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Inferred Claims/effective Dates

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  • Content Curator/HadIt.com Elder

Inferred claims/effective dates

This might be a bit wierd...

Regarding inferred claims and effective dates, I understand that if you seek medical treatment within 12 months of your claim request, then the EED is the date when treatment was sought.

Given this hypothetical situation, what would be the effective date?

Jul 2007 - Office visit, condition diagnosed, prescribed monthly medication to treat condition

{insert 3-4 VA telenurse refill calls}

Aug 2009 - Office visit for condition

Oct 2009 - Filed claim for condition

The medication refills were requested every month and renewed via VA nurse line as needed.

Would the effective date be Jul 2009, Aug 2009, a VA telenurse refill call between Oct 2008 and Jul 2009, or by oldest date where refills were received?

I'm curious if the VA defines the inferred date based on an office visit, telenurse refill calls, or merely because the Vet was receiving medication for the condition (i.e. receiving treatment).

Thanks

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Inferred claims/effective dates

This might be a bit wierd...

Regarding inferred claims and effective dates, I understand that if you seek medical treatment within 12 months of your claim request, then the EED is the date when treatment was sought.

Given this hypothetical situation, what would be the effective date?

Jul 2007 - Office visit, condition diagnosed, prescribed monthly medication to treat condition

{insert 3-4 VA telenurse refill calls}

Aug 2009 - Office visit for condition

Oct 2009 - Filed claim for condition

The medication refills were requested every month and renewed via VA nurse line as needed.

Would the effective date be Jul 2009, Aug 2009, a VA telenurse refill call between Oct 2008 and Jul 2009, or by oldest date where refills were received?

I'm curious if the VA defines the inferred date based on an office visit, telenurse refill calls, or merely because the Vet was receiving medication for the condition (i.e. receiving treatment).

Thanks

When I received the award of my ED on my neck claim of 2 years the radiculopathy was dated to the date it was diagnosed by neurology. However, I had documentation placing the first reports as 2-3 months earlier. I have requested an EED back to the date of first documented complaint.

Bergie

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  • HadIt.com Elder

It should be October 2009, cuz that's when you filed the claim. You should have filed when you were first diagnosed.

pr

Inferred claims/effective dates

This might be a bit wierd...

Regarding inferred claims and effective dates, I understand that if you seek medical treatment within 12 months of your claim request, then the EED is the date when treatment was sought.

Given this hypothetical situation, what would be the effective date?

Jul 2007 - Office visit, condition diagnosed, prescribed monthly medication to treat condition

{insert 3-4 VA telenurse refill calls}

Aug 2009 - Office visit for condition

Oct 2009 - Filed claim for condition

The medication refills were requested every month and renewed via VA nurse line as needed.

Would the effective date be Jul 2009, Aug 2009, a VA telenurse refill call between Oct 2008 and Jul 2009, or by oldest date where refills were received?

I'm curious if the VA defines the inferred date based on an office visit, telenurse refill calls, or merely because the Vet was receiving medication for the condition (i.e. receiving treatment).

Thanks

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  • HadIt.com Elder

What is the regulation that says your effective date for a claim is the first time you saw a doctor for it? I had not heard that before.

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  • Content Curator/HadIt.com Elder

Sorry, I forgot to note that this is for an increase request, not an initial rating.

§3.400 (o)(2), see below:

(o) Increases (38 U.S.C. 5110(a) and 5110(:D(2), Pub. L. 94-71, 89 Stat. 395; §§3.109, 3.156, 3.157):

(1) General. Except as provided in paragraph (o)(2) of this section and §3.401(:o, date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

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John

The regulation you mentioned refers to an increase, as follows:

3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(;) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

(Authority: 38 U.S.C. 501)

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (:D(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

Edited by broncovet
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I would add that not only can a Doctors visit establish an informal claim for benefit increase (it would not make sense for this to apply to the initial claim because just going to the doctor does not mean that you are seeking benefits for that condition), but the VA has to give a sympathetic reading of the Veterans filings, as stated in Comer below: (Parts have been omitted for brevity)

United States Court of Appeals for the Federal Circuit

2008-7013

LEROY COMER,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

2008-7013

LEROY COMER,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 05-1462, Judge Robert N. Davis.

______________________

DECIDED: January 16, 2009

_______________________

Before MAYER, LOURIE, and GAJARSA, Circuit Judges.

MAYER, Circuit Judge.

Leroy Comer appeals the judgment of the United States Court of Appeals for Veterans Claims which held that he had not properly raised the issue of whether he was entitled to an earlier effective date for total disability based on individual unemployability (“TDIU”) benefits. See Comer v. Nicholoson, No. 05-1462, 2007 U.S. App. Vet. Claims LEXIS 1083 (Vet. App. July 6, 2007) (“2007 Veterans Court Decision”). Because we conclude that the court misinterpreted Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), when it held that the duty to sympathetically and fully construe a pro se veteran’s

filings did not apply to an appeal submitted to the Board of Veterans’ Appeals following a rating determination, we reverse and remand.

Comer first argues that the Veterans Court misconstrued Roberson, 251 F.3d at 1380-84, when it held that it had no jurisdiction to consider the issue of whether he was entitled to an earlier effective date for TDIU benefits because he had not explicitly raised that issue before the board. In his view, Roberson requires the board to consider whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits. We agree.

In Roberson, a veteran, who had had significant employment difficulties, filed a pro se claim seeking disability benefits, but did not specify that he was seeking a TDIU award. 251 F.3d at 1380. The RO awarded him a 70 percent disability rating for PTSD, but did not consider whether he also might be entitled to a TDIU award, which would entitle him to a 100 percent disability rating. See 38 C.F.R. § 4.16 (“Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.”). Roberson later sought to reopen his claim, asserting that the RO decision contained clear and unmistakable error (“CUE”) because the RO had failed to consider his entitlement to TDIU benefits. The Veterans Court rejected this argument, concluding that he had no right to TDIU benefits because he had not specifically requested them in his initial claim.

2008-7013 5

On appeal, this court reversed. We concluded that although Roberson had not specifically requested TDIU benefits, the VA was required to consider his entitlement to such benefits because the record contained clear evidence of his unemployability. Roberson, 251 F.3d at 1384. We explained that “regardless of whether [a] claim is specifically labeled as a claim for TDIU,” the VA is obligated to “determine all potential claims raised by the evidence.” Id. Accordingly, the VA must consider whether a TDIU award is warranted whenever “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.” Id.

Thus, as in Roberson, the VA should have considered Comer’s entitlement to TDIU benefits. Although he did not explicitly assert the right to a TDIU award for the period from February 26, 1999, to May 5, 2004, his pro se appeal, which sought an earlier effective date and a higher disability rating for PTSD benefits was sufficient, when coupled with the evidence showing his unemployability, to raise the issue of his entitlement to an earlier effective date for his TDIU award. Simply put, under Roberson, a claim to TDIU

1 The Veterans Court has long held that an informal claim for an increased rating will be construed as a claim for the highest rating possible. See, e.g., Norris v. West, 12 Vet. App. 413, 419-20 (1999). Thus, as the board correctly acknowledged, Comer’s appeal of the RO’s rating determination was required to be construed “as an appeal for the maximum benefit allowable by law or regulation.” 2005 Board Decision, slip op. at 2.

2008-7013 6

benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (The VA is required, “regardless of the specific labels . . . claims are given in the veteran’s pleadings,” to read pro se submissions sympathetically and “to determine all potential claims raised by the evidence.” (citations and internal quotation marks omitted)).

The government, however, attempts to distinguish Comer’s situation from that presented in Roberson. In its view, Roberson does not apply: (a) to appeal submissions to the board following an initial rating determination, or (;) to situations in which a veteran is assisted by a representative from a veterans’ service organization.

A.

The government concedes that under Roberson the RO has the duty to consider whether a claimant is entitled to a TDIU award, even when entitlement to TDIU benefits is not explicitly raised. It contends, however, that Roberson is inapplicable here because Comer “does not seek a sympathetic reading of a claim or pleading but, instead, seeks the board’s review of an issue that was not raised on appeal.”

The government reads Roberson too narrowly. This is not the first time that it has advanced an overly restrictive interpretation of Roberson, and this will not be the first time its efforts will be rejected. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (“Roberson is not limited to its particular facts and instead . . . requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings.” (internal quotation marks omitted)); Szemraj, 357 F.3d at 1373 (“But 2008-7013 7

our decision in Roberson is not limited to its particular facts as the Court of Appeals for Veterans Claims appears to have suggested here.”); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (The VA is required to give a sympathetic reading to a veteran’s filings even where the facts of a particular case do not “coincide” with the facts presented in Roberson). Although Roberson involved an initial claim submitted to an RO, there is no reason that the rule it articulated should not apply with equal force to a notice of disagreement submitted after an RO’s decision. Unlike at the Veterans Court, where proceedings are more adversarial in nature, see Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), in proceedings before the board, “the relationship between the veteran and the government is non-adversarial and pro-claimant,” Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed. Cir. 2002). Because of the paternalistic nature of the proceedings, the board, like the RO, is required “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (citations and internal quotation marks omitted).

Here, Comer appealed a 2004 RO decision that granted him an increased PTSD disability rating of 70 percent and a TDIU award, both of which were effective May 5, 2004. His appeal asserted that he was entitled to “an increased evaluation for PTSD and an earlier effective date” for his PTSD disability benefits. Although Comer did not state specifically that he was entitled to an earlier effective date for his TDIU award, his claim for an increased rating and an earlier effective date for his PTSD benefits, coupled with the persuasive and pervasive evidence in the record demonstrating his unemployability, was sufficient to raise the issue of his entitlement to an earlier effective

2008-7013 8

date for his TDIU award as well. While the Veterans Court correctly noted that a veteran is obligated to raise an issue in a notice of disagreement if he wishes to preserve his right to assert that issue on appeal, see 2007 Veterans Court Decision, slip op. at 3-4, the determination of whether an issue has been properly raised must be made with due regard for the VA’s duty to read a veteran’s submissions sympathetically. In other words, the VA’s duty to read an appeal submission sympathetically to ascertain all potential claims it contains is antecedent to its duty to ensure that an issue has been properly raised on appeal. Cf. Andrews, 421 F.3d at 1283 (“[T]he VA’s duty to sympathetically read a veteran’s pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.”).

Indeed, 38 C.F.R. § 20.202 specifically provides that the board is required to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.” See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (“[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record. Indeed, by regulation, the Board is required to construe an appellant’s arguments in a liberal manner . . . .” (citations and internal quotation marks omitted)). A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since “[a]n unrepresented litigant should not be punished for his failure to 2008-7013 9

recognize subtle factual or legal deficiencies in his claims.”); Forshey, 284 F.3d at 1357 (“n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.”).

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”). The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him. To the contrary, the VA “has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have.” Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal. See 2005 Board Decision, slip op. at 3 (noting that Comer’s “symptoms have included nightmares and flashbacks, sleep impairment, depression, flat affect and self isolation”).

B.

We also reject the government’s contention that the board had no duty to construe Comer’s appeal sympathetically because he had assistance from an aide from a veterans’ service organization. Although we have held that the duty to construe a veteran’s filings sympathetically does not necessarily apply when a veteran is 2008-7013 10

represented by an attorney, Andrews, 421 F.3d at 1283, the assistance provided by the DAV aide is not the equivalent of legal representation. Comer filed his initial claim pro se, appealed the decision denying him benefits pro se, and filed his initial notices of disagreement pro se. It was not until after he had filed his appeal that a DAV aide, in December 2003, filed a statement on his behalf. This sort of limited assistance is insufficient to disqualify Comer as a pro se claimant.

Indeed, even if Comer had received more significant assistance from the DAV, representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are “not generally trained or licensed in the practice of law.” Cook v. Brown, 68 F.3d 447, 451 (Fed. Cir. 1995). Thus, in Jacquay, 304 F.3d at 1282-88, we excused the fact that a veteran had sent his appeal to the wrong address, even though he had had some assistance from a non-attorney representative from a veterans’ service organization.

The DAV was created by congressional charter “to advance the interests . . . of all wounded, injured, and disabled American veterans” and “to cooperate with the

We next turn to Comer’s second argument on appeal, that the VA had an obligation to inform him that he was required to file a CUE motion if he wanted to obtain benefits retroactive to the date of his initial claim. He filed a claim for disability benefits in December 1988, and although the RO rated him as 30 percent disabled due to PTSD, it denied him benefits on the ground that his PTSD was not connected to his Vietnam service. In 2001, however, Comer persuaded the board that new evidence justified the reopening of his claim. He was then awarded service-connected benefits for PTSD, but those benefits were only effective as of February 26, 1999, the date of his motion to reopen his claim. Comer contends that the VA was obligated, under 38 U.S.C. § 5103(a), to inform him that he could only obtain benefits retroactive to December 29, 1988, the date of his initial claim, by filing a motion asserting that the RO’s initial determination that his PTSD was not service-connected contained CUE.2 In support, he says that section 5103(a) requires the VA to provide a veteran with notice of “any information . . . that is necessary to substantiate [his] claim,” 38 U.S.C. § 5103(a),

Without a doubt, the process for reopening a previously disallowed claim and obtaining retroactive benefits can be exceedingly difficult, particularly for a veteran who is proceeding pro se. Where, as here, a veteran mounts a successful campaign to reopen a previously disallowed claim based on new and material evidence, he is likely to assume that he will have an opportunity to obtain the benefits to which he would have been entitled had he prevailed on his original claim. Surprisingly, however, this is not the case. The earliest effective date for an award based on a veteran’s request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed. See 38 U.S.C. § 5110(a). It is only by filing a CUE claim that a veteran can obtain benefits retroactive to the date of the original RO decision. 38 U.S.C. §§ 5109A(:D, 7111(B); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”).

As discussed above, the VA has an “affirmative duty to assist claimants by informing [them] of the benefits available to them and assisting them in developing

3 Section 5103(a) provides: “Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant’s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . . will attempt to obtain on behalf of the claimant.”

2008-7013 13

claims they may have.” See Jaquay, 304 F.3d at 1280. It is only reasonable to expect, therefore, that if the VA is confronted with a claimant who seeks retroactive benefits, it will inform him that he needs to file a CUE motion in order to obtain those benefits. It is troubling that the VA apparently never informed Comer that he needed to file a CUE motion, but then denied his request for retroactive benefits on the ground that he had “not specifically alleged clear and unmistakable error” in the initial RO decision. See 2005 Board Decision, slip op. at 23.

We decline, however, to resolve the issue of whether the VA had a duty, under section 5103(a), to notify Comer that he could only obtain retroactive benefits by filing a CUE motion because we conclude that even if the VA had such a duty, failure to fulfill it does not rise to reversible error.4 In Sanders, this court held that a violation of the VA’s section 5103(a) notice obligations is presumptively prejudicial, but we also held that the VA can rebut the presumption. 487 F.3d at 891.

4 Another reason we decline to resolve the question of whether the VA had a duty to notify Comer that he could only obtain retroactive benefits by filing a CUE motion is that this issue was not addressed by either the Veterans Court or the board. “t is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.”

Here, the government correctly observes that there is no time limit for filing a CUE claim. See 38 C.F.R. § 3.105(a). Accordingly, Comer has the right to file a CUE motion now, and if successful, he could obtain disability benefits retroactive to his initial claim. Thus, assuming arguendo that the VA failed to fulfill its section 5103(a) notice obligations, such failure does not constitute reversible error because Comer has not forfeited the right to bring a CUE claim. Cf. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (sustaining a Veterans Court determination that violation of notice obligations was harmless error where the VA had made an unreviewable factual determination that a claimant “had actual knowledge that he was required to submit medical evidence regarding his hearing loss to substantiate his claim”).

Notwithstanding our conclusion that VA’s failure does not constitute grounds for reversal, we are not unmindful of the very real difficulties Comer has faced in his lengthy struggle to obtain disability benefits. Since 1988, Comer has persistently and articulately asserted that he is entitled to PTSD disability compensation. Yet—despite the fact that the VA does not dispute that Comer has suffered from PTSD since at least 1988 and that it acknowledged, in 2003, that his PTSD is service connected—it has yet to provide him disability benefits for the period from 1988 to 1999.

As a final matter, the issue of whether the VA was required to inform Comer that he needed to file a CUE claim is moot if he has, in fact, already filed one. CUE claims “must be pled with specificity,” Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005), and must assert, based upon the evidence of record at the time of the original decision, an error that is “outcome determinative.” Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Here, although this court has not been provided with a

Costs to appellant.

REVERSED AND REMANDED

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