Citation Nr: 21007544 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 05-16 546 DATE: February 9, 2021 ORDER Entitlement to an initial rating greater than 20 percent for lumbar spine strain (LSS) with degenerative arthritis (DA) and intervertebral disc syndrome (IVDS) is denied. Beginning August 25, 2017, an initial 20 percent rating, and no higher, for right lower extremity (RLE) sciatic nerve radiculopathy is granted. Beginning August 25, 2017, an initial 20 percent rating, and no higher, for RLE femoral nerve radiculopathy is granted. Beginning August 25, 2017, an initial 20 percent rating, and no higher, for left LE (LLE) sciatic nerve radiculopathy is granted. Beginning August 25, 2017, an initial 20 percent rating, and no higher, for LLE femoral nerve radiculopathy is granted. FINDINGS OF FACT 1. The service-connected LSS with DA and IVDS is not manifested by severe symptomatology, 30 degrees of flexion or less, or favorable ankylosis of the entire thoracolumbar spine; and no findings of incapacitating episodes with bedrest of four weeks or greater. 2. Beginning August 25, 2017, service-connected RLE sciatic nerve radiculopathy is manifested by moderate, and no greater, symptomatology. 3. Beginning August 25, 2017, service-connected RLE femoral nerve radiculopathy is manifested by moderate, and no greater, symptomatology. 4. Beginning August 25, 2017, service-connected LLE sciatic nerve radiculopathy is manifested by moderate, and no greater, symptomatology. 5. Beginning August 25, 2017, service-connected LLE femoral nerve radiculopathy is manifested by moderate, and no greater symptomatology. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for service-connected LSS with DA and IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.46, 4.59, 4.71a, Diagnostic Code 5242. 2. Beginning August 25, 2017, the criteria for an initial rating of 20 percent and no higher for service-connected RLE sciatic nerve radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. Beginning August 25, 2017, the criteria for an initial rating of 20 percent and no higher for service-connected RLE femoral nerve radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8526. 4. Beginning August 25, 2017, the criteria for an initial rating of 20 percent and no higher for service-connected LLE sciatic nerve radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. Beginning August 25, 2017, the criteria for an initial rating of 20 percent and no higher for service-connected LLE femoral nerve radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active service from May 1989 to May 1993. This appeal comes before the Board of Veterans Appeals (Board) from a June 2004 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania in which service connection for low back strain was granted and initially rated at 10 percent disabling, effective June 23, 2003. In a February 2005 rating decision, the evaluation assigned was increased to 20 percent, effective June 23, 2003. As this increase does not represent the maximum evaluation afforded by the regulations, the appeal remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2017 rating decision, service connection was granted for LLE and RLE femoral and sciatic nerve radiculopathy, and rated the disabilities as 10 percent disabling each, effective August 25, 2017. The ratings assigned were increased to 20 percent, each, effective June 25, 2018, in a September 2018 rating decision. The Veteran has not filed a notice of disagreement with the ratings or effective dates assigned. However, the Board finds that the medical evidence supports the assignment of initial ratings of 20 percent effective the date of service connection, August 25, 2017. Because the regulations governing the evaluation of spine disorders requires that the associated objective neurological abnormalities associated with a spine disorder be evaluated separately, and because the assignments of 10 percent ratings prior to June 25, 2018, and the assignments of 20 percent ratings beginning June 25, 2018 are not the maximum evaluations available (see AB v. Brown, 6 Vet. App. 35, 38 (1993)), the issue of the initial rating assigned the service-connected radiculopathies resulting from the service-connected lower back disorder in this case remain before the Board. The issues have been revised on the front page of this decision to reflect this. Concerning TDIU, the Board notes that the issue was raised during the pendency of the initial increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was rated as 100 percent disabling from December 22, 2003. He was rated as 30 percent prior to that date. The Board recognizes that TDIU was granted based on multiple service-connected disabilities effective June 25, 2018, when the AOJ noted that the Veteran’s rating for Meniere’s disease would be reduced to 30 percent effective April 1, 2020. The Board finds that entitlement to a TDIU prior to June 25, 2018, is not before the Board. In this respect, for the time period during which the Veteran was rated as 100 percent, the Veteran claimed TDIU on the basis of multiple service-connected disabilities and was granted the benefit based on multiple service-connected disabilities. Therefore, consideration of TDIU for the basis of consideration of SMC under 1114(s) for the time period from December 22, 2003, to June 24, 2018, is not appropriate. See also Bradley v. Peake, 22 Vet. App. 280 (2008). In addition, TDIU prior to December 22, 2003, is not raised as the Veteran reported that he stopped working full-time in 2012. Thus, entitlement to TDIU prior to December 22, 2003, would not be warranted and a remand is not required. The claim for a higher initial rating for the service-connected low back disorder has been before the Board twice before, in 2008 and 2017, when the claim was remanded for additional VA examination. In 2017, the Board also directed the agency of original jurisdiction (AOJ) to obtain records from the Social Security Administration (SSA). That development having been completed; the claim is now again before the Board. The Board finds that the AOJ has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records including those from the SSA have been obtained or appropriate efforts to secure them have been undertaken, including as a result of the 2008 and 2017 remands. An adequate VA examination was provided in 2019 pursuant to the 2017 remand. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the July 2019 VA examiner could not describe additional functional impairment and loss, in terms of degrees, during flare-ups or periods of repeated use. However, the examiner explained his reasoning and the functional impairment experienced by the Veteran during overuse and flare scenarios. Therefore, the Board finds the examiner’s reasoning adequate. Neither the Veteran nor his representative have argued against a finding that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Higher Initial Ratings Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate Codes identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. The evaluation of the same disability under several Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, joint testing is to be conducted 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, 170 (2016). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The regulations for rating disabilities of the spine were revised during the pendency of the Veteran’s appeal, effective September 26, 2003. 68 Fed. Reg. 51454 (Aug. 27, 2003). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies from the effective date of the change, while the previous version of the regulation applies prior to the date of change. Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 (2004). Prior to September 26, 2003, a 10 percent rating was warranted for slight limitation of motion of the lumbar spine, a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, and a 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, former Diagnostic Code 5292 (2003). Former Diagnostic Code 5295 provided a 20 percent rating for lumbosacral strain manifested by muscle spasms on extreme forward bending and unilateral loss of spine motion in the standing position. A 40 percent rating was warranted if symptoms were severe, with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. 38 C.F.R. § 4.71a, former Diagnostic Code 5295 (2003). Ankylosis of the lumbar spine was rated under former Diagnostic Code 5289, which provided 40 and 50 percent ratings for ankylosis that was favorable or unfavorable, respectively. 38 C.F.R. § 4.71a, former Diagnostic Code 5289 (2003). Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999). Residuals of a fracture of the vertebrae were rated under Diagnostic Code 5285. A 100 percent rating was warranted for cord involvement, bedridden, or requiring long leg braces. A 60 percent rating was warranted without cord involvement; or abnormal mobility requiring neck brace (jury mast). 38 C.F.R. § 4.71a, former Diagnostic Code 5285 (2003). Former Diagnostic Code 5286 provided a 60 percent rating for complete bony fixation (ankylosis) of the spine at a favorable angle and a 100 percent rating for complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a, former Diagnostic Code 5286 (2003). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Concerning neurological disabilities, Diagnostic Code 8526 governs paralysis of the femoral nerve and provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 30 percent rating for severe incomplete paralysis. A 40 percent rating is provided for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Code 8526. Under Diagnostic Code 8520 for sciatic nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. a) LSS with DA and IVDS The Veteran argues that a higher initial rating for his LSS with DA and IVDS is warranted. The medical evidence does not support his contentions. Service connection for lower back strain was granted in a June 2004 rating decision, and assigned a 10 percent evaluation effective June 23, 2003. In a February 2005 rating decision, the evaluation was increased to 20 percent, effective June 23, 2003. As noted above, during the pendency of this appeal, the regulations for rating disabilities of the spine were revised, effective September 26, 2003. See 68 Fed. Reg. 51, 454 (Aug. 27, 2003). For this reason, the Board will discuss the “old” and “new” rating criteria, but notes that the “new” rating criteria can be applied only as of the effective date of the regulation, i.e., September 26, 2003. The Veteran has consistently reported pain and pain associated with motion and exertion. Private and VA medical treatment records and VA examination reports fully corroborate the Veteran’s report, showing consistent reports of and treatment for his lower back disorder throughout the time period under appeal, including with prescribed and over-the-counter non-steroidal anti-inflammatory medications, chiropractic treatment, injections and physical therapy. The medical evidence of record does not reflect thoracolumbar range of motion measurements limited to 30 degrees or less. A July 2004 VA examination report only noted a slight limitation in motion. The most recent VA examination report completed in 2019 shows forward flexion to 80 degrees. The Board recognizes that the medical evidence is limited as the VA examination reports completed prior to 2019 are not adequate concerning the range-of-motion findings because the examiners did not express opinions as to the functional impairment and loss during periods of repeated use and flare-ups and/or did not indicate whether the Veteran’s spine was tested for pain on active and passive motion and in weight-bearing and non-weight-bearing. A June 2014 range of joint motion chart associated with the Veteran’s SSA records show findings of forward flexion of the back limited to 25 of 90 degrees and extension limited to 15 of 25 degrees. However, it is not noted on the chart whether such measurements were taken with the use of a goniometer, as is required for VA examination reports. See 38 C.F.R. § 4.46. Therefore, this report is considered incomplete for evaluation purposes. The Veteran was provided an adequate VA examination in 2019 that identified flexion to 80 degrees. Thus, that June 2014 chart is assigned little probative weight compared to the comprehensive and complete 2019 VA examination report that was completed with a goniometer. Moreover, close review of the medical evidence shows no other findings that the Veteran’s thoracolumbar range of motion at or approximating 30 degrees or less at any other time during the period under appeal. Initially, under the old criteria, Diagnostic Codes 5287, 5288, 5290, and 5291 pertain to disabilities of the cervical and dorsal spine and are not applicable. Further, there is no lay or medical evidence of demonstrable deformity of a vertebral body (Diagnostic Code 5285), complete bony fixation of the spine (Diagnostic Code 5286), or ankylosis of the lumbar spine (Diagnostic Code 5289). Accordingly, these diagnostic codes (all which existed prior to September 26, 2003) are not applicable in the instant case. 38 C.F.R. § 4.71a (2002). Further, under the old criteria, the Board finds that the Veteran’s range of motion findings do not reflect a severe limitation of motion that would warrant a higher rating under the old criteria. As discussed above, the most probative evidence does not reflect flexion findings that could be described as severe. On his most recent examination, he exhibited forward flexion to 80 degrees. The Board recognizes the Veteran’s functional limitations and his reports of pain, but he is still able to flex to 80 degrees on examination. In addition, the evidence does not reflect or severe sacro-iliac injury or lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in that standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space. The Board notes the Veteran’s reported functional limitations, but the Veteran was still able to flex to 80 degrees at his most recent VA examination in 2019 and, in January 2004, the examining physician characterized the Veteran’s disability as only manifesting in slight limitation of motion and function as well as pain on use. A rating in excess of 20 percent is not warranted. Under the new criteria, there is no evidence of ankylosis that would warrant a higher rating. In addition, under the new criteria, the Veteran’s back disability is not manifested by the limitation of flexion to 30 degrees or less; or IVDS with incapacitating episodes having a duration of four weeks or more at any time. There are no findings of favorable or unfavorable ankylosis or of vertebral fracture. The Veteran asserts generally that the actual functional impact of his service-connected back disorder was greater than has been evaluated. Yet, close review of the private and VA treatment records, and VA examination reports throughout the time period under appeal do not show the back disability is so limited to warrant a rating in excess of 20 percent, or that he was prescribed bed rest for incapacitating episodes of IVDS lasting four weeks or more at any time during the period of time under appeal. Accordingly, an initial rating greater than 20 percent for the service-connected LSS with DA and IVDS cannot be assigned. A preponderance of the evidence is against the claim and the claim is denied. b) Radiculopathy of the RLE and LLE Note (1) following the General Rating directs that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71A, General Rating Formula for Disease and Injuries of the Spine, Note (1). In an October 2017 rating decision, the AOJ granted service connection for LLE and RLE femoral and sciatic nerve radiculopathy, and evaluated the disabilities as 10 percent disabling, each, effective August 25, 2017. The ratings assigned were increased to 20 percent, each, effective June 25, 2018, in a September 2018 rating decision. However, the 2017 and 2018 VA examiners described the overall symptomatology of incomplete paralysis in both femoral and sciatic nerve radiculopathies associated with the lower back disorder to be moderate in severity on the left and right. Because the VA examiners have described the manifested overall nerve impairment to be moderate in symptomatology, the Board finds that the evidence more closely approximates the criteria for moderate impairment. See 38 C.F.R. § 3.102, 4.3, 4.7. A rating greater than 20 percent, however, is not warranted. This is because the medical evidence does not show that the Veteran’s radiculopathies of the femoral and sciatic nerves to manifest symptomatology that is more than moderate. There are no findings of more than moderate incomplete paralysis or of complete paralysis of the femoral nerve, which impacts the quadriceps extensor muscles. There are no findings of more than moderate incomplete paralysis, involving marked muscular atrophy, or complete paralysis of the sciatic nerve, involving foot dangle and drop, no (or moderately severe diminishment or greater) movement of muscles below the knee, or weakened or lost knee flexion. Absent findings of severe to complete paralysis of the femoral nerve, or of moderately severe, severe or complete paralysis of the sciatic nerve, an evaluation greater than 20 percent for RLE and LLE femoral and sciatic nerve radiculopathies, each, cannot be warranted. The Veteran asserts generally that the actual functional impact of his service-connected radiculopathy of the femoral and sciatic RLE and LLE nerves is greater than has been evaluated. Yet, while close review of the private and VA treatment records, and VA examination reports establish that a higher initial evaluation of 20 percent should be granted from August 25, 2017 for these neurological disabilities associated with the service-connected LSS with DA and IVDS, the medical evidence does not establish initial evaluations greater than 20 percent are warranted. Accordingly, initial 20 percent ratings and no greater are warranted beginning August 25, 2017, each for RLE femoral and sciatic nerve radiculopathies and for LLE femoral and sciatic nerve radiculopathies. To the extent that the Board has denied the Veteran’s claims, a preponderance of the evidence is against the claims. The claims are denied. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.