July 5, 2018
The Veterans Benefits Administration’s Adjudication Procedure Manual (M21-1), informally known by many as VA’s “bible,” recognizes military jet injections as a possible risk factor for Hepatitis C transmission.
On December 16 of 2015, the Department of Veterans Affairs (VA) rescinded the infamous 2004 VBA Fast Letter 211 (04-13) concerning jet injectors, by incorporating similar provisions within the Adjudication Procedures Manual. See M21-1, III.iv.4.I.2.e. Although many VA staff still cite the Fast Letter, the manual has become VA’s latest guidance concerning jet injectors.
The change came about as VA updated it’s bible / manual. No information was added or omitted but simply put into a chart form, as shown below.
Although, certainly the rhetoric in which the VA presents this mode of transmission has changed. Whereas the Fast Letter (04-13) viewed jet injector transmission with a speculative nature, the manual acknowledges the nexus as possible. When the Fast Letter was published in 2004, less than a handful of claims implicating jet injectors had been granted; so at the time the VA viewed this mode of transmission as highly speculative. Overtime, the VA had noticed in a significant number of cases that military jet injections were the only Hepatitis C risk factor veterans experienced. This forced the VA to recognize the possibility of jet injector transmission in veterans’ claims.
Although not all VA staff have abided by the manual in recognizing this nexus, which is why it is necessary for you to learn how to use this manual to your advantage.
How To Use The Manual
M21-1 is an internal VA manual containing provisions which instruct and guide adjudicators within VA Regional Offices on how to process a claim. Although to be clear, M21-1 provisions do not impose or set forth any laws or rules. The intentions of the manual are to guide and instruct so that claims are processed accurately and with consistency.
In regards to jet injectors, M21-1 not only recognizes jet injector devices as a possible of mode of transmission for Hepatitis C but also serves as VA’s guidance on handling such claims. Nowhere does the manual discredit the jet injector nexus. Therefore, any VA staff who fail to recognize this mode of transmission as a possible source of a veteran’s Hepatitis C are flouting the VA’s instruction and guidance.
Pursuant to M21-1, jet injectors would be considered a “confirmed risk factor” in a veteran’s claim 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 [veteran’s] hepatitis infection” (M21-1, Part III, Subpart iv, 4.I.2.e; M21-1, Part III, Subpart iv, 4.I.2.j).
Veterans and claimants filing a jet injector claim should cite M21-1. The above paragraph should be included into the claim along with a supporting nexus letter from the treating physician and/or gastroenterologist.
If the VA Regional Office has denied the claim and has failed to cite M21-1’s recognition of jet injector transmission then the veteran / claimant should file an appeal. Failure by the examiner or rater to consider the manual’s recognition of this mode of transmission as being biologically plausible is grounds for appeal. Despite the fact that the Board of Veterans Appeals is not bound by M21-1 provisions, veteran law judges often refer to the manual and often examine the thoroughness of the examiner and rater’s rationale. When a Veteran’s Law Judge has found a rationale to be incomplete he or she will either 1) not to give any weight to that opinion or 2) will remand the case for reconsideration.
Here is one example in which a Veteran Law Judge remanded a case on such grounds. The Veteran Law Judge noted the manual’s recognition of the jet injector nexus:
Under M21-1 III.iv.4.I.2.e, Risk Factors for HBV and hepatitis C, the Manual instructs that the “risk factors for the development of [hepatitis B (HBV)] and hepatitis C are similar,” and that the evidence favoring risk factors for hepatitis C infections includes immunization with a jet air gun injector (BVA Citation # 1607862).
In this case, the VA had previously viewed the veteran’s contention that she acquired Hepatitis C from her military jet injections as frivolous. On appeal the veteran cited the manual’s recognition of this nexus. The Board of Veterans Appeals court agreed that the evidence was not viewed in light of the guidance provided within the manual. “[T]he VA examiner did not discuss the VA’s finding that ‘despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically possible.’” The case was remanded so that an accurate, non-biased medical opinion could obtained. Herein is a perfect example on how to use the manual to counter a fallacious opinion by VA staff.
As mentioned above, the VBA Manual states, “Risk factors for the development of HBV and HCV are similar.” Since the transmission of Hepatitis B by jet injectors has been documented, it is plausible, logical and acceptable to deem Hepatitis C transmission would occur via this route despite the lack of any documented cases. Below is a snapshot from the manual.
Despite VA’s stance on jet injectors, some VA staff still openly disregard VA’s bible and refuse to believe the plausibility of jet injector transmission. If a claim was denied and the VA did cite M21-1’s recognition, the veteran / claimant should question the rational given within the denial letter to see if the opinion is fallacious. How should veteran’s counter such fallacious opinions by VA staff?