CUE–THE QUINTESSENTIAL ELEMENTS


download (1)Clear and Unmistakable Error, or CUE, is one of the most misunderstood, misconstrued, miscombobulated legal concepts for Veterans to absorb. The idea of reaching back into the past to right a wrong is a wonderful thing we enjoy. As long as you understand this is going to be a knife fight in a dark alley and somebody’s feelings are going to get hurt, you jump in thinking justice can be attained. Nothing could be farther from the truth. 

CUE must be blatant. CUE must be visible from across the room. People from all walks of life should be able to look at it and exclaim “Lookey, Bob. Take a good, long gander here. Thet there’s CUE. See thet?” CUE must also pass other tests which I will expound upon but I want to give you a feel for how it gets misconstrued by many and much judicial time is wasted dedicated to fruitless endeavors.

CUE rules are very simple in VA jurisprudence but as we will notice, the VA’s published standard and their actual tape measure, are far different. VA will indulge in the famous “bait and switch” using smoke for camo to deflect the CUE into the wrong legal argument. You’re busy trying to engage them in a discussion about how you got screwed on the rating in 1986 when you should be arguing about the error in the prior denial in 1982 where the real CUE began. VA is not going to point out the legal flaw for you either.

download (3)This is no-holds barred litigation. Nonadversarial  went out the window with Benefit of the Doubt and a Veteran friendly environment in which to present your claim. A CUE claim is Perry Mason calling Hamilton Burger a chowderhead who isn’t familiar with the LA penal code- and probably never will be.

Many have talked of CUE but the essence is never quite captured.  Let me attempt to shine a light that dispels what it isn’t first. Many Vets come to me and show me evidence that clearly refutes what happened in, say, 1986. Okay. Move to the next disqualifier. Was this evidence part of the record in 1986? Good. Was it open to two different, equally compelling theories, either of which could have been correct?  Yep. Then you lose. You can’t come back for a do over and argue how the facts were decided.

Was it a diagnosis that said acute in 1986? A later diagnosis, not part of the records, saying chronic now refutes it. Yep. You lose. A newer diagnosis that states it was chronic back when you filed was not part of the record in 1986 and cannot be introduced in evidence. The Motion to Revise (CUE) must be based on the 1986 facts in the Evidence of Record (EOR)  or what we call your c-file. You cannot use newer CAVC or Federal Circuit  Court precedence to win with either. Your whole legal argument must rest on established law in effect at the time of your decision.

Did they ignore the rules and regulations? Yes? Was it due to a misinterpretation of the earlier regulations which was subsequently corrected such as Walker v. Shinseki and the correct interpretation of 38 CFR §3.303(b) was finally interpreted the proper way? Yep. You lose. Just because you won in 1986 based on flawed law doesn’t mean VA can’t come back and “fix” it. They “fix” Vet’s ratings all the time based on CUE. Your only defense in these situations relies on a twenty year rating. Once you have that, VA cannot rescind it regardless of the current law unless you obtained it by fraud.

Did they forget to go get your medical records at Mt. Altoona Community Hospital when you filed in 86? You filled out and signed the Form 21-4142 authorizing them to obtain the records but a search of your c-file does not reveal them. Failure to assist. You get a do over, right? Nope. You lose. The duty to assist was taken off the table after Russell v. Derwinski. Read Caffrey v. Brown . Seems what we call a failure in the duty to assist has to be detected and objected to before it’s final. This falls into the category of ‘An incomplete record is not an incorrect record”.

You’re the lucky Vet and you have all the correct stuff to prove CUE and it gets down to the last test. But for the error, had it not been made, would there have manifestly been a major, different outcome? This is the Claymore mine most Vets hit the wire on. Unless it cannot even be proven otherwise that a different outcome would positively have (not might have, could have, possibly, mighty sure or My Uncle Clem won on that) ensued and you would have prevailed, you lose. The outcome must be undebatable. You have to have the photo finish picture to prove it, too.

A classic example of what isn’t CUE is you win a claim and they gave you 20%. You come back five years later and ask for an increase and they give you 60%. You say you should have gotten that at the beginning. Tough luck. You lose. You had an opportunity to pitch a bitch back then but hey-you settled for it. No Indian giver stuff now, hoss.

downloadImagine a Chutes and Ladders game where all the chutes head to the basement and denial. All the rungs of the ladders are broken or missing, too. And the spinner’s loaded. Welcome to CUE jurisprudence.

To prove CUE, you have to have an indisputable fact, buttressed by law current at the time. The indisputable fact must be so overwhelmingly obvious that it would seem almost impossible to not see it. This may be why it’s so hard to win given the relative density of VA’s raters.

VA is extremely loathe to air their dirty laundry. When they make a mistake of epic proportions like CUE, absent any back pressure, don’t expect them to be self-starters and motivated to correct it.

I just finished what may be my final appeal to VA to correct a major error. To make a long story very short, I had a C&P exam July 18th, 2008. The doctor worked for QTC and was a production line type. He reviewed my skin for Porphyria Cutanea Tarda damage, both current and from the past, annotated I got regular phlebotomies once a month to control it and stated (incorrectly) that more than 6 square inches of exposed skin was not involved. However, in the diagnosis and effects on living, he said I was totally disabled. VA proceeded to award me 10% for phlebotomies. When I filed a NOD for DRO review, they upped it to 40% for the phlebotomies but took back the 10%.

Here’s the C&P exam. Click on it to magnify  for reading.

2014-05-02 2250572014-05-02 225443

At first, I only perceived the 10% takeback as the CUE. After rereading the C&P exam, it was clear that I should have been awarded a full 100% from the get go. I had fallen into VA’s trap. They proceeded to make it a strawman argument over the recission of the 10%. The very last thing they wanted to relitigate was 100% versus 40%, or even 10%.  I suspect they never really looked at page two of the C&P exam where the real rating language was. Instead they “top sheeted” it and spotted the phlebotomies and the skin language.

THE PRESUMPTION OF STUPIDITY

Therefore we are back in court as it were. Being pro se, Veterans are accorded the Presumption of Stupidity and allowed to bumble around quite a bit more than if we had legal minders. This is why I can go back and change the particulars of my CUE insinuation. Yes. It’s still CUE but it occurred October 1, 2008, not March 29, 2010. If you were represented by an attorney, VA would forbid this puddle- jumping from theory to theory. Fortunately for us, many chuckleheads have done what I’m doing as it finally dawns on us that VA screws everything up from the get go.  I filed my Motion to Revise based on what I perceived as error. After more investigation, I unraveled it and corrected, or fine-tuned my argument in my NOD. If I find other compelling legal epiphanies on appeal at the BVA, I am entitled to present them as well up until they make their decision. This bugs them no end, I assure you. Pro se Vets are a pill. Fortunately for us, even if we are represented by a mentally challenged service officer from a major VSO, the Courts still view them as legalzoom.com-i.e. a poor substitute for a real attorney with a Juris Doctor after his name.

First, the October 10, 2011  filing which they lost. I refiled it again on August 12th, 2012. This is why you always use the green card on the major filings.

PCT 10% CUE 10-11

Then the denial of the Motion to Revise. I expected to lose. 85% of us do so on the first trip out. Almost 100% do on CUE filings. No anomalies here:

PCT denial sanitized

Then read the enclosed NOD which rebuts their bait and switch refusal to recognize CUE in this claim. Use VA’s laws against them. If they hang you with a regulation, use it to hang them right back with. The Presumption of Regularity is going to be one of our most potent tools in the future in this respect. Every time you turn around, VA is trying to extend this philosophy into decisions. ‘VA examiner is presumed to know his head from his ass, therefore…’  ‘The IME/IMO was probative and the doctor was presumed to be knowledgeable about HCV even though he was a podiatrist…’ Hey, you guys know the drill.

Redacted NOD CUE PCT 4-22-14 pdf

The important thing to keep in perspective is that VA is going to purposefully pretend they were born yesterday (at night) and are clueless. There will be a brief summary of the evidence and then a hard-charging denial that knocks all the underpinnings out of the argument. Unfortunately it’s  often all wasted effort on the wrong legal standard or precept. When they are finally brought to bear on the correct facts, the argument becomes much more amenable to arbitration. I have known them to continue to evade the real premise which is why you want to iterate it over and over to the point of redundancy and painful boredom. LawBob Squarepants taught me that one.

Proving CUE based on a nebulous theory that is built on a lot of “could haves” and “it seemed to me at the time that” will never prevail. When you allege CUE, it’s akin to calling someone a child molester. You had better have the evidence if you want to be believed. Here, the evidence has to be part of the EOR and subject to only one logical explanation. If you need to do a PowerPoint Presentation, chances are your Motion isn’t going get airborne. Read Fugo v. Brown to get a better idea of the legal requirements.

CUE is initially a two- pronged fork where either one of the elements is enough to prevail. Having passed that test, the “manifestly change the outcome” is the third and final pass/fail. Far too many of us make our cases and then fall flat like a souffle when it comes time to prove the outcome would be different. That is why you have to lay the foundation for it back in Phase one of the CUE elements.

Never proceed into a CUE by dividing the elements up into pieces. This legal action requires lego-like precision. Each part must fit together like it grew there. The ankle bone’s connected to the … knee bone and the knee bone’s connected to the …. thigh bone.  When all is said and connected, it’s like a chain link fence perfectly woven together. Each fact is indisputable. Each decision they made is legally indefensible because the preliminary precept was faulty. Identify that first mistake that set all the other dominoes in motion and you have the winning ticket that manifestly changes the outcome.

Old decisions have many errors. VA and especially the BVA, felt they were a law unto themselves before the Veterans Justice Reform Act (VJRA) was instituted by Congress in 1988. Unfortunately, they continued in that vein for years and years. The Court has spent an inordinate amount of time curbing their errant tendencies. To say they are wiser and don’t make mistakes now is hogwash. They are an insurance company. They deny. Legally or any other way- but they deny. This we know.

CUE is just one area where VA feels Veterans don’t belong. It’s messy and time consuming. It opens old defective practices and decision-making that reveals unmitigated bias and indifference to the Vet’s plight. It shows VA for their true colors- colors they would much rather keep out of sight. The brouhaha at the Phoenix VAMC will just be the tip of the iceberg of VA misfeasance, too. You can expect that to metastasize to other VAMCs soon. It’s systemic and not unique to Phoenix. A trick that good would be shared with other VAMCs. You can bet on it.

Hopefully this helps some of you on your decision-making regarding CUE. It is definitely not for FNGs to the claims world. It is something that must be held up to inspection for hours and days to get the perfect perspective and argument. Augment the error with regulations that either forbid or do not support the error. Illustrate all the other possible permutations such as two views of the evidence and discount them to remove it from the argument. Strip the old decision down to it’s bare bones to show why it would have been different if the correct facts were looked at or perhaps to show that they were not looked at in the correct legal light.

download (2)A CUE claim, correctly constructed, could be delivered and argued by Mojo, Homer Simpson’s trained chimp. It’s a complete, stand-alone argument that is indisputable. After reading it, there can be no discussion of merits or faults pro or con. Either it’s wrong or it isn’t. If you make the case airtight, you win.  For some reason, few of us do. Either that or we all are just overly litigious and like to torture VA.

About asknod

VA claims blogger
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11 Responses to CUE–THE QUINTESSENTIAL ELEMENTS

  1. asknod says:

    The wonderful postscript to this is that I have won everything. The Seattle RO refused to consider it CUE and gave it all to me under the auspices of 3.156(b) in that the old 1994 claim was still pending all these years. Since they had erroneously assigned the 10% rating for skin, they were forced to restore it and then increased it to 30%. Porphyria was finally rated on appeal to the BVA as 100% -analogous to Dialysis.Thus you can see the use of 38 CFR 4.20 for analogous ratings that have nothing to do with the body part affected but which are considered “similar ” in ratings context. Always remember CUE is a concept of error that has no civilian counterpart or case law. Much of CUE law really has yet to be written because so much of it occurred prior to 1988 and the passage of the VJRA.

  2. James R. Malovrh says:

    On July 22,1982 I was taken into Emergency Surgery at Navy Regional Medical Center (NRMC) Jacksonville, Fl. to have my appendix (the Ventral Hernia) removed. It was first discovered by my ship’s doctor and then by the physician’s at NRMC Jacksonville, Fl. that I was having an acute appendicitis. When the physician’s finally had me on the “operating table” that day they discovered that my appendix was normal but instead it was my “Small Intestines” had holes (perforations) in one section and this was causing my illness. The doctors then performed what was termed a “Small Bowel Resection“.

    Within 3 months of a recovery period, I was discharged from the naval service in October 1982 with a Medical Discharge after having served 12 consecutive years on active duty. The Navy diagnosed me with having Crohn’s Disease. The Navy also rated me as 30% disabled based on VA codes of 7399-7323. I do not believe VA code 7399 currently exists today as I have not seen it listed in any of the codes I have seen to date. These two(2) ratings by the Navy occurred prior to applying to the VA for any disability rating.

    Upon applying to the VA for a rating , in March 1983 I was given a rating of 10% by the VA. The VARO Chicago, Il. has been sending me my annual $2 a year pay raise letter saying that I had a “Resection Of My Large Intestine”. And of course, I have received 32 of these letters over those years.

    Just trying to keep it as simple as possible …. Since 1982 I have received a 10% rating by the VA as the below information appears on my “pay raise letter” … word for word as follows each of those 32 years:

    Service connection has been established for:

    Resection Of Large Intestine 10 %
    Ventral Hernia 0 %
    Combined 10 %

    Last year I applied for an increase in my disability rating in April 2013 and I was hoping to get bumped up to 20%. I had recently got called into the North Chicago VA Hospital on March 18, 2014 to take a Special Medical Exam (SME). By the following Monday, March 24th my status on eBenefits showed up as “Completed”. I was shocked … as I thought this would still take several months to complete. I am a “newbie” on eBenefits and this website … so please be gentle with me …. but I did some research on the ebenefits website and found my VA documents which showed that my rating had been bumped up to 30% and that I would receive “Back Pay” dating back to December 1, 2013. On the following Monday, March 31st the “Back Pay” showed up in my savings account. Again I was shocked. To this day, I have not seen any paperwork in the mail as of this writing (April 4th) regarding my claim results. Its like the old saying “the check is in the mail”.

    Anyway ……. now I am in “shock & awe”. While waiting to hear back from the VA on there decision, I was reviewing my records and information online. I have just recently discovered that I may possibly have a CUE (Clear and Unmistakable Error) in my initial VA decision that dates all the way back to 1982 (Don’t even ask why it took me so long to figure this one out … VSO Rep has already asked me that question and I have asked myself that question several times over already). This could possibly mean that if it is a valid “CUE” then the VA will have to “Back Pay” me all the way back to 1982 (32years). NOW that will be some kind of “Back Pay” if my CUE is correct. CUE…. What is a CUE? … I was just asking myself that same question just two days ago. And it took me awhile to figure it out. But just to keep it short and sweet and please feel free to correct me if I am wrong. When you first get your disability rating decision back from the VA …. you have 365 days to “APPEAL” that VA rating decision or it automatically becomes a “FINAL” decision. The only way that you can then request an “APPEAL” after that one year is to have a “CUE”. A CUE means that the VA made a VA disability decision that was “Clearly and Unmistakably an ERROR” and that error has to be factual or by a law an error.

    Anyway, I have the “Operative Report” and the “Tissue Examination” in my hand from my 1982 surgery that the attending physician performed that says “clearly” he only performed a “Small Bowel Resection“…. And as we all know the “Large Intestine” is synonymous with the name ”Colon” and the “Small Intestine” is synonymous with the name “Small Intestine (no other 2nd name)”..….. My COLON was NOT resected on that day and never has been to date, but the annual pay raise letter says Resection Of Large Intestine 10 % . Nowhere on the Operative Report does it even mention that my colon was touched except to report that it was observed as being “normal“.

    The VSO office in North Chicago’ Il. was informed of my possible CUE and they requested that I get a copy of the VA decision from back in 1982 from the VARO in Chicago, Il. to see what they say was the Final decision in my case. Right now as we speak, I am thinking that they made a “mistake” because they have been sending me this annual letter for the past 32 years with my $2 annual pay raise that says I had a “Resection Of My Large Intestine ”. I don’t know where they would be getting this information from unless the computer was pulling this information directly from my record. And if that is the case in fact then this is quite obviously a “CUE” … since I never had a Resection Of My Large Intestine EVER.

    If somehow the VA can finagle that this is NOT a CUE…. Then I would have to press forward that I would have to file a new application for disability benefits based on the fact that I had a “Resection Of My Small Intestine” back in 1982 since I have written proof with my Operative Report. If it is NOT a CUE then I would have never received a disability rating for that surgery. I should have actually been rated for “Crohn’s Disease” as originally rated by the Navy back in 1982 as that was the Navy’s reason that I was Medically Discharged from the service for having been diagnosed with Crohn’s Disease. They said I was not fit for duty because I could possibly have a flair-up while out-at-sea as I was in a sea going rate.

    I have been researching the “web” to see if I can find out what the disability percentages were back in 1982 for having had a “Small Bowel Resection” but I have not been able to locate any site that has that information. Since you must be able to prove that there “mistake” would change the outcome of there 1982 decision I can only say that for 2014 a “Small Bowl Resection” pays out at 20% as the lowest pay out. If anyone knows where I can locate this information that has the rates back in 1982 / 1983 I would really appreciate it if you could let me know on this site. At the 10% rating over 32 years the payout has been about $36,000 so an additional 10% back pay would be about the same amount . A fair chunk of change to say the least.

    I am not even totally sure what information the VARO in Chicago based there 1982 decision on since that was 32 years ago. I have written the VARO Chicago over a month ago requesting they send me a copy of there 1982 VA decision on my case , but I am not sure exactly what they will send me. Not trying to count my chicken’s before they hatch …. But this just looks and smells too obvious …. Might be a good reason for a CUE.

    I am currently trying to gather up as much information on my possible CUE as I can.
    Any thoughts on my chances of a CUE? Any comments will be greatly appreciated. Thanks!

    PS: Great article “asknod”. You inspire me to put this together to share with others and hopefully everyone that contributes something like you have done will help us all in the long run. Thanks again “asknod” !!

    • asknod says:

      Sorry I didn’t see this one earlier. It brings up some important points. The short answer is you do not have CUE. Surprise, surprise, surprise. Shazamm. You were rated under an analogous rating (38 CFR 4.20) because Crohn’s disease was unknown then. The diagnostic codes are constantly evolving. VA can argue that they rated you as nearly as possible under something similar and they would be correct. As for the correct percentage, you had the ability to file a NOD to contest it. You didn’t and that, in essence, was an admission that you were copacetic with the amount. As I said, this is a difficult game to play. The rules are stacked against us worse than any can imagine.
      The good news is that when I filed my Writ at the Court on January 1, 2015, VA was forced to give me back the illegal clawback of 10% for Porphyria. They also had to give me Special Monthly Compensation “S” all the way back to 1994.

      • Jim and Donna Hello Everyone says:

        Asknod, Thank you for taking the time to read my long disortation as to what happened and why I came up with CUE. I am just having a hard time believing that the VA raters did not have a legitimate code for the my stomach (small intestines) back in 1982. And that they would just go with the generic (38 CFR 4.20) analogy instead. If they had a code for the small intestine back then they should have used it instead as that was where my surgery was performed …. not on the large intestine… I could not locate the codes that go back to 1982. But I would be willing to wager the 10% that they gave me that there was a code for the small intestine back then. Probably the same code number they are using now … 7328. What should really be the kicker here is what the Operating Physician stated in his Operative Report was a statement that said that my colon a.k.a large intestine felt and appeared to be grossly normal. So what I hear you saying is that there analogy was they could only find a code for the large intestine that the Operating Physician stated was grossly normal. Isn’t it illegal for the VA to payout on something that was considered grossly normal. As for the NOD you mentioned below, I was completely unaware of the processes involved at that time with compensation. Plus, there was one other thing missing back in 1982 besides the Crohn’s Disease from the code listings ….. COMPUTERS. We did not have easy access to the information that we have today. I do not think the words ‘personal computer’ even existed back then as well. Not to mention that my daughter was not even 2 month’s old at the time I had surgery and my son had just turned 4 …. oh and my wife of course. So all of my energies at that time was providing for my family as I was just given the medical boot out of the service on just a very short notice. I needed to find a job right away so there was not very much time for me administively speaking and then again …. no COMPUTERS. Can you even imagine how long it would have taken to get information from the VARO in Chicago back in those days? It still takes forever now and guess what …. they have COMPUTERS now and they are still just as slow. Here’s a funny for ya. On January 6, 2015 I wrote a letter to the VARO in Chicago and I was totally shocked when I received a letter back from them on January 14, 2015. The only problem with the letter I received was that it was addesssing another letter that I had requested information on from back in March 2014. With that in mind …. I have never learned to get your hopes up again with the VA. Sorry about the rambling on again. All you can do is file and just sit back and relax. Thanks again Asknod… you are doing a great job and we all really appreciate all your hard work. Take care. Jim Malovrh

        Hope You Have A Great Day Today!!!

        Date: Tue, 14 Jul 2015 15:28:56 +0000 To: cats_meow01@hotmail.com

  3. steve says:

    SURELY theres more vamcs cooking the books. reminds me of when I worked at sears and was counseled on my production. I was told, look sir, tech Smith is doing 7 service calls a day to your one, do u know how hes doing that> well he is working thru his lunch hour. were not telling You to do that, but just so you know, thats how he got his raise. TADAA

  4. david j murphy says:

    Most excellent article Sir. Waiting on a hearing date on both my appeals, got a phone call from DAV on good friday. Seems they could not figure out what I wanted. Got a call from a rater on monday who wanted to dismiss my 2nd appeal because ( I was mistaken). No luck for him there. Your site is a gold mine of information for us. Thank you again.

  5. John King says:

    I recently lost a CUE claim at the Court of Vet Appeals. I had the best lawyer in the business, Ken Carpenter, and I still lost. I lost on the final leg of the CUE argument because VA said my evidence was not “undebatable” What happened to “reasonable minds” and all that crap? I had a private clinical psychologist on my side, and the VA had some unnamed ward clerk on their side of the argument. I lost because the VA said my claim for a higher rating was “debatable” due to the fact that a ward clerk’s evidence makes a clinical psychologist’s opinion debatable.

    Another problem I had was that my CUE occurred in 1973. Before 1990 the VA did not have to list, or even mention all the evidence in a claim. In 1973 the VA just excluded my doctor’s evidence, and relied completely on their evidence. Since the VA had no obligation to list my doctor’s evidence I cannot prove or disprove the VA considered it. The assumption is that they did consider it even though the BVA admitted that there was no evidence that my doctor’s evidence was ever considered even though it was part of the record. I think the basic lack of due process got my lawyer’s dander up, and he could not accept that the VA could get away with something like this. Well, after 7 years he was wrong. They got away with it.

    Lawyers feel in their gut that evidence that is excluded from the record shows lack of due process. It does except in the VA system. Just in the time I filed my claim in 1972 and the time I got rated in 1973 the rules changed for how to rate my condition. This cost me a few years. I did win a CUE based on Bradley V Peake due to fact I had TDIU plus 60%. I requested SMC “S”. The VA admitted CUE and I got the award plus two years retro. This was just luck since I heard about it on Hadit.

    • asknod says:

      See my reference to “Not exactly Chutes and Ladders”, John. VA CUE jurisprudence is a necessary evil in their eyes. There never was any Statute or regulation enacted to cover this eventuality. VA simply acknowledged they screwed up (a lot) and had to repair it sometimes. It has gradually evolved into what we see today- an even uglier mess with virtually impossible rules to overcome to see justice served. Do not expect any major rewrites soon unless it’s to do away with CUE entirely. I will be interested to see how they try to sweep me under the rug.

    • RickB says:

      You won a cue claim based on Bradley v Peake, and received two years retro pay. My question is when was your original claim decided before or after Nov 2008. I have a claim pending based on CUE, and Bradley v Peake.. my original claim was decided in 1999, Bradley v peake was decided in 2008. I have read that CUE doesn’t apply to cased decided before Nov 2008, because different rules were in effect prior to 2008.

  6. Clear Left says:

    ” VA and especially the BVA, felt they were a law unto themselves before the Veterans Justice Reform Act (VJRA) was instituted by Congress in 1988. Unfortunately, they continued in that vein for years and years.”.
    Seems to me most folks in VR&E still feel the same in regards to ILP….. Riding mower – Nope.. Tractor – Nope. Greenhouse – Nope.
    “Mr Dillion, Mr Dillion that outlaw says we can’t do that. Whata we gonna do? Well Chester…”

    • asknod says:

      Right. “Well, Chester. At least they gave us the neatsy keen can grabber for the top shelf and a grab bar next to the toilet. I’m still working on a cordless phone just in case I fall down and I can’t get back up.”

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