Updated: January 4, 2019
2018 Preliminary Report – Not all 2018 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. Since 2003 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 or 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 claims from 1992 to 2018 found the Board of Veterans’ Appeals had ruled upon 2,097 cases that cited the jet injector. From these cases 174 were granted, 1,005 were denied, 828 were remanded back to the VA Regional Office to seek another medical opinion, and 90 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.
However, the total number of cases ruled upon by the BVA is not indicative of the total number of veterans who have appeared in front of the BVA. Cases are often remanded back to the VA Regional Office and if denied are appealed back to the BVA by veterans. In this sense the BVA can, and has, seen some cases several times. For some veterans, this experience has been a revolving door. So how many veterans have appealed a jet injector claim to the BVA? After reviewing the docket numbers of the 2,097 BVA cases has revealed 1,604 veterans have appealed a jet injector claim to the BVA.
The graph below demonstrates trends overtime concerning jet injector cases that were decided by Veteran Law Judges.
Indeed a majority of jet injector cases have been denied or remanded. Despite the fact that a significant number of these cases were denied, quite a few 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, and the case is granted.
In remanded decisions, the Veteran Law Judges are remanding the case, or rather returning 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. Here is an example from recent years of the BVA’s instructions:
The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hepatitis C was caused by or the result of immunizations via air gun injector during active duty service; or was otherwise incurred or as a result of active duty service?
In addressing this issue, the examiner should comment on the relevance of Fast Letter 04-13 (rescinded after incorporation into VA Adjudication Procedure Manual, M21-1, Part III, Subpart iv, Chapter 4, Section I, Subsection 2.e.) to the facts of this case.
Most remarkably granted cases have been on a slow but gradual incline. The past five-years have seen the highest number of granted jet injector claims from the BVA. So far 17 cases have been granted in 2018. This year is set to be the second highest number of granted cases.
The 174 cases that were granted can be further broken-down into separate categories. Out of these:
I. 65 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 37 of these 65 cases, the jet injector was the veterans only risk factor for hepatitis C. This is worth repeating, in these 37 cases the only risk the veteran ever experienced was the jet injector. Herein are 37 documented cases which substantiate the nexus between hepatitis C and military jet injector vaccinations.
- In 12 of these 65 cases, either the veteran or the VA cited possible other causes for HCV which were in fact not actual risk factors, leaving the jet injector as the only actual risk.
- In 16 of these 65 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.
II. In 26 cases, veterans’ military jet injections were found to be in equipoise, that is equal to, to other non-service risk factors.
III. One case explicitly rendered that the jet injector was the etiological cause of the veteran’s hepatitis B infection.
IV. 80 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.
V. 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
VI. One case found the jet injector caused an adverse condition in a veteran’s upper arm.
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 65 cases. Amongst these cases the evidence was weighed in—
- 59 cases as “at least as likely or not” and “likely as not,” meaning there is at least a 50 percent likelihood. (Listing of these 59 Citations)
- 3 cases as “more likely than not,” or rather a greater than 50 percent likelihood. (see cases Citation # 0945788, # 1525003 and # 1628702).
- 3 cases as “due to,” or rather 100 percent related. (see cases Citation # 0531165, # 0724695 and # 1553509).
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 five 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).