Citation Nr: 21016066 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-31 293A DATE: March 19, 2021 ORDER Entitlement to service connection for diplopia is denied. Entitlement to a 30 percent rating, but no higher, for left maxillary alveolar fracture residuals with left temporomandibular disorder (TMD) from March 15, 2013 to May 6, 2014 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 10 percent for left maxillary alveolar fracture residuals with left TMD from May 7, 2014 to July 1, 2018 is denied. Entitlement to a 20 percent rating, but no higher, for left maxillary alveolar fracture residuals with left TMD from July 2, 2018 to May 27, 2019 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for left maxillary alveolar fracture residuals with left TMD since May 28, 2019 is denied. Entitlement to a compensable rating for non-specific hepatitis prior to July 17, 2018 is denied. Entitlement to a 10 percent rating, but no higher, for non-specific hepatitis since July 17, 2018 is granted subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a cognitive disorder, to include traumatic brain injury residuals (TBI) is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for epistaxis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding a current diagnosis of diplopia. 2. From March 15, 2013 to May 6, 2014, left maxillary alveolar fracture residuals with left TMD were manifested by interincisal range of 11 to 20 millimeters, but not by interincisal range of 0 to 10 millimeters. 3. From May 7, 2014 to July 1, 2018, left maxillary alveolar fracture residuals with left TMD were not manifested by interincisal range of motion limited to 20 to 30 millimeters, or by interincisal range of motion limited to 30 to 34 millimeters with dietary restrictions to soft and semi-solid foods, or interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. 4. Since July 2, 2018, left maxillary alveolar fracture residuals with left TMD were manifested by interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods, but not by interincisal range of 11 to 20 millimeters, or interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to mechanically altered foods. 5. Prior to July 17, 2018, non-specific hepatitis was not manifested by intermittent fatigue, malaise, and anorexia, or, incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. 6. Since July 17, 2018, non-specific hepatitis is manifested by intermittent fatigue, malaise and anorexia, but not by daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diplopia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to a 30 percent rating, but no higher, for left maxillary alveolar fracture residuals with left TMD from March 15, 2013 to May 6, 2014 have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.150, Diagnostic Code (DC) 9905 (2016); 38 C.F.R. §§ 4.1, 4.7, 4.40. 3. The criteria for entitlement to a rating in excess of 10 percent for left maxillary alveolar fracture residuals with left TMD from May 7, 2014 to July 1, 2018 have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.150, DC 9905 (2016); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.150, DC 9905. 4. The criteria for entitlement to a 20 percent rating, but no higher, for left maxillary alveolar fracture residuals with left TMD from July 2, 2018 to May 27, 2019 have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.150, DC 9905 (2016); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.150, DC 9905. 5. The criteria for entitlement to a rating in excess of 20 percent for left maxillary alveolar fracture residuals with left TMD since May 28, 2019 are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.150, DC 9905 (2016); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.150, DC 9905. 6. The criteria for entitlement to a compensable rating for non-specific hepatitis prior to July 17, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.114, DC 7354. 7. The criteria for entitlement to a 10 percent rating, but no higher, for non-specific hepatitis since July 17, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.114, DC 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1958 to December 1960 and from March 1961 to May 1964. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 Department of Veterans Affairs (VA) rating decision. Entitlement to service connection for diplopia is denied. The Veteran contends that he has diplopia which is related to injuries incurred during an in-service assault. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). A June 2013 VA treatment record notes that the Veteran reported “diplopia” described as a “ghost” shadow adjacent to the central object, especially when looking at the television or computer. In July 2013 a VA examiner found that the Veteran did not have any diagnosed diplopia. The examiner noted that the Veteran reported “ghost images and haloes around lights or when looking at the moon which [the Veteran] called diplopia.” The examiner noted that these symptoms were “typically seen by patients with a cataract, as [the Veteran] has.” A September 2015 VA psychiatric treatment record contained a list of “medical issues” which included “double vision present x years.” The Veteran is competent to report his symptoms, to include experiencing ghost images and haloes around lights. In this case, the July 2013 VA examiner considered the symptoms described by the Veteran but found that they did not describe diplopia, but rather “ghost images” due to the Veteran’s cataracts. The July 2013 VA examiner’s finding was based on the examiner’s education and experience as an ophthalmologist, and reasoned consideration of the Veteran’s description of his symptoms. The Board attributes greater probative value to the July 2013 VA examiner’s findings than to the Veteran’s belief that his symptoms constitute diplopia, or the June 2013 VA treatment record which noted the Veteran’s own belief that he had diplopia. The Board concludes the Veteran does not have a current disability manifested by “diplopia,” and he has not had such a disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The preponderance of the evidence in this case indicates that the symptoms described as “diplopia” are symptoms of cataracts. The claim for service connection for cataracts is remanded, as discussed below. Based on the foregoing, the preponderance of the evidence of record is against finding that the Veteran has “diplopia” for which service connection can be granted during the claims period. As the evidence preponderates against finding a disability for which service connection may be granted, service connection is not warranted, and the claim is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Entitlement to a 30 percent rating for left maxillary alveolar fracture residuals with left TMD from March 15, 2013 to May 6, 2014 is granted; a rating in excess of 10 percent from May 7, 2014 to July 1, 2018 is denied; a 20 percent rating from July 2, 2018 to May 27, 2019 is granted; and a rating in excess of 20 percent since May 28, 2019 is denied. The Veteran contends that his left maxillary alveolar fracture residuals with left TMD are more severely disabling than represented by the 10 percent rating assigned prior to May 28, 2019 and the 20 percent rating assigned thereafter. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown,7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West,12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The Veteran’s left maxillary alveolar fracture residuals with left TMD are rated under DC 9905. See 38 C.F.R. § 4.150. Effective September 10, 2017, regulations regarding DC 9905 were revised. See 82 Fed. Reg. 36080, 36083 (August 3, 2017). Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, that when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110 (g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to September 10, 2017, DC 9905 provided: (1) a 10 percent evaluation is warranted for lateral excursion of 0 to 4 millimeters; or interincisal range of 0 to 10 millimeters; (2) a 20 percent evaluation is warranted for interincisal range of 20 to 30 millimeters; (3) a 30 percent evaluation is warranted for interincisal range of 11 to 20 millimeters; and (4) a 40 percent evaluation is warranted for interincisal range of 0 to 10 millimeters. Ratings for limited interincisal movement are not to be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150 (2016). Beginning September 10, 2017, DC 9905 provides: (1) a 10 percent evaluation is warranted for lateral excursion range of motion limited to 0 to 4 millimeters; or interincisal range of motion limited to 30 to 34 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (2) a 20 percent evaluation is warranted for interincisal range of motion limited to 30 to 34 millimeters of maximum unassisted vertical opening, with dietary restrictions to soft and semi-solid foods; or interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (3) a 30 percent evaluation is warranted for interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (4) a 40 percent evaluation is warranted for interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; and (5) a 50 percent evaluation is warranted for interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods. See id. Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. See id., Note 1. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 millimeters to 50 millimeters. See id., Note 2. For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. See id., Note 3. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. See id. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. See id. In a March 2013 statement, the Veteran reported jaw locking, pain and difficulty eating. In June 2013 statements, the Veteran’s daughter and son reported that the veteran experienced jaw pain. On VA examination on July 3, 2013 range of motion was 0 to 4 millimeters of lateral excursion and 31 to 40 millimeters of inter-incisal distance with pain beginning at 11 to 20 millimeters. The Veteran reported flare-ups described as being unable to move the jaw and needing “to slowly work it into place.” The examiner noted that no further decrease in range of motion was anticipated due to flare-ups or after repetitive use over time. On VA examination on May 7, 2014 range of motion was 0 to 4 millimeters of lateral excursion and 31 to 40 millimeters of inter-incisal distance with no objective evidence of painful motion. The Veteran reported flare-ups manifested by inability to eat normally. The examiner stated no decrease in range of motion was anticipated due to flare-ups or after repetitive use over time. In a February 2018 VA treatment record, the Veteran complained of chronic left jaw pain. The treating nurse practitioner advised the Veteran to “avoid eating hard foods like apple, ice, etc.” On VA examination on July 2, 2018, range of motion was greater than 4 millimeters of lateral excursion and greater than 34 millimeters of inter-incisal distance with no additional range of motion loss after repetitive motion. The Veteran reported flare-ups described as popping when eating. The examiner declined to estimate the additional loss of range of motion due to flare-ups or after repetitive use over a period of time on the basis that the Veteran was not being examiner during a flare-up or after repetitive use over a period of time. The examiner found no requirement for mechanically altered foods which had been physician verified or documented. The examiner noted no objective evidence of pain on passive range of motion or non-weight bearing. On VA examination in May 2019, range of motion was 0 to 4 millimeters of left lateral excursion and 30 to 34 millimeters of inter-incisal distance. After 3 repetitions, left lateral excursion was not further reduced, but interincisal motion was reduced to 21-29 millimeters. The Veteran reported flare-ups described as several times a week, his jaw would hurt so much that he could not even chew, and every morning it would hurt to open his mouth. The examiner opined that during flare-ups the Veteran’s left lateral excursion would be 0-4 millimeters, and inter-incisal distance would be 21-29 millimeters. The examiner found no requirement for mechanically altered foods which had been physician verified or documented. There was no objective evidence of pain on non-weight bearing and passive range of motion was unchanged from active range of motion. At his November 2020 Board hearing, the Veteran reported jaw pain with difficulty opening his mouth, chewing and eating. He reported needing to blend certain foods, including bread, chicken breast and steak, or else it would “get stuck in [his] throat.” The Veteran reported needing to go to restroom numerous times while eating to dislodge food from his throat. Based on the evidence of record, a 30 percent rating is warranted from March 15, 2013 to May 6, 2014. At the July 2013 VA examination, the Veteran was noted to exhibit pain beginning at 11 to 20 millimeters. Under the rating criteria in effect during this period, interincisal range limited to 11 to 20 millimeters warrants a 30 percent rating. Affording the Veteran the benefit of the doubt, the symptoms exhibited at the July 2013 VA examination more nearly approximated the criteria for a 30 percent rating. However, as the evidence preponderates against finding interincisal range limited to 0 to 10 millimeters a rating higher than 30 percent is not warranted. From May 7, 2014, to July 1, 2018, a rating in excess of 10 percent is denied. During this period, the evidence does not demonstrate a limitation of interincisal range to 20 to 30 millimeters, or, under the criteria in effect starting September 10, 2017, interincisal range limited to 21 to 29 millimeters, or to 30 to 34 millimeters with dietary restrictions to soft and semi-solid foods. In this regard, while the Veteran has reported use of texture-modified foods and a nurse practitioner recommended that he avoid “hard foods,” the use of texture-modified diets must be recorded or verified by a physician. In this case, there is no evidence that mechanical alteration of foods has been recorded or verified by a physician. Accordingly, a higher rating cannot be assigned on this basis. For the period from July 2, 2018 to May 27, 2019, a 20 percent rating is warranted. The July 2, 2018 VA examiner declined to describe any additional loss of range of motion during flare-ups on the basis that the Veteran was not suffering from a flare-up at the time of the examination. At the May 2019 VA examination, the examiner opined that during flare-up, the inter-incisal distance would be 21-29 millimeters. The July 2, 2018 VA examiner’s finding that an opinion as to additional functional loss during flare-ups, solely on the basis that the Veteran was not experiencing a flare-up at the time of the examination was inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the May 2019 VA examiner failed to provide such an estimation, the Board will substitute the estimation provided by the May 2019 VA examiner, effective the date of the July 2, 2018 VA examination. As such, the evidence is at least in equipoise as to whether inter-incisal motion was reduced to 21-29 millimeters during flare-ups effective July 2, 2018 and a 20 percent rating is granted effective from that date. However, a rating in excess of 20 percent cannot be assigned at any time since July 2, 2018. In this regard, the evidence preponderates against finding inter-incisal distance limited to 11 to 20 millimeters, or inter-incisal distance limited to 21 to 29 millimeters with dietary restrictions to mechanically altered foods. As discussed above, while the Veteran has reported that he must mechanically alter certain foods, there is no evidence that mechanical alteration of foods has been recorded or verified by a physician. The Board has considered the Veteran’s reports at his November 2020 Board hearing of difficulty swallowing requiring him to manually dislodge food from his throat. The Board has also considered the December 2020 private treatment records submitted by the Veteran which document difficulty swallowing due to an esophageal stricture, treated with esophageal dilation. The Veteran is not service-connected for an esophageal stricture, and the medical evidence provides no indication that his esophageal stricture is a symptom of his left maxillary alveolar fracture residuals with left TMD. Thus, a higher rating for the left maxillary alveolar fracture residuals with left TMD cannot be assigned based on the symptoms of the non-service connected esophageal stricture. Based on the foregoing, a 30 percent rating, but no higher, for left maxillary alveolar fracture residuals with left TMD is granted from March 15, 2013 to May 6, 2014; a rating in excess of 10 percent from May 7, 2014, to July 1, 2018 is denied; a 20 percent rating, but no higher from July 2, 2018 to May 27, 2019 is granted; and a rating in excess of 20 percent since May 28, 2019 is denied. Entitlement to a compensable rating for non-specific hepatitis prior to July 17, 2018 is denied; a 10 percent rating since July 17, 2018 is granted. The Veteran contends that his non-specific hepatitis is more severely disabling than represented by the currently assigned noncompensable rating. The Veteran’s non-specific hepatitis is evaluated under DC 7354. DC 7354 provides for a noncompensable (zero percent) rating when nonsymptomatic. A 10 percent rating is assigned for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 38 C.F.R. § 4.114, DC 7354. Note (1) to DC 7354 directs that sequelae, such as cirrhosis or malignancy of the liver, should be evaluated under an appropriate DC, but the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. Note (2) to DC 7354 provides that, for purposes of evaluating conditions under DC 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. In a March 2013 statement, the Veteran reported tiredness, weakness, and right upper quadrant soreness. In a June 2013 statement, the Veteran’s daughter stated that she believed the Veteran showed signs of chronic fatigue. In a June 2013 statement, the Veteran’s son described the Veteran as suffering from “extreme fatigue” which required “a lot of rest.” On VA examination in July 2013, the Veteran reported pain when pressing on his right rib cage. The examiner found no symptoms due to the non-specific hepatitis, and no incapacitating episodes during the past 12 months. The examiner noted that examination of the Veteran’s right side was normal, the liver was not palpable and there was no tenderness, guarding, or rebound. On VA examination on July 17, 2018, the Veteran was noted to have increased nausea, fatigue, joint pains, occasional vomiting and intermittent right upper quadrant pain. No medications were used to treat non-specific hepatitis. The examiner indicated that there were no symptoms attributable to a chronic or infectious liver disease, and there were no incapacitating episodes. The Veteran was noted to have tenderness with palpation of the right upper quadrant. The examiner further noted that “symptoms above have worsened over the last 3-4 years.” The right upper quadrant pain was noted to be intermittent, lasting 1 and a half hours to all day, relieved by laying down. The examiner noted the Veteran reported “intermittent” malaise and anorexia without weight loss. The Veteran was provided a VA examination in October 2019 for the purpose of addressing the nature and etiology of a liver condition separate from his non-specific hepatitis. That examination provided no findings relevant to rating the non-specific hepatitis. As that examination was not provided for the purpose of rating the condition at issue in this case, and as it provides no relevant, favorable findings, that examination report is not relevant and will not be discussed further. At his November 2020 Board hearing the Veteran reported right upper quadrant pain, fatigue and nausea. He reported needing to lay down every day for 2 to 3 hours due to fatigue. Based on this evidence, a compensable rating prior to July 17, 2018 is not warranted. In this regard, the evidence preponderates against finding intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period due to non-specific hepatitis. While the Veteran, his son and his daughter reported that the Veteran experienced fatigue and tiredness, there is no specific indication of anorexia, nor is there evidence that the reported fatigue was due to the non-specific hepatitis, as opposed to the numerous other service-connected and non-service-connected conditions. By contrast, the July 2013 VA examiner attributed no symptoms to the non-specific hepatitis. While there were reports of right upper quadrant pain, there is no indication that such symptoms were productive of incapacitating episodes severe enough to require bedrest and treatment by a physician. Since July 17, 2018, a 10 percent rating is warranted for non-specific hepatitis. On review, the July 2018 VA examiner’s findings are ambiguous. The examiner explicitly noted symptoms of “intermittent” malaise and anorexia, as well as “increased” nausea and fatigue, but separately indicated no symptoms attributable to non-specific hepatitis. The examiner provided no attempt to resolve the discrepancy between these notations or explain why any of the noted symptoms were not attributed to the non-specific hepatitis. As the evidence of intermittent fatigue, malaise and anorexia is in equipoise, the benefit of the doubt is resolved in the favor of the Veteran and a 10 percent rating is granted, effective from the date of the July 17, 2018 examination. However, the evidence preponderates against finding daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. While the Veteran has reported experiencing daily fatigue, there is no indication that such symptom requires dietary restriction or continuous medication. While the Veteran reported needing to lie down for 2 to 3 hours per day due to fatigue, the evidence preponderates against finding that such symptoms approximate “incapacitating episodes” as there is no evidence that such incidents have involved treatment by a physician. Accordingly, a higher rating cannot be assigned on this basis. Based on the foregoing, a compensable rating for non-specific hepatitis prior to July 17, 2018 is denied, and a 10 percent rating, but no higher thereafter is granted. REASONS FOR REMAND Entitlement to service connection for TBI residuals, vertigo, cataracts, and epistaxis is remanded. The Veteran was provided a VA examination to address the nature and etiology of his claimed cognitive disorder in July 2013. The examiner declined to diagnose any TBI residuals on the basis that the record did not contain evidence of a TBI in service. The Veteran asserts that his TBI occurred during an assault. His service treatment records indicate that he was hospitalized for 52 days at Tripler General Hospital, starting on November 13, 1963 for jaw and zygoma injuries, but in-patient medical records associated with the hospital stay have not been obtained. While a January 2014 request for information requested records of treatment for “a cracked left jaw” records have not been requested specifically pertaining to the Veteran’s head injury. The Veteran contends that his cataracts, vertigo and epistaxis are related to the in-service head injuries. Accordingly, any outstanding in-patient treatment records are potentially relevant to those claims as well. Remand is required to attempt to obtain any records pertaining to the period of hospitalization at Tripler General Hospital. At his November 2020 Board hearing, the Veteran reported receiving private treatment for his cataracts from Drs. Chung and Gregory. VA must make necessary efforts to obtain any such outstanding relevant private treatment records. The Veteran has not been provided a VA examination to specifically address the nature and etiology of his claimed vertigo. While dizziness has been associated with the Veteran’s migraines, a June 2013 VA treatment record noted that the Veteran also had episodes of vertigo without accompanying headaches. The Veteran contends this condition is due to his documented in-service assault, and the service treatment records contain complaints of dizziness and syncope. Accordingly, a VA examination must be obtained to specifically address the nature and etiology of any vertigo disorder. At a July 2013 VA examination, the Veteran was diagnosed with “nasal trauma” and epistaxis. The examiner checked a box indicating that the claimed disorder preexisted active-duty service, but the supporting rationale provided provides no support for the conclusion that the disorder preexisted active-duty service. In this case, the selection of that box appears to have been in error, and a new medical opinion should be obtained to clarify the medical conclusion with supporting rationale. The matters are REMANDED for the following action: 1. Request any records pertaining to treatment for injuries following an assault in November and December of 1963 directly from Tripler General Hospital, and from any other appropriate records repository, including the National Personnel Records Center (NPRC). If the agency of original jurisdiction (AOJ) cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these Federal records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. Chung and Dr. Gregory, for any periods of treatment related to his cataracts. Make two requests for any authorized records from Dr. Chung and Dr. Gregory unless it is clear after the first request that a second request would be futile. 3. After the development in step #1, obtain an addendum opinion from an appropriate clinician to determine the etiology of epistaxis. The reviewer should state whether epistaxis is at least as likely as not (50 percent probability or greater) related to an in-service injury, event or disease, to include the November 1963 in-service assault. 4. After the development in step #1 schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of any vertigo disorder. The examiner should state: (a.) What diagnosed vertigo disorders have been present at any time since March 15, 2013? (b.) For each such vertigo disorder is it at least as likely as not (50 percent probability or greater) related to an in-service injury, event or disease during active-duty service, to include the November 1963 in-service assault? LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.