Citation Nr: 21071627 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-27 097A DATE: December 1, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the right ankle is denied. Entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the left ankle is denied. FINDINGS OF FACT 1. The evidence of record shows the Veteran's bone chip, status post-surgical repair of the right ankle manifested by a no more than moderate limitation of motion without ankylosis. 2. The evidence of record shows the Veteran's bone chip, status post-surgical repair of the left ankle manifested by a no more than moderate limitation of motion without ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the right ankle were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes (DCs) 5003, 5270-5274. 2. The criteria for entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the left ankle were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a; DCs 5003, 5270-5274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the Navy from June 1969 to March 1973 and June 1984 to December 1995. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, May 2017, and April 2019 the Board remanded the Veteran's claims for additional development. The Board notes a May 2018 rating decision issued a partial grant of the Veteran's appeal. The Veteran was granted a 10 percent evaluation for his bone chip, status post-surgical repair of the bilateral ankles effective April 28, 2009. He was also granted service connection for the right ankle lateral surgical scar and left ankle medial and lateral surgical scar effective April 28, 2009. His bilateral scars were found noncompensable. In December 2020, the Board denied the Veteran's claims for entitlement to an evaluation in excess of 10 percent for bone chip, status post-surgical repair of the bilateral ankles, entitlement to a compensable evaluation for right ankle lateral surgical scar, and entitlement to a compensable evaluation for left ankle medial and lateral surgical scar. He subsequently appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In an August 2021 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's December 2020 denial of entitlement to an evaluation in excess of 10 percent for bone chip, status post-surgical repair of the bilateral ankles and remanded the appeal to the Board for readjudication consistent with the JMPR. The Court determined the Board failed to provide an adequate statement of reasons and bases. The Board decision relied on the November 2019 VA examination, which found at worst a moderate limitation of motion in the ankles and did not adequately address the favorable findings in the August 2015 VA examination. The Board notes the October 2021 appellant brief contending entitlement to a compensable rating for the Veteran's service-connected right ankle lateral surgical scar and left ankle medial and lateral surgical scar. However, the December 2020 Board denial of increased ratings for his bilateral ankle scars was not appealed by the Veteran to the Court. Therefore, these claims are not currently on appeal to the Board. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the right ankle is denied. 2. Entitlement to an evaluation in excess of 10 percent for a bone chip, status post-surgical repair of the left ankle is denied. Applicable Law and Regulations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentages contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's bilateral ankle bone chip status post-surgical repair is rated under DC 5003-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. The hyphenated diagnostic code indicates that degenerative arthritis (DC 5003) was rated under the criteria for limited motion of the ankle (DC 5271). DC 5003 (degenerative arthritis, other than post-traumatic) provides that if degenerative arthritis is established by x-rays, then the disability is rated under the appropriate diagnostic code for the specific joint limitation of motion. When the rating of a specific joint is noncompensable under the codes pertaining to limitation of motion, a rating of 10 percent is for application for each major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id., Note 2. Normal range of motion of the ankle is dorsiflexion from zero to 20 degrees, and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, DC 5271, a 10 percent rating for restricted motion of the ankle is warranted for a moderate limitation (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a maximum 20 percent rating for restricted motion of the ankle is warranted for a marked limitation (less than five degrees dorsiflexion or less than 10 degrees plantar flexion). DC 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between zero degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. DC 5272 provides ratings for ankylosis of the subastragalar or tarsal joint. Ankylosis of the subastragalar or tarsal joint in a good weight bearing position is to be rated 10 percent disabling. Ankylosis of the subastragalar or tarsal joint in a poor weight bearing position is to be rated 20 percent disabling. DC 5273 provides ratings for malunion of the os calcis or astragalus. A moderate deformity of the os calcis or astragalus is to be rated 10 percent disabling. A marked deformity of the os calcis or astragalus is to be rated 20 percent disabling. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Factual Background and Analysis The Veteran contends that his service-connected ankles warrant a higher evaluation than the current rating reflects. In a June 2009 VA examination, the Veteran reported his ankles felt crooked and he had occasional pain. He had purchased shoes with coils in the heels to help alleviate his pain, however, walking half a mile and standing one hour in the shoes produced pain in both ankles. He reported flare ups in both ankles once about every six months. He denied tenderness, stiffness, weakness, and redness in the ankles. The Veteran also reported instability when he attempted to walk without shoes. Physical examination found his bilateral ankle dorsiflexion ranged from zero to 20 degrees with no pain and his bilateral plantar flexion ranged from zero to 45 degrees with no pain. There was no evidence of pain, increased weakness, decreased endurance, or incoordination with repetitive motion. He had no additional loss of function in terms of degrees of range of motion of the bilateral ankles following repetitive motion. His gait was within normal limits both with and without shoes, he retained five out of five strength in his dorsiflexion and plantar flexion, his Achilles tendons were in good alignment with the heel, and his arches were well maintained. The Veteran was diagnosed with bone chips of his bilateral ankles with surgical repair. The June 2009 VA examination did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner did not perform joint testing for pain during passive motion, weight bearing, and non-weight bearing. Therefore, this opinion was accorded little probative weight. In an October 2010 private treatment record, the Veteran reported gait abnormality and occasional ankle pain. Physical examination found slightly decreased range of motion of the subtabular joint with 10 degrees inversion and five degrees eversion. He had mild tenderness to palpation of the anterior ankles. His treating provider found his symptomatology somewhat minor for the ankles, however, there were signs of arthritis with spurring in the lower extremities. Custom molded inserts were his recommended treatment. An August 2012 VA treatment record noted some stiffness in the ankle. He exhibited satisfactory range of motion of the subtabular joint. There was no evidence of crepitus in either ankle joint. He also had adequate dorsiflexion and plantar flexion. He likely had some ankle arthritis secondary to his previous surgeries. He was prescribed ankle braces for stabilization as well as new deep heel seat shoe inserts. In a January 2013 follow up visit, the Veteran reported his ankle brace helped but that he had developed a sharp pain in the anterior ankle. His prescription orthotics tilted his feet to the outside too much and he had not gone in for an adjustment yet. He also reported receiving physical therapy. Physical examination found the range of motion in his joints was satisfactory and without evidence of crepitus. He had bilateral bony enlargement of the ankle malleoli. The Veteran was ordered a different type of ankle brace and encouraged to have his inserts adjusted. In May 2013, he presented at physical therapy for chronic ankle pain, which he reported was improved with orthotics. He was interested in a home exercise program but indicated he would have limited compliance. He was assessed with limited functional mobility due to pain. By September 2014, he reported constant ankle pain and some swelling. Physical examination found minimal tenderness of the anterior talofibular ligament (ATFL) of the bilateral ankles. There was no crepitus in either ankle and he had grossly normal range of motion. He had some increased abduction and external rotation of the right ankle throughout his contact phase of his gait, but his gait was otherwise not antalgic. The Veteran reported to doctors in October 2014 that he experienced a 50 to 60 percent improvement in his symptoms and ankle function since receiving his orthotics and Mobic. In January 2015, the Veteran was diagnosed with bilateral ankle pain and mild instability. Two months later, modification to his shoe inserts had resolved his ankle and foot pain. In an August 2015 VA examination, the Veteran was diagnosed with bilateral degenerative arthritis and bone chip status post-surgical repair with scar and residual ankle instability. The Veteran reported worsening pain to the right ankle since his last VA examination. He reported walking four to five miles a day while working but needing to sit after walking a quarter to one mile to rest for 15 to 20 minutes. He reported flare ups of sharp, shooting pain in the lateral right ankle. He described his pain as a nine out of 10. It resolved after 20 to 30 seconds and occurred every other day. He also had an aching pain to the anterior right ankle of five to six out of 10, which occurred with prolonged walking once a week. It resolved after 20 minutes. The left ankle had intermittent aching pain of four to five out of 10 over the medial and lateral aspect, which resolved after 10 to 30 minutes. This aching pain occurred about once a month. Initial range of motion testing of the ankles found a dorsiflexion of zero to 20 degrees and plantar flexion of zero to 45 degrees bilaterally. There was no evidence of pain during the examination or with weight bearing, or of localized tenderness or pain on palpation of the joint or associated soft tissue. He performed repetitive use testing with at least three repetitions without additional loss of function bilaterally. He was not examined immediately after repetitive use over time. The examination was neither medical consistent nor inconsistent with the Veteran's description of functional loss with repetitive use over time. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over time. He was not examined during a flare up. The examination was neither medically consistent nor inconsistent with the Veteran's description of functional loss during a flare up. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited his functional ability during a flare up. The Veteran retained five out of five strength and exhibited no evidence of ankylosis. Bilateral ankle instability or dislocation was suspected. Overall, the examiner opined his ankle condition did not impact his ability to perform any type of occupational task. The August 2015 examiner was unable to ascertain any limitation in terms of range of motion after repetitive use over time or during a flare up without mere speculation. The examiner's only rationale for her inability to express an opinion was "per Veteran's report." The examiner's rationale for an inability to express an opinion did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the August 2015 VA examination did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner did not perform joint testing for pain during passive motion and non-weight bearing. Therefore, this opinion was accorded little probative weight. In October 2015, the Veteran reported to doctors that his ankle pain persisted unchanged despite his orthotics. He was concerned he could not increase his physical activity without exacerbating his joint issues. In June 2016, he reported he was doing much better using his custom orthotics. His pain had almost completely resolved. Although he still experienced some instability with ambulation his orthotics had helped significantly. He indicated no significant limitation in his daily activities. Physical examination found no tenderness to palpation throughout the bilateral feet and ankles including along the ATFL, calcaneofibular ligament (CFL), peroneal tendons, posterior tibial tendons, or Achilles' tendons. He retained five out of five strength and his gait was not antalgic. In a June 2017 VA examination, the Veteran reported bilateral ankle pain. He experienced intermittent soreness and sharp pain in the right ankle. The left ankle only bothered him a couple times a year. He had an aching pain lasting a few minutes, which was prompted by activity. He also reported right ankle instability. His orthotics helped offset the instability. There was no significant left ankle instability, falling, or rolling. The Veteran reported mild intermittent stiffness with activity daily in both ankles. The right ankle had cracking and popping with full extension intermittently, but this was not painful. He reported flare ups of sharp pain occurring one to two times a week and lasting several minutes. Flare ups were precipitated by activity and pressure on the right ankle only. He experienced a pain of nine out of 10. Overall, he reported an ability to walk on flat surfaces for up to 20 minutes before needing to rest. He could climb up to 30 steps using a handrail. He did no running or impact activities due to pain. Initial range of motion testing for the right ankle found a dorsiflexion of zero to 15 degrees and plantar flexion of zero to 35 degrees. His abnormal range of motion did not contribute to functional loss. Pain was noted in his plantar flexion. There was no evidence of pain with weight bearing, localized tenderness or with palpation of the joint or associated soft tissue. The right ankle exhibited evidence of crepitus. Initial range of motion testing for the left ankle found normal range of motion. There was no evidence of pain during the examination, localized tenderness or pain on palpation of the joint or associated soft tissue, or crepitus. Passive range of motion testing in the right ankle revealed mild to moderate restriction due to pain. There was also evidence of mild pain in weight bearing and non-weight bearing for the right ankle. He performed repetitive use testing with at least three repetitions and no additional loss of function or range of motion bilaterally. He was not examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with Veteran's description of functional loss with repetitive use over time. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited his functional ability with repetitive use over time. He was also not examined during a flare up. The examination was neither medically consistent nor inconsistent with the Veteran's description of functional loss during a flare up. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited his functional ability during a flare up. The Veteran was observed with a very mild varus disposition on the right ankle with weight bearing. He had a very slight limp noted on ambulation but no instability or antalgia. He retained five out of five strength and had no evidence of ankylosis. The examiner suspected bilateral ankle instability or dislocation. He was occasionally using neoprene sleeves for the right ankle with ambulation. The examiner opined his ankle conditions impacted his ability to perform occupational tasks. He would have difficulty maintaining work that required climbing or prolonged standing or walk. He was capable of sedentary functions without restriction. The June 2017 examiner was unable to ascertain any limitation in terms of range of motion after repetitive use over time or during a flare up without mere speculation. The examiner's only rationale for her inability to express an opinion was "per Veteran's report." The examiner's rationale for an inability to express an opinion did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, this opinion was accorded little probative weight. In April 2018, he reported to doctors that he had been evaluated for ankle surgery. However, he also reported his orthopedic shoes from podiatry made a difference for him. Physical examination found normal active range of motion of the bilateral valgus joints. He exhibited no tenderness to palpations or effusion. In September 2018, he reported a burning pain over the lateral side of the left heel that had started suddenly a week prior. He noted no associated weakness but some paresthesias. His pain was worse with walking and alleviated by sitting. Physical examination found no evidence of edema, clubbing, or warmth. The left ankle valgus joint had normal active range of motion and strength. There was no tenderness to palpation. In August 2019, he continued to complain of bilateral ankle pain. He was using an O brace intermittently with some success. Physical examination found mild tenderness with palpation over the sinus tarsi on the right. His subtalar joint range of motion was smooth and relatively pain free as well. Overall, he was assessed to be doing well with his orthotic shoes and inserts as well as with bracing as needed. In a November 2019 VA examination, the Veteran reported his ankle pain had progressed in intensity and frequency. He reported wearing bilateral ankle braces a maximum of five consecutive days and then needing a break due to pain. Currently, he experienced a constant aching pain in the right ankle of five out of 10 and intermittent aching pain in the left ankle of three out of 10. He had intermittent bilateral ankle stiffness. The Veteran reported right ankle flare ups multiple times a day with pain of nine out of 10 and nightly left ankle flare ups with pain of three out of 10. He reported an inability to walk more than 15 minutes, stand in one place more than two minutes, and climb more than one flight of stairs. However, he was capable of driving and independent in his activities of daily living (i.e., grocery shopping, preparing meals, and light housekeeping). Initial range of motion testing for the right ankle found a dorsiflexion of zero to 15 degrees and plantar flexion of zero to 25 degrees. His abnormal range of motion did not contribute to a functional loss. Pain was noted during the examination in his plantar flexion but did not result in a functional loss. There was also evidence of pain with weight bearing, mild lateral malleolus pain with moderate palpation, and crepitus in the right ankle. Initial range of motion testing for the left ankle found a dorsiflexion of zero to 20 degrees and plantar flexion of zero to 30 degrees. Pain was noted during the examination in his plantar flexion but did not result in functional loss. There was evidence of pain with weight bearing, mild pain with moderate palpation of the lateral malleolus, and crepitus in the left ankle. There was evidence of pain with both active and passive range of motion in both ankles. His passive range of motion was the same as the active discussed in detail above. There was also evidence of pain with weight bearing and non-weight bearing bilaterally. He performed repetitive use testing with at least three repetitions bilaterally. He exhibited additional functional loss after three repetitions due to pain. The right ankle had a dorsiflexion of zero to 15 degrees and plantar flexion of zero to 20 degrees. The left ankle had a dorsiflexion of zero to 20 degrees and plantar flexion of zero to 25 degrees. He was not examined immediately after repetitive use over time. The examination was medically consistent with the Veteran's description of functional loss with repetitive use over time. Pain significantly limited his functional ability with repeated use over time. The right ankle had a dorsiflexion of zero to 15 degrees and plantar flexion of zero to 20 degrees. The left ankle had a dorsiflexion of zero to 20 degrees and plantar flexion of zero to 25 degrees. He was also not examined during a flare up. The examination was medically consistent with the Veteran's description of functional loss during a flare up. Pain significantly limited his functional ability during a flare up. The right ankle had a dorsiflexion of zero to 15 degrees and plantar flexion of zero to 20 degrees. The left ankle had a dorsiflexion of zero to 20 degrees and plantar flexion of zero to 25 degrees. The Veteran retained five out of five strength bilaterally and exhibited no evidence of ankylosis. Ankle instability or dislocation was suspected bilaterally. The examiner opined that his ankle conditions did not impact his ability to perform any type of occupational task. The November 2019 examiner had access to the claims file and was sufficiently informed of the relevant facts including the Veteran's lay statements so as to be able to form an appropriate medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, this opinion was accorded positive probative value. As noted above, the Veteran's bilateral ankle bone chip status post-surgical repair is rated 10 percent disabling under DC 5003-5271. The evidence of record failed to show the Veteran's bilateral ankles had a dorsiflexion of less than five degrees or plantar flexion of less than 10 degree. Therefore, he is not entitled to a rating in excess of 10 percent under DC 5271. The Board considered the effect of pain, weakness, and incoordination in evaluating the Veteran's disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Throughout the record he reported bilateral ankle pain of progressing intensity and frequency. He experienced an aching and at times sharp pain in both ankles. He also reported instability. His ankle conditions affected his ability to walk and stand for extended periods as well as climb more than one to two flight of stairs. However, he remained independent in his activities of daily living (i.e., grocery shopping, preparing meals, and light housekeeping). He was prescribed ankle braces and custom orthotics. The Veteran is competent to report his medical history and symptomatology, including pain. Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. However, his opinion is not accorded greater probative weight than the VA examiner's opinion regarding a complex medical question. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board has also considered whether an increased disability rating may be assigned under alternative DCs pertaining to disability of the ankle. DC 5270 and 5272 apply to disabilities involving diagnosed ankylosis. DC 5273 applies to calcis or astragalus and DC 5274 applies to astragalectomy. As these conditions are not shown or alleged, DCs 5270, 5272, 5273, and 5274 do not apply in this matter. Additionally, as was discussed in detail above, the Veteran is already in receipt of separate ratings under DC 7805 for his right ankle lateral surgical scar and left ankle medial and lateral surgical scar. The December 2020 denial of entitlement to compensable disability ratings for the right ankle lateral surgical scar and left ankle medial and lateral surgical scar were not challenged by the Veteran. Therefore, these claims are not currently on appeal to the Board. Accordingly, the Board finds that the current 10 percent evaluation for the Veteran's bilateral ankle bone chip status post-surgical repair is appropriate and the degree of impairment resulting from his service-connected bilateral ankle condition does not more nearly approximate the next higher rating. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.