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blackbird

Bva Remand-persumptive Connection

Question

While participating in a training exercise in Egypt during October ’95, I pulled on a metal parts box and felt a sharp pain in my back, down in my left leg. At the time I thought I had just pulled a muscle in my lower back that wasn’t serious so I didn’t report it. I only had a couple weeks to go before returning home and I really thought I would be okay by then. However when I got home in early November it had only gotten worse. I tried heat treatments, anti-inflammatory meds and bed rest but nothing helped. On 12/11/1995 I went to my family doctor who initially prescribed muscle relaxers, pain meds and bed rest. He asked how I hurt my back and I told him that I hurt it while training with the USAF in Egypt in October, two months earlier. This is in his notes. I was referred to a neurosurgeon in January 1996 and had surgery for herniated disc at L4-L5 in March 1996. I had surgery again in 1998 to fuse the joint due to continued pain in left leg. Joint was stabilized but pain persisted. Surgeon determined that the left ganglion nerve root was permanently damaged at the time the disc ruptured. Have been totally disabled since 6/16/2000 due to inability to walk or sit for any length of time since the damaged nerve is aggravated by activity. I was awarded SSID in 2002 due to unemployability. I had surgery again on L3-L4 in 2007 to correct another herniated disc. Have also had five cervical disc surgeries with all levels fused from C2-T1. Severe DDD diagnosed.

Filed for service connected compensation 2004, had a VA examine in March of 2005. Of course I was turned down several times and eventually appealed to BVA. They remanded the case back to the RO stating that the VA doctor made his decision without looking at my case file and that I was to be given another exam after the doctor performing the exam had reviewed the complete file. Also that he was to give an opinion as to whether he thought it was as likely as not that my back problem could have been caused as a result of what I claimed. My surgeon has stated that he felt the way I described the injury by pulling on the box was more than likely what caused the initial disc herniation in my back..

I’m currently waiting for the exam date that the BVA requested. Does anyone have any advice, I’m new to the “VA Battlefield”. Do you think I have a shot at Compensation thru presumptive connection?

Thanks in advance for your help!!!

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Welcome to Hadit.

If you can prove that your industry has caused you to be service connected you can win.

You need a diagnosis, a nexus and proof that you injured yourslef while serving.

Good Luck

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Thanks for the reply Peter53,

I'm not really sure what should be included in a "Nexus Statement".

Also on the summary sheet from my exit exam by the USAF it states that patient developed back pain in November 1995 that radiated into the left leg. October thru first week of November was when I was in Egypt training, and I wasn't discharged until Jan 1997. Wouldn't this help any in proving presumptive service connection? This is included in material I've already submitted. Should I resubmit this at the next exam?

I also plan to get an IMO from the surgeon that has operated on my spine 8 times since March 1996 due to continued DDD.

Thanks again for your help!

Blackbird

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I'm not really sure what should be included in a "Nexus Statement".

Example of a GOOD nexus statement includes :

I am Dr. XXXX Speciality fields XXXXX

I have treated veteran XXXX for conditions of XXX,XXX,XXXX.

The veteran is currently diagnosed with XXX,XXX,XXX.

The veteran is receiving physical therapy, RX's,etc....

I have reviewed the veteran's SMR's, this is a very important statement to add !

TMC's notes dated XX/XX/XXXX, stating veteran had injury of XXX, illness of, XXX, etc...

Military exit physical states, XXX,XXX,XXX.

It is my medical opinion that the veterans current diagnosis of XXX,XXX,XXX

test and surgeries dated XX,XX,XXXX, and XX/XX/XXXX, showing XXX,XXX,XXX

is as likely as not related to their military service as supported by the current diagnosis

and the medical evidence listed above.

(blackbird - the above shows the doctor's nexus statement and it is being supported with

medical rationale).

If filing for IU, it would be great for the doc to add:

Due solely to the medical evidence listed, it is my medical opinion the veteran's

disabilities are static in nature and unable the veteran is not able to hold employment

due to XXX,XXX,XXX.

I also plan to get an IMO from the surgeon that has operated on my spine 8 times since March 1996 due to continued DDD.

See above.

Hope this helps a vet.

jmho,

carlie

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Thanks for the reply Peter53,

"............Wouldn't this help any in proving presumptive service connection? This is included in material I've already submitted. Should I resubmit this at the next exam?..............."

Hi Blackbird, First your back condition is not a presumptive condition. The VBA has a list of presumptive conditions and I don't see your claim falling under such. One example would be if you had service in Vietnam and had your "boots on the ground" and now many years later you have a specific type of cancer, then the VBA by law has to presume that your cancer is service connected.

However, the medical evidence as you have presented it seems to be pretty solid. The only evidence I'd seek if I were in your shoes is a buddy statement from a witness that may have observe your injury and/or complaints of pain shortly thereafter.

Edited by poolguy11550

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38 C.F.R. 3.303 Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

© Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof ), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

(d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.[26 FR 1579, Feb. 24, 1961]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

38 C.F.R. 3.309 Disease subject to presumptive service connection.

(a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Anemia, primary.

Arteriosclerosis.

Arthritis.

Atrophy, Progressive muscular.

Brain hemorrhage.

Brain thrombosis.

Bronchiectasis.

Calculi of the kidney, bladder, or gallbladder.

Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.)

Cirrhosis of the liver.

Coccidioidomycosis.

Diabetes mellitus.

Encephalitis lethargica residuals.

Endocarditis. (This term covers all forms of valvular heart disease.)

Endocrinopathies.

Epilepsies.

Hansen’s disease.

Hodgkin’s disease.

Leukemia.

Lupus erythematosus, systemic.

Myasthenia gravis.

Myelitis.

Myocarditis.

Nephritis.

Other organic diseases of the nervous system.

Osteitis deformans (Paget’s disease).

Osteomalacia.

Palsy, bulbar.

Paralysis agitans.

Psychoses.

Purpura idiopathic, hemorrhagic.

Raynaud’s disease.

Sarcoidosis.

Scleroderma.

Sclerosis, amyotrophic lateral.

Sclerosis, multiple.

Syringomyelia.

Thromboangiitis obliterans (Buerger’s disease).

Tuberculosis, active.

Tumors, malignant, or of the brain or spinal cord or peripheral nerves.

Ulcers, peptic (gastric or duodenal) (A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.

(b) Tropical diseases. The following diseases shall be granted service connection as a result of tropical service, although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under §3.307 or §3.308 following service in a period of war or following peacetime service provided the rebuttable presumption provisions of §3.307 are also satisfied.

Amebiasis.

Blackwater fever.

Cholera.

Dracontiasis.

Dysentery.

Filariasis.

Leishmaniasis, including kala-azar.

Loiasis.

Malaria.

Onchocerciasis.

Oroya fever.

Pinta.

Plague.

Schistosomiasis.

Yaws.

Yellow fever.

Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof.

© Diseases specific as to former prisoners of war.

(1) If a veteran is a former prisoner of war, the following diseases shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Psychosis.

Any of the anxiety states.

Dysthymic disorder (or depressive neurosis).

Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite.

Post-traumatic osteoarthritis.

Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia).

Stroke and its complications.

(2) If the veteran:

(i) Is a former prisoner of war and;

(ii) Was interned or detained for not less than 30 days, the following diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Avitaminosis.

Beriberi (including beriberi heart disease).

Chronic dysentery.

Helminthiasis.

Malnutrition (including optic atrophy associated with malnutrition).

Pellagra.

Any other nutritional deficiency.

Irritable bowel syndrome.

Peptic ulcer disease.

Peripheral neuropathy except where directly related to infectious causes.

Cirrhosis of the liver.

Authority: 38 U.S.C. 1112(b).

(d) Diseases specific to radiation-exposed veterans.

(1) The diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran as defined in paragraph (d)(3) of this section, provided the rebuttable presumption provisions of §3.307 of this part are also satisfied.

(2) The diseases referred to in paragraph (d)(1) of this section are the following:

(i) Leukemia (other than chronic lymphocytic leukemia).

(ii) Cancer of the thyroid.

(iii) Cancer of the breast.

(iv) Cancer of the pharynx.

(v) Cancer of the esophagus.

(vi) Cancer of the stomach.

(vii) Cancer of the small intestine.

(viii) Cancer of the pancreas.

(ix) Multiple myeloma.

(x) Lymphomas (except Hodgkin’s disease).

(xi) Cancer of the bile ducts.

(xii) Cancer of the gall bladder.

(xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated).

(xiv) Cancer of the salivary gland.

(xv) Cancer of the urinary tract.

(xvi) Bronchiolo-alveolar carcinoma.

(xvii) Cancer of the bone.

(xviii) Cancer of the brain.

(xix) Cancer of the colon.

(xx) Cancer of the lung.

(xxi) Cancer of the ovary.

Note: For the purposes of this section, the term urinary tract means the kidneys, renal pelves, ureters, urinary bladder, and urethra. (Authority: 38 U.S.C. 1112©(2))

(3) For purposes of this section:

(i) The term radiation-exposed veteran means either a veteran who, while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity.

(ii) The term radiation-risk activity means:

(A) Onsite participation in a test involving the atmospheric detonation of a nuclear device.

(B) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.

© Internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946.

(D) (1) Service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, if, during such service the veteran:

(i) Was monitored for each of the 250 days of such service through the use of dosimetry badges for exposure at the plant of the external parts of veteran’s body to radiation; or

(ii) Served for each of the 250 days of such service in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges; or

(2) Service before January 1, 1974, on Amchitka Island, Alaska, if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

(3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the term “day” refers to all or any portion of a calendar day.

(E) Service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384l(14)).

(iii) The term atmospheric detonation includes underwater nuclear detonations.

(iv) The term onsite participation means:

(A) During the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test.

(B) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test.

© Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959.

(D) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads.

(v) For tests conducted by the United States, the term operational period means:

(A) For Operation TRINITY the period July 16, 1945 through August 6, 1945.

(B) For Operation CROSSROADS the period July 1, 1946 through August 31, 1946.

© For Operation SANDSTONE the period April 15, 1948 through May 20, 1948.

(D) For Operation RANGER the period January 27, 1951 through February 6, 1951.

(E) For Operation GREENHOUSE the period April 8, 1951 through June 20, 1951.

(F) For Operation BUSTER-JANGLE the period October 22, 1951 through December 20, 1951

(G) For Operation TUMBLER-SNAPPER the period April 1, 1952 through June 20, 1952.

(H) For Operation IVY the period November 1, 1952 through December 31, 1952.

(I) For Operation UPSHOT-KNOTHOLE the period March 17, 1953 through June 20, 1953.

(J) For Operation CASTLE the period March 1, 1954 through May 31, 1954.

(K) For Operation TEAPOT the period February 18, 1955 through June 10, 1955.

(L) For Operation WIGWAM the period May 14, 1955 through May 15, 1955.

(M) For Operation REDWING the period May 5, 1956 through August 6, 1956.

(N) For Operation PLUMBBOB the period May 28, 1957 through October 22, 1957.

(O) For Operation HARDTACK I the period April 28, 1958 through October 31, 1958.

(P) For Operation ARGUS the period August 27, 1958 through September 10, 1958.

(Q) For Operation HARDTACK II the period September 19, 1958 through October 31, 1958.

® For Operation DOMINIC I the period April 25, 1962 through December 31, 1962.

(S) For Operation DOMINIC II/ PLOWSHARE the period July 6, 1962 through August 15, 1962.

(vi) The term occupation of Hiroshima or Nagasaki, Japan, by United States forces means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials.

(vii) Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces shall include those who, at any time during the period August 6, 1945, through July 1, 1946:

(A) Were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki, or

(B) Can affirmatively show they worked within the areas set forth in paragraph (d)(3)(vii)(A) of this section although not interned within those areas, or

© Served immediately following internment in a capacity which satisfies the definition in paragraph (d)(3)(vi) of this section, or

(D) Were repatriated through the port of Nagasaki. (Authority: 38 U.S.C. 1110, 1112, 1131)

(e) Disease associated with exposure to certain herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.

Chloracne or other acneform disease consistent with chloracne

Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes)

Hodgkin’s disease

Chronic lymphocytic leukemia

Multiple myeloma

Non-Hodgkin’s lymphoma

Acute and subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)

Note 1: The term soft-tissue sarcoma includes the following:

Adult fibrosarcoma

Dermatofibrosarcoma protuberans

Malignant fibrous histiocytoma

Liposarcoma

Leiomyosarcoma

Epithelioid leiomyosarcoma (malignant leiomyoblastoma)

Rhabdomyosarcoma

Ectomesenchymoma

Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)

Proliferating (systemic) angioendotheliomatosis

Malignant glomus tumor

Malignant hemangiopericytoma

Synovial sarcoma (malignant synovioma)

Malignant giant cell tumor of tendon sheath

Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas

Malignant mesenchymoma

Malignant granular cell tumor

Alveolar soft part sarcoma

Epithelioid sarcoma

Clear cell sarcoma of tendons and aponeuroses

Extraskeletal Ewing’s sarcoma

Congenital and infantile fibrosarcoma

Malignant ganglioneuroma

Note 2: For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.

[41 FR 55873, Dec. 23, 1976 and 47 FR 11656, Mar. 18, 1982, as amended at 47 FR 54436, Dec. 3, 1982; 49 FR 47003, Nov. 30, 1984; 53 FR 23236, June 21, 1988; 54 FR 26029, June 21, 1989; 57 FR 10426, Mar. 26, 1992; 58 FR 25564, Apr. 27, 1993; 58 FR 29109, May 19, 1993; 58 FR 41636, Aug. 5, 1993; 59 FR 5107, Feb. 3, 1994; 59 FR 25329, May 16, 1994; 59 FR 29724, June 9, 1994; 59 FR 35465, July 12, 1994; 60 FR 31252, June 14, 1995; 61 FR 57589, Nov. 7, 1996; 65 FR 43700, July 14, 2000; 66 FR 23168, May 8, 2001; 67 FR 3615, Jan. 25, 2002; 67 FR 67793, Nov. 7, 2002; 68 FR 42603, July 18, 2003; 68 FR 59542, Oct. 16, 2003; 69 FR 31882, June 8, 2004; 69 FR 60089, Oct. 7, 2004; 70 FR 37040, June 28, 2005; 71 FR 44918, Aug. 8, 2006; 73 FR 30485, May 28, 2008; 73 FR 31753, June 4, 2008]

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    • I have a 30% hearing loss and 10% Tinnitus rating since 5/17.  I have Meniere's Syndrome which was diagnosed by a VA facility in 2010 yet I never thought to include this in my quest for a rating.  Meniere's is very debilitating for me, but I have not made any noise about it because I could lose my license to drive.  I am thinking of applying for additional compensation as I am unable to work at any meaningful employment as I cannot communicate effectively because of my hearing and comprehension difficulties.  I don't know whether to file for a TDUI, or just ask for additional compensation.  My county Veterans service contact who helped me get my current rating has been totally useless on this when I asked her for help.  Does anyone know which forms I should use?  There are so many different directions to proceed on this that I am confused.  Any help would be appreciated.  Vietnam Vet 64-67. 
    • e-Benefits Status Messages
      e-Benefits Status Messages 

      Claims Process – Your claim can go from any step to back a step depending on the specifics of the claim, so you may go from Pending Decision Approval back to Review of Evidence. Ebenefits status is helpful but not definitive. Continue Reading
      • 0 replies
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