July 5, 2018
The Veterans Benefits Administration’s Adjudication Procedure Manual (M21-1 Manual), 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On December 16 of 2015, the Veterans Benefits Administration (VBA) rescinded the infamous 2004 VBA Fast Letter 211 (04-13) concerning jet injectors, by incorporating similar provisions within the Adjudication Procedures Manual.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 VBA’s latest guidance concerning jet injectors.
The change came about as VBA 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 VBA 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 VBA 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 VBA to recognize the possibility of jet injector transmission in veterans’ claims.
Although not all VBA 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
The M21-1 Manual is an internal VBA manual containing provisions which instruct and guide adjudicators within VA Regional Offices on how to process a claim. The intentions of the manual are to guide staff so that claims are processed accurately and with consistency. To be clear, the manual recognizes laws, rules and VBA provisions, although the provisions in and of themselves do not impose or set forth any laws or rules. The provisions listed within M21-1 Manual, however, are binding upon VBA staff (i.e., Adjudicators within VA Regional Offices)—see footnote below describing the authority given to the M21-1 Manual. The manual is only binding upon VBA staff and holds no authority within the Board of Veterans Appeals.
In regards to jet injectors, the M21-1 Manual not only recognizes jet injector devices as a possible of mode of transmission for Hepatitis C but also serves as VBA’s guidance on handling such claims. Nowhere does the manual discredit the jet injector nexus. Therefore, any VBA staff who fail to recognize this mode of transmission as a possible source of a veteran’s Hepatitis C are flouting the VBA’s instruction and guidance.
Pursuant to the M21-1 Manual, 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 the M21-1 Manual. 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 the manual’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 VBA’s stance on jet injectors, some VBA 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?
VBA M21-1 Manual is binding upon all VBA staff. Therefore, since the M21-1 Manual lists jet injectors as a risk factor, VBA staff are not permitted to discredit or question the plausibility of jet injector transmission. VBA staff must consider and weigh jet injectors as a source of infection within a veteran’s claim.
- Gray v. Secretary of Veterans Affairs, No. 16-1782 (Fed. Cir. 2018)
“[t]he VA consolidates its [internal] policy and procedures into one resource known as the M21-1 Manual.” Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1074 (Fed. Cir. 2017) (“DAV ”). The M21-1 Manual “is an internal manual used to convey guidance to VA adjudicators.”
the Manual is “not binding on anyone other than the VBA [Veterans Benefits Administration] employees” and, in particular, does not bind the Board of Veterans Appeals (“Board”). Maj. Op. ––––; see also Carter v. Cleland, 643 F.2d 1, 5 (D.C. Cir. 1980) (noting the Manual’s binding effect on VA adjudicators); Office of Gen. Counsel, U.S. Dep’t of Veterans Affairs, Op. Prec. 7-92, Applicability of VA Manual M21-1, Part 1, Paragraph 50.45, 1992 WL 1200482, at *2 cmt. 4 (Mar. 17, 1992) (same).
- Carter v. Cleland, 643 F.2d 1, 6-8 (D.C. Cir. 1980) states, “Guidelines contained in the VA’s manual are admittedly binding on the Administration’s adjudication officers.”
- Office of Gen. Counsel, U.S. Dep’t of Veterans Affairs, Op. Prec. 7-92, Applicability of VA Manual M21-1, Part 1, Paragraph 50.45, 1992 WL 1200482, at *2 cmt. 4 (Mar. 17, 1992)
VA Manual M21-1 is issued by the Chief Benefits Director and its provisions are intended to provide uniform “procedures for the adjudication of claims for pension, compensation, dependency and indemnity compensation, accrued amounts, burial allowance and servicemen’s indemnity.” See Adjudication Procedure Manual, M21-1 Foreword. The procedures set forth in this manual are intended to be binding only upon VA officials within the Veterans Benefits Administration (VBA) who are responsible for initially adjudicating claims for benefits. See M21-1, paragraph 1.01. Generally, BVA is not bound by this manual. 38 U.S.C. § 7104 (c). 38 C.F.R. § 19.102 (b); Carter v. Cleland, 643 F.2d 1, 6-8 (D.C. Cir. 1980).
- 38 C.F.R. § 19.5, Criteria governing disposition of appeals.
In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues.
- 38 U.S.C. § 7104 (c) “The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.”