From the gambling halls of Reno, we are treated to this gem of jurisprudence. Judge George R. Senyk is another judge who is no stranger to the BVA corral so I’m sure he’s seen a lot of these. However he must have been scratching his head when he read the VA-provided nexus letters by the “specialists”. Here’s a split decision that grants alcoholism (substance abuse) as a disease secondary to Bent Brain Syndrome (PTSD). This, in itself, isn’t so infrequent as to warrant attention. Our Renonian also has the Hep, but VA is going to deny on that. They will grant the liver transplant as being SC too, but only because of the alcohol. Even though the two diseases (alcoholism and HCV) are co-equally responsible, VA will reason that 50.0001% was caused by alcohol rather than hep and therefore give him the SC for this as well. Vet wins big with new liver, right? Not so fast, Hoppalong. If he dies before his ten year protected rating  date of November, 2015 from what they adjudge as HCV-related liver cirrhosis, then the P&T evaporates and if he has a wife and kids under 18, it’s bye-bye compensation and any DIC/DEA hopes.

If you were service connected 100% for PTSD and died within the first 10 years of that rating, your heirs/spouse lose. Ten years and one day? Then they’re good to go.  Interesting concept. Here the American Legion has done some phenomenal horse trading and got this Vet a stellar deal. You will notice that VA is still in denial about the whole jetguns, razors,and toothbrushes thing. They are willing to give him the cirrhosis of the liver only as alcohol-related to dodge the HCV bullet. Very interesting.  In the next paragraph below I present the VA’s infectious disease specialist’s nexus theory, or should I say non-theory. VA has a marked propensity to always point to something and say “Here. See? Right here the Vet said he did thus and so. He admitted that he (fill in “snorted, shot up, huffed, drank, absorbed, inserted in body cavity”) on this date to VA medical personnel. This is where he got the bug. Willful misconduct!”

What’s interesting in this decision is how the Vet didn’t get it. They have spent a lot of energy proving what it isn’t from (the PTSD), but strangely are not the least inquisitive as to ascertaining the etiology. You just don’t see this in VA adjudications. Ts have to be crossed and Is dotted before the denial can ensue.  The sordid truth must be revealed. The culprit must be unmasked. The method and frequency of ingestion must be identified.

In March 2011, a physician from the infectious disease department of a VAMC stated that he had reviewed the Veteran’s medical records as well as the psychiatry specialist’s opinion regarding the hepatitis C, alcohol use and PTSD.  The medical expert noted studies regarding the causes of hepatitis C, and found, in essence, that the Veteran’s hepatitis C is unrelated to his service or to his service connected PTSD with alcohol abuse.  Regarding the Veteran’s alternative theory of entitlement, that his hepatitis C is the result of exposure to infected blood/blood products in service, the medical expert opined that razors, sutures, and suture needles are an ineffective vector for transmission; casual exposure of intact skin to infected blood or body parts is insufficient to produce a hepatitis C infection; and although jet injector use (vaccinations) can be associated with hepatitis C transmission, this is usually recognized in an outbreak situation where there has been a breach in standard operating procedure.  Thus, the VHA medical expert’s opinion is against the Veteran’s claim that his hepatitic C is secondary to his service-connected PTSD and alcohol abuse .  The Veteran has presented no competent (medical) evidence to the contrary.  His own statements (that his hepatitis C is the result of exposure to infected blood in service or is secondary to PTSD/alcohol abuse are not competent evidence; he is a layperson and lacks the training to opine in a matter that is beyond the capability of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

VA has always held that alcoholism is a risk factor for HCV, yet here we see that is no longer true. A specialist in these things has spoken. In several weeks he will probably be called to opine on another Vet who has a history of alcoholism, HCV but no Bent Brain Syndrome. The doctor will undoubtedly come down on the alcoholism leading to the HCV but no explanation as to how this is possible. I suppose a homeless Vet toasted on MD 20-20 could pass out and do a face plant into a small pool of blood from his HCV-positive buddy for several hours and rise with the disease.  VA denials are always carefully crafted to fit the circumstances. Here we have a classic example.

I suppose the good news is that AmLeg will get their photo op with this fellow if they invite him to their bar. You won’t see many of these types of decisions, but this is a good primer if you’re planning the “bent brain syndrome ate my liver with Alcohol” defense.  The teaching moment is also that you should claim alcoholism rather than blood exposure as your hep risk factor secondary to PTSD because it is recognized as one, apparently.  Well, except for here,  most of the time.  I think. Except in Reno. Right?

http://www.va.gov/vetapp11/Files3/1122102.txt