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Scope of Duty to Assist, Notify, Infer (issue in scope)


GeekySquid

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Hi all.

I need help understanding the application of Duty to Assist, Duty to Notify and Duty to Infer (an Issue in Scope) as it pertains to my claims.

I will ask what I think is the easy one first.

In 2012 I put in for PTSD, Tinnitus, and Hearing Loss. In 2013 Granted 70% PTSD, 10% Tinnitus, Denied Hearing Loss SC but that it does exist (no percent of loss given). The decision letter and the letter with all the reasoning's (which I think is properly called the SOC?) stated my full period of service. It listed all my enlistments (this is significant).

VSO was dealing with advanced Pancreatic Cancer when my decision was made. no help there.

I knew nothing about C-Files, NOD's or getting my DBQ;s. Just expected to trust VA (my bad, I know).

In 2018 I got notice of a  Review of PTSD claim C&P  and it freaked me out, so before I had to go I started research and found Hadit.

I ordered C-file and Got it.

Had C&P and before results of C&P my c-file arrived and I found issues that the VA did not even tell me about or mention in my 2013 claim that they, VAMC, had uncovered and related to evidence in my Military STR;s.

Found the Audiology DBQ from C&P. Dr. stated she had reviewed my full file then proceeded to state she only looked at my first 4 years in service. In that period she found NO OSHA STS for my hearing and did not mention that my job was associated with hearing loss (though for tinnitus she did). She stated that I did have hearing loss for VA rating but could not Service Connect.

In 2018 I filed to reopen and included evidence from the C-file that she (the audiologist) said she had not reviewed. They rejected Reopening because the information was not "new and material."

Another factor after that is I was deferred on a Vertigo claim (which was also not mentioned in the 2013 decision but I think should have been inferred as an Issue in Scope). When that claim came in the VA SC'd my Hearing Loss but only to the 2018 date. This claim rated me at 30%, yet the evidence developed by VA shows closer to 100%. Along with that Hearing loss and Tinnitus coupled to Vertigo should be rated as Meniere's disease according to the MR21-1.

So what I need to know is :

Under Duty to Assist the VA is supposed to help me with exams etc to develop my claim. If the C&P doctor ignores evidence (like dates and nexus) that demonstrates SC, are they violating Duty to Assist?

Under Duty to Notify the VA is supposed to tell me what evidence is missing that would get me rated. In this case all the letters included my full service years. Yet under the Audiology section they DID NOT specify the dates she looked at. This leads the uniformed reader (me at that time) to assume she looked at everything. She gave all the numbers and readings and said I had a hearing loss for VA rating purposes but she could not SC based on not reading anything in my file (or at least the part she read) that was not noted as limiting in the decision letter. Did they Violate Duty to Notify?

Under Duty to Infer an Issue in Scope. On the issue of Vertigo this came up by the VA doctors and is supported in my intake statement which service connected my PTSD. The VA sent me for a VNG to test for Nystagmus and an MRI that came up showing I have a partially empty sella, which controls the pituitary gland, hormones and is medically tied to issues with Vertigo, tinnitus, and hearing loss. The 2013 decisions are silent on these results. In the deferred 2018 decision where they SC'd hearing loss, they also rated me 30% for Vertigo.  Did they violate Duty to Infer an Issue in Scope? Assist? Notify?

If as I think they did violate any or all of those, what is my path? CUE? NOD?

I know under AMA that I would have to file a supplemental claim to reopen with new and material (relevant?) evidence. Does this fit that standard?

 

attached are the two sections denying hearing loss SCredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdfredacted 2013 decision denying SC..pdf

redacted 2018 denial to reopen hearing loss.pdf

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I tried to open your files and wasnt able to, however:

1.  A failure in DTA (duty to assist) is not CUE.  A cue error must be "outcome determinative" and DTA is not that.  If they forget to dot an i, this does not mean its "outcome determinative" and you should be awarded benefits.  

2.  This said, you can "appeal" on failure to DTA, however, the idea is to win more benefits, not complain that VA raters did not do their job (likely) if you are within one year of a VARO decision.  

 

      To file a nod, file it on the applicable nod form.  Have your decision "in hand" and try to refute what the reasons the decision maker stated.  

       There are specific condtions when VA is required to 'infer" a claim, that is (it has to be a claim for increase, an initial claim can not be inferred, you must file a formal claim) as follows:

         A doctor visit can be an informal claim provided that:

1.  The informal claim be "in writing". 

2.  The Veteran must "show an intent to apply for one or more benefits".

and

3. The Veteran must specify the benefit sought.  

    Now, notice, there is a change of rules, here.  It used to be you could file an informal claim "on a napkin", but now a Veteran is required to file a claim on the applicable form.  

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6 minutes ago, broncovet said:

I tried to open your files and wasnt able to, however:

@broncovet

thanks for the response.

I wonder why you can't open them. If others have that problem I will make new copies.

1) in the case of my NOT being rated SC for Hearing loss based on the rater NOT using my entire file, it is outcome determinative. The file clearly showed the OSHA STS and the hearing results were marked, in service, as a 20 DB or greater hearing loss. These occurred in the part of the file she did not look at.

I am not arguing, but not looking at all the evidence in the file seems to be outcome determinative.

2) as I indicated this is kinda complex. The SC for hearing loss at the EED will support my claim that they did not address my Vertigo properly even though the VA had the files and test results. An EED on a 30% differential is a decent chunk of change after 6 years.

 

The challenge I am facing is the VA had all these records but failed to associate them to my 2013 claim even though my claim is what caused these tests to be given.

thanks for your input.

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If you read about CUE, you will find that failure in DTA is not cue.  It ALSO has to be outcome determinative.  Notification errors apply after you have been awarded benefits, and dispute the effective date.  

Example:

    When you get a decision, VA is supposed to notify you of your appeal rights.  If they did not notify you of appeal rights, then it can toll the decision date, enabling you to appeal beyond the one year appeal period.  In other words the one year appeal period does not start until you are "notified" of your appeal rights.  

     Now, the VA does not have to "notify" you that you are eligible for benefits you have not yet applied for.    The burden is on you to apply..its not the VA's fault you did not apply for whatever reason.  The vA is not require to "go on a fishing exhibition" to search your records for conditions to which you may be eligible for benefits.  Instead, you must "specify the benefit sought" and apply for benefits.  

    If you go to a VA doc, the VA "assumes" you are seeking TREATMENT, not benefits, UNLESS you tell them otherwise.  

    Let me see if I can explain it another way.  You must meet the caluza elements in order to be SC.  After you demostrate you meet the caluza elements, the VA should assign a disability percentage.  Lastly, they figure an effective date.  

    If you dont meet the caluza elements, no amount of VA's failure to notify will mean you get benefits.  You simply dont meet the criteria, and VA's failure to dta or notify is irrelevant.  

    You do have a point, however, about inferred claims.  Now, this is all about effective date.  If VA awarded OSA for 50 percent with an effective date of june 2, 2018, and you can show that you applied in 2014 AND met the criteria at that time, then you can appeal the effective date.  

    But dont get the cart before the horse.  The effective date is irrelevant if you have not been sc for an issue.  

Edited by broncovet (see edit history)
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9 minutes ago, broncovet said:

But dont get the cart before the horse.  The effective date is irrelevant if you have not been sc for an issue.   

1) I now have the SC connection as of 2019 award.

2) The failure to use the records in their possession at the time of the original claim is what is confusing to me.

3) The Audiologist explicitly said she reviewed records from the first 4 years of my service, and none of the other years I served. 

4) The VA award letters explicitly state my complete service periods.

5) No one caught or mentioned in the letters that the Audiologist only used my first 4 years of service.

6) In addition the MR21-1 says that the VA is obligated to deal with Issues in Scope of a claimed harmed and they did not do that despite developing medical evidence of two other conditions.

That is some type of legal error that has a determinative outcome. using the wrong dates the Audiologist caused me to lose service connection for almost 7 years. It also caused them to ignore my Vertigo which has in service connection and documentation but was not explicitly claimed.

This seems to either be CUE or New and Material. The mistake is indisputable and cannot just be ignored by the VA.

I just want to follow the most effective path to getting that EED and this situation is weird when you look at the sequence.

2019 Granted SC on issue

2018 denied reopening 2013 issue

2013 had records but did not look at them. explicitly states they did not look at them in DBQ for C&P. Decision letter says ALL STRs and Medical records reviewed. No one caught that the Audiologist only looked at my first enlistment period.

example: If the C&P says "I reviewed service records from 1/1/1970 to 1/1/1974" and ignores service records from 1/2/1974 to 1/1/1990 then they have NOT looked at all the relevant evidence.

This is what happened and it is written just that way. Then whomever wrote the letter wrote plain as day "served from 1/1/1970 to 1/1/1990" followed by the awards and denials.

 

 

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Ok, so if you have a 2019 decision, and you disagree, appeal it by filing a nod on the applicable form.  You can appeal a disability percentage, a denial, or effective date(s).  Again, a failure by va in dta is not cue.  

If there was error in the decisions, then bring that issue out in your appeal.  If non compliance with regulations resulted in an incorrect effective date, appeal that also.  

If you met the criteria on an earlier date, then appeal the effective date.  

You do have a period where you can dispute the c and p exam.  Its probably too late, however, to dispute a 2013 c and p exam, however, unless this was the bases of the 2019 award.  

When we do pay for an imo, the va will require that our medical professional state he reviewed the records.  However, when VA hires a c and p examiner, that exam is presumed to be valid absent a challenge from you or your representative.  You could have been given an exam by a janitor, still, if you dont dispute it, its presumed valid.  

Let me explain it another way:  VA is not perfect.  They make errors.  If an error they made results in a lower benefit, or an inferior effective date, appeal.  

Yes, you can cite 38 cfr 3.156 b or 3.156 c in your appeal if you are submitting new and relevant evidence.  If the VA fails to reopend due to n and relevant evidence, then that, too, is an appealable issue.  

But, I dont recommend filing cue based on va's failure to dta, that dog wont hunt.  

Edited by broncovet (see edit history)
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Ms Berta posted this

I mentioned this before but just to clarify.....

If you find that VA has ignored your probative evidence, that is a violation of 38 CFR 4.6.

If they send you a 5103 waiver and you again list and enclose the evidence with the 5103 waiver,because you probably sent it in with your claim anyhow but just in case, and even if a RO employee verifies that have that evidence,  and yet they still ignore it, that is a CUE, under 38 CFR 4.6.

You cannot file CUE on the actual Duty to Assist policy.You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE.

I just filed 4 CUEs with the Director via email. And am still awaiting IRIS complaint response on the whereabouts of my timely I-9....a separate issue.

I cannot file the Motion to Advance on the BVA Docket until they find my timely filed appeal and reinstate it.

CUEs on 38 CFR 4.6 violations are not difficult to file.And should be filed ASAP.

Otherwise they will probably cause a remand.

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27 minutes ago, Buck52 said:

Ms Berta posted this

@Buck52

Thanks Buck, I think this is the path that makes sense considering the complexity and sequence I see. As usual the Queen of Cue @Berta  has an answer already  that seems to make sense.

I will have to look at the files but I am sure the 2013 denial came with a VCAA letter, the 2018 denial with a 5103.

I will have to review the sample cue's posted on Hadit to see how to structure it based on my situation.

I appreciate you finding that link

 

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Gee, my personal  VA issues at the RO changed a lot since I made that post-

However the advice is the same.

In my last VA award the Director called me on another issue, and apologized for not awarding due to BOD.

That is what I meant- when I said a Duty to assist violation can become basis for CUE,if it leads to a valid CUE.

I received a letter from my RO a few days ago-on another matter-but I also received 3 letters,all the same, and had to mail one of them to the person, whose name was on the bottom of the letter.

This might be the person who is handling my 4 pending issues.The letter regards a letter I had sent to Secretary Wilkie on the AO potential presumptives. I onder why the RO got a copy of it.

My point gets back to this:

"If they send you a 5103 waiver and you again list and enclose the evidence with the 5103 waiver,because you probably sent it in with your claim anyhow but just in case, and even if a RO employee verifies that have that evidence,  and yet they still ignore it, that is a CUE, under 38 CFR 4.6."

I received a 5103 waiver that was for both claims I had pending.

The  RO person who called me in addition to the Director, at that time, verified all of the evidence I had listed on the waiver for each claim, and had again enclosed it with the waiver.

They also stated they had already picked out the doctor who would handle the 1151 HBP claim.

I filed a CUE the day after the denial and that claim was awarded within a month of the denial.

On the other issue, the Director ,who called me twice, tried to get me to believe something not supported at all by either VA case law or common sense. It was supported with all of the evidence I had sent with the 5103 waiver on that specific separate issue.The CUEs on that are pending.

The fact that the HBP claim was awarded still bothered me the way the SOC referred to the VA "examiner"'s opinion, It was ridiculous. But good enough for VA to deny the claim at first.

Oddly enough my sole piece of evidence for that claim was listed as Evidence but ignored in the denial.

I finally got a copy of the actual C & P exam and it was more ridiculous than I thought so I filed a WH Hot line complaint.

Maybe I stated this wrong-

"You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE."

If you can file CUE under violation of 38 CFR 4.6, and succeed, tthat will overcome any violations of DTA, and BOD, as well as violations of the VCAA ( 5103 waiver)

However, as I mentioned before I had a VCAA violation years ago. The claim went to the BVA, and I asked for a remand, due to that violation.

My dumb vets vets ( I filed a complaint with the OGC  against them-they are all gone ) would not agree there was a VCAA violation.

The BVA agreed there had been . I won that claim, because they said the violation was rendered moot because my considerable evidence warranted the award anyhow.

VCAA and 5103 is part of Duty to Assist. 

In my CUE on the second claim errors, I added that I sent them a copy of that BVA award, and stated since they ( Buffalo VARO) violated my VCAA rights already, for a different claim,it is as likely as not they also violated my 5103 VCAA rights again.

The VA was violating the  2000 VCAA countless times in the past,which caused countless remands by the BVA. I am sure I am not the only claimant whose 5103 was defective.

Your VCAA rights are so important that it should be the first thing any vet rep looks at in your C file.

 

 

 

 

 

 

 

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1 hour ago, broncovet said:

You do have a period where you can dispute the c and p exam.  Its probably too late, however, to dispute a 2013 c and p exam, however, unless this was the bases of the 2019 award.  

@broncovet

I appreciate your input.

This is part of my confusion on which is the right path for me to take.

The Award in 2019 came from an Audiologist exam  (the second of two) that was the result of the 2018 deferral of Vertigo. (when I can get out of this wheelchair I will go to the RO and get the C&P's).

In that same 2018 decision they denied reopening the 2013 decision on Hearing Loss being SC.

The statement in the 2018 denial to reopen says the evidence is not New and Material.

@Buck52  responded  with a link from @Berta that says, essentially, that you cannot cue DTA itself, but you can cue the application of policy if you cite 4.6.

Right this minute I am thinking that I will NOD the 2019 award for an EED, and then CUE both the 2018 denial for failing to follow policy on New and Material, and the 2013 denial for failure to apply policy.

-----

In the same NOD for the 2019 decisions I will also NOD for an EED on the 30% Vertigo award. I have a challenge in this claim because in the 2013 Award process the VA ignored the evidence that the VAMC and my STR's say about Vertigo and dizziness.

In 2012 VAMC New Orleans Audiology sent me for an MRI and a VNG for vertigo. I had nystagmus and the MRI found I had ESS based on a "partially empty sella". All of which were done prior to the 2013 Award for PTSD, Tinnitus and Denial of Hearing Loss being SC.

VAMC put in the records these tests were done and "would be" uploaded to the files, but that seems to not have been done. When I found out about the tests I began faxing FOIA requests into VAMC New Orleans for the tests, and they just refuse to answer me. In telephone calls to the Off. of Info. Release they say the records are not there.

VAMC Seattle says they called New Orleans and are told the records are lost.

I have to figure out in my NOD how to word the claim for an EED based on the evidence the VA rater did not acknowledge existed in 2013. I also have to figure out how to word it so that the RO or eventually the BVA orders VAMC New Orleans to produce those records and address why they will not respond to my FOIA's.

I actually have the outside tests for the MRI and for a sleep study they also ignored which showed I have OSA and was issued a CPAP.

This situation is very convoluted. 😞

thanks for your input.

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41 minutes ago, Berta said:

If they send you a 5103 waiver

@Berta

Thank you for responding.

Something just dawned on me and I think I need help clarifying it.

You wrote about a 5103 Waiver, and what I realized is that I don't know for 100% sure what the 5103 looks like.

I went back to my award letters to find a form or reference to 5103.

In both the 2018 award letter and the 2019 award letter the only reference to 5103 is under Evidence.

The 2018 Evidence entry says Section 5103 Notice Response, received Aug 21, 2018 and Sept 18, 2018

The 2019 Evidence entry  says Section 5103 Notice Response, received Sept 18, 2018.

Since I did not receive a piece of paper titled 5103 I am assuming these are referring to parts of the on line application for a claim.

so my confusion is what does a 5103 WAIVER look like and when does it come into play? what triggers the Waiver part and why would anyone Waive their rights?

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Here is the 5103 Waiver I received:

5103 Waiver.pdf

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2 minutes ago, Berta said:

Here is the 5103 Waiver I received:

@Berta

Thank You. So that is the Waiver.

Interesting.

In my 2013 claim I got that piece of paper.

In my 2018 claim I did not get that piece of paper, just the line entered as evidence

in my 2019 award I did not get that piece of paper just the line entered as evidence.

 I am thinking that the electronic processing of an FDC is what stopped the mailing of that notice for new claims, but I now need to look up if a physical notice is needed for a denied reopening of a claim.

 

 

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§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

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Ms Berta

I look up your post/information at times when I'm stumped, I have got several vets 100% because of your Advise and Great Information  on these postings.....  some I have saved for future Refrance😊

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Roger that Geeky!!!

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Im going to supply my source:

 VA FAILURE OF DUTY TO ASSIST IS NOT CUE:

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

In relevant part:

"The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard)."

Edited by broncovet (see edit history)
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51 minutes ago, broncovet said:

m going to supply my source:

Your posted link supports exactly what  @buck52 posted from  @berta said about cue at least in terms of my claim for Hearing Loss being denied in 2013.

To shorthand @berta the Cue is not about DTA it about the application of a regulation or law claimed under 4.6

now that post has some information that @Berta may disagree with, particularly the part about a cue being a one and done, and that a spouse of a deceased veteran cannot file cue on his case.

For the purpose of Cue my claim is

1) the VA failed to thoroughly review my record as evidenced by the explicit statement by the Audiologist that she only looked at the four years of my first enlistment. By law and regulation the VA must do a thorough review which has the implicit expectation that they entire thing, including all periods of enlistment will be reviewed.

2) The outcome is determantive as SC was denied. There is no path to say that a denied NSC claim and an awarded SC claim have the same value to the veteran. Our compensation is a property right and SC as a property has distinct and unique value. The VA stated I have a hearing loss that is compensable, the audiologist just could not make it SC based on only the first four years of my enlistment. The in-service injuries happened in subsequent enlistment periods and are documented in my STRs.

3) a reasonable person reading the statement "a thorough review of the veterans military record was conducted" followed by stating a period of time less than half the entire enlistment, would immediately reason that a "thorough review" could not have been accomplished using only half the information available.

4) The error on the dates reviewed by the Audiology C&P did not constitute my entire military service is undebateable. The Audiologist stated it in writing in her own words and the VA raters failed to catch that error.

 

 

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1.  C and P exams which, altho they may well be faulty, are not CUE.  The C and P examiner is "presumed" to be competent, and the opinions accurate, unless the Veteran, or his representative challenge the compentency of the examiner.  A doctors error is not CUE.  There is a path to correct errors on our medical reports:

https://www.law.cornell.edu/cfr/text/38/1.579

 2.  "Outcome determinative" not only suggests SERVICE CONNECTION, but a disability percentage as well.  If you were awarded a 0 percent SC rating, that is not necessarily outcome determinative as there is no difference in compensation between a 0 percent SC and NSC.  Many Veterans fall here, you have to show that, if not for the VA error, you would have additional compensation.  

3.  Sounds reasonable.

4.  Likewise, sounds reasonable.  Remember, tho, how would the VA know you had 2 periods of military service?  Did you document that you told them that you had 2 periods of service with seperate records.  This sounds more like 38 CFR 3.156 c, rather than CUE.  

      I think its helpful to think of CUE "not as an error", but rather a "standard of review".  (I got this from reading CAVC and BVA decisions).  The will state something like"......is a question which will be evaluated under the CUE standard of review."

     There are at least 4 requirements to CUE, and you must meet all of them.  

1.  The error must be pled with "specificity", and must be undebatable. 

2.  The error must be outcome determinative.  You can not "bring down the cue" because VA forgot to dot an i, then allege they gave you the wrong rating.  You have to demonstrate how/why its outcome determinative.  

3.  The error must be based on evidence and law AT THE TIME THE DECISION WAS MADE.  A change in laws (or evidence) is not cue on VA's part. 

4.  The Veteran no longer has "benefit of the doubt" standard of review, instead, he has to prove his claim beyond a reasonable doubt, so that it can not be debated.  

      Berta is a wizard at putting together CUE's, but, for the rest of us we struggle.   

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