Citation Nr: 21071341 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-54 525 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for chondromalacia, left knee (claimed as left knee injury), is denied. Beginning August 10, 2021, entitlement to a noncompensable rating for limitation of flexion of the left knee is granted. FINDINGS OF FACT 1. The Veteran's left knee disability (chondromalacia) was manifested by painful motion, and recurrent patellar instability that does not require a prescription from a medical provider for a brace, cane, or walker. 2. The Veteran's left knee disability (chondromalacia) has been manifested by normal extension, with flexion, at worst, to 50 degrees, as of August 10, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chondromalacia, left knee (claimed as left knee injury) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for a noncompensable rating, but no higher, for chondromalacia, left knee, based on limitation of flexion, have been met, as of August 10, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 2011 to March 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and a witness testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. The Board remanded this claim in October 2019, January 2021, and May 2021. The Board notes that the January 2021 Board remand directed the RO to obtain and associate with the claims file any outstanding private treatment records, including the October 2019 records referenced by the Veteran in her testimony. This was to be done with the help of the Veteran considering the records were previously not provided to the VA without payment and the Veteran indicated she had copies of the records. In January 2021, the RO sent the Veteran a subsequent development letter requesting she complete and return VA Form 21-4142 and VA Form 21-4142a so VA could obtain the records on her behalf. It further noted that she may want to send the records herself. No response to this request was received. Pursuant to the latest remand, the RO sent the Veteran a letter in June 2021 requesting the Veteran provide a copy of her private treatment records. No response to this letter was received. The Board notes that the October 2019 private examination discussed by the Veteran has not been made part of the record. However, substantial compliance with the prior remand has been achieved. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial rating in excess of 10 percent for chondromalacia, left knee (claimed as left knee injury) In an August 2019 rating decision, the Veteran's left knee chondromalacia rating was increased to 10 percent, effective January 8, 2014, a year before the Veteran filed her claim. The 10 percent rating was pursuant to the criteria under 38 C.F.R. § 4.71a, DC 5257, applicable to recurrent subluxation or instability, based on painful motion of the knee under 38 C.F.R. § 4.59. In the August 2021 supplemental statement of the case, the RO continued the 10 percent rating for left knee chondromalacia based on a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription from a medical provider for a brace, cane, or walker. The Veteran claims entitlement to a higher disability rating. In her October 2015 notice of disagreement, the Veteran explained she was seeking a rating of 10 percent or more. She indicated she had nerve damage in the left knee as well as chondromalacia. She also noted she suffered from shifting kneecap in the left knee. She experienced pain in her left kneecap that interfered with her functioning and caused loss of endurance in that she could not walk up and down stairs. She suffered fatigue because of interrupted sleep caused by the pain. Pain was four to five on a scale of one to ten with flareups of eight to nine. Pain flare ups required the Veteran to sit down at work and rest during working hours. Although her employer made an accomodation, it did affect the performance of her duties. Her knee was sometimes weak causing her to stagger and become unstable. Normally, the Veteran enjoyed a full range of motion; however, during pain flareups, her range of motion became slightly limited beyond 90 degrees. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a 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. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. 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 one of the following: A brace, cane, or walker. A 30 percent rating is assigned 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 and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 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 (Effective February 7, 2021). Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Diagnostic Codes 5260 and 5261, which address limitation of flexion and limitation of extension, respectively, were not changed by the amendments effective February 7, 2021. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. VA's General Counsel has also stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, DC 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent a VA examination in March 2015. At that time, the examiner noted a diagnosis of chondromalacia. The Veteran reported she could walk four to five miles, stand one to two hours, and sit for an unlimited amount of time. The Veteran did not report flare-ups or any functional loss or impairment. Range of motion measurements included flexion from zero to 140 degrees and extension 140 to zero degrees. No pain was noted on exam. Mild medial tenderness over the medial collateral ligament above the knee was noted. The Veteran was able to perform repetitive-use testing with at least three repetitions. No additional loss of function or range of motion after three repetitions was noted. It was noted pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. No joint instability was noted. It was noted the Veteran did not have nor had ever had recurrent patellar dislocation or any other tibial or fibular impairment. The examiner indicated the condition did not impact the Veteran's ability to perform any type of occupational task. Private treatment notes form May 2015 reflect the Veteran underwent another MRI, which was essentially normal. It was noted the Veteran still had some patellar chondromalacia, but it was unchanged from the previous MRI. Pain was the same of five out of ten. Upon examination, the Veteran had full range of motion from zero to 130 degrees. She was mildly tender to palpation over the medial joint line and along the entire course of the MCL and medial knee. The knee was stable to varus and valgus stress. She was negative for patellofemoral crepitus. Private treatment notes from February 2017 reflect that the Veteran was seen because her left knee pain was starting to return. About two years earlier, she had a successful genicular block. Her medial pain started to return, as well as some of the grinding and crepitus underneath her kneecap. Upon examination, the Veteran had full range of motion from zero to 130 degrees. She was mildly tender to palpation over the medial joint line and along the entire course of the MCL and medial knee. The knee was stable to varus and valgus stress. She had five out of five motor strength and mild patellofemoral crepitus. Some possible mild patellofemoral narrowing was noted on x-ray. A repeat nerve block was recommended. The examiner assessed the Veteran with left medial knee pain and patellar chondromalacia and noted early arthritis was possible. The Veteran had another VA examination in March 2017. The examiner indicated that it was possible the initial diagnosis of chondromalacia as the cause of her left knee pain was premature and inaccurate. If a nerve conduction revealed an abnormal conduction at the site, then the initial diagnosis may need to be changed to nerve entrapment syndrome of the left knee. The Veteran reported pain in the superior-medial aspect of the left knee which was exacerbated with activity. The Veteran reported flare-ups. She explained that when nerve blocks wore off after a few months, her pain level rose from a two out of ten to an eight out of ten and she limited her ambulation and activities of daily living. With respect to functional loss or functional impairment, the Veteran reported that when flare-ups occurred, she could only walk short distances before she had to sit down to allow the pain to subside, and her range of motion was slightly restricted. The Veteran's range of motion measurements were normal. Pain was noted on examination but did not result in or cause functional loss. Flexion resulted in pain, and there was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. There was loss of function or range of motion after three repetitions. After three repetitions, the Veteran's flexion was zero to 130 and her extension was 130 to zero. It was noted pain caused the functional loss. The examiner indicated he could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. Joint instability was not found. It was noted the Veteran did not have nor had ever had recurrent patellar dislocation or any other tibial or fibular impairment. No meniscus condition was found. The examiner noted the Veteran's condition restricted her occupational choices to those that allow for frequent sitting to alleviate knee pain. He noted zero to one week per year of work time would be lost. The Veteran underwent another VA examination in June 2019. She complained of sharp, throbbing pain; and was treated with physical therapy, cortisone injections, and nerve blocks. She reported she still had a constant dull ache with bouts of sharp pain and clicking. She treated the condition with anti-inflammatory meds. She reported flare-ups of the left knee occurred one to two times per week and were moderate to severe. The left knee flare-ups lasted one hour or more and were precipitated by over activity, weather change, and direct impact. She reported functional impairment of difficulty bending. The Veteran's left knee flexion was zero to 120 degrees and extension was 120 to zero degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and flexion. Objective evidence of crepitus was noted. Additional functional loss after three repetitions was not found. The examiner indicated pain significantly limited functional ability with repeated use over a period of time. The examiner described the functional loss in terms of range of motion of flexion of zero to 120 degrees and extension of 120 to zero degrees. The examiner noted pain significantly limited functional ability with flare-ups, and the examiner described this in terms of range of motion of flexion of zero to 115 degrees and extension of 115 to zero degrees. The examiner noted muscle strength of three out of five but indicated no reduction in muscle strength. No muscle atrophy was noted. Joint instability was not found. The Veteran did not have nor had ever had recurrent patellar dislocation or any other tibial or fibular impairment. The Veteran did not have a meniscus condition. With respect to functional impact, it was noted the Veteran was unable to walk further than half a mile or stand longer than ten minutes at a time due to knee pain. It was noted the diagnosis of chondromalacia was confirmed upon examination. At the time of her October 2019 Board hearing, the Veteran testified that her symptoms were increasingly getting worse since her last VA examination in June 2019. At that time, the Veteran stated her doctor, who she had seen earlier in October said her cartilage was deteriorating and her kneecap was maltracking because it tilted inward. He was able to see it via x-ray as well as feel the maltracking when he moved her kneecap around. He also noted a decrease in active flexion. He did a test saying she only has active flexion to 30 degrees and after that she has severe pain. She stated her limitation was just as severe during her June 2019 VA examination, but this was not reflected in the testing because the VA examiner tested her while she was laying down. She testified she did not believe the June 2019 VA examination accurately reflected her limitations. She explained she experienced pain standing or sitting down and bending her knee, but the examiner tested her while she was lying down. She explained she last saw her doctor for her knee in 2017. She testified because of her knee pain, she could not stand all day, especially at work. Within five to ten minutes, she needed to take a break and sit down on a stool. She explained she had a nerve block performed once in 2015 and once in 2017. She stated her doctor believed that part of her issue was that the sciatic nerve that branched into the knee joint was being pinched. The Veteran underwent another VA examination in January 2020. The Veteran reported left knee pain. She did not report flare-ups or functional loss. The Veteran's flexion was zero to 100 degrees and extension was 100 to zero degrees. The range of motion contributed to functional loss in that she could not crouch. Pain was noted on flexion. There was no evidence of pain with weight bearing or objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was not additional loss of function or range of motion after three repetitions. Muscle strength testing was normal. No joint instability was found. The Veteran did not have nor had ever had recurrent patellar dislocation or any other tibial or fibular impairment. The Veteran did not have a meniscus condition. The examiner indicated the Veteran had pain and decreased range of motion that caused difficulty walking for prolonged periods or going up and down stairs. She also had trouble lifting things such as her baby. She was unable to run at all or to walk or stand for prolonged periods. The Veteran underwent another VA examination in August 2021. The examiner noted a diagnosis of knee instability of the left knee, and indicated left knee chondromalacia. The Veteran did not report flare-ups. She reported functional loss or impairment including difficulty bending, walking, standing more than 15 minutes, or sitting for long periods. The Veteran reported left knee instability. The Veteran's flexion endpoint was 50 degrees and extension endpoint was zero degrees for both active and passive range of motion testing. There was evidence of pain on weight bearing and active motion. The examiner indicated the pain caused functional loss including difficulty squatting, standing, or sitting for prolonged periods. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examiner indicated that evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. The examiner indicated there was not recurrent subluxation or persistent instability nor had there been a ligament tear. The examiner noted there was recurrent patellar instability. The Veteran was not diagnosed with any tibial or fibial impairment or a meniscus condition. The Veteran had not had surgery and did not use any assistive devices. With respect to joint stability, the examiner indicated there was no history of lateral instability of the left knee. There were no findings of joint instability of the left knee. The left knee anterior and posterior instability test results were normal. The left knee medial instability test result was one plus (zero to five millimeters). The left knee lateral instability test result was normal. Under the pre-February 7, 2021 rating criteria, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee chondromalacia with instability. Prior to the most recent VA examination, the Veteran did not report instability during the VA examinations. Her 2015 notice of disagreement, completed by her attorney at the time, indicated her knee was sometimes weak causing her to stagger and become unstable. Otherwise, her concerns focused on pain and functional loss. During the August 2021 VA examination the Veteran reported left knee instability and the examiner checked the box for "recurrent patellar instability." The examiner indicated the left knee instability was a progression of the chondromalacia. Additional description of the left knee instability was not provided by the Veteran. The record does not suggest the presence of symptoms more nearly approximating moderate severity. Under the amended rating criteria, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee chondromalacia with instability. The record does not reflect the Veteran has had recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Nor does the record reflect the Veteran's disability more closely approximates this level of disability. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The record does not reflect ankylosis of the knee. Therefore, a separate rating under Diagnostic Code 5256 is not warranted. The record does not reflect dislocated semilunar cartilage. Therefore, a separate rating under Diagnostic Code 5258 is not warranted. The record does not reflect removal of semilunar cartilage. Therefore, a separate rating under Diagnostic Code 5259 is not warranted. The record reflects the Veteran meets the criteria for a noncompensable rating under Diagnostic Code 5260 for limitation of flexion as of August 11, 2021, when the Veteran's range of motion testing indicated flexion of 50 degrees. Earlier testing, as outlined above, did not meet the requirement of flexion limited to 60 degrees, even when considering a reduction in range of motion or functional loss after three repetitions, as there was in March of 2017. The Board notes the Veteran testified that private testing revealed flexion limited to 30 degrees. While the Veteran is competent to report the results of her testing, greater weight is afforded the range of motion testing results that are documented in writing in the record. The Board notes that private treatment notes from May 2015 and February 2017 reflect the Veteran had a full range of motion from zero to 130 degrees. The Board finds that the preponderance of the evidence is against a compensable rating for limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating flexion limited to 45 degrees. The Board notes the Veteran's report of flare ups was not consistent throughout the VA examinations. She did not always report having flare ups. Additionally, private treatment notes reflect she experienced some relief with treatment in 2015. The record does not reflect limitation of extension, with extension limited to five degrees or more. Therefore, a separate rating under Diagnostic Code 5261 is not warranted. The record does not reflect impairment of the tibia and fibula. Therefore, Diagnostic Code 5262 is not at issue. The record does not reflect genu recurvatum. Therefore, Diagnostic Code 5263 is not at issue. The Board notes the Veteran claimed she had nerve damage that affected her knee in addition to chondromalacia, and the March 2017 VA examiner indicated that her diagnosis might need to be changed to nerve entrapment syndrome of the left knee if a nerve conduction revealed an abnormal conduction at the site. The record does not reflect the Veteran underwent a nerve conduction study. However, the June 2019 VA examiner specified that the diagnosis of chondromalacia was confirmed upon examination. The Veteran is not competent to diagnose a nerve condition. While she explained that her private physician believed the sciatic nerve that branches into the knee joint is being pinched and affecting her pain, little weight is afforded this assessment considering it is not coming directly from the doctor and it appears to have been a hypothesis that had not yet been confirmed. The preponderance of the evidence reflects a diagnosis of chondromalacia. The Veteran may submit additional evidence of a nerve condition at any time. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee chondromalacia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.