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CCK Court Wins: Agent Orange & Gulf War Illness

BACKGROUND

  1. VA Presumptions & Military Exposures
  2. The U.S. Court of Appeals for Veterans Claims (CAVC)
  3. The U.S. Court of Appeals for the Federal Circuit

HUDICK (Agent Orange)

  1. Agent Orange in Thailand & VA’s Perimeter Policy
  2. Mr. Hudick’s Case
  3. Appeal to the Federal Circuit
  4. VA’s Policy Manual: the “M21”
  5. How binding are VA’s M21 policies?
  6. Federal Circuit Win: Reversal of CAVC Denial
  7. Takeaways for Vietnam-Era Thailand Veterans

STEWART (Gulf War Illness)

  1. Gulf War Illness (a.k.a. GWI or Gulf War Syndrome) & VA’s Presumption for Undiagnosed Illness
  2. Addition of the Medically Unexplained Chronic Multisymptom Illness (MUCMI) Presumption
  3. Mr. Stewart’s Case at the Court of Appeals for Veterans Claims (CAVC)
  4. Defining Pathophysiology and Etiology & “OR” vs. “AND”
  5. Takeaways for Gulf War Veterans
  6. “Case-by-case” Application of the Presumption

Video Transcription.

Zach Stolz: Good afternoon from Providence, Rhode Island. This is Zach Stolz from Chisholm Chisholm & Kilpatrick. I am here with two of my colleagues, April Donahower and Kerry Baker. They work with us here at the firm. We are going to talk today about two new cases, one of which came out of the United States Court of Appeals for the Federal Circuit, and the other one was handed down very recently by the Court of Appeals for Veterans’ Claims. They’re names are Hudick and Stewart. And you can find the links to those oral arguments on our website as well as to the decisions themselves. They’re two very important decisions and very nice wins for the two veterans, Mr. Hudick and Mr. Stewart. And we’re going to talk a little bit about them today and what they mean practically for veterans across the country, because these are two decisions that will have some wide-ranging effects. Mr. Stewart’s case was a precedential case from the Court of Appeals for Veterans’ Claims. And while Mr. Hudick’s case is not precedential, which we will talk about in a little bit, we do believe that it will help a number of veterans, and thus give us a little clearer indication of whether the Court of Appeals for the Federal Circuit is going with regard to several important issues to veterans. So let’s hop into it. Kerry, can you give us a little background about how presumptions at the Department of Veterans Affairs work? And why exposures can be so difficult to prove on their own?

Kerry Baker: All right. Well, I’ll tackle the presumption question first. Presumptions generally work in place of a medical nexus for the most part. But there are also other presumptions of exposure. For example, if a Vietnam veteran was in — if a veteran was in Vietnam, then he is legally presumed exposed to herbicide agents. That then eliminates a medical nexus or a medical opinion linking his disability to the herbicides–

Zach: So the– sorry to interrupt you. But just to kind of walk it through, without a presumption, a veteran has to prove– in order to get VA compensation–

Kerry: Right.

Zach: — has to prove a number of different– number of different things, in order to get service connection and then ultimately compensation. And a presumption cuts out the part where the veteran needs a medical opinion linking his condition– his or her condition to his or her time in service. So–

Kerry: That’s generally correct. But there are also presumptions of exposure, so generally, what you– I think what you’re getting is you need generally an event in service, a diagnosis, and a link between the event and the diagnosis. A presumption can either take place of the link or the event or in some cases both. But the reason is so hard– see the presumptions also explain one of the reasons why it’s so hard to prove exposures because in a lot of ways, VA has gotten so accustomed to using presumptions for exposures that if you’re dealing with an exposure where there is no presumption that you were exposed, you have to factually show that you are exposed: military service records, unit records. Things like that almost never ever talk about what a person was exposed to in their daily duties. Even though VA will develop forth on an ongoing basis, you will almost never find anything written on someone’s service records that, “Hey, this person was exposed to herbicides.” It’s just not a practice that DoD and any of their branches follow on a regular– almost anything close to a record-based–

Zach: Well, with that kind of as background, I think that you’ll be able to tell that the Hudick case, which we are going to talk about now, involves presumptions. And it involves exposure especially in this case to Agent Orange and herbicide agents that were used in Thailand. So, before we kind of get there, let’s set the stage of what venue we’re in. April, can you talk with us a little about what the Court of Appeals for Veterans’ Claims is? What makes it different than the preceding part of the VA claims process?

April Donahower: The Court of Appeals for Veterans’ Claims was established by Congress as a venue for veterans whose claims have been denied by VA to have a route to appeal. So it’s an entity completely separate from VA. And another key distinction I think between the two is that when a veteran appeals from VA to the CAVC, the process shifts from one where VA is obligated to assist the veteran. It’s a non-adversarial process. It shifts into an adversarial process where the veteran and VA take opposite sides in the court.

Zach: And then from the CAVC, which is the adversarial in the first rule of court, the first chance the veteran has for his or her day in court, you can appeal those decisions. So, can you talk a little bit about that process in going to the Court of Appeals for the Federal Circuit?

April: Yes. So, the Court of Appeals for the Federal Circuit is the next superior court to the Court of Appeals for Veterans’ Claims. So, if the veteran receives an adverse ruling from the Veterans Court, the Court affirms the Board’s denial of a particular benefit. Then the veteran can appeal that decision up to the Federal Circuit.

Zach: It is to be noted that the Federal Circuit is a notoriously difficult court to prevail in on behalf of veterans not because the Federal Circuit is mean or anti-veteran or anything like that, but because the Court of Appeals for the Federal Circuit has a very narrow jurisdiction–

April: Yes.

Zach: — and can only hear questions of law.

April: Correct.

Zach: And so not all– not very many cases, frankly, get appealed to the Court of Appeals for the Federal Circuit. That is because of the way the statutes work, and because you have to have a complete question of an interpretation of a regulation or statute in order for the Federal Circuit to even hear your case. So it can be a little bit tough to get into and then prevail in. So that’s where the Hudick case is. And we appealed– CCK appealed that to the United States Court of Appeals for the Federal Circuit. It involved Agent Orange use in Thailand as I said before. And Kerry, can you kind of talk a little bit about what VA acknowledged in terms of use of herbicides in Thailand? And then does the Agent Orange presumption apply to people who served in Thailand especially at the Air Force bases there?

Kerry: Okay. So, service in Thailand during– let me lay some groundwork on that. There were many Royal Thai Air Force bases in Thailand during the Vietnam War. The U.S. military personnel served that. And almost all of them served in support of the Vietnam War in numerous capacities. At one point, those bases that the American forces were on began getting attacked by insurgents. And they were usually attacked on the perimeters of the bases, and that’s a tropical rain forest area just like sort of Vietnam. So, the insurgents were able to use the cover of all the foliage to get a little bit more successful with their attacks on the perimeters of the bases. So, what the military did was spray the perimeters of Thailand military bases with herbicides like they did in Vietnam. They didn’t use the aircraft, the C-123s. They sprayed it by hand. There’s not a whole lot of evidence on when and where the military used herbicides in Thailand, but there’s enough for VA to come out with policy a number of years ago, around 2010, indicating that it would concede not presume but concede herbicide exposure for certain veterans in Thailand, not all veterans in Thailand. You had to have served on or near the perimeter of one of the bases in Thailand. Now, that was not a legal presumption of exposure, because you had to show that you were in a certain area. But if VA did concede that you were in that area and that you were exposed and you still got one of the diagnosed conditions that’s related to herbicide agents, then the presumption still kicks in for that veteran even though they’re not a Vietnam veteran. So, they don’t get the presumption of the exposure. But they get a factual concession of exposure if they can place themselves on or near the Thailand-base perimeters. Once VA concedes that, the remaining presumption for the service connection, the one in place of the medical nexus, still kicks in for that person.

Zach: Sounds easy.

Kerry: Piece of cake.

Zach: And because it is as complicated as– and because it is so complicated, as one can imagine, it’s going to take some court cases to figure some of these out. And it’s complicated for VA personnel to kind of implement. In fairness to VA, these are some tough issues. And so, Mr. Hudick’s case had to wind its way all the way up to the Federal Circuit. And with that good background in mind, April, what are the facts of Mr. Hudick’s case?

April: So, Mr. Hudick served in the Air Force. He’s an Air Force veteran. And his service included a year at one of the Royal Thai Air Force bases from 1967 to 1968. And during his time there, he served in munitions storage area which took him to the perimeter of the base during his time there. So, after service, he filed a claim for service connection for prostate cancer. And prostate cancer is one of the conditions on the list of conditions that are presumed to be caused by herbicide exposure.

Zach: And then walk us through a little bit of the case. What happened after that– at the Board as quickly as we kind of can, because it does get very complicated. And again, the link to the oral argument and to the decision is on CCK’s website for people who want to read really all the details about– I do have to warn you that the audio of the oral argument kind of picks up a little bit. I am the attorney who argued that case– it picks up about halfway through my argument. But you can hear all of the government’s argument in it. So, don’t be– for whatever reason, the recording didn’t work at the court. But kind of wind your way through the Board, through the CAVC, and then kind of what we pitched to the Federal Circuit.

April: Sure. So, the claim worked its way around in VA. During that time, the 2010-policy that Kerry referred to came out. At one point, the Board remanded Mr. Hudick’s claim for it to be readjudicated by the Regional Office with that policy in mind. It came back up to the Board where the Board ultimately denied service connection for prostate cancer. So we appealed to the Veterans Courts. At the Veterans Court, we argued that the Board erred when it required evidence to corroborate Mr. Hudick’s credible statements that he was on the perimeter of the base in Thailand. The Court ultimately rejected that argument. It said that the Board wasn’t required to follow that policy. That it wasn’t binding on the Board. And even if it– even if the Board did make a mistake by not following that policy, there was evidence that ultimately showed that herbicides weren’t used at the base during Mr. Hudick’s time there. So, any error didn’t harm him.

Zach: And that evidence that they– the CA– we’re talking about the CAVC right now, the Court of Appeals for Veterans Claims. It was in a single-judge non-precedential opinion. What that judge was saying is that even though it was VA’s stated policy to concede herbicide exposure for veterans like Mr. Hudick, they didn’t necessarily– it was a little more complicated than this– but he initially he kind of said, “You don’t really need to follow that policy, because you’ve kind of rebutted your own policy, because there is this memorandum from an Air Force archivist that said, “No. We didn’t spray any herbicides at that base during the time Mr. Hudick was there,” which made the case a little bit more difficult for Mr. Hudick. So that’s kind of what you’re talking about there I think and what made it difficult and how we lost–

April: Right. Right.

Zach: — at CAVC. So we appealed to the Federal Circuit —

April: So we appealed to the Federal Circuit. At the Federal Circuit, we argued that the VA should not have been allowed to ignore its internal policies. And it did so when it denied service connection despite the fact that Mr. Hudick credibly reported that he served at the perimeter of the Air Force base.

Zach: Yes. And another thing to kind of talk about is the policy that VA articulated that Kerry and April have spoken about that have to do– the policy that we’re talking about is a specific provision of what’s called the M21-1MR which the MR stands for Manual Rewrite. The 21 stands for I have no idea. But what this is is a living document that once upon a time you could find a– I remember the days when you could find a big binder that was the M21. It was at the Board’s library. But I don’t believe that that even exists anymore except for just as an artifact. It’s all online. And so, you can go find– oh, I may be corrected on this by a former VA personnel Kerry Baker. But my understanding is you find the– and I do know this to be true. You can find all the M21 provisions online on VA’s website. And the M21 is able to be changed relatively quickly. And the M21 is what many people at the VA Regional Offices rely on to adjudicate cases. It’s a huge, sprawling document. We were up on– we were at Court. I’m talking about a very small part of it which specifically dealt with Air Force veterans like Mr. Hudick who served at a couple of Air Force bases during a specific time period. And that those veterans have to have Agent Orange exposure conceded in their cases. So that’s why it got a little convoluted. Now, correct me on the M21.

Kerry: It’s not really a correction when it was all in print prior to it going–

Zach: Oh, so it still not in print?

Kerry: No. It– no– when it was in print– in print version instead of electronic version. The books would stack up to about as tall as me. And I–

Zach: Oh, I undersold it.

Kerry: And I’m 6 foot. So, you undersold the volume.

Zach: It’s more like this.

Kerry: It’s more like– right.

Zach: Well, now it’s all online. It’s an important issue, because the M21 has become somewhat controversial. And CCK in particular and April works on a lot of these cases. There are different kind of views on how binding these policies are at which part of the process. We currently live in a state of play where the M21 seems to bind Regional Offices. In other words, Rating Officers at Regional Offices throughout the country have to follow the M21. But the Board of Veterans’ Appeals does not, and the Courts certainly do not. They can take it under advisement but they’re not bound to follow it. So– sorry. Continue —

April: No. Another piece of that is just the breadth of impact that the provisions in the M21 have. They can affect very minor internal procedures. But also– such as in this case, they can really make the difference between entitlement to a benefit or not.

Zach: Right. And essentially what we were arguing is the M21 helps Mr. Hudick. Please make sure that you follow the M21. That’s essentially what our pitch was to the Federal Circuit. And they decided?

April: So, the key piece in the Federal Circuit’s opinion was the fact that at one point during the process of Mr. Hudick’s claim being adjudicated, the Board specifically sent it back for consideration of the provisions in the M21– the policy pertaining to when an Air Force veteran credibly says that he or she was near the perimeter of an Air Force base that exposure should be conceded. So, the Federal Circuit found that the fact that the Board sort of took it upon itself to send the claim back for development and a new decision based on that policy that it then became bound by it as a result. So, the Federal Circuit sort of avoided the question of whether it’s always binding on the Board but said that it definitely was in Mr. Hudick’s case.

Zach: And so, Mr. Hudick was successful. It was also a rarity in my experience because the Federal Circuit outright reversed the Court of Appeals for Veterans’ Claims decision and also the Board’s decision denying Mr. Hudick, and directly order the Department of Veterans Affairs to award Mr. Hudick’s service connection, which is a rare thing. And often at the Court, what we get when we are successful on behalf of our veteran clients is a remand with an instruction for the Board to kind of redo the case under the right law. This time, the Board doesn’t have any discretion. It needs to award service connection to Mr. Hudick which is a really wonderful result. And we’re all very pleased with that. So–

April: And just to loop back to Kerry’s explanation that at the beginning, there wasn’t any additional fact-finding that needed to happen here, because we had the concession of exposure based on Mr. Hudick’s testimony and then the presumption that the prostate cancer was caused by that exposure. So, there was nothing more that needed to be found in terms of facts.

Zach: And as I said at the beginning today, this case is not precedential. In other words, neither VA nor appellants can really rely on it as law. But it does– it was before three judges at a very high Court. And it does give an indication of kind of what the Court believes about this. And we can also use it to persuade VA to do– to follow these procedures in cases that are similarly situated to Mr. Hudick and in other Thailand-veterans cases. So–

Kerry: If I can add to that, too. It’s hard to tell to what extent this played a role in the Federal Circuit’s decision. But I know what’s been important for us is that for Thailand policy, the M21 is the only place that that policy exist.

Zach: Right.

Kerry: It’s not in VA regulations or statutes. So, it makes it a more substantive addition to the M21, because it directs VA on steps to take that result in a grant or denial of benefits.

Zach: To put a finer point on it– and it kind of– I just say this because it kind of amazes me. Whole policies pertaining to this large group of veterans have not been dealt with by Congress, and they have not been dealt with by VA through a rule-making process. They all exist in this online manual that can change daily. And that is what guides what happens for our nation’s Thailand Vietnam-era veterans which is a little scary in some ways I think. But certainly, an interesting thing. But CCK is–

Kerry: To put it nice —

Zach: — CCK is always looking at the M21. And we’re always ready to help Thailand veterans if they have a case that we can help them out. So however, VA is going to do it, they have done it. So, we will live with it, because we have no choice. Let’s switch over to a CAVC case, a Court of Appeals for Veterans’ Claims case. And let’s switch– let’s switch conflicts. This case has to do with Persian Gulf War veterans. And it’s one of the very first precedential cases that has really come out that deals with the very important presumptions that are afforded to Gulf War veterans. And Kerry, you worked a lot on this case as did April and me. And the wonderful Emma Peterson from our office gave the oral argument. It can be found on our website. So, you can listen to that, listen to the Court’s questions of both Emma and the Department of Veterans Affairs’ counsel. Can we talk a little bit about the presumptions that were awarded to some Persian Gulf War veterans?

Kerry: Yes. And these are far more simpler than Agent Orange-related benefits. I’m kidding. They’re much more complicated than–

Zach: Way more complicated.

Kerry: — Way more complicated.

Zach: Talking about 38 CFR Section 3.317. And it’s a doozy.

Kerry: 3.317 and its interpretation of 1117 which is the statute in case you guys want to go look that up. The way the presumptions work– it’s a relatively long story. I will try to make it short.

Zach: It is a long story.

Kerry: It started shortly after the first Gulf War in 1991, or that began in 1990, when veterans became ill. And they were having extreme difficulty pointing to an actual diagnosis or explanation. At some point, Congress wrote a statute that said– basically saying that if you have an undiagnosed illness; you can get presumptive service connection related to the Gulf War. That was problematic, because there are very few things that are not diagnosed even if a four, five–

Zach: And this stems back to the fact that many of our service members– many of our country service members were coming back from the Gulf War-conflict feelings of malaise, sometimes gastrointestinal trouble. And we have no idea why.

Kerry: Right. All kinds of various symptoms: neurological, musculoskeletal. The list goes on. Okay? Pretty much includes all body systems. But they were not able to pinpoint the cause of a lot of these. And sometimes, they weren’t able to pinpoint the diagnosis which is very, very rare in the medical field. Almost anything, you can go into the doctor to see about will end-up getting diagnosed. Even if there’s half a dozen doctors saying you have A, B, C, and D, they’re all saying something different. So, they can’t come to a concession on what the diagnosis is or a conclusion. But yet when that occurred in these cases back then, VA would almost always deny the claim. Because even if there were six diagnoses for the same thing and nobody knew which one was accurate, VA will go “Oh, you have a diagnosis, therefore, it’s not an undiagnosed illness. Therefore, we’re denying your claim”. And that went on and on and on.

Occasionally, you see a grant of service-connection when a doctor said, “Yes. This is the symptoms he’s got. I have no idea what the diagnosis is. It doesn’t make sense.” Occasionally, you’d see a grant of benefits. Congress got tired of VA restricting benefits like that in early 2001-ish. There was an– they added to the law. And they made– and a lot of this was based on Institute of Medicine reports, things like that, where they added two undiagnosed illnesses. So, it became undiagnosed illness and completely separate, a multi– a medically unexplained multisymptom illness. All right? So now you had two things under that statute and regulation that could be presumptively service-connected related to the Gulf War. Now, you did not need to show a link between these conditions if VA agreed you had one and exposures or anything directly related to military service. But you had to satisfy the definition. And that’s the hard part. Medically unexplained multi-symptom illness. What is it? Or when Congress wrote the law, they made– they provided some examples. And they were very clear that these were examples as chronic fatigue syndrome, irritable bowel syndrome, and fibromyalgia. Those are examples. VA and the regulation, if you want me to go this far–

Zach: I don’t.

Kerry: Okay.

Zach: Because I want to get– because I think we’re going to get there by getting into Mr. Stewart’s case–

Kerry: Sure. Sure. Sure.

Zach: — a little bit. So, Mr. Stewart is a Gulf War veteran. Let’s do the shortest version possible, because we have it on our website. This case was very recently decided. We are still within the appeal time. It is possible that VA will appeal. We certainly hope that they do not. It’s a good decision from the Court of Appeals for Veterans’ Claims. It is certainly very helpful to Gulf War veterans and how would that background — and this area is wildly confusing. The Court has struggled with it. I personally have struggled with it. The regulation is very long and had to contradict itself in parts. And it’s just a very — it’s an unwieldy thing to do. And because the conflict is a more recent conflict and because the law is so new, there is just a lot of sussing out to do on the part of VA, on the part of veterans, on the part of the Courts, on the part of the Board. Everybody kind of is still trying to figure this out. So, Stewart is so new that while we’re not going to spend a whole lot of time on it, let’s kind of talk about the general holding and what the Court of Appeals for Veterans’ Claims said for this Persian Gulf War veteran.

Kerry: Okay. So, we’re dealing specifically with medically unexplained chronic multisymptom illness not undiagnosed illness here. So, in that context, if we look at what VA defined it as– which is quite simply, it’s a diagnosed condition with a less than conclusive pathophysiology or etiology.

Zach: Alright. Let’s define pathophysiology and etiology.

Kerry: Alright. Pathophysiology is something– it’s basically a disruption of function in the body. So, if you have a certain disease, diabetes, the medical community knows what goes on inside the body when you’re suffering from diabetes. And that’s a pathophysiology. They can draw blood and detect certain things. That’s all plain to pathophysiology. Not the same as etiology which is the underlying cause of the disability. So, two very important things. The regulation stated you needed an inclusive etiology or pathophysiology. The next sentence in the regulation clarified that if you had the disease of a partially- understood etiology and pathophysiology, it was not a medically unexplained chronic multisymptom illness. And so those two sentences right there were the gist of this. We have argued, and Zach know that I’ve raised this issue for over a decade, that if the “or” means “or” and “and” means “and”. And if you have an unknown etiology or an unknown pathophysiology, you should satisfy the law.

Zach: Right. So, under our reading, under CCK’s reading and especially Kerry’s reading of the law, you either needed an unknown pathophysiology or an unknown etiology which is easier for a veteran to be able to prove in order to be entitled to benefits.

Kerry: Correct.

Zach: VA was reading that “or” in a way that they interpreted it in the context of the regulation. They argued that that “or” actually meant “and”. And that a veteran had to prove both pathophysiology and etiology– unknown pathophysiology and etiology. And so that was what was the crux of Mr. Stewart’s case. And the Court found?

Kerry: The Court found “or” means “or” and “and” means “and”.

Zach: It did.

Kerry: The – and – the Court found something else. I’m sure you’re getting to it. But that was just a big, big help for Gulf War veterans.

Zach: Well, so what does this mean for Gulf War veterans? And we can talk about the other part of the case as well. What is the take away I think for Gulf War veterans? Mr. Stewart is going to be helped by this obviously. But what about his comrades that —

Kerry: The take away is that if you have a Gulf War veteran from 1990 up to the present, that includes Iraq, OEF/OIF veterans as well. That if you have a disease that has a diagnosis but there’s no etiology known as to why you have that diagnosis, then that possibly will be presumptively service-connected under 3.317. Whereas, before VA was applying the law in a way that it had to be a complete mystery. You don’t know why you’re sick. You don’t know what you’re sick from. You can’t test for it. You can’t detect it. And the whole reason Congress changed the law on the first place is because VA was applying it too strictly. I think that’s really what got us won on this case. They were still basically wanting to apply that same standard. Whereas, if you didn’t know the cause of the disability and if the law means that if it otherwise fits a multi-symptom illness and a veteran can get service connected for it, then that makes Gulf War veterans so much better off in getting service connection, because these are really tough points.

Zach: Please read more about Gulf War veterans on our website. It is a very complicated area. We are trying to make it much simpler. And we have many more cases to go, I’m sure– unfortunately to try suss out these very important and key issues to literally millions of veterans. Because the class of veterans that served in that conflict is a very large class. So, it’s going to affect a lot of people. And we certainly hope that this Court decision stands. And that it is able to help as many people as we could possibly help with it.

Kerry: And I probably understand as much as anybody when I try to explain this it might get complicated. Because there’s just so– there’s not many ways to explain this in a simple —

Zach: And look for future Facebook Lives on the subject of multisymptom illness, Gulf War veterans, Thailand exposure. So, with that, any final thoughts? April? None from April. Kerry?

Kerry: Yes. The other thing–

Zach: Oh, always.

Kerry: Yes. The other thing that Stewart did.

Zach: Oh, yes. Let’s finish– let’s finish Mr. Stewart’s case.

Kerry: Let’s finish Mr. Stewart. So, the Court also held in Stewart that the application of everything we just talked about in the Gulf War rules is a case-by-case basis. And that’s also I think just as important as the first holding. Because VA was accustomed to looking at a particular disability going, “Oh, this disability is not caused by the Gulf War. It has a known etiology. It has a known pathophysiology,” ‘though it may not. But they were looking at the disability as a whole, generally, across the world instead of looking at that particular veteran’s disability. Is there a reason he’s suffering from that disability? Sometimes, there is. Sometimes, it’s hereditary. His mother and father have it. His brothers and sisters have it. Sometimes there’s no explanation as to why this veteran who has a certain disability shouldn’t really not have the disability. So, they really have to do case-by-case analysis now. And I think that’s important.

Zach: Absolutely. Thank you very much for your attention today and for tuning in to our Facebook Live. I am Zach Stolz with April Donahower and Kerry Baker. Thank you very much. Goodbye from Providence, Rhode Island.

 

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