Citation Nr: 21012273 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-43 048 DATE: March 4, 2021 ORDER Before July 8, 2019, a rating in excess of 30 percent for bilateral plantar fasciitis is denied. FINDING OF FACT Before July 8, 2019, the Veteran’s bilateral plantar fasciitis did not result in either a loss of use of the feet or symptoms approximating pronounced bilateral flatfoot. CONCLUSION OF LAW Before July 8, 2019, the criteria for a rating in excess of 30 percent for bilateral plantar fasciitis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5276 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to May 2012. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision that granted service connection for plantar fasciitis of the left foot and assigned an initial noncompensable rating. This matter was most recently before the Board in January 2020, when it granted a 30 percent rating for plantar fasciitis of the left foot before July 8, 2019, and referred a claim for service connection for plantar fasciitis of the right foot to the Agency of Original Jurisdiction (AOJ) for adjudication in the first instance. The Board found that the issue of entitlement to a rating in excess of 30 percent for plantar fasciitis of the left foot before July 8, 2019, was intertwined with the referred claim for service connection, and it accordingly remanded the issue of entitlement to an increased rating pending resolution of the referred claim. In October 2020, the AOJ recharacterized the Veteran’s service-connected disability as bilateral plantar fasciitis rather than plantar fasciitis of the left foot. The AOJ thus assigned a 50 percent rating on the basis of a bilateral pes planus disability effective July 8, 2019. The Board finds that the AOJ has substantially complied with its January 2020 remand directives, and it will adjudicate the issue of whether a rating in excess of 30 percent for bilateral plantar fasciitis is warranted before July 8, 2019. Increased Rating The Veteran contends that his bilateral plantar fasciitis warrants a rating in excess of 30 percent before July 8, 2019. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These changes are not applicable to the present appeal. As indicated, the period on appeal is limited to the period prior to July 8, 2019. Under Diagnostic Code 5276, applicable to acquired flatfoot, a greater (50 percent) rating under this diagnostic code requires pronounced flatfoot with 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. See 38 C.F.R. § 4.71a. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); see also Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Turning to the facts in this case, the Veteran underwent a VA examination in July 2012, at which time he complained of experiencing left foot pain when barefoot and when jogging. The examiner diagnosed the Veteran with plantar fasciitis of the left foot. In April 2015, the Veteran sought treatment for left foot pain, and he was assessed with probable plantar fasciitis. The Veteran underwent an additional VA examination in July 2019, at which time the Veteran reported experiencing severe, sharp pain in the balls of his feet. The Veteran experienced flare-ups of symptoms in the form of worsened pain with standing, and the Veteran experienced functional impairment that limited his ability to stand. The examiner noted that the Veteran had pain on use and manipulation of the feet. There was no indication of swelling on use of the feet, and the Veteran did not have characteristic calluses. The Veteran had extreme tenderness of the plantar surfaces of both feet that was not improved by orthopedic shoes or appliances. There was not marked pronation of one or both feet, nor was there marked inward displacement or severe spasm of the Achilles tendon. An x-ray of the Veteran’s left foot showed mild degenerative changes without evidence of an acute process. The examiner diagnosed the Veteran with plantar fasciitis. Turning to an analysis of these facts, the Board will first discuss whether a rating in excess of 30 percent is available to the Veteran under the currently-assigned Diagnostic Code 5276, applicable to acquired flatfoot, at any time before July 8, 2019. A greater rating under Diagnostic Code 5276 requires the presence of not only pronounced flatfoot with marked pronation, but also extreme tenderness of plantar surfaces of the feet, in addition to marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a. In its January 2020 decision granting a 30 percent rating for plantar fasciitis of the left foot before July 8, 2019, the Board found that the Veteran’s symptoms of left foot plantar fasciitis met or approximated these criteria. With that said, the Board’s current analysis must determine whether the Veteran’s symptoms of bilateral foot plantar fasciitis met or approximated these rating criteria at any time before July 8, 2019. The July 2019 examiner noted the Veteran’s complaints of extreme tenderness of the plantar surfaces of the feet, which is a symptom associated with a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. With that said, at no time before July 8, 2019, did the Veteran’s bilateral plantar fasciitis result in marked pronation of the feet or marked inward displacement and severe spasm of the tendo achillis on manipulation. Indeed, the July 2019 examiner expressly found that the Veteran did not have either marked pronation of one or both feet or marked inward displacement or severe spasm of the Achilles tendon. The Board thus finds that at no time before July 8, 2019, did the symptom picture associated with the Veteran’s bilateral plantar fasciitis meet the rating criteria associated with a greater rating under the diagnostic code applicable to flatfoot. The Board has further considered whether a rating in excess of 30 percent is available before July 8, 2019, under any other diagnostic codes applicable to disabilities of the foot. Diagnostic Code 5167 (loss of use of the foot) does not apply because the Veteran did not show symptoms approximating loss of use of the feet at any time before July 8, 2019. Diagnostic Codes 5277 (weak foot), 5279 (metatarsalgia), 5280 (hallux valgus), 5281 (hallux rigidus), 5282 (hammer toe), and 5283 (malunion or nonunion of tarsal or metatarsal bones) are inapplicable because they do not provide for ratings in excess of 30 percent. Diagnostic Code 5278 (claw foot) provides for a rating in excess of 30 percent, the Veteran does not have such a disability. Under Diagnostic Code 5284 (other foot injuries), a 20 percent rating applies to moderately severe foot injury, and a 30 percent rating applies to severe foot injury. See 38 C.F.R. § 4.71a. Awarding separate ratings for each of the Veteran’s feet under this Diagnostic Code could result in a greater combined rating than the existing 30 percent rating. Before July 8, 2019, however, the Veteran complained only of symptoms affecting his left foot, and the Board finds that the Veteran’s symptoms, including pain when barefoot and when jogging, were not “severe” in nature. Additionally, before July 8, 2019, the Veteran did not complain of symptoms affecting his right foot. Accordingly, a greater rating under Diagnostic Code 5284, is unavailable at any time before July 8, 2019. In sum, a rating in excess of 30 percent for the Veteran’s bilateral plantar fasciitis disability is unwarranted at any time before July 8, 2019. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.