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 within the confines of law that 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. Veterans are highly encouraged to obtain a Veteran Service Officer for assistance. If a veteran does not have a VSO, the National Association of County Veterans Service Officers website http://www.nacvso.org has a list. Within their website click on “Find a Service Officer.”
In applying the Hickson Element to a claim the veteran will need to show:
(1) Current medical records indicating the veteran is infected with the hepatitis C virus;
The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. See: McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosed disability at the filing of the claim, service connection may not be granted. See: Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
(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 the veteran did not have any signs or symptoms of hepatitis C prior to his/her diagnosis is not dispositive to a 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). [This info should be included within a claim. Always cite sources. The sources are credible. You are not—no offense.]
◦ Therefore it is not uncommon, nor dispositive to a claim, for a veteran to not have any signs or symptoms prior to his/her 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 a claim.
◦ Look within the veteran’s 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 the claim. If this evidence does exist, quote these doctors and nurses; “Dr. X said…” and provide a copy as evidence.
• Inservice Risk Factors. Jet injections posed a risk for acquiring HCV and HBV. Moreover, list all other inservice risk factors for HCV the veteran has experienced.
Military Jet Injections
◦ VBA’s Adjudication Procedure Manual (M21-1) recognizes military jet injections as a possible risk factor for Hepatitis C transmission. Do not let VA staff say jet injectors are not a recognized risk factor for Hepatitis C. Pursuant to M21-1, jet injectors would be considered a “confirmed risk factor” when “a medical report linking hepatitis to air gun injectors…include[s] a full discussion of all potential modes of transmission and a rationale as to why the examiner believes the air gun injector was the source for the hepatitis infection” (M21-1, Part III, Subpart iv, 4.I.2.e; M21-1, Part III, Subpart iv, 4.I.2.j). Copy of VBA’s 2017 M21-1 Section on Hepatitis here.
◦ Cite this 1970 DoD document on military vaccinations. It states several times that the jet injector produces bleeding at the injection site and sterilization between recipients was unnecessary (see article 1970 DoD Report Warns of Bleeding Following Jet Injections).
◦ The Armed Forces Epidemiological Board’s 1999 report, whereupon the Board made a site visit to a Marine boot camp, observed mass vaccinations with jet injectors. “Of note is that the AFEB made a site visit to the MTF at Parris Island and directly observed high volume recruit immunization using jet injectors. It was noted that jet injector nozzle’s were frequently contaminated with blood, yet sterilization practices were frequently inadequate or not followed.” 1999 AFEB – Report Citing Bloody Jet Injectors and Lack of Sterilization
◦ Here we have a 1970 document that says jet injectors used upon military personnel produced blood at the injection site and sterilization between recipients was unnecessary and a 1999 document stating jet injectors used upon military personnel were visibly bloody and sterilization practices were not followed. This corroborates the veteran’s testimony that sterilization protocols were not followed and blood was observed during jet injections.
◦ The Board of Veterans Appeals (BVA) has recognized military jet injections as causing Hepatitis C in a substantial number of cases (see article Military Jet Gun Injections Transmitted Hepatitis: an assessment of VA claims from 1992 – 2016 ) VA Regulation states, despite BVA claims being nonprecedential, “prior 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 the veteran’s 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).
◦ Veterans are encouraged to print-off articles and documents on Jet Infectors website to be incorporated within his or her claim. Both the VA and case law have recognized submitting relevant literature can help support and substantiate a veteran’s claim. One BVA case stated,
[The BVA] finds that the Mayo Clinic article, the NIH report, and VBA Fast Letter discussed above constitute competent and probative evidence that hepatitis C can be transmitted by air gun injection, even if there have been no documented cases of such transmission, according to the VBA Fast Letter. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise can provide important support for a claim if it is combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Court further held that a medical article or treatise evidence, standing alone, can provide support if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible argument for causality based upon objective facts rather than an unsubstantiated lay medical opinion. Id.” And, “Here, not only do the articles and reports submitted by the Veteran make a “plausible
argument” for the transmission of hepatitis C through air gun injections based on objective facts, but there is also both a VA and a private medical opinion of record specific to the Veteran’s case which support a relationship between the Veteran’s hepatitis C and the air gun injections he received during active service (BVA Citation # 1231843).
Other Inservice Risk Factors
◦ If the veteran 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.
• Or, multiple risk factors. The veteran’s exposure to any of the typical HCV risk factors, such as receiving a blood transfusion, tattoo or exposure to blood or bodily fluids outside of military service, or engaging in injection drug use, does not preclude him/her from winning a jet injector claim. The veteran will need to have a gastroenterologist make such a determination by weighing the risks and writing a nexus letter, which will be discussed below in number (3).
◦ 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, his/her 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.
In another case, the BVA deemed a physician’s nexus letter to be highly probative that the case was granted despite the veteran’s admission of drug use and alcohol abuse.
In April 2017, Dr. A.M.M. rendered an independent medical expert (IME) opinion whereby she opined that based on the facts in the instant case it is at least as likely as not that the Veteran became exposed to hepatitis during service, including due to the vaccination he received in service via air injection gun. Dr. A.M.M. also opined that it is at least as likely as not that the Veteran’s continued alcohol abuse and drug abuse were not factors complicating his history of hepatitis C and cirrhosis. This opinion is deemed highly probative as it was thorough and applied medical principles to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). [BVA Case # 1757127].
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, the veteran’s claim should include any observation of blood on the jet injector, blood on the arm of the soldier vaccinated in front of him or her, and blood that was present upon the veteran’s arm. Moreover, any observations that the jet injector was not wiped clean in between vaccinations. This testimony should be kept strictly to what the veteran experienced through his or her five physical senses (especially what the veteran saw). Under no circumstances should the veteran make any assumptions. There is a difference between a veteran saying he saw blood on the nozzle of the jet injector compared to saying the jet injector was bloody and infected with hepatitis C. The former is a fact and the latter is an assumption.
In several cases over the past year, VA staff have made the claim there is no proof the veteran received immunizations with a jet injector. These VA staff failed to apply Layno v. Brown. Including the following statement in the claim, will spare the claimant from waiting a year to correct the VA’s error on appeal: “Pursuant to Layno v. Brown, 6 Vet. App. 465, 470 (1994), a veteran is competent as a layperson to testify on that which he has personal knowledge.” Followed by the personal testimony on what the veteran saw and experienced. Moreover including any military documents stating specific types of vaccines were administered with jet injectors and any photographs from the veteran’s era of service capturing military jet injections will help substantiate the claim.
D. Testimony from fellow recruits who were vaccinated with the veteran. 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 the veteran.
E. Testimony from family, friends, and any persons who can attest to any signs or symptoms of a hepatic abnormality during the veteran’s 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 the veteran’s medical history makes a determination on the probability that the veteran’s current condition is related to past risk factors. Key points for physicians to include in a nexus letter:
A. The condition of the veteran’s 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 the veteran’s 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 the veteran lack sthe 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 the veteran’s inservice risk factors to the veteran’s non-service risk factors. The physician will need to state why he or she believes those non-service risks were the unlikely cause of the veteran’s hepatitis C infection when compared to the 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 the veteran’s case and then determine the likelihood that the veteran contracted hepatitis C from past 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 the veteran 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 a nexus letter does not contain all the information above, the veteran should seek another one!
-If the veteran’s VA physician refuses to write a nexus letter or shows a bias against the veteran’s inservice risk factors, the veteran is encouraged to seek a nexus letter from his or her personal physician (as long as the veteran can afford the cost of the appointment). The private physician will need to review the veteran’s c-file and private medical records and then render an opinion. Make sure the private physician explains the reasoning for his or her decision as explained above in points 3a through 3e.
Cause of Death
When the claimant is a surviving spouse of a deceased veteran, the spouse 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.
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