravenous drug use. Whereupon the BVA found the veteran’s inservice risk factors of exposure to blood in Vietnam (which included the handling of dead bodies) and jet injector inoculations were in equipoise to his risk factor of intravenous drug use (BVA Case # 0915383). It is imperative to mention, without the documentation of symptoms for hepatitis C in his military file it is unlikely this case would have been granted.

C. Personal testimony- A veteran is competent as a layperson to testify on that which he has personal knowledge (See Layno v. Brown, 6 Vet. App. 465, 470 (1994)). Therefore, your case should include any observation of blood on the jet injector, blood on the arm of the soldier vaccinated in front of you, and blood on your arm. Moreover, any observations that the jet injector was not wiped clean in between vaccinations. Keep your testimony strictly to what you experienced through your five physical senses (especially what you saw). Under no circumstances make any assumptions. There is a difference between saying you saw blood on the nozzle of the jet injector compared to you saying the jet injector was bloody and infected with hepatitis C. The former is a fact and the latter is an assumption.

D. Testimony from fellow recruits who were vaccinated with you. Such testimony should document lack of sterilization practices and observations of blood. These testimonies are informally known as “Buddy Letters.” The veteran writing the Buddy Letter should include a copy of his DD214 or other military documentation proving he or she served with you.

E. Testimony from family, friends, and any persons who can attest to any signs or symptoms of a hepatic abnormality during your military service. For instance, in one case a mother observed her son, who was home on leave, was jaundiced and immediately brought him to the hospital for evaluation.
-In cases where the veteran is deceased, the surviving spouse can testify that the veteran repeatedly stated his or her only risk factor were his or her military jet injector vaccinations.

(3) Nexus letter from a treating physician, especially a hepatitis/liver doctor (known as a gastroenterologist or hepatologist). A nexus letter is a letter written by a physician who after performing a complete review of your medical history makes a determination on the probability that your current condition is related to your past risk factors. Key points for your physician to include in a nexus letter:

A. The condition of your liver, especially if a liver biopsy was performed. With a liver biopsy a physician can approximate a timeline for the onset of hepatitis C by comparing the condition of your liver to research on how long it takes to develop cirrhosis. For instance in my father’s claim, I presented evidence of a liver biopsy performed in 1986 which stated he had “partial cirrhosis.” This evidence helped substantiate that his onset of hepatitis C was during the early to mid-1970s when he was inservice.

B. Lack of risk factors. The physician writing the nexus letter should demonstrate that you lack the typical risk factors for hepatitis C.

C. Multiple risk factors. Possessing other risk factors is not dispositive to making a claim. If other risk factors do exist the physician should weigh your inservice risk factors to your non-service risk factors. The physician will need to state why he or she believes those non-service risks were the unlikely cause of your hepatitis C infection when compared to your inservice risks which include exposure to bloody and unsanitary jet injector vaccinations.

D. The physician should fully weigh and consider the evidence in relation to your case and then determine the likelihood that you contracted hepatitis C from your military jet injection vaccinations and any other inservice risk factors.  This analysis would be a professional opinion as opposed to a mere speculation of how you acquired HCV. A nexus based on mere speculation holds no evidentiary weight in court.

◦ A VA Law Judge noted, “The use of the speculative word ‘possible’ renders the opinion inadequate for the purposes of establishing service connection. See Warren v. Brown, 6 Vet. App. 4, 6 (1993)” (BVA Case # 1553509).

E. It is imperative that the nexus letter not only state the physician’s medical opinion but must also give a rationale as to how he or she came to a conclusion. As VBA Fast Letter 211 (04-13) states, “It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the airgun was the source of the veteran’s hepatitis C.”

◦ A BVA case summed it up by saying,

“The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”)” (BVA Case # 1525003).

-I cannot stress enough the importance of nexus letters. The BVA heavily weighs upon them. If your nexus letter does not contain all the information above, seek another one!

Cause of Death
When the claimant is a surviving spouse of a deceased veteran, you will need to show the cause of death is etiologically related to the inservice exposure. Pursuant to 38 C.F.R. subsection 3.312, Cause of Death, “The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the primary or contributory cause of death.” If the veteran died to due complications of HCV, the death certificate should demonstrate the etiological relationship under the headings primary and contributory causes of death. Use this information in support of the claim by stating: “The cause of the veteran’s death is recorded upon his Death Certificate as…[HCV, liver cancer, cirrhosis, and any other ailment listed]” and provide a copy of the Death Certificate.

Feel free to download these files and print hardcopies to include in your claims file.

More to come soon…

Copyright Notice
© Shaun Brown and Jet Infectors, 2017. Veterans are encouraged to use these documents as evidence within their VA claims. Any other use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Shaun Brown and Jet Infectors with appropriate and specific direction to the original content.

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Inconsistent Renderings in VA: Comparing Granted vs. Denied Jet Injector Claims

December 19, 2016

Juxtaposition these jet injector claims that were denied to the subsequent cases shown that were granted and the inconsistencies and contradictions emerge within BVA rulings. [Please note these are only a small sampling to conserve on time]. These findings call forth the need for a change in VA. The Administration’s rulings should be fair and consistent.

Denied Claims:

In this BVA case that was denied, the examiner “felt [it] was unlikely that the veteran would have gotten such infection from an air gun inoculation, since this method did not use a needle puncture” (BVA Citation # 113621). Yet, the military jet injections were this veteran’s only HBV and HCV risk factor.

Or this case that was denied: “His assertion, however, that injector use caused his hepatitis C contains nothing more than conjecture as to possible events with no basis in established fact” (BVA Citation # 1017503).
Or this case, whereupon a VA physician unjustifiably opined that a veteran-claimants hepatitis C could not be related to any of his military risk factors but was related to some unidentified and unrecognized risk factor. This fallacious evaluation was rendered probative and authoritative by the BVA and the veteran’s service-connection claim was denied. Herein the BVA remarked of the physician’s findings:

The veteran was afforded a third VA examination in May 2006. The examiner stated that while the virus can be transmitted by needle sticks, those incidents are very low. He also asserted that the risk of obtaining HVC [sic.] from injections from an air gun was less than 20 percent. After reviewing the claims file, the examiner noted that the evidence did not show that the veteran injected street drugs, had blood transfusions, received clotting factor, was on kidney dialysis, had liver disease, or had sex or lived with an infected person. Yet, the examiner reported that medical literature shows that up to 20 percent of people with HVC [sic.] do not have identifiable risk factors. Accordingly, he opined that the veteran’s HVC [sic.] was not the result of air gun injections but mostly attributable to an unidentifiable risk factor. (BVA case # 0817607)

Here the examiner, who was a VA physician, weighed the veterans hepatitis C risk factors—which were accidental needle stick as a healthcare worker in the military and military jet injector inoculations—against statistical findings in medical studies. The VA physician assessed the likelihood that the veteran’s claim matched those studies. In so doing, the VA physician read that the risk of acquiring hepatitis C from a jet injector was less than 20 percent and in 20 percent of hepatitis C cases the risk is unidentifiable. He then attributed, based upon conjecture and not reality, that the cause must be from an unidentifiable risk. The VA physician gave no credence to the risk factors the veteran did experience and failed to recognize that the veteran may have been a part of the less than 20 percent who acquired hepatitis C from jet injector inoculations.

In this BVA case the veteran stated recruits were bleeding from air gun immunizations. The examiner recognized the veteran’s lack of typical HCV risk factors, acknowledged the jet injector as a risk factor and yet after ultimately denouncing the jet injector nexus concluded the veteran must have acquired HCV outside of his military service. The examiner based his opinion upon conjecture.

The physician stated that as of 2003, the Veteran had chronic hepatitis C infection and early cirrhosis. Development of cirrhosis due to hepatitis C takes 25-30 years, and, thus, it is likely that he acquired the infection prior to 1973-1978. He was on active duty from 1960 to 1962. He commented that little is known of his activities, habits and potential risk factors from 1962 to 1978.

In terms of risk factors while on active duty he received no transfusions, he apparently had no tattoos, and most of the immunizations would not pose a risk of exposure to hepatitis C. Thus, while there are numerous risk factors that have been identified for acquisition of hepatitis C virus infection, the Veteran had none of these and fit into the 20-30% of patients with hepatitis C that had no obvious or identifiable source of infection.

The doctor went on to state that the air gun immunization program does pose a risk for transmission of viruses such as hepatitis C. Clearly, most soldiers did not acquire hepatitis C via this procedure. Undoubtedly, some did acquire infection, but this risk has never been measured and the risks could have been influenced by the operator, population of soldiers being immunized and possibly by the genotype of the hepatitis C virus. It is more likely than not that the Veteran did not acquire hepatitis C while performing official duties while on active duty in the military.

The biological possibility of transmission of the hepatitis C virus by jet airgun injectors has been acknowledged by VA. See VBA Fast Letter 04-13 (June 29, 2004). The Board observes, however, that whether an event is “plausible” is a significantly lower threshold than the “equipoise” standard necessary to warrant a grant of the benefit. See, e.g., Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998); Murphy v. Derwinski, 1 Vet. App. 78 (1996) (discussing “plausible” as the threshold for establishing a well-grounded claim). In this regard, the VBA Fast Letter notes that there is no scientific evidence documenting any transmission of the hepatitis C virus with airgun injectors. As pointed out in the VHA opinion, transmission in that manner would require (1) blood on the surface of the air gun face; (2) no attempt to remove blood from the device between patients; and (3) at least one recruit immunized before the Veteran (with the same injector) with an active hepatitis C infection. In this case, the author of VHA opinion concluded that despite the potential for transmission by this method, it was more likely than not that the Veteran did not acquire the hepatitis C virus while on active duty” (BVA Citation # 1030159).

Granted Claims:

In this BVA case that was granted, “A VA examination report dated in April 2003 noted private medical records showed liver function tests were initially found to be abnormal in September 2001, and that subsequent testing including liver biopsy in 2002 that confirmed the presence of chronic hepatitis C.  The examiner opined that the transmission of hepatitis C through pneumatic injectors was possible, and observed that the veteran did not seem to have any other risk factors for acquiring hepatitis C” (BVA Citation # 0724695).

Or in this case that was granted, “A February 2010 statement from the Veteran’s VA liver transplant doctor, an Associate Professor of Medicine and Pharmacology, Gastroenterology and Hepatology at Vanderbilt University School of Medicine, stated the Veteran was diagnosed with hepatitis C in 1990 and he had no additional risk factors for hepatitis C except for the in-service air gun inoculations” (BVA Citation # 1224138).
Within this granted case the VA Law Judge stated, “In March 2015, the Board sent a request to the Veterans Health Administration (VHA) for a medical opinion regarding the etiology of the Veteran’s hepatitis C, including whether it was caused by the in-service immunizations via air gun injector. A VA physician responded in April 2015. After reviewing the available evidence and the medical literature, he concluded that “there is a greater than 50% likelihood that the Veteran’s hepatitis C was caused by or the result of immunizations via air gun injector during active duty service.” The VA physician went on to discuss the medical literature and evidence in the claims file that supported his conclusion. To summarize, the VA physician found the alleged infection via air gun injector to be medically plausible, that it is not possible to say later risk factors were more likely given the absence of any testing for hepatitis C prior to those risk factors, and that, in her experience, other veterans with no other reported risk factors had also been diagnosed with hepatitis C after immunizations via presumably contaminated air gun injectors” (BVA Citation # 1520374).
In this granted case, “A September 2011 VA examination report acknowledged that the jet injector inoculations were a possible risk factor for hepatitis C exposure, but that the Veteran’s hepatitis C was likely related to her tattoo or her pelvic inflammatory disease.” However, the BVA appropriately concluded, “The fact that the Veteran had pelvic inflammatory disease or did her own tattoo at age 12 are irrelevant, and the Veteran’s treating physicians have concluded that such events are unlikely sources of her hepatitis C, as they did not involve the transmission of blood.” This case was granted (BVA Citation # 1507259).
Here is yet another case recognizing the jet injector/HCV nexus. “In November 2010, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). In a December 2010 statement, the examiner noted that Hepatitis C was first discovered in 1989; therefore, although the disease existed, there was no way to diagnose it until 1989. The examiner noted that jet-injector devices have been in use since 1952 in one form or another, and the Department of Defense issued a recall of these devices in 1997 because of concern for potential transmission of blood-borne infections. The examiner reported that in 1986, the Center for Disease Control reported an outbreak of Hepatitis B related to contamination of a jet-injector device. The examiner explained that Hepatitis B is also transmitted parenterally, like Hepatitis C, and it is logical to conclude that it is possible to transmit Hepatitis C by contaminated jet-injector devices. The examiner stated that several investigators have reported small blood droplets at injection sites and another in vitro study in 1998 demonstrated that needle-less injectors become contaminated during use and cross-contamination can occur with immediate re-use of the jet-injector device. The examiner opined that it is highly likely that the Veteran has chronic Hepatitis C, and it is more likely than not that the Veteran acquired Hepatitis C during his service. Also, the examiner noted that Hepatitis C could be transmitted from contaminated injector guns used for mass inoculations. According to the examiner, the acute onset of the infection would have gone undiagnosed, as existence of the virus was not known then, and most infections are silent and without symptoms. Based on this information, the examiner opined that it is as likely as not that the Veteran contracted Hepatitis C infection from a contaminated injector gun, in absence of any other known risk factors” (emphasis added) (BVA Citation # 1113197).
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