Citation Nr: 18154804 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 14-07 498 DATE: November 30, 2018 ORDER Entitlement to service connection for hepatitis C is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his hepatitis C is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1970 to October 1973. Entitlement to service connection for hepatitis C is granted. Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran seeks service connection for hepatitis C. He has been diagnosed with hepatitis C. He asserts that it is related to risk factors that he had in service, including sexual encounters in Europe and in-service tattoos. The Board finds that the Veteran’s assertions that he had sexual encounters and received tattoos in service to be credible. He also asserts that it is due to receiving air gun injections in service. The first and second elements of a service connection claim are met. Holton, 557 F.3d 1363. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1251. Medically recognized risk factors for hepatitis C include high-risk sexual activity; exposure to blood, such as by acupuncture with non-sterile needles. See M21-1, III.iv.4.l.2.e. The Board finds that the M21-1 provision is favorable to the Veteran. At a November 2017 VA examination, the examiner confirmed the Veteran’s diagnosis of Hepatitis C and stated there was no objective medical evidence in the Veteran’s claims file to corroborate his contentions. The examiner stated a nexus had not been established without resorting to mere speculation. The examiner noted that in September 2013, another examiner concluded that the Veteran more likely than not acquired hepatitis C while stationed in Germany in 1972 to 1973 through high risk sexual encounters. However, that examiner could not find a nexus, because the Veteran’s high risk sexual encounters while stationed in Germany could not be confirmed. The examiner could not give an opinion regarding the Veteran’s assertion that receiving an in-service tattoo could be the cause of his hepatitis C. The Board found this opinion inadequate and sought an opinion from an infectious diseases specialist. In a July 2018 opinion, an infectious diseases specialist attributed the Veteran’s hepatitis C to his active service, but could not determine what was the most likely route of exposure: his high-risk sexual encounters in Europe or his in-service tattoos. Considering the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s hepatitis C is related to his active service. Given the foregoing, service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel