Citation Nr: 21011502 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-00 641A DATE: March 2, 2021 REMANDED Entitlement to service connection for right upper quadrant pain of undetermined etiology is remanded. REASONS FOR REMAND The Veteran had active service from October 2007 to August 2011. He had additional service in the Marine Corps Reserves. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2018, when it was remanded for further development. See Board remand, December 13, 2018. In the remand, the Board directed the Agency of Original Jurisdiction (AOJ) to acquire the Veteran’s complete military records to determine whether the Veteran was eligible to qualify for compensation based on an undiagnosed illness under 38 C.F.R. § 3.317, a “Persian Gulf Veteran.” However, the Veteran served in Afghanistan. See DD Form 214, Certificate of Release or Discharge from Active Duty. The Veteran’s service in Afghanistan does not qualify him as a Persian Gulf Veteran, as Afghanistan is not part of the Southwest Asia theater of operations for the purposes of 38 U.S.C. § 1117. See 38 C.F.R. § 3.317(e)(2); Cox v. McDonald, 28 Vet. App. 318 (2016) (upholding VA definition of Southwest Asia theater of operations). A September 2020 rating decision granted the Veteran's claim for service connection for bilateral tina pedis assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Right Upper Quadrant Pain of Undetermined Etiology The Veteran asserts that he experiences right upper quadrant pain of undetermined etiology which is related to his active service. The Veteran underwent an examination in June 2011. See QTC Medical Examination, June 17, 2011. The examiner opined that the diagnosis was right upper quadrant pain of undetermined etiology. The examiner ordered multiple tests to evaluate the abdominal pain, which were pending VA approval. In an undated addendum, the examiner related that the Veteran’s labs were within normal limits, and that there was no diagnosis and no pathology. See QTC Medical Examination, June 17, 2011. The September 2020 Supplemental Statement of the Case (SSOC) confirmed the denial of service connection. It stated that the Veteran underwent two examinations, one in August 2019 and one in September 2020, and that there was no evidence of a diagnosed infectious disease which could be connected to the Veteran’s active service. See SSOC, September 23, 2020. The Veteran did undergo an examination in July 2019. See Gulf War General Medical Examination Disability Benefits Questionnaire (DBQ), July 17, 2019. The examiner opined that the Veteran did not experience any conditions for which no etiology could be established. The examiner did not opine as to the etiology of the Veteran’s claimed right upper quadrant pain of undetermined etiology. The Veteran also had an examination in September 2020. See Skin Diseases DBQ, September 22, 2020. The examiner opined on a skin issue that the Veteran experienced, and did not opine as to the etiology of the Veteran’s claimed right upper quadrant pain of undetermined etiology. The Veteran’s VA treatment records show that he had a provisional diagnosis of upper abdominal pain, unspecified. See VA treatment records, June 17, 2020. Records also show that the Veteran had two emergency room visits for his abdominal pain. See VA treatment records, August 14, 2019. A note stated that the Veteran had a surgical consultation for possible gallbladder issues. See VA treatment records, September 11, 2019. The Veteran reported that he was scheduled to see a surgeon for his gallbladder on August 13, 2019. See VA treatment records, August 7, 2019. The Board finds that a remand is necessary in this case for several reasons. First, the examinations on which the September 2020 SSOC relied to deny the Veteran entitlement to service connection for his claimed right upper quadrant pain of undetermined etiology did not actually offer opinions as to the etiology of the claimed disorder. As such, the AOJ relied on erroneous information when it adjudicated the Veteran’s claim. A new examination which would include an opinion as to the etiology of the Veteran’s claimed disorder should be obtained. Second, it is unclear from the record whether the Veteran has a diagnosis of right upper quadrant pain of undetermined etiology, as there are contradictory opinions on that issue even by the same examiner. The Board acknowledges that pain alone is not a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020). Therefore, if no right upper quadrant pathology is found on remand, a new opinion is needed to determine whether the Veteran’s reports of consistent right upper quadrant pain result in a functional impairment that is related to active service. Finally, the Veteran reported that he was scheduled to see a surgeon for possible gallbladder issues in August 2019. Those private treatment records are not of evidence and should be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to ascertain the nature and etiology of his claimed right upper quadrant pain. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner must review the claims file and note that review in the examination report. The examiner is asked to respond to the following questions: (A) Identify all of the Veteran’s right upper quadrant disorder(s). The examiner should specifically consider the fact that contradictory opinions exists whether or not the Veteran has a diagnosis of right upper quadrant pain of undetermined etiology. (B) For any diagnosed right upper quadrant disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? The examiner should specifically consider the Veteran’s service treatment records and statements which show that the right upper quadrant pain started while he was on active duty and has continued to this day. (C) If there is no current diagnosis of a right upper quadrant disorder, the examiner is asked to determine whether there is functional impairment that is due to the right upper quadrant pain. Here, the examiner should note that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. (Continued on the next page)   The examiner must provide the rationale for all opinions expressed. If the examiner is unable to provide the required opinions, the examiner should explain why that is. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, Counsel 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.