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AF | PDBR | CY2012 | PD2012 00609
Original file (PD2012 00609.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE NUMBER: PD1200609
BRANCH OF SERVICE: Army  BOARD DATE: 20130516
Separation Date: 20030109


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (14T/Patriot Instructor) medically separated for low back pain (LBP), saphenous nerve palsy, and left knee pain. The CI had a long history of back pain with the first complaints as early as 1994. That same year the CI had his first back surgery, with additional surgeries in 1998 and 2002. He was also treated with various medications, injections, and physical therapy (PT). The CI underwent nerve conduction studies (NCS) that revealed nerve palsy in the left leg. These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. The CI was issued a permanent L3 profile and was referred for an MOS Medical Review Board (MMRB) in May 2001. The MMRB paperwork is not available for Board review, but the record indicates the CI was referred for a Medical Evaluation Board (MEB). The MEB forwarded “Saphenous nerve palsy on the left” and “Chronic low back pain…” to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501. The IPEB adjudicated “Chronic LBP and Saphenous nerve palsy, left” as unfitting and rated 20% and 0% respectively. The CI appealed and a Formal PEB (FPEB) was held on 20 August 2002. The FPEB was recessed pending evaluation of additional medical conditions. A September 2002 MEB forwarded the original two conditions plus two new conditions: “Retropatellar pain syndrome of the left knee” that failed to meet retention standards and “Skin cancer…” that met retention standards. The FPEB adjudicated the previous conditions as it had before (chronic LBP and saphenous nerve palsy, left as unfitting, rating 20% and 0% respectively) and also adjudicated “Left knee pain due to retropatellar pain syndrome” as unfitting and rated at 0%. The skin cancer condition was adjudicated as not unfitting. The CI appealed the FPEB findings indicating his desire for retirement either by continuing on active duty or by increasing his rating to 30%. The IPEB and the US Army Physical Disability Agency both affirmed the FPEB findings and the CI was discharged with a 20% disability rating.


CI CONTENTION: “A disability rating of 40% for spinal fusion, I consider is not enough. Since the fusion, it has changed everything that I use to do prior to the surgery. I have returned to the VA in MS and VA stating to both of them of the pain in both legs from doing simple things such as standing or walking.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting back, left saphenous nerve palsy, and left knee conditions are addressed below. Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for future consideration by the Board for Correction of Military Records.



RATING COMPARISON:

Service FPEB – Dated 20020912
 VA - (12 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain
 5295-5292 20% Discogenic Disease… 5293-5292 40% 20020118
Saphenous Nerve Palsy, Left
 8727 0% Saphenous Nerve Palsy, Left Side, Lower Extremity 8727 10% 20020118
Left Knee Pain Secondary to Retro Patellar Pain Syndrome
 5099-5003 0% Non-Tracking Patella and Patellofemoral Syndrome (PFS), Left Knee 5299-5260 10% 20020118
Skin Cancer/Non-Recurrence
 Not Unfitting Basal Cell Carcinoma… 7818 0% 20020118
No Additional MEB/PEB Entries
 Other x 5 20020118
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VARD) dated 20030115.


ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain Condition. The CI had the following back surgeries:
1.      
L5-S1 partial laminectomy and discectomy 7 March 1994
2.       L3-L4, Nerve root decompression, L5 laminectomy, and right S1 foraminotomy 6 August 1998
3.       L3-4, L4-5 and L5-S1 Fusion 26 February 2002

The CI’s LBP is well documented in the numerous service treatment records (STR). The CI’s back condition started in 1994 when he developed LBP and constant right leg pain that caused him to drag the right leg. An X-ray in March 1994 showed minimal loss of height of the L5-S1 disc space. The CI’s pain and symptoms worsened and he underwent a L5-S1 partial laminectomy and discectomy. A magnetic resonance imaging (MRI) exam performed in February 1998 documented a post-operative fibrosis of the L5-S1 nerve root sleeve. The CI developed lower extremity pain and underwent a series of three epidural steroid injections (ESIs) in 1998. The CI had a poor response to the ESIs and underwent a L3-L4, nerve root decompression, L5 laminectomy and right S1 foraminotomy. An X-ray in January 1999 documented limitation of flexion and extension that had increased since a previous X-ray in June 1998. An MRI was ordered that same month due to complaints of erectile dysfunction 5 months after multilevel laminectomy and it revealed postoperative fibrosis at L5-S1 right nerve root sleeve. The neurosurgeon noted new onset bilateral lower extremity pain in July 1999. A repeat MRI in August 1999 revealed persistent large posterior L3-L5 disc bulges and a persistent disc herniation at L5-S1 that narrowed the neural foramina significantly, particularly on the right side. Several PT visits did not result in improvement of the LBP symptoms and physical medicine diagnosed new onset sciatica primarily in an L5 distribution that was likely due to an exacerbation of the old disc herniation. An MRI performed in November 2000 revealed some improvement in the L3-4 and L4-5 disc bulges as compared to the previous MRI. However, the central disc bulge at L5-S1 abutted the right L5 nerve root. The CI continued to have back pain and an MMRB was initiated in May 2001. Repeat X-rays in November 2001 noted surgical and degenerative changes of the lumbar spine with severe narrowing at L5-S1. An MRI a few days later for chronic back pain showed spondylotic changes along with broad-based disc bulges at L3-4, L4-5, and L5-S1 as well as significant canal stenosis. An examination by neurosurgery noted decreased extension and pain with rotation of the lumbar spine. A discogram and CT scan was performed in December 2001 to evaluate the lumbar discs for anatomic abnormality and pain generated. This exam documented a posterior disc tear with severe pain and symptoms at L3-4, a severe anterior disc tear with severe pain and symptoms at L4-5, and a macerated disc tear anteriorly and posteriorly with severe pain and symptoms at L5-S1. The CI underwent a third spinal surgery of an L3-4, L4-5, and L5-S1 fusion in February 2002. A CT performed in May 2002 noted spinal canal stenosis due to disc bulges from L3-4 to L5-S1, significant scar tissue, and degenerative changes. A follow-up visit with neurosurgery noted improved back pain but a new left lower extremity radiculopathy that appeared disabling.

Range-of-motion (ROM) evaluations in evidence (with additional ratable criteria) that the Board considered for its rating recommendation are summarized below.

Thoracolumbar ROM
(Degrees)
 MEB ~7 Mo. Pre-Sep PT ROM ~4 Mo. Pre-Sep VA C&P ~ 2 Mo.
Pre-Sep		 VA C&P ~4 Mo. Post-Sep
Flexion (90 Normal)
 “fingertips 5 cm proximal to patella” 15
( 9/16”-- Normal 4”)		 10* 5
Extension (30)
 See below 5
( 4 ”--Normal 20”)		 5 5
Right Lateral Flexion (30)
 30 ( 28 ) 15
( 3.25”-- Normal 6” )		 10 5
Left Lateral Flexion (30)
 20 15
( 2.75”-- Normal 6” ) 		10 5
Right Rotation (30)
 30 (45) 20 - 20
Left Rotation (30)
 30 (45) 20 - 20
Combined (240)
 ?? 90 ?? 60
Comment
 Decreased lumbar lordosis; normal gait; used gravity goniometer; 12 inches hyperextension at T12, 18 inches of hyperextension at C7; negative straight leg raise; Milgram test –pain after approx. 6 seconds in lower lumbar region; Gaenslen’s Test- only slight discomfort; motor l eft 5 -/5 toe and ankle dorsi flexion and 4/5 plantar flexion ; sensory decreased to light touch in saphenous nerve on left from knee to medial malleolus ; reflexes 1+ and symmetric at ankles and knees ; Waddell 0/6 ADD NML ROM thing Tenderness to palpation (TTP), percussion L5-S1; paraspinous spasm; straight leg raise (SLR) + 30 degrees bilat; antalgic gait more to left than right; motor intact; sensory- decreased over webbing to right foot and lateral foot and the left lower extremity with positive Tinel’s sign over medial left knee Pain limited ROM; Gait-antalgic-left knee only in slight flexion,; stands erect with pelvis level; SLR caused back pain at70 degrees/sciatica on left at 20 degrees to left; reflexes absent knees/ankles; atrophy left quads; decreased sensation; uses cane for left knee
§4.71a Rating
5292
 10% or 20% (PEB) 40% 40% 40%
5293
 No evidence of incapacitation
5295
 10% or 20% (PEB) 40% 40% 40%

The MEB n arrative s ummary (NARSUM) examination was completed approximately 4 months after the third surgery and 7 months prior to separation , and indicated that the CI had LBP with numbness and paresthesias in the lower extremities, primarily on the left leg. He had a burning pain that radiated to the left shin region, worse at night, but was constantly present if he sat to o long in a straight back chair or stood too long and was also present with walking. The MEB NARSUM physical exam findings are summarized in the chart above. The c ommander’s statement indicated that the CI could not perform his M OS due to the chronic LBP. An electromyogram was normal. The CI was given a permanent L3 p rofile for LBP and left knee pain. PT completed ROM measurements approximately 4 months prior to separation and the results are noted in the chart above. Some measurements were recorded in inche s instead of degrees, but n ormal values were also note d in inches and degree equivalents were determined using current Veterans Affairs Schedule for Rating Disabilities ( VASRD ) normal ROM values in degrees. These degree equivalents are record ed in the ROM chart above. A MEB NARSUM addendum completed 4 months prior to separation did not include any physical examination findings. An initial VA Compensation and Pension (C&P) examination approximately 2 month s prior to separation noted chronic pain on a daily basis aggravated by standing too much , twisting and running, as well as consistent numbness to the right foot. The initial C&P physical exam findings are summarized in the chart above. The CI had a second C&P examination approximately 4 months after separation that indicated the CI needed a cane for ambulation. This examination also noted continued symptoms of LBP and neurologic symptoms in the left lower extremity, but no physician ordered bed rest during the past year. The second C&P physical exam findings are summarized in the chart above.

The 2003 VASRD coding and rating standards for the spine were in effect at the time of separation and then changed to the current §4.71a rating standards on 26 September 2003. The 2003 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. When older cases have goniometric measurements in evidence, the Board reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes and ratings with the objective thresholds specified in the current VASRD §4.71a general rating formula for the spine. This promotes uniformity of its recommendations for different cases from the same period and more confor mity across dates of separation without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the chronic LBP condition as 5295 l umbosacral strain with 5292 l umbosacral strain rated at 20%. The VA coded the d iscog enic d isease condition as 5293 i ntervertebral disc syndrome with 5292 r ated at 40% (s evere ) . Both the PEB and VA used the o ld s pine r ules to rate the LBP condition . The MEB NARSUM exam does not contain complete ROM measurements and forward flexion is estimated. Some degree of limitation is noted, however, as is painful motion with activities. The ROM measurements by PT were not all recorded in degrees, so degree equivalents were calculated using the normal values documented by PT as described above. The Board adjudged that the PT ROM measurements and the initial C&P examination w ere closer to separation than the MEB NARSUM was , still prior to separation, so they had higher probative value. The ROM recorded by PT noted flexion limited to the equivalent of 15 degrees. At the initial C&P exam, the examiner noted flexion limited to 10 degrees , paraspinal muscle spasms, and tenderness to palpation (TTP) and percussion at L5 - S1. Both of these examinations support a finding of severe limitation of motion and both would also support a 40% rating if today’s VASRD were applied. While the CI clearly had intervertebral disc syndrome the record does not include information regarding incapacitating episodes , so a rating using 5293 cannot be determined. The follow-up C&P examination noted deficits continued or slightly increased over time. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 40% for the chronic LBP condition.

Saphenous Nerve Palsy Condition. The CI developed saphenous nerve palsy in 1995 with complaints of burning and dysesthesias of the posterior calf. The nerve injury was suspected to be a complication from his spine surgery. The CI was seen in the emergency room for complaints of tingling in the left leg and positive exam findings with left toe and heel walk. A neurosurgery consult in May 2002 indicated pain from the left sacroiliac joint (SIJ) area that radiated down the left leg to the knee and was worse with standing, sitting straight up or walking. The physical exam findings were tenderness to palpation in the SIJ area when getting out of a chair, strength noted at 4+ out of 5 to 5 out of 5, reflexes reported as only trace at the left knee joint, with an antalgic gait requiring a cane. A physical medicine consult in June 2002 noted complaints of a burning type of pain along the left medial calf region, and although the pain could occur along the medial tibia, most of the pain was along the medial border of the gastrocnemius and could radiate down as far as the ankle. The physical findings were significant for a normal right and left knee reflex and right ankle reflex, but diminished left ankle reflex (+1) was reported. A follow-up examination the same month noted that mechanical pressure did not reproduce the pain but the CI had a positive Tinel’s sign at the distal portion of Hunter’s canal on the left (but not on the right). A NCS performed demonstrated absent sensory nerve action potentials for the left saphenous nerve and peroneal nerve which represented a probable saphenous nerve entrapment syndrome, most likely occurring at the distal portion of Hunter’s. The examiner opined that the location of the numbness and tingling followed along the saphenous nerve distribution area. This finding, along with a positive Tinel’s sign over the saphenous nerve, led the examiner to conclude that the CI’s paresthesias was due to an injury of this nerve during surgery as opposed to a radiculopathy affecting a nerve root exiting the spinal canal. The MEB NARSUM completed a week later indicated numbness and paresthesias in the left leg with pain that radiated from the left knee down to the ankle, at times very sharp, along the shin bone producing a burning type sensation aggravated by sitting or standing too long. Physical exam findings of left ankle dorsiflexion and left toe strength of 5- out of 5 and plantar flexion strength of 4 out of 5 with decreased sensation to light touch in the saphenous nerve distribution running from the left knee going down to the medial malleolus. Reflexes were equal and symmetric at the bilateral knees and ankles. Approximately 2 months later (4 months prior to separation), physical therapy reported quadriceps weakness and the CI was unable to perform a straight leg raise without assistance. The therapist also noted apparent quadriceps atrophy with the left 3 cm smaller than the right. The initial C&P examination (approximately 2 months prior to separation) documented moderate constant pain, decreased sensation of the left lower extremity, with a positive Tinel’s sign over the medial left knee. The pain was noted to continue at 8 out of 10 on a daily basis. The CI’s gait was antalgic bilaterally and worse on the left. However, motor strength was 5 out of 5 in both upper and lower extremities. The examiner further noted that these symptoms had not resolved despite the fact that the CI was taking B vitamins and undergoing PT. At the follow-up C&P examination (approximately 4 months after separation), reflexes were absent in bilateral knees and ankles and there was moderate atrophy of the left quadriceps with the right thigh measuring 1.5 cm larger than the left at a point 10 cm above the patella.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the saphenous nerve palsy 8727 internal saphenous nerve neuralgia rated 0%. The VA coded the condition 8727 and rated 10%. There is ample evidence in the STR that documents the chronic constant burning pain that radiated from the left knee to the ankle along with quadriceps muscle atrophy. While the saphenous nerve is a cutaneous or sensory nerve, it branches off from the femoral nerve that supplies the quadriceps muscles and both could have been affected by the surgery if the injury occurred near the branch point. The MEB NARSUM findings were unchanged from the previous treatment notes of numbness and paresthesias along with burning pain that radiated from the left knee down to the ankle. The initial C&P exam documented no improvement of the constant pain, positive Tinel’s sign, and quadriceps muscle atrophy. All exams supported a finding of nerve injury. The Board reviewed the tenants of §4.123—“Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis” and §4.124-“Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.” While both the PEB and the VA used 8727 for neuralgia of the saphenous nerve, the VA assigned a 10% rating. This rating, however, is not permissible because neuralgia can be rated as only as high as moderate, incomplete paralysis. The CI’s symptoms are more consistent with neuritis as he had constant pain, at times excruciating, and sensory changes as well as the Tinel’s sign. If 8627 is used, the maximum allowable rating is 10%, as was assigned by the VA. The Board took into consideration the evidence that the symptoms continued to worsen over time as evidenced at the 4-month post-separation C&P examination. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the Saphenous Nerve Palsy neuritis condition.

Left Knee Pain Secondary to Retro patellar Pain Syndrome (RPPS) Condition. ROM evaluations in evidence (with additional ratable criteria) that the Board considered for its rating recommendation are shown below.

“
Left Knee ROM
 (Degrees)
MEB Addendum
~ 4 Mo. Pre-Sep		 Physical Therapy ~4 Mo. Pre-Sep VA C&P ~ 2 Mo. Pre-Sep VA C&P ~4 Mo. Post-Sep
Flexion
(140 Normal)
 140 (145) 75 140 140
Extension
(0 Normal)
 0 5 0full”
Comment
 + patellar grind; +1A Lachman; 3cm quad atrophy; no instability; “give way; worsening pain with climbing stairs” Pain will all movement; passive ROM 5-125 with pain; the PT was unable to test strength due to pain; left straight leg raise required assistance; left quad 3cm smaller than right; antalgic gait 3+ crepitus; tenderness to ballottement of patella; no instability; “pain with walking, stairs” “Uses cane-give way”; moderate quadriceps atrophy; tender over medial and lateral joint lines
§4.71a Rating
 10% 10% 10% 10%

The CI’s left knee pain developed after the third spine surgery in February 2002. A left knee X -ray for complaints of left knee pain showed questionable subchondral cysts. The CI was given a permanent L3 Profile for the LBP and left knee pain with restrictions of no running, marching , or rucking. The PT noted chronic left knee pain and quad weakness. The MEB NARSUM a ddendum examination approximately 4 months prior to separation noted the sensation of the knee giv ing wa y, worsening knee pain with going up steps , and pain exacerbated by sitting for long periods of time and kneeling on the left knee. The MEB a ddendum physical exam findings are summarized in the chart above. The examiner opined the RPPS of the left knee was most likely a result of neuromuscular damage during surgery. PT noted decreased ROM due to pain approximately a week after the MEB a ddendum was completed and the examination findings are noted in the chart above. A repeat left knee X -ray revealed an osteophyte on the superior patella. The initial C &P exam indicated ongoing chronic knee pain that w as worse with walking, stairs, inclines , and uneven terrain. An X -ray performed at the exam revealed a patellar spur. The initial C&P findings are summarized in the chart above. The second C&P exam noted that the left quadriceps musc le never regained full strength and that the CI had pain in the left knee with squats and leg lifts, required a cane to prevent falling due to the left knee give away, and experienced his knee giv ing way when walking more than one block . The second C&P findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the left knee pain secondary to RPPS as analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) rated 0%. The VA coded the non-tracking patella and patellofemoral syndrome (PFS), left knee condition analogous to 5260 rated at 10%. No exam indicated limited ROM to a compensable level without application of §4.59 (Painful motion). All exams documented painful motion with activity. The knee would rate 10% under any knee rating schema. However, without evidence of arthritis 5299-5260 appears to be most accurate. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt) and §4.59 (Painful motion), the Board recommends a disability rating of 10% for the Left Knee Pain Secondary to RPPS condition.


BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5295-5292 IAW VASRD §4.71a. In the matter of the saphenous nerve palsy condition, the Board unanimously recommends a disability rating of 10%, coded 8627 IAW VASRD §4.124a. In the matter of the left knee pain secondary to RPPS condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Low Back Pain
 5295-5292 40%
Saphenous Nerve Palsy
 8627 10%
Left Knee Pain Secondary to Retropatellar Pain Syndrome
 5299-5260 10%
COMBINED
 60%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120606, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130012154 (PD201200609)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 60% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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