On Appeal: Countering the Fallacious Opinions of VA Staff

VA staff—whether a VA Examiner, VHA physician, 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 any documented cases have occurred 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 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, these VA staff 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 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). “The VA consolidates its policy and procedures into one resource known as the M21-1 Manual.” Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072, 1074 (Fed. Cir. 2017). 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 examples above 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 should acknowledge transmission via jet injectors as a possible mode of transmission, 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.

Here is the relevant section of M21-1 concerning jet injectors. Veterans, claimants, and Veteran Service Officers are encouraged to use this within their claim.

© Jet Infectors, 2016 – 2021

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