Veteranclaims’s Blog

April 16, 2013

Single Judge Application; Extraschedular Disability Rating; Johnson, __ Vet.App. at __, slip op. at 4-11; 38 C.F.R. § 3.321(b); Martinak, 21 Vet.App. at 455

Excerpts from decision below:
“In addition, the Court sympathetically construes Mr. Evans’s argument regarding his “double disability” and notes that it recently addressed a similar assertion in Johnson, concluding that separate disabilities could not be considered collectively for the purposes of extraschedular evaluation. See Johnson, __ Vet.App. at __, slip op. at 4-11. In Johnson, the Court addressed whether an extraschedular disability rating could be awarded under 38 C.F.R. § 3.321(b) “based on the combined effect of all service-connected disabilities on a claimant’s average earning capacity.” Johnson, __ Vet.App. at __, slip op. at 7 (internal quotation marks omitted). That regulation provides that, “[t]o accord justice” in “the exceptional case where the schedular evaluations are found to be inadequate,” certain VA officials are authorized to approve extraschedular evaluations “commensurate with the average earning capacity impairment due exclusively to the serviceconnected disability or disabilities.” 38 C.F.R. § 3.321(b) (emphasis added). The Court observed that the “disability or disabilities” language in that regulation rendered it ambiguous, in that the
regulation could be read to apply to individual disabilities separately–the Secretary’s interpretation–or multiple disabilities collectively–the appellant’s interpretation. Johnson, __ Vet.App. at __, slip op. at 7-8. Given that ambiguity, the Court concluded that it was bound by the Secretary’s interpretation, which was “not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole.” Id., slip op. at 10-11.
Thus, any argument that the Board erred in failing to evaluate Mr. Evans’s bilateral hearing loss and right eye blindness collectively under § 3.321(b) must fail.
============================

“r. Evans also asserts in his brief that he cannot hear the television out of his right ear, and, before the Board, he made similar arguments regarding his inability to hear and communicate. See Appellant’s Br. at 2; R. at 54-57, 61. Although the Secretary does not address this statement in his brief, it appears to be an assertion that either (1) the VA examiners who conducted the July 2005 and March 2010 VA audiological examinations did not take into account the full extent of the veteran’s hearing disability; or (2) the Board failed to account for the functional impairment caused by that disability when assessing whether he was entitled to referral for extraschedular consideration. In Martinak, the Court held that, for a VA audiological examination report to be adequate for rating purposes, “a VA audiologist must fully describe the functional effects caused by a hearing disability.” 21 Vet.App. at 455. The Court explained that analysis of the level of functional impairment caused by a claimant’s hearing disability is necessary to facilitate the Board’s determination of whether referral for extraschedular consideration is warranted. See id.
A review of the July 2005 and March 2010 audiological examinations reveals that they comply with Martinak. R. at 9. In the July 2005 VA examination report, the examiner noted that Mr. Evans “would have some disabling factors especially in noisy situations” and “difficulty with localization or directionality [affecting] his ability to pinpoint directions or objects for his own
personal safety.” R. at 514. The examiner also stated that, “with the use of hearing aids . . . , he would be able to do well at most communicative situations.” Id. Likewise, the March 2010 VA examiner acknowledged Mr. Evans’s complaints of difficulty hearing the television, decreased hearing sensitivity, troubles hearing with excessive noise in the background, and problems with
sound localization and opined that his “bilateral asymmetric configuration of hearing loss does create a significant impairment” with his right eye blindness, including making him “unable to pick up on safety information and information necessary to communicate effectively.” R. at 42-43. Those statements are sufficient to satisfy Martinak because the examiners expressly described the
functional effects caused by Mr. Evans’s hearing disability, and the Court therefore concludes that the July 2005 and March 2010 VA audiological examinations are not inadequate in that regard.
The Board’s extraschedular analysis, however, was deficient. In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court explained that, to determine whether referral for an extraschedular rating is warranted, the VA adjudicator must first compare the severity and symptoms of the claimant’s
7
service-connected disability with the criteria found in the rating schedule for that disability to determine whether the assigned schedular evaluation contemplates and fully reflects the claimant’s disability picture. The Board superficially made that comparison in this case: The Veteran received audiological examinations that appropriately measured [his] hearing loss levels, both as indicated by audiometric testing at specified levels, and as measured by speech recognition test scores. The speech recognition testing is schedular rating criteria recognition of an inability to hear some words in normal conversation. . . . [T]he findings appropriately apply to the criteria set forth in the Rating Schedule. As the Veteran’s hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted.R. at 9-10. In essence, the Board concluded that referral for an extraschedular evaluation was not warranted in this case because the objective audiological tests captured the full extent of Mr. Evans’s hearing disability. However, the Court rejected precisely that premise in Martinak, explaining that it was necessary for medical examiners to assess the degree of functional impairment caused by a veteran’s hearing loss to facilitate the Board’s “possible application” of § 3.321(b) because, “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” 21 Vet.App. at 455. As outlined above, the record is replete with evidence that the bilateral asymmetric configuration of Mr. Evans’s hearing disability causes or contributes to functional impairment beyond that contemplated by the rating schedule. R. at 43. This includes difficulty with sound localization and directionality that threatens his personal safety (R. at 42-43, 514), inability to hear the television even when the volume is increased because “loud sounds are ‘unclear’ and have a ‘bass’ sound” (R. at 42), and general difficulty communicating (R. at 43). The Board’s failure to account for this functional impairment when addressing whether referral for extraschedular consideration was warranted thus renders inadequate its statement of reasons or bases for its decision. See Martinak and Caluza, both supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1808
RICHARD S. EVANS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

BARTLEY, Judge: Veteran Richard S. Evans, who is self-represented, appeals a March 2,
2011, decision of the Board of Veterans’ Appeals (Board) denying entitlement to a compensable
evaluation for bilateral hearing loss.1 Record (R.) at 3-11. This appeal is timely and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Singlejudge
disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
On September 24, 2012, the Court ordered that this case be stayed pending the outcome of
Johnson v. Shinseki, U.S. Vet. App. No. 10-1785 (argued December 8, 2011), which the Court
determined might have a direct bearing on this case. As the Court has now issued a decision in
Johnson, the stay is lifted. See Johnson (Marvin) v. Shinseki, __ Vet.App. __, No. 10-1785 (Mar.
27, 2013) (en banc). For the reasons that follow, the Court will set aside the portion of the March
2011 Board decision addressing Mr. Evans’s claim for service connection for bilateral hearing loss
1The Board also remanded the issues of entitlement to an evaluation in excess of 30% for post-traumatic stress
disorder (PTSD) and a total disability rating based on individual unemployability (TDIU). Because a remand is not a
final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this
time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004);
38 C.F.R. § 20.1100(b) (2012).
and remand the claim for further development, if necessary, and readjudication consistent with this
decision.
I. FACTS
Mr. Evans served on active duty in the U.S. Army from September 1966 to November 1968,
including service in Vietnam. R. at 702. In February 1968, he was injured in a rocket blast that
caused partial deafness in both ears and blindness of the right eye, among other disabilities. R. at
1126-27. In December 1968, Mr. Evans filed a claim for service connection for his various
disabilities. R. at 1089-90. Later that month, a VA regional office (RO) awarded him service
connection for, inter alia, right ear deafness and right eye blindness and assigned a temporary total
disability rating based on convalescence. R. at 1106. When his convalescent rating expired in June
1969, the RO awarded him service connection for defective hearing in the left ear and assigned him
a noncompensable evaluation for bilateral hearing loss and a 30% evaluation for his serviceconnected
right eye disability, as well as special monthly compensation (SMC) under 38 U.S.C.
§ 314(k) (now 38 U.S.C. § 1114(k)) for loss of use of the right eye having only light perception. R.
at 1073-74.
Relevant to this appeal, in February 2005 Mr. Evans filed a claim for an increased evaluation
for bilateral hearing loss (R. at 347) and, in July 2005, attended a VA audiological examination (R.
at 513-16). The examination revealed speech recognition scores, based on the Maryland CNC Test,
of 94% in the right ear and 98% in the left ear. R. at 514. His puretone thresholds, in decibels, were
as follows:
1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average
Right 80 80 105 100 91
Left 35 35 55 55 45
R. at 514-15. Based on those results, the examiner diagnosed Mr. Evans with mixed hearing loss,
sensorineural hearing loss, and tinnitus and opined that, “with the use of hearing aids . . . , [Mr.
Evans] would be able to do well at most communicative situations.” R. at 514.
In September 2005, the RO issued a rating decision continuing the noncompensable
evaluation for his bilateral hearing loss. R. at 483-99. Mr. Evans filed a timely Notice of
2
Disagreement (NOD) with that decision and subsequently perfected his appeal to the Board. R. at
343-44, 481-82. In October 2009, the Board remanded his claim to provide him with a
contemporaneous VA audiological examination. R. at 47-51.
The VA examiner in March 2010 reviewed the claims file and recorded Mr. Evans’s
subjective complaints, noting complaints of “decreased hearing sensitivity bilaterally,” “asymmetrical
hearing loss significantly worse,” and “substantial difficulty with sound localization and hearing with
excessive noise in the background.” R. at 42. The examiner also stated that Mr. Evans “has tried
amplification, though he found the devices to be more of a nuisance and make him irritable.” R. at
42. An audiological examination revealed speech recognition scores of 94% in both ears and the
following puretone thresholds:
1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average
Right 90 90 100 105+ 96+
Left 40 55 60 65 55
R. at 43. Based on those results, the examiner diagnosed Mr. Evans with mixed hearing loss of the
right ear and sensorineural hearing loss of the left ear. Id. The examiner further opined that Mr.
Evans’s “bilateral asymmetric configuration of hearing loss does create a significant impairment for
the veteran, as noted,” with his right eye blindness. Id. The examiner stated that Mr. Evans’s senses
were “unable to pick up on safety information and information necessary to communicate
effectively.” Id. The examiner explained that Mr. Evans “should fare well with hearing
amplification” even though amplification was “unsuccessful” in the past. Id.
In March 2011, the Board issued the decision currently on appeal, which denied entitlement
to an increased evaluation for bilateral hearing loss. R. at 3-11. Specifically, the Board determined
that the results of the July 2005 and March 2010 VA audiological examinations correspond to a
noncompensable evaluation under 38 C.F.R. § 4.85 (2010). R. at 7-8. The Board then stated that
referral for extraschedular consideration was not warranted because “the Rating Schedule
contemplates all aspects of [Mr. Evans’s hearing loss] disability,” including his “inability to hear
some words in normal conversation.” R. at 9-10. This appeal followed.
3
II. ANALYSIS
Schedular evaluations for hearing impairment are derived from the mechanical application
of the rating schedule to numeric designations that are assigned after audiometric testing.
Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). Ordinarily, the average scores for puretone
threshold are compared with speech recognition scores to establish a numeric rating from I to XI for
each ear, as outlined in Table VI in § 4.85. See 38 C.F.R. §§ 4.85(b), (h) (Table VI) (2012). If,
however, the examiner certifies that the use of speech recognition scores would not be appropriate,
numeric ratings are assigned based solely on average puretone thresholds, as outlined in Table VIa.
See 38 C.F.R. §§ 4.85(c), (h) (Table VIa). In addition, when a claimant has an exceptional pattern
of hearing impairment, such as puretone thresholds of 55 decibels or more at each of the specified
frequencies (1000, 2000, 3000, and 4000 Hertz), the rating specialist must calculate the appropriate
numeric ratings under Tables VI and VIa and use the higher rating. 38 C.F.R. § 4.86(a) (2012). In
each of the situations described above, the numeric scores for the “better” and “poorer” ear are then
entered into a chart to establish a disability rating between 0% and 100%. 38 C.F.R. §§ 4.85(e), (h)
(Table VII).
The Board’s determination of the appropriate disability evaluation is a finding of fact subject
to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown,
10 Vet.App. 93, 97 (1997). “A factual finding ‘is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
In the instant case, the Board outlined the method for evaluating hearing impairments under
§ 4.85 and summarized the results of the July 2005 and March 2010 VA audiological examinations.
R. at 6-8. The Board then determined the numeric ratings for each examination under Table VI,
noting that “the audiological results do not meet the requirements for exceptional patterns of hearing
impairment.” R. at 7. Specifically, the Board found that the average puretone thresholds and speech
recognition scores from the July 2005 VA examination resulted in numeric ratings of III for the right
ear and I for the left ear. R. at 7-8. The Board also found that the March 2010 examination results
corresponded to numeric ratings of IV for the right ear and I for the left ear. R. at 8. The Board then
4
entered those numeric ratings into Table VII and concluded that neither examination demonstrated
entitlement to a compensable schedular evaluation for Mr. Evans’s bilateral hearing loss. R. at 8.
The Court discerns two errors in the foregoing analysis, both of which are nonprejudicial.
First, the Board erred in calculating the numeric rating for Mr. Evans’s right ear hearing loss based
on the March 2010 VA examination results. Namely, an average puretone threshold of 96+ and a
speech recognition score of 94% corresponds under Table VI to a numeric rating of III, not IV. See
38 C.F.R. § 4.85(h) (Table VI). That error, however, was harmless because a numeric rating of III
reflects less severe hearing loss than a numeric rating of IV and, combined with a numeric rating of
I for his left ear, does not warrant a compensable evaluation. See 38 U.S.C. § 7261(b)(2) (requiring
the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (explaining that “the burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination”); Vogan v. Shinseki, 24 Vet.App. 159, 162-64 (2010)
(holding that the Court may make factual findings when determining whether a Board error is
prejudicial).
Second, the Board erred in determining that the audiological results from the July 2005 and
March 2010 VA examinations did not demonstrate an exceptional pattern of hearing impairment in
Mr. Evans’s right ear. R. at 5. Both VA examinations reflect puretone thresholds of the right ear of
55 decibels or more at each of the four specified frequencies. R. at 42, 514-15. Those test results
therefore satisfy § 4.86(a)’s definition of an exceptional pattern of hearing impairment, compelling
the Board to consider the appropriate numeric ratings under Tables VI and VIa and to use the higher
of the two to calculate his level of disability. See 38 C.F.R. § 4.86(a). Yet, the Board failed to
calculate a numeric rating for his right ear for either examination under Table VIa. See 38 U.S.C.
§ 7104(a) (requiring the Board to consider all potentially applicable provisions of law and regulation
in reaching its decision); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). Entering the
average puretone thresholds for the right ear recorded in July 2005 and March 2010 results in a
numeric rating of IX for each examination. However, a numeric rating of IX for the right ear and
a numeric rating of I for the left ear yields a noncompensable evaluation. See 38 C.F.R. § 4.85(h)
(Table VII). Therefore, the Court concludes that the Board’s failure to acknowledge that Mr. Evans
5
has an exceptional pattern of hearing loss and use the method outlined in § 4.86(a) constitutes
harmless error. See Sanders, 556 U.S. at 409; Vogan, 24 Vet.App. at 162-64.
On appeal, Mr. Evans expressly argues that the combination of his bilateral hearing loss and
right eye blindness is a “double disability which should be taken into consideration.” Appellant’s
Brief (Br.) at 1. The Court notes that the Board remanded the issue of entitlement to TDIU (R. at
4, 10-11), a disability benefit that considers the collective effect of multiple service-connected
disabilities on a veteran’s ability to obtain or retain a substantially gainful occupation. See 38 C.F.R.
§ 4.16 (2012). Thus, the issue of entitlement to TDIU is not before the Court at this time. See supra note 1.
In addition, the Court sympathetically construes Mr. Evans’s argument regarding his “double disability” and notes that it recently addressed a similar assertion in Johnson, concluding that separate disabilities could not be considered collectively for the purposes of extraschedular evaluation. See Johnson, __ Vet.App. at __, slip op. at 4-11. In Johnson, the Court addressed whether an extraschedular disability rating could be awarded under 38 C.F.R. § 3.321(b) “based on the combined effect of all service-connected disabilities on a claimant’s average earning capacity.” Johnson, __ Vet.App. at __, slip op. at 7 (internal quotation marks omitted). That regulation provides that, “[t]o accord justice” in “the exceptional case where the schedular evaluations are found to be inadequate,” certain VA officials are authorized to approve extraschedular evaluations “commensurate with the average earning capacity impairment due exclusively to the serviceconnected disability or disabilities.” 38 C.F.R. § 3.321(b) (emphasis added). The Court observed that the “disability or disabilities” language in that regulation rendered it ambiguous, in that the
regulation could be read to apply to individual disabilities separately–the Secretary’s interpretation–or multiple disabilities collectively–the appellant’s interpretation. Johnson, __ Vet.App. at __, slip op. at 7-8. Given that ambiguity, the Court concluded that it was bound by the Secretary’s interpretation, which was “not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole.” Id., slip op. at 10-11.
Thus, any argument that the Board erred in failing to evaluate Mr. Evans’s bilateral hearing loss and right eye blindness collectively under § 3.321(b) must fail.

6
Mr. Evans also asserts in his brief that he cannot hear the television out of his right ear, and, before the Board, he made similar arguments regarding his inability to hear and communicate. See Appellant’s Br. at 2; R. at 54-57, 61. Although the Secretary does not address this statement in his brief, it appears to be an assertion that either (1) the VA examiners who conducted the July 2005 and March 2010 VA audiological examinations did not take into account the full extent of the veteran’s hearing disability; or (2) the Board failed to account for the functional impairment caused by that disability when assessing whether he was entitled to referral for extraschedular consideration. In Martinak, the Court held that, for a VA audiological examination report to be adequate for rating purposes, “a VA audiologist must fully describe the functional effects caused by a hearing disability.” 21 Vet.App. at 455. The Court explained that analysis of the level of functional impairment caused by a claimant’s hearing disability is necessary to facilitate the Board’s determination of whether referral for extraschedular consideration is warranted. See id.
A review of the July 2005 and March 2010 audiological examinations reveals that they comply with Martinak. R. at 9. In the July 2005 VA examination report, the examiner noted that Mr. Evans “would have some disabling factors especially in noisy situations” and “difficulty with localization or directionality [affecting] his ability to pinpoint directions or objects for his own
personal safety.” R. at 514. The examiner also stated that, “with the use of hearing aids . . . , he would be able to do well at most communicative situations.” Id. Likewise, the March 2010 VA examiner acknowledged Mr. Evans’s complaints of difficulty hearing the television, decreased hearing sensitivity, troubles hearing with excessive noise in the background, and problems with
sound localization and opined that his “bilateral asymmetric configuration of hearing loss does create a significant impairment” with his right eye blindness, including making him “unable to pick up on safety information and information necessary to communicate effectively.” R. at 42-43. Those statements are sufficient to satisfy Martinak because the examiners expressly described the
functional effects caused by Mr. Evans’s hearing disability, and the Court therefore concludes that the July 2005 and March 2010 VA audiological examinations are not inadequate in that regard.
The Board’s extraschedular analysis, however, was deficient. In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court explained that, to determine whether referral for an extraschedular rating is warranted, the VA adjudicator must first compare the severity and symptoms of the claimant’s
7
service-connected disability with the criteria found in the rating schedule for that disability to determine whether the assigned schedular evaluation contemplates and fully reflects the claimant’s disability picture. The Board superficially made that comparison in this case: The Veteran received audiological examinations that appropriately measured [his] hearing loss levels, both as indicated by audiometric testing at specified levels, and as measured by speech recognition test scores. The speech recognition testing is schedular rating criteria recognition of an inability to hear some words in normal conversation. . . . [T]he findings appropriately apply to the criteria set forth in the Rating Schedule. As the Veteran’s hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted.R. at 9-10. In essence, the Board concluded that referral for an extraschedular evaluation was not warranted in this case because the objective audiological tests captured the full extent of Mr. Evans’s hearing disability. However, the Court rejected precisely that premise in Martinak, explaining that it was necessary for medical examiners to assess the degree of functional impairment caused by a veteran’s hearing loss to facilitate the Board’s “possible application” of § 3.321(b) because, “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” 21 Vet.App. at 455. As outlined above, the record is replete with evidence that the bilateral asymmetric configuration of Mr. Evans’s hearing disability causes or contributes to functional impairment beyond that contemplated by the rating schedule. R. at 43. This includes difficulty with sound localization and directionality that threatens his personal safety (R. at 42-43, 514), inability to hear the television even when the volume is increased because “loud sounds are ‘unclear’ and have a ‘bass’ sound” (R. at 42), and general difficulty communicating (R. at 43). The Board’s failure to account for this functional impairment when addressing whether referral for extraschedular consideration was warranted thus renders inadequate its statement of reasons or bases for its decision. See Martinak and Caluza, both supra.

Although Mr. Evans argues that reversal is warranted in this case, remand is the appropriate
remedy where, as here, the Board did not support its decision with an adequate statement of reasons
or bases. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“Where the Board has incorrectly
applied the law, failed to provide an adequate statement of reasons or bases for its determinations,
8
or where the record is otherwise inadequate, a remand is the appropriate remedy.”). On remand, Mr.
Evans is free to present any additional argument and evidence to the Board in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a
critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991), which, in this case, includes considering whether a medical opinion is necessary
to ascertain whether and to what extent Mr. Evans’s functional impairment symptoms are attributable
to his service-connected bilateral hearing loss. See Johnson, __ Vet.App. at __, slip op. at 10-11
(holding that VA may not consider disabilities collectively when determining whether referral for
an extraschedular rating is warranted). The remand must also be performed in an expeditious
manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the portion of the March 2, 2011, Board decision addressing Mr. Evans’s claim for service connection for bilateral hearing loss is SET ASIDE and the claim is REMANDED for further development, if necessary, and readjudication consistent with this decision
DATED: April 12, 2013
Copies to:
Richard S. Evans
VA General Counsel (027)
9

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