Citation Nr: 21015893 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-22 930 DATE: March 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee condition prior to May 29, 2012 is denied. Entitlement to a rating in excess of 30 percent for a right knee condition from August 1, 2013 is denied. REMANDED Entitlement to service connection for a left wrist condition is remanded. Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a left elbow condition is remanded. Entitlement to service connection for a right hand condition is remanded. Entitlement to service connection for a left hand condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 29, 2012, the Veteran’s right knee exhibited flexion limited to no less than 98 degrees; moreover, there was no indication of right knee dislocated semilunar cartilage, ankylosis, limitation of extension or instability. 2. From August 1, 2013, the probative evidence shows the Veteran’s right knee total knee replacement surgery residual symptoms to be intermediate degrees of residual weakness, pain, instability, and limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee condition prior to May 29, 2012 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5003. 2. The criteria for entitlement to a rating in excess of 30 percent for a right knee condition from August 1, 2013 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to June 1984. These matters were last before the Board in March 2019, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a June 2020 supplemental statement of the case continuing the denial of all of the claimed issues, the case was returned to the Board for its adjudication. The Veteran testified at an October 2019 videoconference hearing before the undersigned Veterans Law Judge. The Veteran submitted a November 2013 claim seeking an increased rating of his right knee condition from August 1, 2013. The Board notes that in a subsequent November 2013 correspondence, the Veteran clarified that he sought an extension of the temporary total rating assigned for the right knee condition following the May 29, 2012 replacement surgery. He also submitted an April 2015 supplemental claim again requesting an extension of the temporary total rating for the right knee condition beyond August 1, 2013. While the AOJ addressed entitlement to an increased rating for the right knee condition from August 1, 2013 in an August 2016 supplemental statement of the case, and this appeal was subsequently certified to the Board, to date the AOJ has not addressed the distinct claim of entitlement to an extension of the temporary total rating for the right knee beyond August 1, 2013. As such, the Board does not have jurisdiction over this issue, and this claim is referred to the AOJ for its adjudication as an initial matter. Increased Rating for a Right Knee Condition The Veteran is service connected for a right knee condition, characterized as degenerative arthrosis, with a 10 percent rating prior to May 29, 2012. On that date, the Veteran underwent right knee replacement surgery, and was assigned a temporary 100 percent rating which was in effect until August 1, 2013. From that date, the Veteran is assigned a 30 percent rating. He seeks a rating in excess of those assigned both prior to and following the assignment of the temporary 100 percent rating. The Board notes that the Veteran submitted his claim seeking an increase of the rating for his right knee condition on March 9, 2011; as such, the period on appeal extends back up to one year prior to the date of his claim, that is, March 9, 2010. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Prior to May 29, 2012, the 10 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, 5260-5003. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the symptomatology of the right knee arthrosis was manifested as limitation of flexion pursuant to Diagnostic Code 5260, with Diagnostic Code 5003 representing arthritis generally. As stated, the Veteran is in receipt of a 100 percent temporary total rating for his right knee for the period from May 29, 2012 to August 1, 2013. This rating, and the 30 percent rating assigned from August 1, 2013, were assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, replacement of either knee joint warrants a 100 percent evaluation for a one-year period following implantation of the prosthesis. Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated by analogy to Codes 5256, 5261 or 5262. The mandatory minimum rating is 30 percent. The 100-percent rating for one year following implantation of prosthesis will commence after the initial grant of a one-month total rating following hospital discharge to be assigned under 38 C.F.R. § 4.30. Here, the 30 percent rating was assigned effective August 1, 2013, which is the first day of the month following the one year and one month period beginning June 1, 2012, the first day of the month after May 29, 2012, when the Veteran underwent his right knee replacement surgery. As stated previously, the Board will not address whether the effective date of that 30 percent rating is appropriate as the Veteran has submitted a claim requesting an extension of the temporary total rating that was not adjudicated by the AOJ as an initial matter and so the Board does not have authority to adjudicate it. The question as to whether the Veteran is entitled to a rating in excess of 30 percent from August 1, 2013 is however still appropriately before the Board and so will be addressed by it in due course. Diagnostic Code 5003 provides for a rating of 10 percent for each major joint or group of minor joints affected by noncompensable limitation of motion. An increased rating of 20 percent is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board will consider additional diagnostic codes pertinent to the evaluation of knee disabilities in order to determine the highest possible evaluation for the right knee condition during the entire period of the appeal. In considering the applicability of the remaining available diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (disability of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance as the medical evidence does not show that the Veteran experiences these conditions in the right knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5263. Under the criteria of Diagnostic Code 5257 in effect for most of this appeal period, recurrent subluxation or lateral instability, a 10 percent rating is assigned for slight impairment, while a 20 percent rating is assigned for moderate impairment and a 30 percent rating is for severe impairment. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a. For VA purposes, “normal” extension and flexion of the knee is from zero to 140 degrees, and references to normal motion below indicate that the Veteran, in fact, had motion from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The VA General Counsel has held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. The Board additionally notes that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. During the appeal period, the Veteran was first afforded a VA examination to evaluate the nature and severity of his right knee condition in May 2010, during which he reported experiencing near-constant pain limiting his ability to stand and walk for any period of time. He also detailed experiencing effusions requiring aspiration about four time per year. He did not endorse experiencing dislocation or subluxation, locking, or any flare-ups of additional symptomatology. According to the Veteran, he could stand for 15 to 30 minutes at a time and was unable to walk more than a few yards at a time. Range of motion testing revealed right knee flexion reduced to 107 degrees, and no loss of extension or ankylosis. The examiner did note evidence of pain following repetitive motion, but there was no additional limitation after three repetitions of range of motion. In summation, the examiner found that the right knee condition had a significant effect on the Veteran’s occupational functioning in the form of decreased mobility, lack of stamina, and chronic pain. The Veteran was next afforded a VA knee examination in July 2011, during which he reported experiencing increased chronic pain, swelling, decreased ability to ambulate, and increased right knee stiffness. He endorsed experiencing flare-ups of additional symptoms occurring weekly and lasting one to two days at a time that were not precipitated by any specific activity. According to the Veteran, he was limited in standing for more than a few minutes at a time and walking more than a few yards at a time; he also reported that he used a cane occasionally to assist with ambulation. Range of motion testing revealed right knee flexion reduced to 98 degrees, with no loss of extension or ankylosis. The examiner did note evidence of pain following repetitive motion, but there was no additional limitation after three repetitions of range of motion. An in-person evaluation also revealed subpatellar tenderness; however, there was no evidence of instability, grinding or crepitation. The examiner further commented that the Veteran was unable to complete his duties as an electrician due to shoulder and knee problems. Following the May 29, 2012 knee replacement surgery, the Veteran was first afforded a VA knee examination in August 2016, during which he reported that he still wore a knee brace because he felt “loose hardware” in his right knee. He endorsed experiencing weakness and instability in his right knee with prolonged standing or walking but did not characterize this symptomatology as a flare-up. Range of motion testing revealed right knee flexion reduced to 100 degrees, and no loss of extension, crepitus or ankylosis. The examiner did note evidence of pain with weightbearing as well as localized tenderness to palpation at the medial and lateral joint line. It was also noted that the Veteran experienced pain and fatigue after repetitive use testing, and the examiner found that resulted in an inability to climb or descend stairs as well as walk further when experiencing instability associated with repetitive use. Specifically, stability testing revealed slight anterior instability and moderate lateral instability of the right knee. It was the examiner’s impression that the right knee replacement surgery resulted in intermediate degrees of residual weakness, pain, and/or limitation of motion; however, the examiner concluded that this impairment would not result in any negative impact on the Veteran’s occupational functioning. During the October 2018 hearing, the Veteran detailed that he experienced soreness, looseness, weakness, and swelling in his right knee. According to the Veteran, he had difficulty with ambulation and utilized a cane as well as a knee brace to assist with walking. Pursuant to the Board’s March 2019 remand instructions, the Veteran was scheduled for a new VA knee examination in February 2020, during which he reported that his bilateral knees hurt with prolonged standing, sitting, or walking for more than a short distance. The Veteran did not endorse experiencing any flare-ups of symptomatology. Range of motion testing revealed right knee flexion reduced to 90 degrees, and no loss of extension, crepitus, pain with weightbearing, or ankylosis. The examiner did note minor tenderness to palpation at the joint line. It was also noted that the Veteran did not experience any additional loss of functioning following repetitive use testing. It was the examiner’s impression that the right knee replacement surgery resulted in intermediate degrees of residual weakness, pain and/or limitation of motion. The examiner also commented that the right knee condition would impair occupational functioning but stated only that the Veteran would be able to do sedentary work and provided no further clarification. A review of post-service VA medical records shows that the Veteran complained of and received treatment for right knee pain for the entirety of the appeal period. A March 2012 orthopedic surgery consultation report indicates that the Veteran reported experiencing right knee pain with activity, weight bearing, and lateral movement, as well as a right knee stiffness after leaving the knee still for a prolonged period of time. After administering an X-ray examination as well as an MRI, the examiner found evidence of severe degenerative changes. The recommendation was for the Veteran to undergo a total right knee replacement. Thereafter, treatment records show that the Veteran underwent total right knee replacement surgery on May 29, 2012. A November 2012 post-surgery report detailed that the Veteran was experiencing occasional pain but significant right knee instability and weakness six months after his replacement surgery and wore a hinged knee brace to assist with ambulation. An August 2014 outpatient note reflects that the Veteran fell on his right knee when it gave out while he was working outside; he reported experiencing significant right knee pain following the injury. A subsequent August 2014 evaluation indicated that an X-ray examination did not reveal any fracture, although there was increased uptake and moderate effusion of the right knee. Thereafter, an March 2015 outpatient note shows that the Veteran reported instability and right knee pain; an evaluation revealed flexion limited to 130 degrees, no effusion, and varus laxity. An August 2015 outpatient note indicates that the Veteran reported continuing pain and instability of his right knee. Flexion was limited to 130 degrees, and stability testing showed significant laxity. The examiner discussed a possible revision knee replacement. Subsequent records show continued treatment for right knee pain and instability, to include physical therapy; there is no indication from the record that the Veteran did undergo any additional right knee surgery. A review of post-service private medical records reflects that the Veteran has been receiving treatment for bilateral knee symptomatology through his private physician for the entirety of the appeal period. During an April 2011 evaluation by a Dr. S.I., the Veteran reported difficulty with walking, especially when his right knee swelled. Flexion was measured at 90 degrees with no limitation of motion. A November 2013 evaluation report indicated that the Veteran was experiencing a gradual increase of right knee pain beginning about a year prior following his knee replacement surgery. According to the Veteran, his pain accompanied any walking, sitting, use of steps, and/or physical activity. Flexion was measured at 100 degrees with no limitation of extension. No instability was noted, although the examiner did find evidence of effusion and tenderness along the lateral joint line. An X-ray examination did not reveal any abnormalities or problems with the prosthesis. Thereafter, a June 2017 X-ray examination report from a W.H. revealed a photopenic defect as well as uptake surrounding the knee arthroplasty involving the femoral and tibial components. In an August 2014 statement, the Veteran’s daughter, a C.K., related that the Veteran experienced significant chronic lower extremity pain, with symptoms so severe at times that he was relegated to his bed. She reiterated these observations in a subsequent September 2018 statement. Similarly, in a statement received by VA in August 2014, a W.K. detailed that prior to the Veteran’s replacement surgery his right knee would swell, which prevented the Veteran from ambulating. Moreover, following the surgery W.K. asserted that the Veteran still experienced pain, swelling, and buckling of his knee from time to time. In an October 2014 statement, a D.P., who identified herself as the Veteran’s immediate supervisor from 1998 to 2010, detailed that the Veteran missed several weeks of work due to his symptoms of right knee pain and swelling. According to her, the Veteran would sometimes arrive at work barely able to walk and was unable to complete his duties on these occasions. Before evaluating the propriety of the Veteran’s currently assigned disability ratings for the right knee condition, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, none of the relevant diagnostic codes for evaluating the Veteran’s right knee condition, that is, Diagnostic Codes 5055, 5260, and 5261, were changed. Diagnostic Code 5257 was revised, but as detailed below the Veteran’s stability findings are contemplated by Diagnostic Code 5055. Upon review of the record, the preponderance of the evidence is against a determination that increased ratings are warranted for the Veteran’s right knee condition either before May 29, 2012 or from August 1, 2013. Prior to May 29, 2012, there is no indication that the Veteran exhibited flexion limited to 30 degrees, which would be necessary for a 20 percent rating under Diagnostic Code 5260. Moreover, at no point prior to May 29, 2012 did the Veteran exhibit any limitation of extension, and so a separate rating under Diagnostic Code 5261 is also not warranted. Additionally, no instability or ankylosis were reported on either VA examination or on any medical records prior to May 29, 2012, and so a separate rating for such impairment is similarly not warranted. The Board has reviewed the Veteran’s lay testimony and the VA treatment records in the claims file, but this evidence does not tend to show that the symptoms of the right knee condition warranted a rating in excess of 10 percent prior to May 29, 2012. As stated, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned percent and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. Furthermore, the Veteran denied experiencing flare-ups of right knee symptomatology on both the May 2010 and July 2011 VA examinations, and so there is no indication that the Veteran experienced any increase in symptomatology during flare-ups that would equate to an significant increase in limitation of motion, as would be necessary for an evaluation in excess of the currently assigned ratings or which would warrant a separate rating. Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges the Veteran’s statements regarding the pain he experiences in his right knee. However, painful motion is contemplated and compensated by the 10 percent rating currently assigned. DeLuca, supra. From August 1, 2013, the Board also finds that a rating in excess of 30 percent is not warranted. There is no indication that the Veteran experiences ankylosis, limitation of extension, and/or impairment of the tibia and fibula, corresponding to Diagnostic Codes 5256, 5261 or 5262, respectively, and so there are not those physical indicia of functional impairment suggested pursuant to Diagnostic Code 5055. Although the Veteran exhibited symptoms of pain, instability, and stiffness, and further reported that he felt that his right knee “gave out” at times, neither the August 2016 nor the February 2020 VA examiners found that he was totally precluded from any physical activity. Indeed, while a second right knee surgery was apparently suggested by the Veteran’s treating physician, there is no indication that the Veteran ultimately underwent such a surgery, and the record reflects a paucity of contemporary treatment for the right knee condition suggesting if not an improvement of symptomatology then at least a maintenance of symptoms following the Veteran’s surgery and convalescence thereafter. In summation, the preponderance of the evidence indicates that from August 1, 2013 the Veteran has experienced the degree of moderate severity of his right knee residual condition that is commensurate with a 30 percent rating, as he has demonstrated that he is still able to ambulate and does not exhibit the physical indicia that would suggest a more severe impairment. The Board once again notes that it has considered the lay statements of record in maintaining the 30 percent rating for the right knee condition from August 1, 2013; however, this lay testimony regarding the Veteran’s physical limitations as due to his right knee condition does not suggest that the Veteran is experiencing any more than moderate impairment as due to the condition from August 1, 2013. Any functional loss stemming from the post-total knee replacement surgery is adequately compensated for by the currently assigned 30 percent rating. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Therefore, the Board finds that the assigned 10 percent rating for a right knee condition contemplates the impaired motion exhibited by the Veteran during the appeal period prior to May 29, 2012. Furthermore, the 30 percent rating for the right knee from August 1, 2013 also adequately contemplates the impaired motion and stability exhibited by the Veteran following the May 29, 2012 replacement surgery and subsequent convalescence. See Id., 4.40, 4.45; DeLuca, 8 Vet. App. at 20. The claims are accordingly denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral wrist conditions, bilateral elbow conditions, bilateral hand conditions, and a left knee condition are remanded. The Board in its prior remand instructions directed the AOJ to schedule the Veteran for VA examinations to evaluate the nature and likely etiology of the claimed bilateral wrist, elbow and hand conditions as well as the claimed left knee condition. Specifically, the Board noted that the Veteran had asserted that service-connection was warranted for each of these seven conditions on a secondary basis and requested that the AOJ elicit opinions as to the likelihood that each of these conditions was caused or aggravated by the right knee condition. Upon receipt of the remand, the AOJ procured concurrent examinations and opinions for the bilateral hand, elbow, wrist and left knee conditions. Unfortunately, although the chosen examiner set forth negative direct etiology opinions for each claimed condition, she did not offer any opinion as to the likelihood that these conditions were caused or aggravated by the service-connected right knee condition. As such, further remand is necessary in order to elicit the previously-requested secondary etiology opinions in conformity with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to TDIU is remanded. As stated in the Board’s previous remand, a decision on the claim of entitlement to TDIU is deferred pending resolution of the service connection claims also being remanded as such claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Provide the claims file to the examiner who administered the February 2020 VA orthopedic examinations, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting addendum opinions as to the likely etiology of the claimed bilateral wrist conditions, bilateral hand conditions, bilateral elbow conditions, and left knee condition. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and that individual must note review of the file prior to setting forth any etiology opinions. For each separate condition (bilateral wrist conditions, bilateral hand conditions, bilateral elbow conditions, and left knee condition), the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition had onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that any diagnosed condition was caused or aggravated by the service-connected right knee condition. If the opinion is that the service-connected right knee condition aggravated any diagnosed condition on appeal, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.