Citation Nr: 21000640 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-51 975 DATE: January 5, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a disability of the spine, to include the lumbar and cervical spines is denied. Entitlement to service connection for residuals of pneumonia is denied. Entitlement to service connection for chronic joint pain associated with pneumonia is denied. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran’s bilateral knee disabilities did not manifest in service or for many years thereafter and are not otherwise related to any in service injury, event, or disease. 2. The evidence of record demonstrates that the Veteran’s cervical and lumbar spine disabilities did not manifest in service or for many years thereafter and are not otherwise related to any in-service injury, event, or disease. 3. The preponderance of the evidence weighs against finding that the Veteran suffers from residuals of pneumonia which began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence weighs against finding that the Veteran suffers from chronic joint pain associated with residuals of pneumonia which began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for establishing entitlement to service connection for a disability of the spine, to include the lumbar and cervical spines have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for establishing entitlement to service connection for residuals of pneumonia have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for establishing entitlement to service connection for chronic joint pain associated with pneumonia have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from November 1983 to March 1984. In a December 2016 substantive appeal, the Veteran requested a video conference hearing. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Pursuant to a May 2019 Board decision, this matter was remanded for additional development to include obtaining outstanding Social Security Administration records. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for a bilateral knee disability The Veteran contends that his bilateral knee condition is causally related to active service. As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran’s claim, the threshold inquiry before the Board is whether he has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral knee osteoarthritis, the preponderance of the evidence weighs against finding that his condition began during or is otherwise related to an in-service injury, event, or disease. Service treatment records are silent for complaints of a bilateral knee injury, pain, or a diagnosed condition. In August 1983, no physical abnormalities were identified. In February 1984, a clinical record referenced complaints of head, nasal and chest congestion, a runny nose, sore throat, and coughing. As to the upper extremities, no tenderness upon palpation to the chest or back was observed. In November 1987, a report of medical examination revealed normal findings. Also, no complaints of recurrent back pain, trick or locked knee, bone, joint, or other deformity were indicated upon separation. The Veteran’s post-service employment history included years of work as an auto mechanic. In January 2014, he was evaluated at a community hospital for complaints of knee pain and swelling with no specific injury. Suspicion of chondromalacia and osteoarthritis was indicated. Radiological imaging revealed an arthritic pattern and meniscal calcification with soft tissue swelling located above the patella. There was no evidence of an acute fracture injury. An intake evaluation in March 2014 referenced knee pain. The Veteran endorsed a prior diagnosis of osteoarthritis of the bilateral knees. To treat pain, he was prescribed Robaxin and over the counter (OTC) medication, Naproxen. Other reported symptoms included back pain, a current diagnosis of hypertension, and a history of excessive smoking. In April 2014, current diagnoses included osteoarthritis of the bilateral knees and lumbago. Social Security Administration (SSA) records noted reports of bilateral knee pain and swelling beginning in 2014. In June 2018, a health record, listed frequent bouts with left knee pain. A radiology report documented arthritic changes and significant chondrocalcinosis. Suspicion of crystal deposition disease (CPPD), with no other acute abnormalities were referenced. During a Board hearing in January 2019, the Veteran reported frequent complaints of bilateral knee pain. During active service, he endorsed participation in intensive physical training and running. He also reported bilateral knee pain with swelling that persisted through much of his adult life. Other symptoms included periodic difficulty walking. The Veteran contends that his symptoms began shortly after separation. Reportedly, he experienced bouts with knee pain during his period of service in the reserves. The Board observes that the Veteran has not been afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose a bilateral knee condition or opine as to its etiology. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include documented complaints of symptoms and an initial diagnosis of osteoarthritis of the bilateral knees beginning in January 2014 – approximately 30 years after separation from active duty. On review of the record, the Board finds that the evidence fails to show a causal linkage between the Veteran’s bilateral knee condition and active service. Specifically, service treatment records are silent for complaints symptoms or related treatment. Post-service treatment records document complaints of symptoms beginning on or about 2014; decades after separation. Moreover, the Veteran’s post-service employment history included years of work as an auto mechanic. Required duties included heavy lifting, prolonged walking and standing, kneeing and bending. The record contains no evidence of a causal linkage between the Veteran’s current condition and active service, or, to suggest that further investigation is warranted. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a bilateral knee condition must be denied. 2. Entitlement to service connection for a disability of the spine, to include the lumbar and cervical spines The Veteran also contends that he suffers from a disability of both the cervical and lumbar spine as causally related to active service. As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran’s claim, the threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of stenosis of the cervical spine and degenerative disc disease of the lumbar spine, the preponderance of the evidence weighs against finding that the conditions are causally related to active service, to include as due to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). Service treatment records are largely silent for complaints of low back or neck pain or a related abnormality. In February 1984, the Veteran was treated for symptoms related to an upper respiratory infection. A physical examination revealed no evidence of pain to palpation of the neck, chest or back. No treatment a low back or neck condition, with related symptoms were reported at separation. Post-service treatment records suggested an onset of neck and back pain in 2010. In February 2010, the Veteran was evaluated for complaints of neck pain. X-rays of the cervical spine revealed a 1-millimeter (mm) retrolisthesis at C4-C5 and unilateral right-sided uncovertebral hypertrophy resulting in minimal neuroforaminal narrowing. Several months later, magnetic resonance imaging (MRI) was conducted. Diagnostic findings revealed mild right neuroforaminal stenosis at C3-C4 with mild central stenosis. A broad-based protrusion was observed at C6-C7 with mild central stenosis. Posterior disc osteophyte complexes were noted at C4-C5 and C5-C6, with borderline central canal. Other multilevel degenerative changes were also indicated. In May 2011, an MRI of the lumbar spine was conducted with contrast. Degenerative disc changes were documented as most significant at L3-L4, with neural foraminal stenosis. Suspicion of radiculopathy was also noted. Physical therapy notes, dated March 2013, referenced treatment for neck and back pain. Other symptoms include decreased mobility, reduced range of motion, and impaired stability. During the clinical evaluation, the Veteran reported an onset of back and neck pain in January 2012. He denied any specific injury to the neck or back. The Veteran asserted that his pain was likely related to his work as a mechanic. He also reported a period of active service over a period of 7 years. Other treatment records referenced an onset of pain 3 years earlier. According to the Veteran, his pain began in his neck and progressed to his back over time. Repeat MRI’s were conducted in February 2013. Findings in the cervical spine revealed a minimal broad-based disc bulge located at C2-C3, a protrusion with annular tissue contacting the cord, mild indentation, mild narrowing at C3-C4; a protrusion with narrowing at the ventral epidural space at C4-C5; a protrusion with posterior annular tissue contacting the cord without indentation at C5-C6; and a protrusion with mild narrowing at C6-C7. As to the lumbar spine; the diagnostic impression noted a disc desiccation at the L3-L4 and L4-L5 levels, a minimal broad-based disc bulge with left foraminal annular fissure at L3-L4, mild moderate narrowing of the neuroforaminal with possible contact of the undersurface of the bilateral L3 nerve roots; and posterior annular fissure with mild diffuse disc bulge at L4-L5. Although a history of degenerative disc changes in the low back and neck were indicated, no significant diagnostic changes were noted between the current MRI findings and the evaluations conducted in August 2010 and May 2011. An intake evaluation in March 2014, referenced back pain described as chronic. Two years later, an SSA disability report referenced arthritis, chronic back pain, depression, bi-polar disorder, and a heart condition in October 2016. A radiological report, dated November 2016, noted marked hypertrophic degenerative bone, joint, and disc disease in the lumbar spine. Mild joint space narrowing was observed at L4-L5 interverbal disc space. Arthritis was also noted. No acute abnormalities were identified. During a Board hearing in January 2019, the Veteran reported hip and back pain dating back to 1989 or 1990. His symptoms were incurred following participation in strenuous exercise, to include physical training, running, and carrying a heavy backpack weighing over 30 pounds. The Veteran denied any complaints of history of symptoms prior to his period of active service, to include his reserve service. The Board observes that the Veteran has not been afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose a cervical and lumbar spine condition or opine as to its etiology. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include documented complaints neck and back pain beginning on or about 2010. On review of the record, the Board finds that the evidence fails to show a causal linkage between the Veteran’s cervical and lumbar spine conditions and active service. Specifically, service treatment records are silent for complaints symptoms or related treatment. Post-service treatment records document complaints of symptoms beginning on or about 2010; decades after separation. Moreover, the Board observes that the Veteran’s post-service employment history included years of work as an auto mechanic. His required duties included heavy lifting, prolonged walking and standing, kneeing and bending. Under the circumstances, there is no reasonable basis upon which to link the Veteran’s current conditions and active service. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a cervical and lumbar spine condition must be denied. 3. Entitlement to service connection for residuals of pneumonia, to include associated chronic joint pain The Veteran contends that he is entitled to service connection for residuals of pneumonia, to include associated chronic joint pain. As discussed in more detail below, the preponderance of the evidence is against his claim. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with left-side pneumonia and other diagnoses related to complaints of various joint pain, and the preponderance of the evidence weighs against finding that the Veteran’s respiratory condition, alleged residuals, or complaints of joint pain are causally related to active service, to include due to an in-service injury, event or disease. Service treatment records are largely silent for complaints, treatment, or a current diagnosis of a respiratory condition or joint pain. In fact, only a single instance of treatment was noted for an acute onset of an upper respiratory infection. No current diagnosis of pneumonia or chronic symptoms, to include joint pain were reported. The Veteran denied any current conditions at separation. Post-service treatment records show a current diagnosis of pneumonia. In February 2016, a regional medical center record noted complaints of a sore throat and coughing up yellow phlegm. No reports of chills or vomiting were reported. The Veteran denied shortness of breath or wheezing. Left-sided pneumonia was observed on X-ray films. A physical examination revealed normal breath sounds. An emergency department record, dated March 2016, referenced chest pain, a persistent cough, wheezing/mild labored breathing, and nausea. An onset of symptoms began one week earlier. Pain in the right wrist was also reported. In November 2016, a disability evaluation report noted a three-year history of arthritis of unknown etiology that impacted the Veteran’s back, neck, upper and lower extremities. An emergency department note, dated March 2018, referenced pain and swelling in multiple fingers in the right hand, right Achilles and ankle. Chronic pain was described as aching and throbbing. An onset of symptoms was described as 3 weeks earlier. Arthritis with recent exacerbation was reported. Prescribed medications included, Indomethacin and Metoprolol Tartrate. In May 2018, a radiology report of the right upper extremity and hand revealed degenerative joint disease and poly-osteoarthritis. Evidence of calcifications were observed along the triangular fibrocartilage consistent with an element of CPPD. Generalized carpal crowding was also indicated, with mild chronic changes. During Board hearing in January 2019, the Veteran reported an initial diagnosis of pneumonia while stationed at Fort Dix, in New Jersey on or about 1983 or 1984. An additional diagnosis and related treatment occurred during his period of reserve service. Beginning in 1998 or 1999, the Veteran reported bouts with joint pain. He acknowledged use of anti-inflammatory medications to treat pain for over 20 years. The Board observes that the Veteran has not been afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose pneumonia, various joint pain, or opine as to their etiology. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record. Specifically, the record confirms only a single instance of treatment for an upper respiratory infection in service, with no diagnosis of pneumonia or complaints of chronic or residual symptoms, to include joint pain. Post-service treatment records document a current diagnosis of left-sided pneumonia in March 2016, decades after separation. Complaints of right wrist, hand, and ankle pain were first reported around the same period. At no time has the medical evidence suggested a correlation between the Veteran’s respiratory symptoms, his complaints of joint pain and active service. Accordingly, the Board finds that the evidence fails to show a causal linkage between the Veteran’s respiratory symptoms and joint pain to active service. While the record confirms in-service treatment for respiratory symptoms, an acute onset was noted with no residual reported at separation. Moreover, the Board observes that the Veteran’s post-service treatment history suggests an onset of his respiratory symptoms and joint pain on or about 2016 - decades after separation. Further, the Veteran’s post-service employment history included years of work as an auto mechanic. Required duties included heavy lifting, prolonged walking and standing, kneeing and bending; and likely exposure to engine and exhaust fumes. Under the circumstances, there is no reasonable basis upon which to link the Veteran’s respiratory condition or joint pain and active service. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for residuals of pneumonia, to include associated chronic joint pain must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.