Citation Nr: 21066726 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 09-22 113 DATE: November 2, 2021 ORDER Entitlement to a rating of 30 percent prior to June 1, 2010, for instability of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent after to June 1, 2010, post-surgery instability of the right knee, is denied. Entitlement to an initial disability rating in excess of 30 percent for service-connected traumatic arthritis, right knee, with limitation of motion (now rated as traumatic arthritis of the right knee with extension limitation of motion and atrophy of the calf) is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected traumatic arthritis of the right knee with flexion limitation of motion is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2010 is denied. FINDINGS OF FACT 1. Affording the Veteran, the benefit of doubt, for the period prior to June 1, 2010 the severity of his right knee instability was severe, as demonstrated by a positive Lachman test. 2. For the period beginning June 1, 2010, the Veteran is assigned 30 percent rating for post-surgery lateral instability of the right knee which is the maximum rating for lateral instability of the knee. 3. Throughout the period on appeal, the Veteran's extension of the right knee was limited to 20 degrees. 4. The Veteran's flexion of the left knee was not limited to 45 degrees or less at any time during the period on appeal; his right knee did produce painful motion. 5. Prior to June 1, 2010, the Veteran's service-connected disabilities did not preclude the Veteran from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 30 percent for instability of service-connected right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code (DC) 5257. 2. For the period beginning June 1, 2010, the criteria for a rating in excess of 30 percent for post-surgery instability of the right knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5257. 3. The criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected traumatic arthritis, right knee, with limitation of motion (now rated as traumatic arthritis of the right knee with extension limitation of motion and atrophy of the calf) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5261. 4. The criteria for entitlement to an Initial disability rating in excess of 10 percent for service-connected traumatic arthritis of the right knee with flexion limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5260. 5. The criteria for entitlement to TDIU, prior to June 1, 2010, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1971 to July 1973, and from August 1978 to May 1980. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2010. A transcript of that hearing is of record. These issues were most recently before the Board in September 2020. The Board is satisfied that there has been substantial compliance with the September 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. § 4.14, 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a rating in excess of 20 percent for instability of the right knee, prior to June 1, 2010, and in excess of 30 percent from June 1, 2010 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected traumatic arthritis, right knee, with extension limitation of motion (now rated as traumatic arthritis of the right knee with extension limitation of motion and atrophy of the calf) 3. Entitlement to an Initial disability rating in excess of 10 percent for service-connected traumatic arthritis of the right knee with flexion limitation of motion During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed, 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 February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code (DC) 5257 (instability) and DC 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. DC 5262 is not relevant to this appeal Separate ratings may be assigned for limitation of flexion and limitation of extension and instability of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005); 38 C.F.R. § 4.14; VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees; 10 percent, flexion limited to 45 degrees; 20 percent, flexion limited to 30 degrees, and; 30 percent, flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees;10 percent, limitation of extension to 10 degrees. A rating of 20 percent is warranted for extension to 15 degrees; 30 percent, extension to 20 degrees; 40 percent to 30 degrees, and; 50 percent, extension to 45 degrees. 38 C.F.R. § 4.74a, DC 5261. Under the older version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Under DC 5259, symptomatic removal of the semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a. The current evaluation of the Veteran's right knee disability includes separate ratings under multiple diagnostic codes. The Veteran's left knee is not service connected. The claims have been pending since August 17, 2007. The Veteran's right knee is rated under DC 5257 as 20 percent from December 7, 2004 for lateral instability and a 30 percent rating from June 1, 2010. The Board notes that the Veteran was also assigned a temporary total disability for the period from April 8, 2010 to June 1, 2010 for convalescence following right knee surgery under 38 C.F.R. § 4.30. See May 2010 and October 2012 rating decisions. A separate 10 percent rating is assigned under DC 5260 for limitation of flexion for the entire appeal period. A separate 30 percent rating is assigned under DC 5261 for limitation of extension and atrophy of the calf from June 1, 2010. See October 2012 rating decision. On VA examination in January 2008, the Veteran reported to the examiner that he has had problems with his knee since leaving service to include pain, instability and locking. Initial range of motion (ROM) for the right knee was negative 5 degrees to 90 degrees flexion with painful motion and 0 to negative 5 degrees extension. The examiner also noted right knee instability, with crepitus and abnormal patellar tracking. The examiner noted there was no effusion. VA treatment records document that the Veteran had a meniscal tear in January 2008 and a partial meniscectomy in October 2008. An orthopedic note from January 2010 that the Veteran's right knee ROM for forward flexion was 0 to 110 degrees and that he could extend his right knee to 0 degrees. However, in September 2010, the Veteran's ROM was to 110 degrees forward flexion, while his right knee extension was to 20 degrees. On VA examination in February 2010, the Veteran reported that his right knee was painful with weakness and instability daily or more often. The examiner noted that the Veteran had guarding with movement of his right knee. Initial range of motion (ROM) for the right knee was 0 degrees to 100 degrees flexion with painful motion and 0 degrees extension. After repetitive use, ROM for the right knee was negative 5 degrees to 90 degrees flexion with painful motion and 0 to negative 5 degrees extension. The examiner also noted right knee instability, with crepitus and abnormal patellar tracking. The examiner noted there was repeated effusion. Bilateral lower extremity measurements showed some atrophy to the right lower extremity. The examiner further opined that functional impairment from the Veteran's right knee that he has to walk more slowly and when he is sitting, he must leave his right knee extended to relieve pain. The examiner did not provide an estimate of ROM during flare-ups because the Veteran reported his symptoms being different with each flare-up. The examiner also noted the Veteran experienced pain with weight bearing. The Veteran testified at his August 2010 Board hearing. During that hearing the Veteran testified that his right knee is unstable and that a month prior that instability caused him to fall and required treatment at a hospital emergency room. The Veteran also stated that he uses a knee brace and a cane to ambulate. He also had right knee surgery on his anterior cruciate ligament (ACL) in April 2010 which causes further instability. Pursuant to the Board's October 2010 remand, the Veteran was given a VA examination in November 2010. The examiner noted that the Veteran had two surgeries for his knees, with one in 2009 to repair his right ACL and another in 2010 to remove his right ACL due to complications. As a result of not having his ACL, the Veteran's right knee is unstable and dislocates while he is walking. As result the Veteran is required to use a brace whenever he is walking. Initial range of motion (ROM) for the right knee was 15 degrees to 70 degrees flexion with painful motion and 15 degrees extension. The Veteran was unable to perform repetitive use ROM testing because he gets severe pain after two repetitive motions. The examiner noted that the Veteran's right knee had 5 to 10 millimeters (mm) movement both anteriorly and posteriorly. His right knee also 5 to 10 mm of medial-lateral instability. The Veteran's right knee had moderate patellar dislocation. The examiner also noted that the Veteran had frequent episodes of joint effusion, joint pain and joint locking, a meniscal tear and meniscal dislocation. The Veteran was given a VA examination in April 2013. During the examination the Veteran reported to the examiner that his current problem is instability to the right knee which causes him to fall a lot due to his knee giving out. The examiner documented that the Veteran did not report any flare-ups. Initial range of motion (ROM) for the right knee was 0 degrees to 100 degrees flexion with painful motion and 0 degrees extension. ROM after Repetitive use was the same as his initial ROM. The examiner opined that the Veteran's right knee disability causes functional impairment of weakened and less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, deformity, instability of station and disturbances of locomotion. The examiner documented normal right knee stability for all motions during joint stability testing. The examiner also documented that the Veteran did not have a meniscal condition or surgery for a meniscal condition. Pursuant to the Board's October 2013 remand, the Veteran was given a VA examination in January 2017. The Veteran reported to the examiner that his right knee still hurts, unstable when he walks and bends his knee and makes clicking sound. He wears a right knee brace all the time when he is walking. The Veteran also reported having flare-ups described as worse pain with bad weather. Initial range of motion (ROM) for the right knee was 0 degrees to 110 degrees flexion and 0 degrees extension. Repetitive motion testing was not performed. The examiner noted that pain, weakness, lack of endurance and incoordination that significantly limit functional ability with repeated use over a period of time. The examiner did not provide a ROM estimate during flare-ups; stating that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The Veteran was also found to have muscle atrophy to his right lower extremity. The examiner noted no history of effusion and joint instability testing was normal. Pursuant to the Board's September 2017 remand, the Veteran was given a VA examination in October 2017. The Veteran reported to the examiner that his right knee hurts all the time described as like "driving a nail through." The Veteran further stated that his knee pain is usually a five or six out of ten, but on the day of the examination his pain was an eight out of ten. The Veteran described the functional impact from his right knee disability as being unable to climb ladders, walk for long periods of time, run or ride a bicycle. Initial range of motion (ROM) for the right knee was 10 degrees to 110 degrees flexion and 110 degrees to 0 degrees extension. Repetitive motion testing was not performed and a ROM estimate during flare-ups was not provided. The Veteran was also found to have right lower extremity atrophy and joint instability of 0 to 5 mm movement both anteriorly and posteriorly. His right knee also 0 to 5 mm of medial-lateral instability. However, the Veteran was not found to have effusion. The examiner also noted that the Veteran has not have or had a patellar dislocation or shin splints or any other tibial and/or fibular impairment. The Veteran also requires the use of a knee brace, crutches and a cane. In a December 2017 addendum the examiner opined that ROM testing was the same in active motion, passive motion, weight-bearing and non-weight-bearing for the right and left Knee. Pursuant to the Board's August 2018 remand, an addendum a VA examination opinion was obtained in May 2019. The examiner provided an addendum opinion that "After examination of the veteran, listening to their complete history and current subjective complaints, combined with a review of the available records, I have no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare up." Pursuant to the Board's September 2020 remand, the Veteran was given a VA examination in January 2021. The Veteran reported to the examiner that his right knee causes persistent and worsening pain, popping, grinding, locking, and sometimes "giving out" on uneven terrain. The Veteran feels a lot of popping and grinding and, pain is worse when he keeps his knees bent. The Veteran cannot stand up on his own power if he squats. Initial range of motion (ROM) for the right knee was 15 degrees to 65 degrees flexion and 65 degrees to 15 degrees extension. After repetitive testing, the Veteran's ROM for the right knee was 20 degrees to 60 degrees flexion and 60 degrees to 20 degrees extension. The examiner opined that the Veteran's ROM during flare-ups for the right knee was 20 degrees to 60 degrees flexion and 60 degrees to 20 degrees extension. The examiner found that the Veteran does not have muscle atrophy. The Veteran was noted to have moderate recurrent subluxation and lateral instability. He also has recurrent effusion with swelling and pain. Joint instability showed 0 to 5 mm movement both anteriorly and posteriorly. His right knee also 0 to 5 mm of medial-lateral instability. The Veteran was also noted to have had a meniscal tear with frequent episodes of joint locking and joint pain. The Veteran requires the constant use of a walker and right knee brace. The examiner opined that the functional impact caused by the Veteran's right knee is difficulty in climbing stairs and he cannot stand up on his own power if he squats. The examiner also noted objective evidence of pain on passive ROM and non-weight bearing. Lateral Instability The Veteran's right knee is rated as 20 percent from December 7, 2004 for lateral instability and a 30 percent rating from June 1, 2010. The criteria for a 30 percent rating prior to June 1, 2010 is met. During this period, the Veteran has had lateral instability that causes him to fall several times per day. He has even sought treatment at a hospital following a fall. The Veteran has required surgery to repair his ACL and then remove his ACL after that repair failed. The Board finds that the Veteran's right knee instability most closely approximates a severe disability rating of 30 percent for the period on appeal prior to June 1, 2010. As the 30 percent rating is the maximum evaluation available under Diagnostic Code 5257, a higher evaluation under the Diagnostic Code is unavailable. The revised version of DC 5257 is not more favorable as the 30 percent rating is the maximum schedular rating under the revised version of DC 5257. English v. Wilkie, 30 Vet. App. 347 (2018). Limitation of Extension The Veteran's right knee is also rated as 30 percent disabling under DC 5261 for limitation of extension and atrophy of the calf from June 1, 2010. The criteria for a separate compensable rating for limitation of extension are not met prior to June 1, 2010. VA examinations of record show extension to 0 degrees or greater and that painful motion is associated with flexion, such as climbing stairs or sitting for long periods. The Board finds that after June 1, 2010, a higher 40 percent rating is not warranted. The Veteran's right knee ROM during extension was at most limited to 20 degrees. As extension is not limited to 30 degrees, the criteria for a rating in excess of 30 percent for limitation of extension after June 1, 2010 are not met or more closely approximated. Limitation of Flexion The Veteran's right knee is rated as 10 percent disabling under DC 5260 for limitation of flexion for the entire appeal period. The Veteran has had painful motion during right knee flexion throughout the period on appeal, Under 38 C.F.R. § 4.59, the Veteran is entitled to the minimum compensable rating of 10 percent. The criteria for a rating greater than a 20 percent rating for limitation of flexion are not met at any time during the appeal period. There are no findings showing flexion was limited to 30 degrees. At worst, flexion was to 60 degrees after repetitive testing. See January 2021 VA examination. 4. Entitlement to TDIU prior to June 1, 2010 TDIU was awarded effective June 1, 2010. See February 2021 rating decision. The claim is still pending for the period before June 2010, as part of the increased rating claims pending for the earlier period. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2020). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a) (2020). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19 (2020). Prior to June 1, 2010, including the above increased rating decision, the Veteran's service-connected disabilities are lateral instability of the right knee with a 30 percent rating; limitation of flexion with a 10 percent rating and noncompensable rating for scars. His combined disability rating is 40 percent effective August 17, 2007. Thus, he does not meet the schedular criteria for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran also has a back disability that is not service connected. At his August 2010 Board hearing, the Veteran testified that he stopped working five to six years prior due to a non-service-connected back disability. Subsequent to his Board hearing, the Veteran submitted an application for TDIU (VA Form 21-8940) in October 2010. On the application he reported that his unemployability was due to his service-connected right knee disability. The Veteran reported that he has not worked since 1988. His employment was as a plumber and a laborer prior to that. He has a high school education. Prior VA examinations report that the Veteran's service-connected disabilities caused the functional impairment of not being able to stand or walk for long periods and difficulty navigating stairs. However, during an April 2013 VA examination, the Veteran reported to the examiner that he quit working in the 1980's due to his back problems and has not worked since that time. The central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted above, prior to June 1, 2010, the Veteran does not have one service-connected disability rated at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent. As such, the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) are not met. Additionally, during his Board hearing and also during his August 2013 VA Examination the Veteran has reported that he is unable to work due to his non-service-connected back disability. The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.