July 5, 2018
The Veterans Benefits Administration’s Adjudication Procedure Manual (M21-1), known informally 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On December 16 of 2015, the Department of Veterans Affairs (VA) rescinded the infamous 2004 VBA Fast Letter 211 (04-13) concerning jet injectors, by incorporating similar provisions within the Adjudication Procedures Manual.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 Board of Veterans Appeals had noticed in a substantial number of cases the only Hepatitis C risk factor veterans experienced were his or her military jet injections. 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 and the VA has been reluctant to resolve this discrepancy, which is why it is necessary for you to learn how to use this manual to your advantage.
How To Use The Manual
VBA’s Adjudication Procedure Manual (M21-1) not only serves as VA’s recognition that Hepatitis C transmission via jet injectors is possible 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 established opinion.
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).
The manual presents the information in a non-bias manner. This allows those who use the manual to follow the facts of each case without any side commentary by critics.
For example, one Veteran Law Judge remarked,
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 the fallacious opinions 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.
Fallacious Opinions By VA Staff
VA staff—whether a VA Examiner, VHA physician, BVA Law Judge, Adjudicator, etc.—have been letting their personal beliefs concerning jet injectors negatively impact the outcome of claims. Such fallacious opinions by VA staff have nothing to do with the merits of a veteran’s case. Listed below are several examples. Veterans, claimants, and Veterans Service Officers should ask the following questions when reviewing a jet injector claim.
- Did the VA or its staff say the jet injector was not a recognized risk factor for Hepatitis C?
Staff claiming jet injectors are not a recognized risk factor fail to recognize VA’s position that this mode of transmission is “biologically plausible,” and pursuant to M21-1 jet injectors would be considered a “confirmed risk factor” with a medical nexus letter from a physician treating the veteran links the veteran’s Hepatitis C to jet injectors. Of course, the letter will need to include “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.”
Here is an example of this fallacious opinion: “The same VA examiner provided a September 2015 addendum opinion which resulted in the same conclusion. The examiner elaborated that the Veteran’s hepatitis C was less likely than not related to his service, to include air gun vaccination, as air gun vaccination is not considered a risk factor for hepatitis C” (BVA Citation # 1706152).
- Did the VA or its staff claim since there was no needle there was no risk?
Staff claiming since there is no needle there is no risk is absurd. Within the jet injection process is the undesirable phenomenon of retrograde flow, in which the jet stream acted as a needle and at the end of the injection caused a backwards flow of vaccine, blood and bodily juices into the jet injector.
Here is an example of this fallacious opinion: A VA 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). Herein the examiner does not recognize jet injectors as a possible risk factor because there is no needle. This examiner disregards the fact that VA believes there is a possibility of a nexus and let’s his personal opinion on jet injectors influence the claim, in which the claim was denied. The issue here is not the particulars of the veteran’s risk factors, but is about the personal beliefs held by VA staff on jet injectors.
- Did the VA or its staff say there are no documented cases of such transmission, therefore, it is less than likely as not that the veteran acquired Hepatitis C by jet injectors?
Here is an example of this fallacious opinion: A VHA physician acknowledges the review of literature concerning jet injector transmission but erroneously refutes the likelihood because there were no documented cases of such transmission within the Department of Defense. This VHA physician failed to acknowledge that Hepatitis C was not identified until 1989, therefore how could there be any documented cases when these veterans served prior to 1989? The VHA physician failed to acknowledge that in 60 to 70 percent of cases Hepatitis C progresses asymptomatically. Therefore due to these extenuating circumstances there would not be any documented cases. Here is the quote for reference purposes.
In February 2016, a VA physician opined that there is no evidence that service members have acquired bloodborne infections (such as hepatitis B, hepatitis C, or human immunodeficiency virus) as a result of the use of jet injectors by the Department of Defense. The physician noted, however, that concerns about the safety of jet injectors prompted the Department of Defense to discontinue the routine use of jet injectors for vaccinations. The physician noted that jet injectors that use the same nozzle tip to vaccinate more than one person have been used worldwide since 1952 to administer vaccines when many persons must be vaccinated in a short period of time. The examiner noted that the jet injector developed and most widely used by the military has never been implicated in the transmission of bloodborne infections. However, there was a concern that the use of jet injectors may pose a potential risk for translating bloodborne infections to vaccine recipients. The examiner noted that there was an outbreak of hepatitis B caused by non-standard use of another type of jet injector in a civilian clinic. Lab studies from Brazil and the United Kingdom suggest that bloodborne transmission theoretically could occur with the use of jet injectors. The examiner noted that there have been no reported cases of cross-contamination of a veteran with the jet injectors used by the Department of Defense. The examiner opined that, since there have been no confirmed cases of hepatitis C or other bloodborne pathogen due to the use of a jet injector, it is less likely than not that the Veteran had chronic hepatitis, liver disease, diabetes mellitus, hypertension, COPD, or an acquired psychiatric disorder as a result of an air gun vaccination (BVA Citation # 1729780)
- Did the VA or its staff claim the veteran’s Hepatitis C must be from some unidentifiable and unrecognized source?
Staff claiming jet injector transmission must be from an unidentifiable and unrecognized source is outright nefarious and fails to weigh the evidence already presented within the case.
Here is an example of this fallacious opinion: 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 (BVA Citation # 0817607).
Here is another example: “In October 2013, a VA examiner opined it is less likely than not the Veteran’s Hepatitis C is related to service, including as a result of air gun vaccinations. He states it is speculative to consider contraction of Hepatitis C in such a manner, and the Veteran’s Hepatitis C more likely than not was contracted outside of military service. However, the examiner did not identify any post-service occurrences which caused the Veteran’s Hepatitis C. Instead, he simply states there are other causes which have either ‘not been recognized, recalled or shared by the Veteran.’” … The BVA rendered, “While the October 2013 VA examiner is competent to opine as to the etiology of Hepatitis C generally, the Board does not find his opinions persuasive. While the examiner indicates it is speculative to consider contraction of Hepatitis C due to air gun vaccinations, he in turn speculates other causes not supported by the evidence” (BVA Citation # 1616758).
- Did the VA or its staff say there is no evidence within the veteran’s service medical records indicating that the veteran received immunizations with a jet injector?
Over the past year, staff have made the claim that there is no proof that the veteran received vaccinations via a jet injector. Indeed veterans’ service medical records only listed the vaccinations, including lot numbers, and did not list the mode of vaccination. However, the VA examiners failed to apply Layno v. Brown, 6 Vet. App. 465, 470 (1994), in which a veteran is competent as a layperson to testify on that which he or she has personal knowledge. Moreover, contemporaneous documents reveal certain types of vaccines were administered via jet injection. Military year books and photographs reveal jet injectors were routinely used in the administering immunizations.
Here is an example of this occurring: “In this case, the Board recognizes that the service medical treatment records do not indicate whether the Veteran received inoculations via air gun; however, the Board also finds that the Veteran is competent and credible regarding his report of the use of air gun injectors and regarding any other risk factors” (BVA Citation # 1756420).
Here is another example: “The Board observes that the veteran is competent to describe the manner in which he was inoculated during his period of active service because such an observation does not require specialized medical knowledge. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992)” (BVA Citation # 0401390).
Such fallacious opinions are grounds for appeal.
Claims Must Be Viewed in Accordance with VA Policies and Procedures
VA regulation states, “…the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans of Affairs…” (emphasis added) (38 C.F.R. § 4.6). Therefore pursuant to VA regulation, VA staff should leave their personal opinions at the door and view jet injectors based upon the guidance provided by the administration.
VA regulation also states, “Fairness and courtesy must at all times be shown to applicants” (emphasis added) (38 C.F.R. § 4.23). The veterans in the claims from which the first five above examples were drawn were not shown fairness. These veterans’ risk factors were not weighed based upon the merits of their cases. These claims were weighed based upon the personal opinions of VA staff and were erroneously denied.
The plausibility of jet injector transmission cannot be discredited. VA’s Manual for Disability Compensation recognizes jet injectors as a possible risk factor for Hepatitis C (M21-1, III.iv.4.I.2.e.). When reviewing a claimant’s case, VA staff must acknowledge transmission via jet injectors as a possible mode of transmission, must accept a veteran’s contention that he or she was vaccinated via a jet injector, and then thereafter, the evidence of the case can be weighed and a determination on the claim made.