Citation Nr: 19190866 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-41 874 DATE: December 3, 2019 ORDER Entitlement to service connection for an undiagnosed illness manifested by right upper quadrant (RUQ)/abdominal pain and fatigue is granted. FINDINGS OF FACT 1. The Veteran served on active duty in the Southwest Asia theater of operations, to include Iraq, from June 2005 to March 2006. 2. The Veteran’s RUQ/abdominal pain and fatigue manifested in the Southwest Asia theater of operations and cannot be attributed to any known clinical diagnosis after testing, and existed at least intermittently over a 6-month period. CONCLUSION OF LAW The criteria to establish service connection for an undiagnosed illness manifested by right upper quadrant (RUQ)/abdominal pain and fatigue have been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1977, March 1984 to May 1984, and March 1986 to September 2014. For his service, the Veteran earned an Iraq Campaign Medal. See DD-214 Form. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for residuals of a viral syndrome. The Veteran was also denied a separate evaluation for his service-connected sleep apnea, but he does not wish to appeal this matter, choosing to exclusively appeal the residuals of a viral syndrome issue. See August 2016 VA Form 9. Therefore, the separate evaluation issue is not before the Board. In his October 2014 claim, the Veteran stated he is seeking service connection for his previously diagnosed viral syndrome. However, his service treatment records (STRs) show treatment for a presumptive viral syndrome that had its onset from “flu-like” symptoms and respiratory alkalosis. See STRs. Within seven months of its onset, the Veteran’s doctors noted the Veteran’s RUQ pain in historical relation describing the illness; RUQ pain was the sole, positively-identified symptom historically associated to the viral syndrome. Id. As noted below, no diagnosis for the RUQ pain and related fatigue was ever identified. Accordingly, the Board has characterized the issue as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding the scope of a claim). A Board hearing was held in October 2019. A transcript is of record. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317 (a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness include signs or symptoms involving the respiratory system, fatigue, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317 (b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). While the Veteran was in Camp Fallujah, Iraq, he developed “flu-like” symptoms lasting over two weeks starting in December 2005. See April 2019 statement in support of claim; see also STRs. The severity of his symptoms required a medical evacuation to a military hospital in Germany. See id. and STRs. The symptoms noted included fatigue and RUQ pain. Id. Upon discharge from the hospital, the diagnosis was “presumed viral syndrome and associated Hepatitis[A].” Id. “Also in differential [was] EBC, CMV, Rickettsial infection, sandfly virus, and Hepatitis B.” Id. Ultimately, no diagnosis was ever provided, but certain symptoms, including the RUQ/abdominal pain and fatigue, persisted. See April 2019 statement in support of claim; see generally STRs (specifically a June 2006 entry which noted a viral syndrome only as a possible diagnosis and an October 2006 entry which found no positive test results for viruses including “EBV, CMV, HAV, HBV, HCV, [and] HEV”). Based on these probative opinions, the Board finds that the illness manifesting in December 2005 cannot be attributed to any known clinical diagnosis by history, physical examination, and laboratory tests and is, thus, an undiagnosed illness Thus, the Veteran’s undiagnosed illness that occurred during active duty in the Southwest Asia theater of operations is a qualifying chronic disability for the purposes of 38 C.F.R. § 3.317. Additionally, the Board finds that the Veteran’s undiagnosed illness was manifested by signs or symptoms that include RUQ pain and fatigue. The Board notes that fatigue is specifically listed as a sign or symptom that may be attributed to an undiagnosed illness under 38 C.F.R. § 3.317 (b). Further, the Board notes that the signs or symptoms listed in § 3.317 (b) is not exhaustive. See 38 C.F.R. § 3.317 (b). The Board finds that RUQ pain is similar to those signs and symptoms listed, especially of a kind similar to muscle pain and joint pain. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Since the onset of the undiagnosed illness, the Veteran has continued to experience RUQ pain and fatigue to varying degrees. See April 2019 statement in support of claim and STRs; see also Board hearing Tr. at 4-5. His RUQ pain, specifically, has also evaded any diagnosis despite a myriad of subjected diagnostic tests to include ultrasound, CT scan, sonogram, and gastroscopy. See STRs. One physician in February 2012 noted that the RUQ pain “sound[ed] like biliary colic” and noted that “most anything else of concern has been [ruled out].” Id. However, the Board notes that the pain persisted despite a subsequent cholecystectomy. See Board hearing Tr. at 5; see also Gutierrez v. Principi, 19 Vet. App. 1 (2014). Further, in a December 2011 STR entry and a May 2015 VA examination report, it was noted that the Veteran had RUQ pain with an unknown etiology. See May 2015 VA examination Report; see also STRs. (Continued on the next page)   Therefore, the Veteran exhibited objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. As such, the Veteran has met the requirements for service connection under § 3.317 and his claim is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.