Citation Nr: 21070491 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-04 981 DATE: November 24, 2021 ORDER A separate rating of 10 percent under Diagnostic Code 6512 (sinusitis), but no greater, for facial pain, headaches, nose bleeds, and burning in the nose associated with the Veteran's already service-connected deviated nasal septum, status postnasal fracture, is granted. FINDING OF FACT The Veteran's service-connected deviated nasal septum is productive of three to six non-incapacitating episodes per year characterized by sinusitis-like symptoms (facial pain, headaches, nose bleeds, purulent discharge or crusting, and burning in the nose). However, his sinusitis-like symptoms are not productive of three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or; following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. This finding holds true with or without the various sinus medications the Veteran occasionally takes. CONCLUSION OF LAW The criteria have been met for a separate 10 percent rating, but no greater, for facial pain, headaches, nose bleeds, and burning in the nose associated with a service-connected deviated nasal septum, status postnasal fracture. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.97, Diagnostic Codes 6502 and 6512; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1987 to February 1989 in the U.S. Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In January 2017, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. In May 2016, September 2017, and July 2019, the Board remanded the appeal for further development. The case was returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a December 2020 Board decision, the Board partially granted the Veteran an increased 10 percent rating for a deviated nasal septum, status postnasal fracture, under Diagnostic Code 6502 (deviated nasal septum). The Board also denied the Veteran an increased rating in excess of 10 percent for same. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court partially vacated and remanded the Board's earlier decision for the increased rating issue, pursuant to a September 2021 Joint Motion for Partial Remand (Joint Motion). The reasons for the Court's Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return from the Court, in September 2021, the Board sent the Veteran and his representative a 90-day notice letter for a Court remand informing him that the case had been received by the Board from the Court. The Veteran was advised he had 90 days to submit additional argument or evidence with an indication as to whether he desired a remand for the AOJ to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1305 (2020); Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order); Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). In a November 2021 response from the Veteran, he indicated that he had no additional evidence to submit. In the same response, the Veteran also expressly waived any remaining time to submit additional evidence or argument. See Clark v. O'Rourke, 30 Vet. App. 92, 97 (2018) (the Board does not have to wait for the full ninety days to pass before issuing a new Board decision if there is an explicit waiver from the Veteran, such as the case here). A few days later, the Veteran's representative submitted additional argument in a November 2021 Appellant's Brief, requesting that the Board adjudicate the increased rating appeal. No additional evidence was ever submitted. In any event, this case has now returned to the Board to implement the September 2021 Joint Motion's instructions. I. VA's Duty to Notify and Assist VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by a VA notice letter sent to Veteran dated in August 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). This letter advised the Veteran of the information and evidence necessary to substantiate his increased rating claim for his sinus disability. In any event, in the decision below, the Board has granted the Veteran a separate, additional 10 percent rating for facial pain, headaches, nose bleeds, and burning in the nose under Diagnostic Code 6512 (sinusitis). This is in addition to the 10 percent rating already granted by the Board in its earlier December 2020 Board decision for a deviated nasal septum with nasal obstruction under Diagnostic Code 6502 (deviated nasal septum). In making this favorable determination, the Board has followed the instructions contained in the September 2021 Court Order and Joint Motion of the parties. In doing so, the Board has complied with VA's duty to maximize benefits by exhausting all schedular alternatives by rating the Veteran's single service-connected sinus / nasal disability under multiple diagnostic codes without pyramiding. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). II. Increased Rating for Deviated Nasal Septum Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. With regard to lay evidence, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran filed an increased rating claim for his service-connected deviated nasal septum in a June 2011 Supplemental Claim (VA Form 21-526b). When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his deviated nasal septum has been more severe than at others, and rate them accordingly. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. Thus, the Board will focus on the evidence of record dated from June 2010 to the present, in adjudicating the increased rating claim. However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability "in relation to its history" to "accurately reflect the elements of disability present," respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was "only entitled to disability compensation for the period after ... the date he filed his original claim for benefits," VA regulations still require the disability to be "evaluated in light of its whole recorded history"). Therefore, the Board has also considered and reviewed the Veteran's entire history for his deviated nasal septum when assigning a disability evaluation(s) in the present case. 38 C.F.R. § 4.1. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pursuant to the September 2021 CAVC Order and Joint Motion, the parties agreed that the previous December 2020 Board decision would be partially vacated and remanded. Initially, the parties pointed out that the Board had granted entitlement to an increased 10 percent rating for the Veteran's service-connected deviated nasal septum, status postnasal fracture, under Diagnostic Code 6502 (deviated nasal septum). The is the maximum rating available for a deviated nasal septum under this diagnostic code. The parties determined that this particular award of a 10 percent rating was a favorable finding that the Court may not disturb. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). Therefore, the Board will offer no further analysis concerning Diagnostic Code 6502. However, pursuant to the September 2021 CAVC Order and Joint Motion, the parties also agreed that vacatur and remand were warranted because the Board erred by failing to provide adequate reasons or bases for its determination. In this regard, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions. Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (citing 38 U.S.C. § 7104(d)(1) and Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990)). "[T]hat statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court." Id. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The September 2021 CAVC Order and Joint Motion assessed that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before an extraschedular analysis is triggered. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Although "[t]he Board is not required to discuss each of [the schedular rating] tools in every case, . . . it must do so when possible schedular alternatives for rating a disability are either raised by the claimant or reasonably raised by the record." Id. In this respect, the Veteran reported, and the Board acknowledged (in its earlier December 2020 Board decision), additional symptoms of facial pain, headaches, insomnia, recurrent nose bleeds, and burning in the nose, that may be associated with the Veteran's service-connected deviated nasal septum disability on appeal. But the Board found that the Veteran's nasal disability could not be rated by analogy to any other listed diseases of the nose and throat because his deviated nasal septum disability is specifically listed under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6502. On this point, the Court has held that when a disability is specifically listed in the Rating Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015). In fact, the Federal Circuit expressly adopted this approach in Scott v. Wilkie, 920 F.3d 1375, 1379 (Fed. Cir. 2019). However, the September 2021 CAVC Order and Joint Motion emphasized that the Board failed to address whether the Veteran's additional documented symptoms of facial pain, headaches, insomnia, recurrent nose bleeds, and burning in the nose may be compensated by separate, additional ratings under other diagnostic codes (without pyramiding). In this regard, the evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has subsequently reaffirmed that VA should consider whether the evidence of record warrants the assignment of a separate and additional rating for distinct manifestations under another diagnostic code, while simultaneously retaining the original rating under the earlier diagnostic code. Murray v. Shinseki, 24 Vet. App. 420, 425-28 (2011). That is, the Board should have considered whether an increased evaluation would be in order (separate from the 10 percent rating already granted under Diagnostic Code 6502) for the Veteran's additional symptoms of facial pain, headaches, insomnia, recurrent nose bleeds, and burning in the nose under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board should have considered the propriety of assigning a higher, or separate, rating under another diagnostic code for these additional symptoms. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Nor did the Board adequately explain why or how it determined these other symptoms listed above were fully covered under Diagnostic Code 6502 for a deviated nasal septum. See Morgan, 31 Vet. App. at 167. Therefore, the September 2021 CAVC Order and Joint Motion concluded that vacatur and remand was warranted in order for the Board to explain how it considered these additional symptoms (facial pain, headaches, insomnia, recurrent nose bleeds, and burning in the nose) and whether separate ratings are warranted for any of these symptoms. Donnellan, 24 Vet. App. at 171; Gilbert, 1 Vet. App. at 56-57. At the outset, the Board acknowledges that it cannot rate any of the Veteran's additional symptoms that may be associated with his service-connected deviated nasal septum disability (e.g., facial pain, headaches, insomnia, recurrent nose bleeds, or burning in the nose) under Diagnostic Code 6502. This is because this diagnostic code does not address or discuss these particular symptoms. Therefore, the Board now turns to consideration of other relevant diagnostic codes to rate the Veteran's additional potentially-related symptoms (facial pain, headaches, insomnia, recurrent nose bleeds, and burning in the nose). Sinusitis is rated under the General Rating Formula for Sinusitis, under Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis). The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97 (2020). A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. Upon review, the evidence of record supports a separate, additional 10 percent rating, but no greater, for facial pain, headaches, recurrent nose bleeds, and burning in the nose associated with the Veteran's service-connected deviated nasal septum under Diagnostic Code 6512 (frontal sinusitis). 38 C.F.R. § 4.7. The claim is granted. Specifically, when adjusting for the fact that for the entire time period in question, the Veteran took various medications (Flunisolide, saline washes, possible instances of antibiotics, mupirocin antibiotic gel, Medrol Dosepak, and Naprosyn nasal spray) to control the severity of his sinusitis like symptoms, the medical and lay evidence of record establishes three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. This meets the criteria for a separate, additional 10 percent rating under Diagnostic Code 6512 (frontal sinusitis). See 38 C.F.R. § 4.97. That is, since the rating criteria listed under Diagnostic Code 6512 for sinusitis fail to contemplate the effects of medication on the Veteran's sinus / nasal problems, that the Board has considered the Veteran's sinus symptoms without medication, which would clearly support a higher 10 percent rating in this case. Jones, 26 Vet. App. at 63. In assigning this separate and additional 10 percent rating under Diagnostic Code 6512 (frontal sinusitis), the Board has complied with VA's duty to maximize benefits by exhausting all schedular alternatives by rating the Veteran's single service-connected sinus / nasal disability under multiple diagnostic codes without pyramiding. See again Morgan, 31 Vet. App. at 168 (emphasis added). This is per the instructions contained in the September 2021 CAVC Order and Joint Motion. Importantly, none of these additional sinus / nasal symptoms duplicate or overlap with the symptomatology that has already been awarded a separate 10 percent rating under Diagnostic Code 6502 (deviated nasal septum). See again Esteban, 6 Vet. App. at 262 (where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps). Specifically, with regard to lay evidence in support of a separate, additional 10 percent rating, the Veteran and his representative are competent and credible in describing the duration, severity, and frequency of his nasal symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the competence, credibility, and probative value of evidence). These signs and symptoms include frequent stuffiness and discharge, runny nose, occasional headaches especially during the winter months, facial pain especially on the tip of the nose, recurrent nose bleeds during the winter months and during pollen season, and burning in his nostrils. He experiences three to six non-incapacitating episodes per year of sinusitis. See December 2011 informal NOD; May 2012 DRO hearing at pages 210, 23-29; January 2013 VA Form 9s; January 2017 Travel Board hearing at pages 2028; September 2020 Post-Remand Brief from DAV; and November 2021 Appellant's Brief from DAV. The above lay evidence supports a separate, additional 10 percent rating for symptomatology similar to sinusitis under Diagnostic Code 6512 (frontal sinusitis). With regard to favorable medical evidence in support of a separate, additional 10 percent rating, a June 2008 VA emergency department triage note documented various respiratory symptoms with a fever and a headache beginning that day. A June 2012 VA otolaryngology outpatient note recorded nasal obstruction, significant facial pain, headaches in the right frontal region, and spasm and electric shock pain in left nasal tip. His ability to tolerate exercise had been limited by nasal burning and obstruction. Medications had not relieved the symptoms. The Veteran at that time reported that these symptoms significantly impact his lifestyle and activities of daily living. A February 2013 VA primary care E&M note, a January 2015 VA primary care E&M note, a June 2017 VA primary care E&M note, a January 2019 VA primary care nursing note, a January 2020 VA primary care E&M note, and a January 2021 VA primary care E&M note assessed chronic sinus and nasal issues for the Veteran. A January 2019 VA primary care E&M note discussed chronic nasal / sinus issues with occasional nosebleeds and a headache when he goes out in cold weather. In general, VA treatment records dated from 2010 to 2021 confirm chronic nasal symptoms from his service-connected deviated nasal septum. This results in approximately three to six non-incapacitating episodes per year of sinusitis like symptomatology characterized by headaches, pain, and purulent discharge or crusting, thereby meeting the criteria for a 10 percent rating similar to sinusitis under Diagnostic Code 6512 (frontal sinusitis). See 38 C.F.R. § 4.97. However, the Veteran does not meet the criteria for a separate, additional rating in excess of 10 percent for facial pain, headaches, recurrent nose bleeds, and burning in the nose associated with his service-connected deviated nasal septum under Diagnostic Code 6512 (frontal sinusitis). 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. Here, both the medical and lay evidence of record does not demonstrate three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or; following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The occurrence of this symptomatology is essential to meet the criteria for even higher 30 percent or 50 percent ratings under Diagnostic Code 6512. See 38 C.F.R. § 4.97. Initially, there is no mention in VA treatment records dated from 2010 to 2021 or in VA examinations or in the Veteran's lay statements and hearing testimony of the Veteran taking prolonged antibiotics of four to six weeks for any incapacitating sinusitis like infections. As such, he does not meet the criteria for a 30 percent rating under Diagnostic Code 6513 on this basis. See 38 C.F.R. § 4.97. Historically, the Veteran fractured his nose in 1987 in basic training during service. He underwent two surgeries to correct the nasal fracture: (1) a rhinoplasty during active duty in 1989; and (2) a post-service nasal septal reconstruction in 1994. But no evidence of record demonstrates chronic osteomyelitis following any of the surgeries, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after the repeated surgeries. As such, he does not meet the criteria for a maximum 50 percent rating under Diagnostic Code 6512 on this basis. See 38 C.F.R. § 4.97. In addition, no evidence of record demonstrates more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. As such, he does not meet the criteria for a maximum 50 percent rating under Diagnostic Code 6512 on this basis. See 38 C.F.R. § 4.97. In addition, the following evidence of record does not support higher 30 percent or 50 percent ratings for the Veteran's sinusitis like symptoms under Diagnostic Code 6512: A March 2010 VA primary care initial evaluation note reflected on a history of a deviated nasal septum, status post-surgery, with "persistent" left-sided nasal restriction. On examination, the assessment was a deviated nasal septum with a left-sided nasal restriction. However, the Veteran denied a history of headaches. In a July 2011 VA primary care E&M note, a history of the Veteran's septoplasty was noted. The Veteran reported having trouble breathing through his left nostril. An August 2011 VA otolaryngology consult recorded worsening of his left-sided nasal obstruction and chronic epistaxis (nosebleeds) mainly from the right side. Swelling (septal mucosal hypertrophy) of the nasal passage was observed upon nasal endoscopy. The Veteran was prescribed flunisolide (a nasal spray), nasal saline spray, and a Medrol Dosepak for the nasal swelling. However, the Veteran denied rhinorrhea, epiphora, nasal congestion, facial pain, facial pressure, headache, mucopurulence, or nasal crusting. A September 2011 VA otolaryngology outpatient note documented "persistent" nasal obstruction in the left nasal passage without relief by nasal steroid or saline use. He reported worsening irritation in the winter with epistaxis daily in cold weather. He also reported post-nasal drip. Upon examination of the nasal cavity, bilateral inferior turbinates were absent, likely resected during his previous surgery. Importantly, the VA specialist found 85 percent functional blockage in the left internal valve this was determined to be a nasal obstruction. The Veteran was advised that any future nasal surgery would not improve his nasal blockage / congestion. Conservative management by way of medications such as antibiotic skin ointment was recommended. The Veteran was prescribed mupirocin. He was advised to return to the clinic in six months' time for reevaluation. A September 2011 VA nose and sinus examination observed a left deviated septum and septal mucosal hypertrophy (enlargement). The Veteran reported his prescriptions were not assisting him much. He reported that cold air increases his epistaxis (nosebleeds). He reported water goes up his nose when he goes swimming. He asserted his nasal problems were becoming progressively worse. His current symptoms were constant nasal congestion and breathing difficulties. On examination, the Veteran exhibited 60 percent left nasal obstruction and 20 percent right nasal obstruction. There was septal deviation seen due to previous nose trauma. The effects of his nasal disability on his usual daily activities included problems swimming (water goes up his nose) and disrupted breathing through his nose when eating or exercising. It was noted that there was no history of sinusitis and no evidence of sinus disease seen. No nasal polyps were present. There was no permanent hypertrophy of turbinates, no deformity or tissue loss, and no infection. In an April 2012 VA emergency department note, the Veteran denied headaches. An April 2012 VA nursing emergency department note observed sinus congestion and malaise x 3 weeks. At the May 2012 DRO hearing (see pages 210, 23-29), the Veteran competently and credibly testified he has 85 percent blockage on the left side every day. On the right side his nasal turbinates removed during surgery have led to continuous nose bleeds. Other related symptoms include facial and nasal pain, runny nose, difficulty breathing through his nostrils, a burning sensation in his nostrils, and headaches (during the winter) when cold air moves into his right nostril. As a result of this symptomatology, exercise and swimming have become more difficult. A June 2012 VA otolaryngology outpatient note documented "persistent" nasal obstruction on the left passage without relief by nasal steroid or saline use. There was no improvement in his nasal obstruction. Although his nosebleeds had improved in frequency, he reported significant facial pain, headaches in the right frontal region, and spasm and "electric shock pain" in the left nasal tip. His ability to tolerate exercise has been limited by nasal burning and obstruction. Exercise increased his episodes of epistaxis. These symptoms significantly impact his lifestyle and activities of daily living per the Veteran. On examination, the left internal nasal valve obstruction remained at 85 percent blocked. The clinical recommendations were to proceed with saline irrigation and mupirocin ointment to prevent nasal drying and epistaxis (nosebleeds). Any operative surgery would carry the risk of more persistent obstruction, nasal deformity, or devascularization of the nasal tip. Steroid injections were noted to be a future treatment possibility. A February 2013 VA primary care E&M note reflected on examination that mucous was seen due to chronic sinus issues. The assessment was post-nasal drip (PND) for which the Veteran should use decongestant, nasal saline, and mupirocin (antibiotic ointment) for his nose. A January 2015 VA primary care E&M note assessed chronic nasal issues such as nosebleeds. Blood was observed on tissues displayed by the Veteran. In a June 2016 VA history and physical note, the Veteran denied headaches. According to an August 2016 VA primary care manager note, the Veteran denied fever, aches or chills, post-nasal drip, or head congestion. He also denies pain, difficulty swallowing, or shortness of breath. A June 2017 VA primary care E&M note revealed a chief complaint of chronic nasal issues. The Veteran described continuing nasal congestion and nosebleeds. A February 2018 VA sinusitis / rhinitis examination mentioned ongoing nasal symptoms after his prior deviated septum surgeries including "nasal blockage and bleeding." The Veteran refused to undergo X-rays or imaging studies of the sinuses. A January 2019 VA primary care E&M note diagnosed chronic nasal issues including empty nose syndrome with occasional nosebleeds. He reported headaches when cold air enters his nose. A January 2019 VA primary care nursing note assessed nosebleeds during the wintertime. The Veteran's left nostril was 80 percent blocked, making it hard for him to breath. At a March 2019 VA sleep apnea DBQ examination and opinion, the Veteran reported he cannot get enough air through his nose. He has no turbinates after his nose surgery. He has frequent nose bleeds. For his nasal passages, the VA examiner confirmed 20 percent blockage on the right side and 80 percent blockage on the left side. The tip of his nose was uncomfortable. A January 2020 VA primary care E&M note mentioned chronic nasal issues. At an April 2021 VA nursing telephone encounter note, the Veteran reported no new onset of headaches. Importantly, the above clinical evidence of record fails to demonstrate more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, or three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment. In fact, on multiple occasions in the record, he denied the occurrence of headaches. In light of these documented, clinical findings, a separate, additional rating higher than 10 percent for the Veteran's sinusitis like symptoms is not warranted here. See 38 C.F.R. § 4.97, Diagnostic Code 6512. The Board has considered the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones, 26 Vet. App. at 61. The rating criteria listed under Diagnostic Code 6512 for sinusitis fail to contemplate the effects of medication on the Veteran's service-connected sinusitis like symptoms. The Veteran has taken various medications to help control his adverse sinusitis like symptoms resulting from his service-connected deviated nasal septum - flunisolide, saline washes, possible instances of antibiotics, mupirocin antibiotic gel, Medrol Dosepak, and Naprosyn nasal spray. However, the Board emphasizes that this decision is not based on any finding that the Veteran's medication provided relief. Rather, the denial of a higher rating above 10 percent for his sinusitis like symptoms is based on the fact that the necessary sinus symptoms and manifestations are not demonstrated by the evidence of record, regardless of any medication the Veteran takes for his condition. The evidence simply does not demonstrate the necessary findings for a higher 30 or 50 percent rating under Diagnostic Code 6512 for sinusitis like symptoms, with or without medication. The Board has reviewed other diagnostic codes for other diseases of the nose and throat. See 38 C.F.R. § 4.97, Diagnostic Codes 6502 to 6524. However, aside from Diagnostic Codes 6502 and 6513, no other diagnostic codes apply based on the Veteran's particular service-connected symptomatology resulting from his deviated nasal septum disability. Therefore, no additional diagnostic codes will be applied here. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The Board acknowledges the Veteran has asserted insomnia or difficulty sleeping as an additional symptom caused by his service-connected deviated nasal septum disability. See May 2012 DRO hearing; January 2019 VA primary care E&M note; and March 2019 VA sleep apnea DBQ examination and opinion. However, in various instances, his insomnia has been associated with his nonservice-connected tinnitus. See e.g., January 2019 VA primary care E&M note; January 2019 VA primary care nursing note; and January 2019 VA ambulatory care telephone note. What's more, in an October 2019 rating decision, the AOJ already denied the Veteran direct service connection and secondary service connection for a sleep disorder (secondary to the Veteran's service-connected deviated nasal septum). The Veteran was notified of this rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of the rating decision. Therefore, the October 2019 rating decision became final for the sleep disorder issue. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2020). Absent a timely appeal of this particular rating decision, the Board must respect its finality as the appeal period had run without a timely appeal by the Veteran. Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007). And the Veteran has not alleged clear and unmistakable error (CUE) in the prior denial of the sleep disorder claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). For the Board to address a finality determination without a claim of CUE before it would be ultra vires (and act beyond the legal authority of the doer). See Juarez v. Peake, 21 Vet. App. 537, 545 (2008). Accordingly, the Board finds that the evidence supports a separate, additional rating of 10 percent, but no higher, for facial pain, headaches, recurrent nose bleeds, and burning in the nose associated with the Veteran's service-connected deviated nasal septum under Diagnostic Code 6512 (frontal sinusitis). 38 C.F.R. § 4.3. The increased rating claim is therefore granted. Finally, with regard to the increased rating claim for the Veteran's service-connected deviated nasal septum, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.