Citation Nr: 21000063 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-11 956 DATE: January 4, 2021 ORDER The claim of entitlement to an initial rating greater than 20 percent prior to May 22, 2019, and a rating greater than 40 percent from that date, for right shoulder degenerative joint disease, impingement syndrome, sub acromial and subdeltoid bursitis (right shoulder disability), is denied. The claim of entitlement to an initial rating greater than 10 percent prior to May 22, 2019, and a rating greater than 20 percent from that date, for left calcaneal spurs is denied. FINDINGS OF FACT 1. Prior to May 22, 2019, the Veteran’s right (dominant) shoulder disability was manifested by subjective complaints of pain, and objective evidence of right arm motion limited, at worst, to 90 degrees on flexion, and 60 degrees on abduction (approximately shoulder level). 2. Since May 22, 2019, the Veteran’s right (dominant) shoulder disability has been manifested by painful limitation of motion of the arm to approximately 25 degrees or less from the side. 3. Prior to May 22, 2019, the Veteran’s left foot calcaneal spurs were manifested by pain resulting overall moderate foot impairment, but did not involve weakness, stiffness, swelling, heat or redness, or fatigability or other symptoms indicative of overall moderately severe foot impairment. 4. Since May 22, 2019, the Veteran’s left calcaneal spurs have been manifested by weakness, fatigability, and incoordination, resulting in overall moderately severe foot impairment, but have not been shown to be productive of overall severe foot impairment, or to involve any arch collapse, marked inward displacement or severe spasm of the Achilles tendon on manipulation. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for right shoulder disability, prior to May 22, 2019, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5201. 2. The criteria for a rating greater than 40 percent for right shoulder disability, from May 22, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5201. 3. The criteria for an initial rating greater than 10 percent, for left calcaneal spurs, prior to May 22, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.31, 4.40. 4.45, 4.71a, DC 5284. 4. The criteria for a rating greater than 20 percent for left calcaneal spurs, from May 22, 2019, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.31, 4.40. 4.45, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to April 1994, from August 2008 to September 2009, from November 2009 to December 2010, and from March 2018 to March 2019. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2011 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for right shoulder disability, and for left foot disability, assigning 20 percent and zero percent (noncompensable) disability ratings, respectively, each effective December 5, 2010. The Veteran filed a notice of disagreement (NOD) in January 2012. In January 2014, the RO issued a statement of the case (SOC), and the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in March 2014. In June 2015, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In September 2015, the Board granted the Veteran an initial 10 percent rating for his left calcaneal spurs, and remanded the matter of entitlement to a rating higher than 10 percent for that disability, together with the claim for an initial rating higher than 20 percent for service-connected right shoulder disability, to the agency of original jurisdiction (AOJ) for further development. After accomplishing further action, the AOJ denied a higher rating for each disability as reflected in a March 2016 SSOC) and returned the matters to the Board. In June 2018, the Board again remanded the claims on appeal to the AOJ for additional development, to include arranging to obtain VA examinations. After accomplishing further action, in a May 2020 rating decision, the AOJ granted a 40 percent rating for the right shoulder disability, as well as granted a 20 percent rating for the left foot disability, each effective May 22, 2019. However, the AOJ denied any higher rating for each disability (as reflected in a May 2020 SSOC) and returned these matters to the Board. As the Veteran has not been granted the maximum rating available (which he is presumed to seek) before or since May 22, 2019, the Board has now characterized the appeal to encompass claims for higher ratings for each disability at each stage. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As a final preliminary matter, the Board notes that in a May 2020 rating decision, the AOJ granted service connection and assigned a 30 percent rating for left foot plantar fasciitis secondary to the Veteran’s service-connected left calcaneal spurs, effective December 5, 2010. Notably, although the issue of left foot plantar fasciitis was included in the May 2020 SSOC, the May 2020 rating decision resolved the service connection claim, and, as the Veteran has not disagreed with any aspect of that decision, no downstream higher rating or earlier effective date claim for the disability is currently before the Board. Analysis At the outset, the Board is now satisfied that all notification and development actions needed to fairly resolve the claims for higher ratings on appeal have been accomplished. A December 2011 pre-rating letter provided notice of what was needed to substantiate the claim and who was responsible for obtaining what evidence, and January 2014 SOC and March 2016 and May 2020 SSOCs set forth the criteria for higher ratings. The Board also finds that VA has fulfilled its duties to assist the Veteran in the development of his claims. Prior to the June 2018 remand, the record included service treatment records, service personnel records, VA and private treatment records, reports of VA examination, and the Board hearing transcript and written lay statements. Pursuant to the development requested in the remand, the AOJ requested that the Veteran provide, or provide appropriate authorization to obtain any outstanding, pertinent private (non-VA) records, and obtained VA examinations in May 2019, the report of which includes sufficient information for evaluation of the disabilities, resolve the claims. Significantly, there is no identified evidence for which appropriate authorization to obtain has been provided, and neither the Veteran nor his representative have alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on each claim on appeal, at this juncture. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). Here, as the AOJ has already assigned staged ratings for each disability under consideration, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating of is warranted. 1. Evaluation of right shoulder disability The ratings for the Veteran’s right shoulder disability have been assigned under DCs 5003-5201, which indicates degenerative joint disease DC 5003) rated on the basis of limitation of arm/shoulder motion (DC 5201). See 38 C.F.R. § 4.27. DC 5003 specifically directs that degenerative arthritis be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved (here, DC 5201). See 38 C.F.R. § 4.71a; DC 5003. Ratings assigned under DC 5201 pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. As the Veteran in the case at hand is right-handed, his service-connected right shoulder condition affects his major extremity, and will be evaluated accordingly. Under DC 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. , quoting 38 C.F.R. § 4.40. Turning to the relevant evidence of record, a July 2011 VA treatment record reflects that the Veteran complained of right shoulder pain and reported limited range of motion, self-care and daily activities. He was diagnosed with chronic right shoulder pain impingement syndrome and subacromial/subdeltoid bursitis. The Veteran was receiving physical therapy and was also referred for occupational therapy. In the report of the October 2011 VA examination, the examiner confirmed diagnoses of right shoulder degenerative joint disease (DJD), right shoulder impingement syndrome, and sub acromial and subdeltoid bursitis. The Veteran reported flare-ups, which were particularly painful upon lifting his right arm. On range of motion testing, flexion was to 130 degrees, with painful motion beginning at 100 degrees; abduction was to 85 degrees, with painful motion beginning at 70 degrees. After repetitive use testing, flexion was to 130 degrees and abduction was to 85 degrees. The examiner noted that there was no functional loss of the right shoulder. There was localized tenderness, but there was no guarding of the right shoulder. Muscle strength testing was normal throughout and there was no evidence of ankylosis. December 2011 VA treatment records reflected improvement in the Veteran’s shoulder strength and range of motion, but stated that he still has limitations when he reaches backwards. In the report of the December 2015 VA examination, the examiner confirmed diagnoses of right shoulder DJD, right shoulder impingement syndrome, and sub acromial and subdeltoid bursitis. The Veteran reported flare-ups of his right shoulder, including pain and difficulty with overhead activity and sudden movement of his right arm. On range of motion testing, flexion was to 90 degrees, abduction was to 60 degrees, and external and internal rotation were to 50 degrees. There was no additional range of motion loss after repetitive use testing. The examiner noted that the Veteran was not examined immediately after repeated use over a period of time or during a flare-up and the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner added that pain significantly limited functional ability with repeated use over a period of time or during a flare-up, but noted that there was no evidence of weakness, fatigability, or incoordination. X-ray imaging revealed degenerative arthritis in the right shoulder. Muscle strength testing was normal throughout, with no evidence of muscle atrophy. There was no evidence of ankylosis, or any evidence of conditions or impairments of the humerus. Pursuant to the June 2018 Board remand, the Veteran was afforded a new VA examination for evaluation of his right shoulder disability in May 2019. The examiner noted the Veteran’s right shoulder diagnoses, and that the reported flare-ups of his right shoulder, stating that he is very careful with moving his right shoulder, but sometimes he instinctively moves his right arm rapidly such as if needs to avoid falling and will have sudden flare of pain in his right shoulder that lingers for a day or two. Regarding functional loss, he reported decreased ROM of the right shoulder and has some increased pain with brushing his teeth and not able to perform personal hygiene with his right shoulder. The estimated pain intensity during flare ups was moderate to severe; the estimated pain frequency of flare ups was once or twice a month, while the estimated pain duration during flare ups was one or two days. Regarding the estimated range of motion during pain flare-ups, flexion was to 25 degrees, abduction 20 degrees, internal rotation 40 degrees, and external rotation 30 degrees. On range of motion testing, flexion was to 50 degrees, abduction was to 40 degrees, external rotation was to 40 degrees and internal rotation was to 50 degrees. There was no additional range of motion loss after repetitive use testing. The examiner noted that the Veteran was not examined immediately after repeated use over a period of time or during a flare-up and the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner added that pain and lack of endurance significantly limited functional ability with repeated use over a period of time or during a flare-up, which was described on range of motion testing: flexion was to 25 degrees, abduction was to 20 degrees, external rotation was to 30 degrees and internal rotation was to 40 degrees. There was localized tenderness of the right shoulder. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Regarding a rotator cuff condition, Hawkins’ impingement and empty-can tests were positive, while external rotation/infraspinatus strength, and lift-off subscapularis tests were all negative. There was no evidence of ankylosis, nor any evidence of conditions or impairments of the humerus. For the period prior to May 22, 2019, the competent medical evidence of record, to include the estimation provided by the December 2015 examiner, indicates that the Veteran’s right shoulder disability has been manifested, at worst, by flexion limited to 90 degrees, and abduction limited to,, 60 degrees. This range of motion is approximately shoulder level, for which a 20 percent rating for the dominant shoulder is assignable under DC 5201. The next higher, 30 percent rating under that diagnostic code requires shoulder motion limited to midway between the shoulder and the side (or, to approximately 45 degrees); however, no such limitation in shoulder motion has been shown or estimated. While the Veteran has complained of significant pain, and reported that flare-ups resulted in difficulty to lift the right upper extremity, even considering such complaints, there is there is no medical indication that, even during flare-ups, the Veteran’s shoulder motion has been effectively limited to 45 degrees or less from the side. Rather, in assigning the current 20 percent rating, the Veteran’s complaints of pain, to include during flare-ups, were taken into consideration, and no higher rating under DC 520, is assignable. Since May 22, 2019, the competent medical evidence of record shows that the Veteran’s right shoulder disability has been manifested by, at worst, flexion limited to 25 degrees; and abduction limited to 20 degrees. This range of motion is approximately 25 degrees from the side, for which a 40 percent rating for the dominant shoulder is assignable under DC 5201. The Board further finds that no other potentially applicable diagnostic code provides a basis for any higher rating prior to or since May 22, 2019. The claims file documents no findings of ankylosis, loss of the humerus head, nonunion, fibrous nonunion, or recurrent dislocation with frequent or infrequent guarding of the arm at any level; or of any malunion or nonunion of the clavicle or scapula. As such, evaluation of the disability under DCs 5202 to 5024 is not warranted. See 38 C.F.R. § 4.71a. In evaluating the claim for higher ratings for the Veteran’s right shoulder disability, the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide, have been considered. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As noted, however, the criteria needed to support higher ratings require clinical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Here, such findings do not support any rating(s) higher than those assigned for the Veteran’s right shoulder disability at any pertinent point. For all the foregoing reasons, the Board finds that there is no basis for any further staged rating of the Veteran’s service-connected right shoulder disability, and that an initial rating greater than 20 percent prior to May 22, 2019 and a rating greater than 40 percent from May 22, 2019 for the disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). 2. Evaluation of left calcaneal spurs The ratings for the Veteran’s calcaneal he Under DC 5284, foot injuries are rated as 10 percent disabling when moderate, as 20 percent disabling when moderately severe, and as 30 percent disabling when severe. 38 C.F.R. § 4.71a, DC 5284. With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5284. Words such as “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in reaching a rating decision. 38 C.F.R. §§ 4.2, 4.6. Turning to the relevant evidence of record, a June 2011 VA treatment record notes that the Veteran was diagnosed with left calcaneal spurs. The Veteran reported pain in his heels due to the spurs and tightening in the area. In the report of the October 2011 VA examination, the examiner confirmed a diagnosis of left calcaneal spurs. The Veteran reported that the Veteran had pain and found it difficult to walk or stand for a prolonged period. X-ray findings revealed degenerative or traumatic arthritis in his left foot. The examiner noted that the Veteran did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, or pes cavus (claw foot). Moreover, the examiner found no malunion or nonunion of tarsal or metatarsal bones, or any other foot injuries. Regarding functional impact, the Veteran stated that he had some difficulty with prolonged walking or standing while working at his job. A December 2011 VA treatment record reflects that the Veteran had cortisone injections for pain relief in his left heel. The examiner found tenderness, but no swelling or erythema. In the report of the December 2015 VA examination, the examiner confirmed the Veteran’s diagnosis of left calcaneal spurs. The Veteran reported that he is stable in terms of pain intensity, and that he noted no changes since his last examination. Moreover, he reported moderate pain in prolonged standing and walking positions. Regarding functional loss, the Veteran stated that he has some difficulty walking. The examiner noted the Veteran’s pain in his left foot, which contributed to his functional loss. The examiner stated that the left foot pain could significantly limit functional ability during flare ups. However, he reported no evidence of weakness, fatigability, or incoordination. Regarding functional impact, the examiner opined that the Veteran’s left calcaneal spurs did not impact his ability to perform any type of occupational task. Pursuant to the June 2018 Board remand, the Veteran was afforded a new VA examination for evaluation of his left calcaneal spurs. The May 2019 examiner noted the Veteran’s left calcaneal spurs. He also found a diagnosis of plantar fasciitis of the left foot, and opined that it was caused by the Veteran’s left calcaneal spurs. The Veteran reported sharp pain in his left heel upon standing after getting out of bed or getting up after prolonged sitting. He described the pain as sharp and increases when walking or remaining standing for prolonged periods of time. The Veteran reported flare-ups of his left foot and functional loss, which he described as decreased endurance to standing and walking. On physical examination, there was evidence of painful motion on use of the Veteran’s left foot, which was accentuated on use. There was evidence of pain on weight bearing, interference in standing, and lack of endurance in the left foot. The Veteran also had pain on manipulation of his left foot, but there was no evidence of swelling or callouses. The examiner reported that the Veteran had extreme tenderness on his left foot, which is improved by orthopedic shoes. There were no hammer toe deformities. He had a normal arch. Weightbearing was normal without excessive pronation and without arch collapse. Alignment was neutral with weightbearing. There was no marked inward displacement or severe spasm of the Achilles tendon on manipulation. The Veteran did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, or pes cavus (claw foot), malunion or nonunion of the metatarsal bones. The examiner noted the Veteran’s left foot plantar fasciitis, which he described as moderately severe, and remarked that the condition chronically compromised weight bearing and required arch supports, custom inserts or shoe modifications. Regarding functional impact, the examiner reported that the Veteran’s conditions did not impact his ability to perform any type of occupational task. Based on the foregoing, the Board finds the evidence of record does not support assignment of any higher rating than that assigned prior to or since May 22, 2019. For the pertinent period prior to May 22, 2019, the evidence shows that the Veteran’s primary problems with his left foot calcaneal spurs were complaints of pain, but not weakness, stiffness, swelling, heat or redness, or fatigability. The Veteran reported that he was stable in terms of pain intensity with “moderate pain in prolonged standing and walking positions.” Additionally, the October 2011 and December 2015 VA examiners noted that the Veteran did not have hammertoes, high arches, claw foot, pes planus, or other deformities; and that there was no objective evidence of painful, motion, edema, instability, weakness, tenderness in his feet, hallux valgus, or significant limitation of motion of the metatarsophalangeal joint of the great toe. Further, the VA examiners found that the Veteran had no callosities to indicate abnormal weight bearing. Collectively, this evidence indicates that the Veteran’s symptoms more closely approximated no more than overall moderate severity as contemplated by DC 5284. Since May 22, 2019, the pertinent evidence shows that the Veteran had had pain due to left calcaneal spurs on weight bearing, interference in standing, and lack of endurance in the left foot. The Veteran also reported decreased endurance, making it difficult to stand and walk. Additionally, the Veteran required orthotics to improve the extreme tenderness of plantar surface on his left foot. Weightbearing was normal without excessive pronation and without arch collapse. Alignment was neutral with weight bearing. There was no marked inward displacement or severe spasm of the Achilles tendon on manipulation. Collectively, this evidence indicates that the Veteran’s symptoms more closely approximate an overall moderately severe disability of his left foot, consistent with a 20 percent rating under DC 5284. However, overall severe disability or loss of use of either foot has not been shown. Moreover, other than secondary left foot plantar fasciitis (for which service connection has been granted, and the rating for which is not currently at issue), the Veteran\s left foot calcaneal spurs has not been sown to involve or to have involved any other factor(s) warranting evaluation under any potentially applicable diagnostic code. The evidence of record is devoid of any associated findings of weak foot, claw foot, hallux valgus, hallux rigidus, hammer toe, malunion or nonunion of the metatarsal bones, Morton’s neuroma, or other right foot deformity. Thus, a higher or separate rating under DC 5277, 5278, 5279, 5280, 5281, 5282, or 5283, respectively, is not warranted. In evaluating the claim for higher ratings for the Veteran’s service-connected left calcaneal spurs, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno, supra; Grottveit, supra. As noted, however, the criteria needed to support higher ratings require clinical findings that are within the province of trained medical professionals. See Jones, supra. Here, such findings do not support any rating(s) higher than those assigned for the Veteran’s connected left calcaneal spurs at any pertinent point. For all the foregoing reasons, the Board finds that there is no basis for any further staged rating of the Veteran’s left calcaneal spurs, and that an initial rating greater than 10 percent prior to May 22, 2019 and a rating greater than 20 percent from May 22, 2019 for the disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate 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.