Updated: August 25, 2020
“Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.”
— 38 C.F.R. § 20.1303
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 for Hepatitis C are recognizing the jet injector as the only source for his or her infection. The BVA’s recognition of these nexuses in a substantial number of cases debunks this mode of transmission as being only theoretical and only biologically plausible. The granting of these cases demonstrates that the Department of Veterans Affairs has recognized the transmission of Hepatitis C via jet injectors has occurred.
Indeed, BVA cases are non-precendential. The outcome of one claim does not create precedent or a presumptive service-connection for another claim. However, pursuant to § 20.1303, “[p]rior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case.”
Since the Department of Veterans Affairs has recognized jet injectors are a risk factor for Hepatitis C in the cases cited below, these cases reasonably relate to all other jet injector claims. These cases demonstrate that 1) the VA has recognized jet injectors are a risk factor for HCV and 2) the VA has recognized the transmission of HCV via jet injectors has occurred. These two facts are pertinent in combating accusations by VA staff who fallaciously denounce jet injector transmission.
The following cases cited below do “reasonably relate” in that a medical device once used in the military, the jet injector, is being weighed as a risk factor. Despite the fact that 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). Within this matter that means recognizing jet injectors as a risk factor for Hepatitis C and recognizing that prior board decisions have recognized such transmission has occurred. Only when these two facets are recognized can the evidence in a case be properly weighed and a determination on the claim made.
A review of claims from 1992 to 2019 found the Board of Veterans’ Appeals had ruled upon 2,355 cases that cited the jet injector. From these cases 205 were granted, 1,098 were denied, 959 were remanded back to the VA Regional Office to seek another medical opinion, and 93 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 2,355 BVA cases has revealed 1,797 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.
Moreover, cases are being denied with illogical rationale not rooted in any common sense. For instance, in 2018 a BVA Law Judge ludicrously stated,
with respect to the Veteran’s assertion that he contracted hepatitis C from the use of air gun immunizations during service, the Board notes that these guns did not break the skin and, thus, the Veteran’s assertions regarding cuts and exposure to blood from multiple bleeding injectees are not credible. [BVA Case # 18156591]
This statement is outright foolish. If the “guns did not break the skin” then how did the vaccine get into the veteran’s body? This is just one example out of several instances where the VA has denied claims based upon fallacious and inaccurate statements.
In remanded decisions, the Veteran Law Judges were 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 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.
[Note: The M21-1 Manual section on jet injectors has since been updated and can be found in M21-1, Part III, Subpart iv, Chapter 4, Section H, Subsection 2.e.]
Most remarkably, however, is throughout the years granted cases have been on a slow but gradual incline. The graph below shows the number of granted claims over the past ten-years. This increase in granted claims shows more VA staff are appropriately recognizing Hepatitis C transmission via military jet injections. In 2019, the BVA granted more jet injector claims than ever, granting a total of 27 claims.
The 205 cases that were granted can be further broken-down into separate categories. Out of these:
I. 76 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 46 of these 76 cases, the jet injector was the veterans only risk factor for hepatitis C. This is worth repeating, in these 46 cases the only risk the veteran ever experienced was the jet injector. Herein are 46 documented cases which substantiate the nexus between hepatitis C and military jet injector vaccinations.
- In 12 of these 76 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 18 of these 76 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 30 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. 96 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.
Some VA staff purport, “Although there have been no case reports of hepatitis C being transmitted by a jet gun injection.” This 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 76 cases. Amongst these cases the evidence was weighed in—
- 68 cases as “at least as likely or not” and “likely as not,” meaning there is at least a 50 percent likelihood. (Listing of these 68 citations)
- 5 cases as “more likely than not,” or rather a greater than 50 percent likelihood. (see cases Citation # 0945788, # 1525003, # 1628702, #19170504 and #19178602).
- 3 cases as “due to,” or rather 100 percent certainty. (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 six such cases).