Veteranclaims’s Blog

June 29, 2011

Single Judge Application, ExtraSchedular Rating, Conduct Comparison of Severity of Symptoms with Schedular Criteria as Thun Requires, Thun v. Peake, 22 Vet.App. 111, 115 (2008)

Excerpt from decision below:
“Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether “the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
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determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant’s claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board’s analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, “with such related factors as marked interference with employment or frequent periods of hospitalization” as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant’s symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner’s finding that the wrist pain had a “[s]ignificant” general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board’s conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not “missed work or had to change his duties at this point.” Secretary’s Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)
(“‘[L]itigating positions’ are not entitled to deference when they are
merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was “currently employed,” that he had not missed any days from work in the
previous12-month period, that wrist and knee “pain” was the “impact onoccupational activities” and that his spine condition had “no significant effects” on his employment. Secretary’s Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary’s post hoc rationalization is without merit and this issue should be remanded for the Board
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to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
==============================================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0454
JAMES R. MORROW, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before Previous DocumentGREENENext Hit, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENE, Judge: Veteran James R. Morrow appeals, through counsel, a December 9, 2008, Board of Veterans’ Appeal (Board) decision that denied disability ratings higher than 20% for
left-navicular-bone-fusion residuals(left wrist disability) and 10% for lumbar-degenerative arthritis, right-knee arthritis, and right-knee disability. Record (R.) at 3-33. Mr. Morrow argues that the
Board failed to provide adequate reasons or bases by inadequately
explaining its (1) interpretation of the VA examination reports, (2) rejection of a separate neurological rating for his lumbar disability and a separate loss-of-motion rating for his left thumb, and (3) rejection of extraschedular consideration. Appellant’s (App.) Brief (Br.) at 6-11. He also argues that the Board erred in finding that the Secretary’s duty to assist was satisfied. Id. In particular, he contends that the Board erred when it failed to remand his claim for an adequate VA orthopedic examination to provide findings necessary for the Board to applythe rating criteria and other applicable regulations. Id. Mr. Morrow further asserts that the Board erred by failing to remand his claim to the
regional office (RO) with instructions to obtain a 2006 VA medical report of his right knee. Id.
On February 3, 2011, a single-judge memorandum decision affirmed, in part,
and vacated,
in part, the 2008 Board decision. Subsequently, Mr. Morrow moved for
reconsideration, or, in the

alternative, panel consideration. Mr. Morrow’s motion for reconsideration
is granted, the Court’s February 2011 memorandum decision is withdrawn, and this memorandum decision is issued in its stead. For the reasons set forth below, the Court will affirm in part and
vacate in part the December 2008 Board decision.

I. LAW AND ANALYSIS
A. Reasons or Bases
The Board must include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement
must be adequate to enable an appellant to understand the precise basis for the Board’s decision and to facilitate informed review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply
with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence
that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).

1. Increased Rating for Left Wrist disability
Mr. Morrow argues that the Board inadequately explained its finding that his complaints of pain, fatigue, swelling, and weakness do not support a higher rating under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5214. App. Br. at 6. He maintains that, although the Board acknowledged that the April 2007 VA examination “documented significant pain,” this finding is contradicted by its subsequent finding “that the veteran retained significant motion of the wrist and even with pain did not have motion that would be tantamount to having ankylosis” beyond that contemplated by the 20% rating. Id., relying on R. at 29. The April 2007 VA examination of Mr. Morrow’s left wrist records 20 degrees of dorsiflexion, 45 degrees of palmar flexion, 10 degrees of ulnar deviation, and 10 degrees of radial deviation. R. at 111. Given these notations, Mr. Morrow argues that he has extremely limited motion because he has approximately 30% of normal
dorsiflexion, approximately
50% of normal palmar flexion, approximately 22% of normal ulnar deviation,
and 50% of normal
radial deviation. App. Br. 7. He asserts that this loss of motion is large enough that the Board could
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not declare “the veteran retained significant motion of the wrist” without explanation. Id. He further argues that the Board’s conclusory statement that the loss of motion is not tantamount to the degree of ankylosis necessary for a 30% rating under DC 5214 is inadequately explained. Id.
Mr. Morrow also notes that the examination report makes no affirmative findings on weakness, fatigability, and incoordination (App. Br. at 7, relying on R. at 108-13) and that the Board does not cite to anyevidence that indicates these symptoms are now present (id., relying on R. at 29).
Therefore, Mr. Morrow concludes that with the Board’s acknowledgment that he experienced significant pain, its finding that”pain, fatigue, swelling, and weakness” do not
support a higher rating under DeLuca v. Brown, 8 Vet. App. 202 (1995), is merely a conclusory statement lacking the
necessary factual predicate for informed judicial review. App. Br. at 8-9.
In its decision, the Board set forth the regulations applicable to the
rating of Mr. Morrow’s wrist disability. R. at 26-27. Under the applicable DC for wrist disabilities, a 20% disability rating is warranted for favorable ankylosis of the minor wrist where range of
motion testing reveals dorsiflexion between 20 and 30 degrees. § 4.71a, DC 5214. A 30% disability rating is warranted
for favorable ankylosis of the major wrist where range of motion
testing reveals dorsiflexion between 20 and 30 degrees or unfavorable ankylosis in the minor wrist in positions other than favorable. Id.
The Board also discussed the findings of the March 2006 and April 2007 VA medical examinations. R. at 26-30. The March 2006 VA examination revealed a diagnosis of left wrist pain, post traumatic,
and post-surgical wrist arthritis. R. 347-55. It also noted a primary
disability of left wrist pain and developing weakness in Mr. Morrow’s left hand. Id. The evidence before the Board also shows that the April 2007 VA medical examiner documented significant pain of the left wrist and rendered a diagnosis of left wrist arthritis, status post partial wrist fusion. R. at 108-25.
The evidence noted above provides a plausible basis for the Board’s determination that an increased rating is not warranted because there is no evidence of ankylosis in any other position
except favorable. R. at 29. Indeed, in its decision, the Board noted that the March 2006 and April 2007 VA examinations considered the effects of painful motion and found that repeated motion did
not result in any additional limitation of motion. R. at 29. Thus, there
was no error and the Board articulated a thorough analysis of determining the proper disability rating.
That analysis is sufficient for judicial review and satisfies the reasons or bases requirement.
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Mr. Morrow argues that the Board failed to adequately explain why the April 2007 VA examination report did not provide a basis for a staged rating. App. Br. at 8. He asserts that there is a wide discrepancy between the range of motion (ROM) findings in the March 2006 and April 2007 VA examination reports, which renders the Board’s finding an inadequately explained
conclusory statement. App. Br. at 8.
Separate disability ratings may be assigned for separate periods of time in accordance with the facts found when initial or increased disability ratings are assigned. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet.App. 119,
126 (1999); see Hart v.
Mansfield, 21 Vet.App. 505, 511 (2007). A review of the March 2006 and April 2007 VA examinations reveals that Mr.Morrow’s symptoms did not remain constant during the appeal period.
The March 2006 examination indicates normal ROM (R. at 348), while the April 2007 examination reflects significantly limited motion (R. at 111). However, as the Secretary correctly indicated, because the Board adequately determined that there was no evidence of
record of unfavorable ankylosis in Mr. Morrow’s wrist, regardless of the changes noted in the ROM of his wrist in the April 2007 examination, there was no indication that his symptoms regarding the
presence of unfavorable ankylosis changed during the pendency of the increased rating claim. Secretary’s Br. at 10-11, relying on R. at 29. Accordingly, the Court holds that the Board correctly determined that staged ratings were not warranted. See Hart and Fenderson, both supra.
Mr. Morrow also argues that the Board inadequately explained its findings that an extraschedular rating was not warranted. App. Br. at 8-9. In Thun v. Peake, this Court held that the
determination of whether a claimant is entitled to an extraschedular
rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to determine whether “the evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. If the adjudicator
determines that this is so, the second step of the inquiry requires the
adjudicator to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked
interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim
to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a
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determination of whether an extraschedular rating is warranted. Id. If
the threshold determination for a referral is not met, an error by the Board in applying the second step may be nonprejudicial to
the appellant’s claim. See id. at 119.
In this case, Mr. Morrow persuasively argues that the Board’s analysis, which does not address any of his arguments specifically, consists of conclusory statements reasoning that the record does not present such an exceptional or unusual disability picture, “with such related factors as marked interference with employment or frequent periods of hospitalization” as to render the schedular criteria impractical. App. Br. at 9. He argues that the reasoning is inadequate because it does not conduct the comparison of the severity of the appellant’s symptoms with the schedular criteria that Thun requires. Mr. Morrow notes that he has extremely limited ulnar and radial deviation, which the schedular criteria do not contemplate at all absent ankylosis. See 38 C.F.R. §§ 4.71 plate I, 4.71a DC 5214, 5215; R. at 111. Mr. Morrow further notes that his wrist joint is
painful and weak, such that he has difficulty picking up and holding
objects. R. at 68, 112, 316, 347-48, 354, 361. He also argues that the Board fails to account for the April 2007 VA examiner’s finding that the wrist pain had a “[s]ignificant” general occupational effect. R. at 113.
In its decision, the Board fails to explain why this finding, in
conjunction with the evidence of pain and weakness, does not reflect sufficient interference with employment to support referral.
The Secretary offers the post hoc rationalization that the Board’s conclusion was supported by evidence of record, including the 2006 compensation and pension examination that noted that Mr.
Morrow has not “missed work or had to change his duties at this point.” Secretary’s Br. at 12; R. at 347; see Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)
(“‘[L]itigating positions’ are not entitled to deference when they are
merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”). The
Secretary argues that in the April 2007 compensation and pension
examination, the examiner noted that Mr. Morrow was “currently employed,” that he had not missed any days from work in the
previous12-month period, that wrist and knee “pain” was the “impact onoccupational activities” and that his spine condition had “no significant effects” on his employment. Secretary’s Br. at 12, relying
on R. at 113, 125. Because the Board did not rely on or note this evidence in its discussion, the Secretary’s post hoc rationalization is without merit and this issue should be remanded for the Board
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to provide adequate reasons or bases for its determination that an extraschedular evaluation is not warranted.
Mr. Morrow argues that the Board erred when it did not address whether a separate rating was warranted for his loss of left thumb motion. App. Br. at 7-10.
Specifically he argues that a separate rating for loss of thumb motion would not constitute impermissible pyramiding, because the symptomatology of his left thumb and left wrist do not overlap. Id.;
see 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet.App. 259, 261-61 (1994). Limitation of movement of a thumb is rated for compensation purposes under 38 C.F.R. § 4.71a, DC 5228. To
receive any rating pursuant to DC 5228, including a 0% rating, there must be at least some gap ” between the thumb pad and the
fingers, with the thumb attempting to oppose the fingers.” Id. Mr. Morrow has not identified any evidence of record indicating that he has any of the symptoms listed under DC 5228 for even a 0%
rating. Moreover, because pain itself is not compensable under DC 5228, there is no basis upon which to grant Mr. Morrow a rating under this DC. As such, the Secretary correctly argues that,
although the Board did not address whether a separate rating was warranted for Mr. Morrow’s thumb, such error was harmless because, even if a separate claim for the limitation of motion of the thumb had been considered, based on the evidence of record, he could not have been awarded anydisability compensation and remanding his claim for such consideration would result in no benefit to him.

2. Lumbar Spine
Mr. Morrow contends that the Board inadequatelyexplained its finding that a separate rating was unwarranted for the neurological component of his lumbar disability. App. Br. at 10-11. In its
decision, the Board found that the April 2007 VA examination “noted
complaints of radiculopathy,” but contained no objective findings of neurological symptoms or abnormal sensory or reflex findings. R. at 20. Mr. Morrow argues that none of the examiner’s sensory findings, however, expressly rules out radiating pain. App. Br. at 11, relying on R. at 119-21, 125. Relying on McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), he contends that the absence of a finding does
not equate to a negative finding. App. Br. at 11. Mr. Morrow also argues that the absence of an express finding deprived the Board of the ability to make a finding on the question either way, rendering the examination report inadequate. Id.
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In the Board decision on appeal, the Board stated that the April 2007
compensation and pension examination noted Mr. Morrow’s complaints of radiculopathy, and further noted that “there were no objective findings of neurological symptoms upon clinical
examination” and that “sensory and reflex examinations performed at that time were normal.” R. at 20. The Board concluded that there were no objective findings sufficient to warrant a separate
evaluation for a neurological disability. Id. As the Secretary argues, this conclusion is supported by the April 2007 compensation and pension examination report, in which the examiner, while noting Mr. Morrow’s complaints of “radiating pain” in his left leg and a history of “paresthesias,” found Mr. Morrow’s spine to be “normal” following a “detailed sensoryexam” and a “detailed reflex exam.” Secretary’s Br. at 14-15, relying on R. at 114-15, 119-21. Accordingly, the Court holds that the Board adequately supported its findings upon evidence of the record and its conclusion is plausible based upon that record.

3. 38 U.S.C. § 5103A
Mr. Morrow argues that the Board erred by not providing adequate reasons or bases for its determination that VA complied with its duty to assist under 38 U.S.C. § 5103A. App. Br. at 11-15.
He specifically argues that the Board did not discuss the inadequacies of the 2006 and 2007 VA examination reports. Id. The Secretary argues that even though the examiners conducting the 2006 and 2007 VA examinations did not review Mr.Morrow’s claims file, the examinations were adequate because both examiners “elicited information from Mr. Morrow regarding the history of his prior medical treatment and the current status of his claimed conditions.” Secretary’s Br. at 16. He further argues that the two VA examiners fully considered Mr. Morrow’s history that they collected orally, along with their observations and the testing they conducted as evidenced by the record, and therefore the information was sufficient for these examiners to make an informed opinion regarding the status of Mr. Morrow’s disability even without reviewing the claims file. Id. The Court agrees.
An examination is adequate when “it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’
” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994). Although the VA examiners did not review the appellant’s claims file, such fact alone does not render the examinations or any opinions contained in the examination reports inadequate. See Nieves-
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Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2006) (noting that a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran); see also Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997). Rather, the Board may determine the probative value of a medical opinion based upon, among other things, whether the examiner was “informed of sufficient facts upon which to base an opinion relevant to the problem at hand.” Nieves-Rodriguez, 22 Vet.App. at 302. Therefore, despite Mr. Morrow’s argument to the contrary, the 2006
and 2007 VA medical examination reports were adequate and satisfied VA’s duty to assist, and the Board did not err by
concluding so.
Mr. Morrow also contends that the assistance was inadequate on the basis that the 2006 and 2007 VA examinations did not properly address the factors required by DeLuca. App. Br. at 13-14.
The Secretary argues that the facts before the Board reveal that in the 2007 VA examination the DeLuca factors were adequately addressed by the examiner noting Mr. Morrow’s “functional
limitations” in walking and standing, and Mr. Morrow’s no responses to joint weakness and a history of fatigue in his spine. Secretary’s Br. at 18, relying on R. at 108-126.
In Deluca, the Court held that 38 C.F.R. § 4.40 requires that VA consider the disabling effect of painful motion when assigning
disability ratings for joint conditions. Deluca, 8 Vet.App. at 205-06. In short, when rating disabilities of the joints including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue. Id.
The evidence before the Board indicates that the examiner further recorded Mr. Morrow’s complaints of spinal pain and noted the loss of range of motion in his spine after repetitive use. Id. Moreover, the examiner made note of Mr. Morrow’s pain in his wrist and right knee as well as his pain on movement. Id. RegardingMr. Morrow’s knee, the examiner found no crepitus and observed that Mr. Morrow had pain at 140 degrees “during the range of motion exercise.” R. at 349. As to Mr. Morrow’s spine, the examiner commented that Mr. Morrow did have pain on movement of the spine. Id. Regarding the 2007 compensation and pension exam, the examiner noted that Mr.
Morrow experienced painful motion in his wrist, knee, and spine, and that this pain would not presumably subside under a weight-bearing test of the joint. See 38 C.F.R. § 4.59. The Board
8

addressed this evidence and, therefore, Mr. Morrow’s argument lacks merit as the Board’s decision provides a clear discussion of the DeLuca factors as it pertains to his claims.
Finally, Mr. Morrow argues that the Board should have remanded his claim to the RO with instructions to obtain a 2006 VA magnetic resonance imaging (MRI) report of his right knee. App. Br. at 14. He asserts that VA received adequate notice of his pending results in personal statements dated May and July 2006 and VA treatment records dated April and May 2006. Id., relying on R. at 188, 191, 254, 314. The Secretary contends that, although Mr. Morrow’s
2006 MRI report was not obtained, any error resulting in his duty to assist is harmless as the report would not support an increased rating for his service-connected right knee disability. Secretary’s Br. at 20-22.
Under § 5103A, the Secretary’s duty to assist includes making “reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary
and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372 (Fed.Cir. 2009); Loving v. Nicholson, 19 Vet.App. 96, 102 (2008). The Board’s
determination that the Secretary has or has not fulfilled his duty to assist is generally a finding of fact reviewed under the “clearly erroneous” standard of review. Nolen v. Gober,14 Vet.App. 183, 184 (2000).
Despite the Secretary’s argument, the Courts holds that VA’s failure to obtain Mr. Morrow’s 2006 MRI report constitutes clear error. See Nolen, supra. It is not the Secretary’s responsibility to assess the credibility and probative value of the 2006 MRI report, which has yet to be obtained, as
that duty is vested in the Board. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that “[i]t is the responsibility of the [Board], . . . to assess the credibility and weight to be given to evidence”).
Accordingly, remand is required for VA to comply with its duty to obtain the report referenced by Mr. Morrow and for the Board to analyze the credibility and probative value of the evidence, account
for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 5103A(b)(1); see Moore and Loving, both supra; see also Caluza, supra.
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II. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal,
and the parties ‘pleadings, that part of the December 9, 2008, Board decision that denied referral for the assignment of extraschedular evaluation of the left wrist claim is VACATED and that matter is REMANDED to the Board for adjudication consistent with this decision. On remand, the Board is also instructed to fulfill its duty to assist and obtain Mr. Morrow’s 2006 MRI report concerning his lumbar spine. The decision is otherwise AFFIRMED.

DATED: June 9, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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