Citation Nr: 21011345 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-35 477 DATE: March 1, 2021 ORDER Entitlement to an initial rating higher than 20 percent for right shoulder strain is denied. Entitlement to an initial rating higher than 20 percent for left shoulder strain is denied. Entitlement to a higher staged initial rating for degenerative disc disease of the thoracolumbar spine with lumbar strain, currently rated as 10 percent disabling prior to November 7, 2019 and 20 percent disabling thereafter is denied. Entitlement to a compensable initial rating for right inguinal hernia is denied. Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis with calcaneal spurs is denied. Entitlement to a higher staged initial rating for maxillary sinusitis, currently rated as noncompensable prior to November 7, 2019, and 30 percent disabling thereafter is denied. Entitlement to a compensable initial rating for diverticulitis status post sigmoid colectomy is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder strain is manifested by limitation of flexion to, at worst, shoulder level of the major extremity. 2. The Veteran’s left shoulder strain is manifested by limitation of motion to midway between the side and shoulder level of the minor extremity. 3. The Veteran’s degenerative disc disease of the thoracolumbar spine with lumbar strain is manifest by painful motion without limitation before November 7, 2019, and forward flexion greater than 30 degrees but not greater than 60 degrees thereafter. There is no evidence of incapacitating episodes. 4. The Veteran’s right inguinal hernia is manifest by the Veteran’s report of pain during heavy lifting; however, the medical evidence shows that no hernia is detected. 5. The Veteran’s bilateral plantar fasciitis with calcaneal spurs is manifest by pain on prolonged use of the feet or during flare-ups. There is no evidence surgical treatment or that the bilateral plantar fasciitis does not respond to non-surgical treatment 6. The Veteran’s maxillary sinusitis is manifest by a diagnosis of sinusitis with no objective evidence of acute or chronic sinus disease prior to November 7, 2019, and more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting thereafter. 7. The Veteran’s diverticulitis status post sigmoid colectomy is asymptomatic. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a rating in excess of 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201. 3. The criteria for entitlement to a higher staged initial rating for degenerative disc disease of the thoracolumbar spine with lumbar strain, currently rated as 10 percent disabling prior to November 7, 2019, and 20 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243 (2020); DC 5243 (85 Fed. Reg. 76, 453 (November 30, 2020)). 4. The criteria for entitlement to a compensable initial rating for right inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7338. 5. The criteria for an initial rating higher than 10 percent for bilateral plantar fasciitis with calcaneal spurs have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5276 (2020); DC 5269 (85 Fed. Reg. 76, 453 (November 30, 2020)). 6. The criteria for entitlement to a higher staged initial rating for maxillary sinusitis, currently rated as noncompensable prior to November 7, 2019, and 30 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to June 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in October 2018. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A June 2020 rating decision assigned a 20 percent rating for right shoulder as well as a 20 percent rating for the left shoulder strain throughout the period on appeal, assigned a 20 percent rating for degenerative disc disease of the thoracolumbar spine effective November 7, 2019, assigned a 10 percent rating for bilateral plantar fasciitis throughout the period on appeal, and assigned a 30 percent rating for maxillary sinusitis effective November 7, 2019. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the Veteran’s claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended regulations are pertinent only to the lumbar spine and plantar fasciitis claims on appeal here. 1. Entitlement to an initial rating higher than 20 percent for right shoulder strain 2. Entitlement to an initial rating higher than 20 percent for left shoulder strain The Veteran contends that his right and left shoulder symptoms entitle him to a higher rating. The Veteran’s right and left shoulder strain are rated under 38 C.F.R. § 4.71a, DC 5201, for limitation of motion of the arm. Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201. DC 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for either right shoulder strain or left shoulder strain. The November 2019 VA examination shows that the Veteran is right-handed. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain in that the Veteran’s lifting is limited to 40 pounds and he is prevented from performing overhead lifting. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s description of his flare-ups during the November 2019 examination would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity (right shoulder) or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity (right or left shoulder). The most severe limitation reflected in the record is the November 2019 examination finding that during flare-ups, the Veteran’s right shoulder movement was limited to flexion from 0 to 120 degrees, and his left shoulder movement was limited to flexion from 0 to 90 degrees. Therefore, his right shoulder is not limited to motion midway between the side and shoulder level, and the motion of the left shoulder is not limited to 25 degrees, as would be required for a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no ankylosis, which rules out a higher rating under DC 5200. The November 2019 examination found no impairment of the humerus, which prevents the assignment of a rating under DC 5202. Similarly, there was no impairment of the clavicle or scapula, which would be required to assign a higher rating under DC 5203. The preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for right shoulder strain or left shoulder strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a higher staged initial rating for degenerative disc disease of the thoracolumbar spine with lumbar strain, currently rated as 10 percent disabling prior to November 7, 2019 and 20 percent disabling thereafter The Veteran contends that his thoracolumbar spine symptoms entitle him to a higher rating. The Veteran’s degenerative disc disease of the thoracolumbar spine is currently rated under the old version of 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The revised rating criteria for DC 5242 is as follows: Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (see either DC 5003 or 5010). The revised DC 5243 reads: Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. The preponderance of the evidence is against a rating in excess of 10 percent prior to November 7, 2019 for the Veteran’s low back disability under the General Rating Criteria based on limitation of motion. The November 2010 and June 2016 VA examinations both show a full range of motion for the thoracolumbar spine, and the November 2010 examination finds no incapacitating episodes. The November 2010 VA examination found normal posture and gait, and the June 2016 VA examination found no muscle atrophy, guarding, or muscle spasm. Both examinations found that there were no flare-ups of the low back. The Veteran has not sought medical treatment for his low back pain, which supports the finding that the Veteran did not experience incapacitating episodes. The November 2010 examination found no effects on the Veteran’s usual daily activities and the June 2016 examination found no impact on the Veteran’s ability to work. The Board acknowledges the Veteran’s lay reports constant low back pain. However, even considering the Veteran’s lay reports of symptoms, the record does not reflect that the Veteran’s low back pain functionally limits his movement more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative disc disease based on limitation of motion prior to November 7, 2019. A 20 percent rating has been assigned from November 7, 2019. The Board finds that a rating higher than 20 percent is not warranted based on limitation of motion. The November 2019 examiner found that the Veteran’s thoracolumbar movement was limited during flare ups to 40 degrees forward flexion, 5 degrees extension, 15 degrees right lateral flexion, 15 degrees left lateral flexion, 10 degrees right lateral rotation, and 10 degrees left lateral rotation. Such limitation is consistent with the 20 percent rating that has been assigned, but does not reach the limitation to 30 degrees or less of forward flexion that is required for a 40 percent rating. The examiner found no ankylosis. No other evidence, either treatment records or lay statements, contradicts the examiner’s findings. The Board als finds that the evidence is against assignment of an increased rating under either the old or revised versions of DC 5243 for intervertebral disc syndrome. There is no evidence of incapacitating episode as specifically defined in the rating criteria. The Board also finds that assignment of separate neurological ratings are not warranted for any time during the appeal period. Neurological examination was normal on VA examinations conducted in November 2010, June 2016 and November 2019. The preponderance of the evidence of record is thus against the assignment of a rating higher than 10 percent before November 7, 2019 and in excess of 20 percent after under either version of the rating criteria. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a compensable initial rating for right inguinal hernia The Veteran contends that he should receive a compensable rating for his right inguinal hernia residuals because he experiences occasional lower abdominal pain with heavy lifting. The Veteran’s hernia disability is rated as noncompensable under DC 7338. 38 C.F.R. § 4.114. A zero percent rating is assigned for a small inguinal hernia, reducible, or without true hernia protrusion. An inguinal hernia that is not operated on, but is remediable, is also assigned a noncompensable rating. A postoperative recurrent inguinal hernia, readily reducible, well supported by truss or belt, is rated 10 percent disabling. A small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible, is rated 30 percent disabling. A large inguinal hernia, postoperative recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated 60 percent disabling. A Note to DC 7338 provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be rated, and 10 percent, only, added for the second hernia, if the second hernia is of compensable degree. 38 C.F.R. § 4.114. Neither the Veteran’s medical treatment records nor the VA examinations of record indicate that the Veteran has a right inguinal hernia that is recurrent, readily reducible, and well supported by truss or belt. On the contrary, both examinations found no hernia at all. Therefore, a 10 percent disability rating is not warranted. Moreover, the record reflects that the scar related to the Veteran’s hernia operation is not painful or unstable, nor does it measure an area of at least six square inches. The scar has been service-connected as noncompensable. Accordingly, the Board finds that the evidence weighs against a compensable rating for right inguinal hernia disability and the appeal for an increased rating is denied. 5. Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis with calcaneal spurs The Veteran contends that he is entitled to a higher rating because of his foot pain. Historically, the Veteran’s plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under the revised rating criteria, plantar fasciitis is evaluated under a new diagnostic code, specific to plantar fasciitis, Diagnostic Code 5269. Under the revised rating criteria, plantar fasciitis is evaluated based on a combination of extent (one foot or both feet) and response to treatment (responsive or nonresponsive). A 30 percent rating is warranted where plantar fasciitis does not respond to both surgical and non-surgical treatment, if both feet are affected. A 20 percent disability rating if one foot is affected. Otherwise, a 10 percent disability rating is warranted, unilateral or bilateral. Note (1) to Diagnostic Code 5269: With actual loss of use of the foot, rate 40 percent Note (2): If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 5; Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral plantar fasciitis with calcaneal spurs under either the old or revised rating criteria. The Board acknowledges the Veteran’s lay reports of foot pain. However, even considering the Veteran’s lay reports, there is no indication in the record of marked deformity, accentuated pain on manipulation and use, swelling on use, or characteristic callosities that would support a higher rating under the old rating criteria. The November 2010 examination noted pain while standing, while resting, and at rest, as well as lack of endurance, and found no significant occupational effect, as well as mild to moderate effects on the Veteran’s daily activities. The June 2016 examination found no pain on examination and described the Veteran’s plantar fasciitis as mild. The November 2019 examination found pain on movement and pain on weight-bearing. The Veteran did competently report foot pain throughout the period on appeal. This foot pain supports the assignment of a 10 percent rating. The record as a whole supports a finding of foot pain on use, but there is no indication in the record that the Veteran’s foot pain is accentuated on use. Moreover, there is no indication of marked deformity, swelling on use, or characteristic callosities. Therefore, the Board finds that the assignment of a rating higher than 10 percent under the old rating criteria is not warranted. The Board also finds that the criteria for a 30 percent rating are not met or more closely approximated under the revised criteria. The 30 percent rating is warranted where plantar fasciitis does not respond to both surgical and non-surgical treatment, if both feet are affected. There is no evidence that the Veteran underwent surgical treatment and no evidence that his condition has not responded to non-surgical treatment. He has consistently reported foot pain, which is contemplated by the 10 percent rating. In this case, there is no indication of symptoms that would warrant the assignment of a higher rating under another DC for any time during the appeal. The record does not reflect symptoms that are the equivalent of claw foot (DC 5278), nor is there any indication of malunion or nonunion of the metatarsal or tarsal bones (DC 5283). It is not appropriate to assign a higher rating under DC 5284, which applies to other foot injuries, because the June 2016 examination described the severity of the Veteran’s foot disability as mild, and the November 2010 examination found that the effects of the Veteran’s foot disability on his daily activities were mild to moderate. Therefore, there is no basis to support a finding that the Veteran suffers from a moderately severe or severe foot injury, and a higher rating is not warranted under DC 5284. 38 C.F.R. § 4.71a, DC 5284. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral plantar fasciitis with calcaneal spurs under either version of the rating criteria. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to a higher staged initial rating for maxillary sinusitis, currently rated as noncompensable prior to November 7, 2019, and 30 percent disabling thereafter The Veteran contends that his sinusitis symptoms warrant the assignment of a compensable rating prior to November 7, 2019, and a rating higher than 30 percent thereafter. The Veteran’s maxillary sinusitis is rated under DC 6513. The General Rating Formula for Sinusitis reflects that a noncompensable rating is assigned when sinusitis 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. A 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, DC 6513. Prior to November 7, 2019, the record does not support the assignment of a compensable rating. The November 2010 VA examination reflects that the Veteran reported a history of seasonal allergies, and stated that he had nasal congestion with frequent breathing difficulty. However, the examiner found no objective evidence of acute or chronic sinus disease, and found no effects on the Veteran’s usual daily activities. A June 2016 examination indicates that the Veteran’s only symptoms were “regular colds” that did not require evaluation by an ear nose and throat specialist or further intervention. The examiner found that there had been sinus x-rays, but that the Veteran did not have any signs or symptoms related to his sinusitis, and that there was no functional impact. The record does not reflect any medical treatment for sinusitis. The record thus reflects that the Veteran’s sinusitis is detectable by x-ray, but does not result in symptoms such as incapacitating or non-incapacitating episodes of sinusitis. Therefore, the Board finds that the assignment of a compensable rating prior to November 7, 2019, is not warranted. The November 7, 2019 VA examination found that the Veteran’s sinusitis was detected only by imaging studies, but that the Veteran did experience 7 or more episodes of non-incapacitating sinusitis per year. There is no indication of sinus surgery since 1987, and in finding the Veteran’s sinusitis was detected only by imaging studies, the examiner declined to check the box indicating near constant sinusitis, headaches, pain of the affected sinus, tenderness of the affected sinus, purulent discharge, or crusting. The record does not reflect that the Veteran sought medical treatment for sinusitis from November 7, 2019 to the present. The preponderance of the evidence is against the assignment of a rating higher than 30 percent for maxillary sinusitis from November 7, 2019 to the present. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. Entitlement to a compensable initial rating for diverticulitis status post sigmoid colectomy The Veteran believes he should be assigned a compensable rating for diverticulitis status post sigmoid colectomy. The Veteran’s diverticulitis is rated under DC 7327, which indicates that it should be rated as for irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending upon the predominant disability picture. Irritable colon syndrome is rated under DC 7319, which indicates that a noncompensable rating is assigned for mild symptoms such as disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate symptoms such as frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is assigned for severe symptoms, such as diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. Peritoneal adhesions are rated under DC 7301. A noncompensable rating is assigned for mild adhesions. A 10 percent rating is assigned for moderate peritoneal adhesions causing pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe peritoneal adhesions causing partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is assigned to severe peritoneal adhesions, in which definite partial obstruction is shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Id., DC 7301. Ulcerative colitis is rated under DC 7323. Moderate ulcerative colitis with infrequent exacerbations is assigned a 10 percent rating. Moderately severe ulcerative colitis with frequent exacerbations is assigned a 30 percent rating. Severe ulcerative colitis with numerous attacks a year and malnutrition, in which the health only fair during remissions, is assigned a 60 percent rating. A 100 percent rating is assigned for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. Id. at DC 7323. In this case, the November 2010 VA examination found no current treatment, and no symptoms or history of symptoms. There were no effects on daily activities or general occupational effect. A June 2016 VA examination indicates that the Veteran’s diverticulitis is asymptomatic, has not required any continuance of care, and has no functional impact or functional residuals. A November 2019 VA examination noted a painful scar, which has been separately service-connected and assigned a 10 percent rating, no continuous medication, and no signs or symptoms attributable to an intestinal condition. The examiner found no episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. Although the Veteran has referenced his diverticulitis in treatment records, he has not sought treatment for it. As the record reflects that the Veteran’s diverticulitis is asymptomatic, there are no grounds to assign a compensable rating under any Diagnostic Code. The Board denies the Veteran’s claim for a compensable rating for diverticulitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.