Citation NR: 9717138 Decision Date: 05/20/97 Archive Date: 05/29/97 DOCKET NO. 95-14 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to an increased rating for service-connected residuals of a right knee injury, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for service-connected cervical disc disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Louis J. George, Associate Counsel INTRODUCTION The veteran served on active duty from May 1973 to August 1993. The veteran had other service in the United States Army Reserve. This claim comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a low back condition. The same rating decision established service connection for cervical disc disease, to which the RO assigned a 10 percent rating under Diagnostic Code 5293, and for residuals of a right knee injury, to which the RO assigned a noncompensable rating under Diagnostic Code 5257. In August 1995, the RO increased to 10 percent the disability rating for the veteran’s service-connected residuals of a right knee injury, effective as of September 1, 1993, the day following his separation from service. The Board notes that in the veteran’s original request for VA compensation, submitted in September 1993, the veteran also claimed service connection for a left shoulder disorder, scars, and “PGW [Persian Gulf War] Service.” These claims have not yet been adjudicated, and are referred to the RO for appropriate action. For reasons set forth in the REMAND appended to this decision, appellate review is deferred regarding the claims of entitlement to an increased rating for service-connected residuals of a right knee injury, and an increased rating for service-connected cervical disc disease. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently has a low back disorder, which he claims began during active service. He claims that he currently experiences radiating low back pain, which is exacerbated by his current employment as a correctional officer which requires him to stand eight hours each day. See Transcript of Personal Hearing at RO, July 21, 1995, at 1-5. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has failed to satisfy the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a low back disorder is well grounded. FINDINGS OF FACT 1. The veteran has submitted competent medical evidence of a current low back disorder, diagnosed on VA examination as recurrent strain of the lumbar spine. 2. The veteran received treatment during active service for low back pain associated with prostatitis and a genitourinary condition, and for mechanical low back pain in August 1986. 3. The veteran has not submitted competent medical evidence of a nexus, or link, between his current low back disorder and his active service. 4. The veteran’s claim is not plausible. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for service connection for a low back disorder. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran’s service medical records show that on entrance physical examination in May 1973, there was no complaint or diagnosis of a low back disorder. A physical examination conducted prior to right knee surgery in July 1975 was normal except for the knee. In a Report of Medical History completed by the veteran in January 1976, he indicated that he did not currently or previously have arthritis, rheumatism, or bursitis, bone, joint or other deformity, or recurrent back pain. The report of physical examination revealed no abnormality of the back. A physical examination conducted in February 1980 in connection with the veteran’s surgery for reconstruction of the right knee indicated no back abnormality. In July 1980, he complained of soreness lateral to the vertebrae when he moved dead laterally or when flexing his neck. There was no history of trauma, and the veteran also complained of a dizzy feeling when standing in formation. On objective examination, there was no cervical adenopathy, no vertebral tenderness, and soreness appeared in the muscular region, lateral to the vertebrae. The examiner diagnosed a muscle strain, and venous pooling while standing for which anemia should be ruled out. In August 1981, the veteran complained of back pain and dizziness. The examiner reported that the veteran had left CVA (costovertebral angle) aching pain associated with occasional discharge after physical training. On examination of the back, the examiner reported that there was no vertebral tenderness or CVA tenderness on the first percussion. There was full range of motion, and examinations of straight leg raising, muscles, and deep tendon reflexes were normal. There was a tender boggy prostate. The assessment was acute prostatitis. In January 1982, the veteran complained of various symptoms, including low back pain. The assessment was prostatitis. On the report of a periodic physical examination conducted in January 1982, there was no musculoskeletal abnormality noted. In July 1984, the veteran complained of low back pain associated with genitourinary symptoms. On the report of a period physical examination conducted in August 1985, the examiner indicated that the veteran’s spine was normal. There were no other musculoskeletal abnormalities noted, except for a reference to the veteran’s past surgery on his right knee. In August 1986, the veteran presented with complaints of lower abdominal pain for five days. It was noted that he stated that he had associated low back pain. The veteran had low back pain since sitting for a test two days before. There was no injury and no radiculopathy. On objective examination, the examiner noted that the veteran ambulated normally, and that active range of motion was full in all directions. There was no tenderness, and no paravertebral muscle spasms or tenderness, and no costovertebral angle tenderness. Seated straight leg raising was negative at 90 degrees, and muscle strength and sensation were normal bilaterally. Supine straight leg raising was negative at 90 degrees. The examiner diagnosed mild mechanical low back pain. In the report of a periodic physical examination conducted in November 1987, no back abnormality was noted. In the Report of Medical History completed by the veteran in connection with a physical examination conducted in December 1992, he indicated no current or past history of arthritis, rheumatism, or bursitis, bone, joint, or other deformity, or recurrent back pain. No back abnormalities were noted by the examining physician in the physician’s summary on the form. In the report of physical examination, the veteran’s musculoskeletal system was reported as normal, and the veteran was deemed qualified for retention. In the Report of Medical History completed by the veteran in connection with his retirement physical examination in April 1993, he indicated no current or past history of arthritis, rheumatism, or bursitis, bone, joint, or other deformity, or recurrent back pain. In the physician’s summary section of the report, no back abnormalities were noted. In the report of the retirement physical examination, the examiner reported no musculoskeletal abnormalities, and indicated that the veteran was qualified for retirement. The veteran filed the claim on appeal in September 1993. In his application for compensation, he claimed that he received inservice treatment for a back condition from 1990 to 1993. In December 1993, the RO afforded the veteran a VA general medical examination. In the report of the general medical examination, the examiner indicated that he examined the veteran’s claims folder, and noted the veteran’s complaints of back pain. The examiner noted that the veteran reported having had low back pain for the previous three years. The examiner noted that the veteran’s pain was not constant. On physical examination, the veteran was noted to have normal posture and gait. Range of motion of the back was normal. The examiner ordered an x-ray of the lumbar spine, and diagnosed the veteran with recurrent strain of the lumbar spine. X-rays of the lumbar spine revealed an impression of a normal lumbosacral spine. In a May 1994 rating decision, the RO denied service connection for a low back condition. In December 1994, the veteran filed a timely notice of disagreement (NOD), after which he was furnished with a statement of the case (SOC). The veteran filed a VA Form 9 (substantive appeal) in April 1995, at which time he requested a personal hearing at the RO. In July 1995, the veteran and his spouse presented testimony at a personal hearing held at the RO. At the hearing, the veteran indicated that he injured his back during active service, and that he went on sick call approximately twice for his back. The veteran claimed that the military physicians advised him that there was no damage to his bone structure, but more likely a muscle strain. The veteran indicated that he did not go on sick call for his back for his last year or two of active service. See Transcript of Personal Hearing at RO, July 21, 1995, at 1-2. The veteran indicated that during his retirement physical examination, he did not complain of back pain because his back did not really bother him, which he attributed to not spending much time on his feet. He claimed that if he were required to do physical exercise or spend much time on his feet, his back would hurt. See Transcript of Personal Hearing at RO, July 21, 1995, at 2-3. He indicated that in his current job he had to stand a great deal, and he had back pain that switched from side to side. He also indicated that the pain radiated down into his legs. He claimed that his back would pop in the lower lumbar area if he bent over. He stated that he did not miss any work due to his back condition, since it was a new job and he did not want to miss much work. See id. at 3-4. The veteran indicated that he had no medical diagnosis of his current back condition. He said that he underwent a physical examination in connection with his job, but he indicated that it was not a thorough examination and did not address specific physical complaints. The veteran’s spouse stated that she massaged his back and applied ointment, but stressed that he did not seek medical treatment for his back because he was afraid that he would lose his job as a result. See Transcript of Personal Hearing at RO, July 21, 1995, at 5. In a Hearing Officer’s decision of August 1995, service connection for a low back condition was denied, since the evidence of record failed to document a chronic back disability of the lumbar spine while on active duty. In an August 1995 rating decision, service connection again was denied. II. Analysis Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That same statute mandates a duty to assist the veteran. However, the duty to assist applies only after a well-grounded claim has been submitted. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Generally, a well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or was aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. at 81. The quality and quantity of evidence required to make a claim well grounded depend upon the issue presented by the claim. When an issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the appellant’s solitary testimony, may be sufficient to meet the veteran’s burden. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (citing Cartright v. Derwinski, 2 Vet.App. 24 (1991)). Where the determinative issue, however, concerns matters of medical causation or diagnoses, competent medical evidence attesting that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet.App. at 93 (citing Murphy v. Derwinski, 1 Vet.App. at 81). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1996). The evidence may show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied to establish service connection. With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1996). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table). Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Caluza v. Brown, 7 Vet.App. at 504. In this case, the current medical evidence relating to the veteran’s claimed low back disorder is comprised of the report of the VA general medical examination conducted in December 1993. In the examination report, the examiner noted the veteran’s subjective complaints of back pain; however, there were no abnormalities cited by the examiner on objective examination. The veteran’s posture, gait, and range of motion were reported as normal. Although the examiner ordered x-rays of the lumbar spine, the examiner apparently rendered his diagnosis, recurrent strain of the lumbar spine, without having consulted these x-rays, which showed a normal lumbosacral spine. The examiner’s diagnosis appears to have been largely based on past medical history and/or the veteran’s subjective complaints, rather than current pathology. While the Board doubts whether a low back disorder currently is shown, the Board will accept the diagnosis as current medical evidence of a low back disorder, for purposes of the Caluza analysis. The veteran’s service medical records show that he was treated in August 1981 and January 1982 for back pain. On both occasions, the assessment was prostatitis. In July 1984, he complained of back pain, which was associated with genitourinary symptoms. In August 1986, he was diagnosed with mild mechanical low back pain. The remainder of his service medical records, including the report of his retirement physical examination conducted in April 1993, were negative for any low back abnormality. While the veteran has submitted evidence of inservice treatment for low back pain, he has not submitted competent medical evidence of a nexus, or link, between any currently manifested low back disorder and his active service. As noted above, he last sought treatment for low back problems in August 1986, seven years prior to his separation from active service. There is no indication in the remainder of his service medical records that he sought further treatment for back problems. See Transcript of Personal Hearing at RO, July 21, 1995, at 2-3. There is no medical evidence showing that the veteran’s current low back disorder is related to the back pain he experienced during active service. Accordingly, the veteran’s claim of entitlement to service connection for a low back disorder is not plausible. The Board notes that the United States Court of Veterans Appeals (Court) has held that when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to advise the claimant of the evidence required to complete the application. 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet.App. at 77-80. In this case, the Board finds that this procedural consideration already has been satisfied. The RO fulfilled its procedural obligations under § 5103(a) by informing the veteran of the reason for its denial of service connection, in its statement of the case (SOC) and in the supplemental statement of the case (SSOC). In addition, this Board decision informs the veteran of the evidence that is lacking to make his claim well grounded Although the RO did not notify the veteran, in the rating decision that is the subject of this appeal, that his claim was not well grounded, any such error was nonprejudicial. See Edenfield v. Brown, 8 Vet.App. 384 (1995) (“Assuming, arguendo, that it was error to express a disallowance in terms of the merits where the claim is, in fact and law, not well grounded, the Court should nonetheless affirm the Board’s ‘erroneous’ disallowance of the claim on the merits unless to do so would prejudice the appellant.” [Citations omitted]). In this case, any such error by the RO was nonprejudicial, since the rating decision on appeal, the SOC, and SSOC provided the reasons and bases for the RO’s denial. In March 1997, the veteran’s representative cited provisions of the VA Adjudication Procedure Manual M21-1 (M21-1), specifically, Part III, Paragraph 1.03a, and Part VI, Paragraph 2.10f. The representative requested that “[i]f the Board finds that [the veteran’s] current claim for his low back condition is not well grounded. . . that the Board determine whether the RO followed the M21-1 substantive rules requiring that full development of all claims be undertaken prior to the well grounded determination.” The representative has requested that if the Board finds that such development in accordance with M21-1 did not occur, then the case should be remanded for full development of the claim. The representative also requested that in the Board’s remand order, the RO be directed to notify the veteran of the one year time limit to produce evidence in accordance with 38 U.S.C.A. § 5103(a). See Written Brief Presentation, March 31, 1997, at 3. In addressing these contentions, the Board notes that the RO developed the veteran’s claim in accordance with the provisions of M21-1, by affording the veteran a VA general medical examination. The veteran has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. Although the veteran’s representative has requested that an additional VA medical examination be conducted if relief was not granted, because the veteran has not submitted a well-grounded claim, VA does not yet have a duty to assist him in developing the claim pursuant to 38 U.S.C.A. § 5107(a). ORDER Having found the claim not well grounded, the claim of entitlement to service connection for a low back disorder is denied. REMAND The veteran claims that his service connected right knee disorder and cervical disc disease are more severe than currently evaluated. In support of his claim, his representative cited DeLuca v. Brown, 8 Vet.App. 202 (1995), contending that functional loss due to pain, weakness, fatigability, and incoordination could significantly limit the veteran’s functional ability. Furthermore, the representative claimed that, in the August 1995 rating decision, the RO “did not place adequate emphasis on the pain ration and the functional loss as a result of the pain the veteran suffers.” See VA Form 1-646, December 21, 1995, at 3. The veteran claims that his right knee disability has affected his ability to perform his duties as a correctional officer. At his personal hearing at the RO, he indicated that his knee was unstable, and had limitation of motion. See Transcript of Personal Hearing at RO, July 21, 1995, at 6-7. Relating to his cervical disc disease, he claims that he experiences severe pain with stiffness in his neck, and limitation of motion to the left side. See id. at 12. Relating to the veteran’s right knee disability, the VA examination of December 1993 reported his history of knee surgeries during active service and present complaints of an inability to run and associated numbness in the right knee over the site of the knee surgery. On objective examination, the examiner described range of motion as normal, and that there was no pain on manipulation. Range of motion in degrees of arc was not indicated, nor was “normal” range of motion defined. X-rays conducted in connection with the examination revealed an impression of mild degenerative joint disease, and a previous surgical reconstructive procedure. In support of his claim for an increased rating for his right knee disability, the veteran submitted private medical records dated in June 1995 from Charles W. Rush, M.D., of Sarasota, Florida. These records show that the veteran complained of lateral/posterior pain. Dr. Rush noted that the veteran could rotate his knee medially. It is unclear from the report, however, whether the veteran was unable to rotate his knee laterally without pain, or was unable to rotate his knee laterally at all. Dr. Rush noted that the veteran had mild or moderate chronic effusion of the knee, with no gross laxity of the knee. Relating to the veteran’s cervical disc disease, on VA examination in December 1993, he complained of neck pain of three years duration, which was not constant. Range of motion for the neck was normal; however, facial pain was noted on hyperextension of the neck. Again, range of motion was not expressed in degrees of arc, nor was “normal” range of motion defined. The veteran was diagnosed with chronic neck strain, and x-rays revealed an impression of minimal degenerative changes, and probable chronic cervical myofibrositis. Additional evidentiary development must be accomplished prior to further consideration of the veteran’s claims for increased ratings for service-connected residuals of a right knee disorder and for service-connected cervical disc disease. In view of his complaints of pain and functional impairment, and physical findings on private and VA examination of limitation of motion and/or pain on motion, the Board will REMAND this case so that the veteran may be afforded comprehensive VA orthopedic and neurological examinations. These additional medical examinations also will enable the RO to determine whether the medical evidence implicates a rating under other potentially applicable diagnostic codes, as explained below The Board notes that the veteran’s right knee disability currently is rated pursuant to Diagnostic Code 5257, and that his cervical disc disease is rated pursuant to Diagnostic Code 5293, both of which do not involve arthritis or limitation of motion. Because VA has a duty to consider all potentially applicable regulations, to include appropriate diagnostic codes, the RO should consider whether the medical evidence implicates a rating for the veteran’s right knee disability and cervical disc disease under other potentially applicable diagnostic codes, to include those relating to arthritis and limitation of motion, if applicable. If rating codes pertaining to arthritis and limitation of motion are applicable, the RO should exercise care to consider the applicability of DeLuca v. Brown, 8 Vet.App. 202 (1995), which held that, when evaluating a service-connected disability involving a joint rated on limitation of motion, adequate consideration must be given to whether the rating addresses functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. In addition, the RO should, with regard to the veteran’s right knee disability, ascertain the nature and severity of the scars that are the product of his inservice right knee surgeries, and assign appropriate compensation in accordance with Diagnostic Codes 7803, 7804 and 7805. See Esteban v. Brown, 6 Vet.App. 259 (1994). Accordingly, this claim is REMANDED for the following: 1. Ask the veteran if he has received any further treatment from private or VA health care providers for his service- connected right knee disability or cervical disc disease. If so, obtain appropriate releases and obtain the treatment records. Associate all records received with the claims folder. 2. The veteran should be afforded appropriate VA examinations, including orthopedic and neurological examinations, in order to determine the severity of his service-connected right knee disability or cervical disc disease. The claims folder is to be made available to each examiner before the examination, and each examiner is asked to indicate in the examination report that he or she has read the claims folder. All necessary testing is to be done, to include range of motion testing, with normal range of motion indicated. If limitation of motion is present, all objective evidence of pain is to be noted, and the examiner is asked to determine whether additional functional limitation is likely to result with use or during flare-ups and to describe as fully as possible what the additional functional limitation would be. All factors on which the assessment is based are to be set forth. The examiner who evaluates the veteran’s right knee is also asked to set forth a description of the nature and severity of all right knee scars that are the product of the veteran’s inservice right knee surgeries. The examiner is specifically requested to indicate whether any scars are poorly nourished, tender and painful, or impair a particular part of the body. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all required development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the reports do not include fully detailed descriptions of pathology and all test reports, including adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (1996). 4. Thereafter, the RO should readjudicate the claims for increased ratings for service-connected residuals of a right knee injury, and service- connected cervical disc disease, with consideration given to all of the evidence of record and all potentially applicable diagnostic codes and regulations. If any benefit sought on appeal, for which an appeal has been perfected, remains denied, the veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and provided a reasonable opportunity to respond thereto. While this case is in remand status, the veteran and his representative are free to submit additional evidence and argument on the question at issue. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992); Booth v. Brown, 8 Vet.App. 109, 112 (1995). Thereafter, subject to current appellate procedures, the case should be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The purpose of this REMAND is to obtain additional evidence. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MICHAEL S. SIEGEL Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after (CONTINUED ON NEXT PAGE November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand appended to the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -