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).

© Shaun Brown and Jet Infectors, 2016 – 2017


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