ANECDOTE ALLEY – Do Veterans Read VA Claims Denials?
Like many veterans, I did not read my claims denials for the first seven years I fought against VA for erroneous claims denials. This anecdote is my own and an embarrassing confession as to how long it took me to sober up to the reality that trusting others to read my own claims denials and related documents was a horrible mistake.
I finally realized I could not trust VA and my VSO to fully review decisions when I first read various regulations related to a decision years ago where I was lowballed in a way that defied logic – VA blew off my TBI claim and awarded a 10% for the same single condition I now have a 70% rating for.
It took me many years to wake up and fully admit my own VA reality – that VA was not there to help. Once I admitted that reality, I was able to gear up and win my claim.
THE BIG TAKEAWAY IS IF YOU READ, YOU WIN
The reality was that I (and veterans like me) need to read my claims denials and associated support documents but sometimes fail to do so due to the number of documents or due to our own misunderstanding of the regulations.
But what does this mean? What does it really mean to “read” a claim denial? This may seem like a simple question but across different veteran channels it means different things.
Does reading mean that you read the basic header of the document to ensure it was sent to you? Does it mean that you at least read the denial language? Does it mean that you read the denial and also read the regulations justifying the denial? Does it mean you did all that an also read Board of Veterans Appeals grants and denials and Court of Veterans Appeals remands and denials?
And even if you read it, then what? This post highlights two issues as to what reading means and the “then what?” as to what to do next.
First, you need to read your denial and documents VA relies on for the denial. And second, you need to evaluate how words are defined by VA employees when they are used in your denial. You should focus on terms that look like the decision is based on them. In the legal community, these are loosely referred to as terms of art. An example of this for TDIU veterans is the term “traditional employment,” which basically means the type of employment a non-disabled person similarly equipped would be able to pursue with the same training and experience as the veteran.
It has been my experience that VA doctors and adjudicators will make up terms to avoid diving deeper into a complicated issue. That term may be relied on to justify the denial without providing a clear definition to allow rebuttal. In that instance, it will be up to you to find the error and appeal that decision based on a common definition used in dictionaries or by courts.
You can easily Google a definition of a term of art by placing quotations around the words that comprise the term and press “search.”
As to the purpose of this post, let’s assume that “reading” a claims denial means reading the full denial, reading the regulations, reading case law associated with each point, and reading the supportive documents justifying the denial.
Does that seem like a lot of work? Heck yeah it does. In fact, it is so much work that I propose many VA adjudicators and many veterans never fully read a denial or the related justification for the denial.
To some degree, both VA adjudicators and veterans assume a degree of faith in the accuracy of statements in the claim made by VA employees. However, VA does not hold the same regard for claims made by veterans even if that veteran seeking disability is a doctor or some other expert.
Statements relate to facts and evidence. Statements relate to statutory law, regulations and VA policy. Statements relate to case law. In those statements, there is a lot of room for error, especially when the record or denial documentation is supremely lengthy.
For example, when a claim file is over 5,000 pages, that length is supreme and poses and barrier to fully reading the full breadth of anything. Those supportive pages may lead up to a 30-page denial. And for some, that 30-page denial might seem like too much reading in certain situations, especially for disabled veterans with brain injuries.
If you accept the premises above as true, here are two quotes I find useful:
1) “Trusting others is only a mistake you make once;”
2) “No one will care more about your claim than you.”
Taken as true, here is my point based on my own anecdote.
Many veterans and many VA employees do not fully read a denial or the supportive evidence leading up to the denial. They put faith in a lot of other parties to correctly provide elements of information that were gathered together for the denial.
For that reason, you need to read your own denial and associated documents to ensure the decision was correct because the likelihood that a VA employee did not do so is always a risk not worth taking.
I have been fighting a claim resulting from AO exposure. I have an accelerated form of Parkinson’s Disease called Multiple Systems Atrophy. I am sure other veterans have this but either have given up the fight, are deceased, or have not filed in the belief that they don’t qualify for an appeal.
When the VA Benefits Office denied my claim they did not appear to have used any expert in the disease. I suggested of what appears to be a final appeal that my Neurologist be contacted to add fuel to my little fire. My attempt is to garner after death benefits for my wife and children. This is a rare disease and there appears to be less than 200 veterans involved.
There are some similar claims at the BVA web site, regarding . multiple systems atrophy and Parkinsons.
Unfortunately they all seem to be on remand.Accept one as below.
I suggest that you read this one carefully….
Your Neuro might be able to provide you with an independent medical opinion that would satisfy the points that this remand calls for as to associating
multiple systems atrophy to Parkinsons.
We have the criteria for IM0s at http://www.hadit.com in the IMO forum. VA is familar with this criteria.
This case from the BVA might help too:
This is a critical part of the case:
” In a letter dated December 2011, Dr. V.S., another private neurologist who had been treating the Veteran since 2009, stated that the Veteran was treated for choreiform movements, motor neuron disease, and multiple system atrophy and that his condition was at least as likely as not related to Parkinson’s disease/motor neuron disease due to his exposure to herbicide Agent Orange. ”
Entitlement to service connection for a choreiform disorder, including Parkinson’s disease, is granted.”
That is what you need a from a real Neuro ( non VA neuro) a strong statement that “his condition was at least as likely as not related to Parkinson’s disease/motor neuron disease due to his exposure to herbicide Agent Orange. ”
I know there had to be more to thia opinion, such as a full medical ratioanle. One thing that would help you ,is if the IMO doc can state that there is no other etiology whatsoever for your neurological condition, except for exposure to Agent Orange.
Another thing to think about….Do you get SSDI for this disorder and if so, does SSA determine the MSA solely under the Parkinson’s classification?
I forget already but I think the vet in the granted BVA claim was awarded SSDI for Parkinson’s.
One thing is for sure DONT GIVE UP ON THIS claim!
The lawyer who helped win the appeal for the ‘granted’ claim above (named in the decision)might be someone you need to contact if this gets to the BVA.
I have been denied…by the VA a TBI! I was wounded in the head by grenade shrapnel and actually retired by the military for those wounds to my head…2 sq. Inch hole in my skull with metal inside my brain…The fool’s cannot even reason of connect the dot’s and after seeing the Senate Hearing with the VA I realize we veterans are as we have always been swept under that abuse of authority rug. The BONUS may be part of these lame adjudicators plan as well as administrators, doctor’s (I write doctors not with respect for some lying last in their class quack’s) and employee’s who do not do their job but will bend over for that BONUS in a second. I have excellent dentist but have seen abusive lying ass dentist and a low quality dental tech that has put my dental health in peril. My regular dentist and the head dentist are trying their very best to fix what the other two had done…I hope I get this solved because I have gone to great lengths to keep my own teeth. I can’t believe one failed bitch of a dental tech and a lying ass dentist fucked my teeth up. Myra and Mouser should be fired! If I die because of dental problem’s they caused I wonder if they will get a BONUS? FTVA!
The VA follows this sequence for claims evaluation: Deny, deny, deny; Delay until they die. 75% of Vietnam vets are now dead. How many of them died without ever receiving their VA benefits?
It is why Benjamin Krause and other veterans attorneys need to start filing civil rights petitions with the United Nations office of civil rights regarding the violation of our (veterans ) civil rights and false promises/contracts the government has made with us.
It took us veterans years to get to a civil rights case in front of the supreme court and we have begged lawyers like Benjamin Krause to represent the class . It is and everyone should join it :
Kendall (et el) v USA, VA et el, United States District Court for Idaho case no
This is the first civil rights case for all veterans and everyone and families should get a notarized joiner form (two) notarized and signed for each person and each family member. Info is available on line see above or:
files at open membership Yahoo! Group vetsuesva https://groups.yahoo.com/group/vetsuesva/
See Kendall lawsuit online or contact him at [email protected]
We are also looking and need VA employees who are willing to whistle blow, testify and will be protected against retribution by the VA and US government agents
Lee Horowitz , M.Ed. CAGS
Veterans Advocate/Civil Rights Advocate
US Navy , Disabled Vietnam Era Veteran
Iiwasgiven 60 per cent on two heart valves and a heart pacer on dec. 2010 that was with a 60 rating rating befor the heart rating of 60 per cent rating. I was told by the va. the reason not a 100 was that the doctor didn’t say I could not work been fighting that since I had the open heath surg. ever since. with neg. results
Is VA aware of the open heart surgery?
Have you formally applied for TDIU”
Do you get SSDI and if so, is that solely for the heart condition?( SSDI awards solely for same SC are prime facie evidence of unemployability.
Has VA Voc Rehac ever turned uyou down solely due to the Heart disease? or due to any other SC issues? If so that too is prime facie evidence that your SC has caused unemployability.
To be quite honest, I never re-read any of my denials either. My education is rather limited anyway (high school GED). I just read the outright lies that the examiners wrote in there about me and then found out I couldn’t get that changed. You can’t change it once they write it! I’ve learned that much. They did it to me four times before they approved me. I just learned to PERSIST at it by re-opening claims based on new evidence. I think they figured they better stop embarrassing themselves or something. It’s like how many times do they have to lie before they realize that’s a mistake?!
I have rebutted many faulty C & P exams.
All but one of them however, were posthumous exams. They knew the veteran could not speak for himself.
You said” It’s like how many times do they have to lie before they realize that’s a mistake?!”
The VA does that in any case whereby they think they can get us to accept their
The last C & P exam I had to rebutt was when the BVA got one of my claims, for which I had 3 IMOs in support of . .I had asked the BVA to remand my claim because my RO never sent me a legal VCAA letter.
But BVA remanded instead for a Cardio opinion , I was thrilled. I knew any cardio doc would have to agree with the claim.
The VA also had 2 prior lousy C & P exams against the claim.
BUT I got a PA instead on the remand.
Nothing wrong with PAs (physicians Assistants) but by then I knew more about cardiology than he did and I rebutted that his opinion was too speculate due to his obvious lack of cardio expertise.
The BVA agreed. They then awarded the claim.
This is a great post Ben.
I have been around a long time as a claimant and advocate and you have hit on one of the Prime reasons veterans get denied…and stay denied…
Claims become emotional issues,as well as having an impact on veteran’s lives, financially and the claims process, I call it at hadit.com ,is tryly a “War of the Words”,
We MUST read and re-read, and then read again their decision…even their award letters…very carefully.
Dont feel embarassed at all. When I won my initial DIC claim ( under 1151) the vet rep told me 1151s are different from regular SC claims and he didnt advise me to NOD it.
The award resulted from evidence from my FTCA wrongful death case against the VA and I was exhausted with the whole thing.But something seemed wrong with the award and the rating sheet.
Five years later, (as I got alot smarter on VA regulations and using the best weapon we claimants have…the Internet) I found 4 CUEs in the decision and filed CUE claims which the VA awarded in 2012.
I was doing advocacy for other claimants at the time of the 1998 decision IO CUEd, but somehow I realised now, I sure had blinders on with some of my own VA.issues.
My daughter , a veteran, in USAF at the time I filed the CUE claims, insisted that I review dad’s med recs again. She insisted that Dad had DMII even though VA never had diagnosed with with it. The coroner, when he prepared thr death certificate,asked me three times if the veteran had diabetes.I kept saying no, yet the coroner was surprised at that. But I didnt think much about it for many years.
Long story, I finally listened to my daughter, (who also raised the point that since I had already proven malpractice on my husband; HBP,CVA, TIAS, and IHD, she said ‘ it is more likely than not , that they should have diagnosed and treated him for DMII. That was when I listened up to her.
I reviewed the medical records, reading them all in a different way, and did a lot of research on DMII (the best research was utilizing VA;’s own Diabetes Training letter)and then I got 3 IMos (even though I never had an IMO for the FTCA case)
I wasnt taking any chances that this claim could be denied,solely due to my lay medical opinion ( although that was good enough for the OGC for my FTCA case)
and in 2009 BVA awarded direct SC death for DMII due to AO exposure……A direct SC death. Peace with Honor.
And multiple ancillary benefits to me, as his surviving spouse,that do not come with an 1151 DIC award.
You are so right! CLUES are in the denials! Errors are made on rating sheets, that long after the appeal period could generate a valid CUE claim.
Once BVA made a statement in a case I had there, ( I claimed DIC due to death with SC PTSD contributing) which they rendered moot because I had just won the DIC claim under the 1151 theory at the regional level (we need to raise as many theories of entitlement as possible)
and the BVA stated in their decision that if I succeeded in a direct SC case, my FTCA Offset would have to be refunded.
When I won the DMII claim, I sent my VARO a copy of the BVA’s statement to me. It took 10 months to get this refund (VA never had a case like mine before, and finally a letter from the OGC, before they would send the cash. A direct SC death trumps the FTCA offset criteria.
I would have not even questioned this offset refund , until I remembered this little clue from the BVA.I found my older BVA case on line and read it many times.
The BVA statement was significant legal evidence for the offset refund.
I know vets who never read their BVA cases thoroughly. One of them is hanging his hat on a buddy letter the BVA rejected long ago.
Often vets can try to fulfill what a remand calls for themselves.
Often their denial is based on VA’s deliberate ability to ignore their most probative evidence.My H VAC testimony during Shreddergate was based on that.
And copies of 53 tracking slips of evidence my RO had ignore.
I am preparing a letter to the Sec to ask him to amend 38 CFR 4.6 on that point.
Also ROs dont always consider 38 CFR 3.156 et al….. another reg like 38 CFR 4.6 (which I wion my CUE claim on) is a dynamite regulation..
And unfortunately ,in order to overcome lousy C & Ps, a strong IMO from a real doctor with full expertise in the field of the disability is often the only way they can succeed.
Diagnostic codes and rating percentages in decisions can often be wrong, but the veteran needs to understand the proper codes and the VA Schedule of Ratings, in order to legitimately appeal a low ball rating.
There are many reasons claims fail, that should not fail at all…..but you have hit on the Prime Reason……
We cannot fight and succeed in VA’s War of the words , if we do not take the time to carefully read their words.More then once,and maybe it will take many many times.
That is why at hadit.com we often ask the claimant to cover the C file number, name etc, scan the decisioon and then attach it to their post.
More eyes on VAOLA can help quite a bit. and us hardcore claimants often can see right away what the veteran needs to do to appeal the decision.
One more point,sorry for long reply……….
I have received many award letters. Every one of them contained errors.Except my Chap 35 stuff.
But they buggered my daughter’s Chap 35 right away and fixed it when I wrote the NOD for her ( I think I also raised CUE as well in it)
They gave her one month of Chap 35 as she was close to her 26th birthday.
However VA EDU (an oxymoron sometimes) forgot that she had filled out the veteran;’s section properly and had sent them copy of her DD 214.
Within a few weeks after getting the NOD she was awarded 7 years of Chap 35, due to her seven years of Military service.
VA makes MANY errors to our detriment as claimants. The IG found a 16 % error rate at many ROs during brief periodic reviews of claims they had decided..I bet it is much higher than that
Been denied herbicide exposure for prostate in Subic Bay February 1967. Tried obtaining service treatment records from various government agencies that could had those records. No luck.
I am awaiting a decision for skin rash (same location) and hearing loss/tinnitus. While on ship, I was exposed to asbestos, loud noise (no hearing protection) and toxic chemicals.
If anyone has info about Subic, would appreciate help.
Have you been checking the VA’s AO Ship’s list periodically?
“Agent Orange: Alphabetized Ships List
If your vessel is not included in the Mobile Riverine Force, ISF Division 93 or listed designations (see “Find Your Ship”), check the alphabetized list of ships below.
To search for your ship, look under the first letter of the formal ship name. For example, if your ship’s name is USS Dennis J. Buckley, look under the letter “D” for Dennis.
Ships will be regularly added to the list based on information confirmed in official records of ship operations. Currently there are 330 ships on this list. Ship not on the list and you think it should be?”
– See more at: https://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp#sthash.W5GFehVf.dpuf
I remember when there was just a handful of ships on this ships, but it keeps growing.
These list has grown to a great degree because frustrated Blue Water Navy veterans aggressively proved how close their ship was to shore of Vietnam during the Vietnam War,proving they were exposed to AO.
Do you have a copy of your ship’s deck logs?
Did VA make any attempt to get the deck logs? Most vets get them themselves.
Have you tried NARA on line with a SF 180, to obtain your inservice records?
You can fill out the SF 180 under their Veterans Records section and then print off the bar coded thing, sign it, make copy of it, and then send the bar code original to where NARA directs you..
I forget how USN vets get their deck logs. need to check the site I work at to find out how they get them.
Deck Logs can be CRITICAL to many BWN AO claims.
Did the VA state in the denial that they could not locate your STRs and other Mil records? If so they have an enhanced duty to assist you ,in that regard.
It is significant to note that many Blue Water Navy vets were denied for AO exposure at first, but if their ship went on the VA ships lists, .
they still had a big dog in the fight.
Any chance you were also in Brown Water? ( sent into Vietnam Rivers or tributaries via pontoons or swift water vessels?
More on obtaining deck logs:
try snakecharmer’s site.
His site says he has many deck logs he complied himself that are available by ship at the site.
I havent talked to snakecharmer in quite some time but assume the email addy at his site still works, if your ships logs are too large for his site and if he has them.
And of course John Rossie’s site is fabulous for BWN info:
I am a member of BWNVVA and they still are aggressively seeking proper proper AO compensation ,via pending legislation, for ALL Blue Water Navy vets.
The site has more info on that.
Maybe that is the best place for you to go to first…Blue Water Navy.org.
This is a great article which should get many thinking. I handled my own claim and appeal for PTSD (100%). I also filed and received ratings for scaring, tinnitus and AO related issues (50%). Not only should you read the denials but also any claim where you do not receive what you believe to be the correct rating. 38 C.F.R. is not easy reading (especially if you have little legal and/or medical training). However, as Ben said, with the Internet you should be able to decipher the gobbeldygook by doing searches. The moment you receive a denial or a lower rating than expected, request a copy of your claim file (C-file). Read through it, see what your doctors, both civilian and VA, state in your medical records. Read the evidence that was reviewed in your claim. Often you will find, critical evidence not mentioned. This may because the VA never received the information, they overlooked it (as stated in the article there are hundreds of pages to a claim file), or they ignored it.
The greatest piece of advice here is that no one cares more about your claim than you do. Sure, you may have a VSO. But, like in any profession, you have bad ones, good ones and great ones. If you have multiple claims, understand how the rating system percentages work (otherwise known as VA math).
There are many more things you can do by being pro-active, such as finding VBA appeals cases which are similar in circumstance. The last piece of advice is when you file your Notice of Disagreement, just don’t say I disagree with your decision for (condition) dated (whatever). Tell them why you disagree, cite 38 C.F.R. and the specific evidence you have why the decision was incorrect. Make the DROs job easier. My PTSD claim and NOD for PTSD lasted just under 20 months
My big issue was understanding what the denial meant. I did read it, but didn’t get it. Sent paperwork I thought they wanted. I have learned there are ‘certain words & phrases” that need to be in the documentation. I had the “right” info signed by the “right” people but worded in the “wrong” way. They also considered info that should not be part of the decision.
After an email to Mr. McDonald, the VA decided to give me a redo of my C&P. That took only a couple weeks, but the waiting for a decision is the worst.
I definitely need to get all my records through FOIA & study them for the next go round.
Yes they read the denial over and over. I believe if not all claims but for the most part, claims are denighed in hopes the veteran will give up. As they state they need more evidence, when they really have all the evidence needed to complete the claim or they hide the needed information from the veteran. How can a person with a T.B.I. be expected to completely understand their reasoning. It took me 40 years to find out the V.A. had proof that I had been shot in the head and only by chance that the C&P rating was on a cd that the V.A. sent me through the release of information act. At first I was happy to finely see it in writing and then I got mad and it brought me to tears, knowing that my own country would lie and tell me that they need more proof stating my records were burnt up in the St Louis fire, when they were not. I applied for SC for T.B.I. and was turned down again even though the V.A. Neuro doctor has it in my records and I also applied SC for Migrains that I suffer with, the same result denighed need more proof, if they do not believe their own doctors how am I supposed to give them more proof. Sad but true.
James, I am sorry to hear how the VA has treated you. I hope that you are getting things straightened out and that you are getting the proper care for your injuries.
I know how you feel as I think most of us have a similar story. It is a shame as you state that OUR Govt. would do something like this but it does happen and it happens on a daily basis. I hope that you are fighting to get everything that you deserve and remember to get your C – file. Read every page of it and you will have an understanding of how the VA does some of its work to deny things. Don’t give up until you know you have gave it everything you have and there is no more you can do at that time. Then re-group, see what was missing from your C – file and go to your Dr. and get that put into your records. Don’t inform the Dr. that you are doing this to have the info for an increase, explain that you would like to have it noted in your medical records so you can have it in black and white. Try to see if the Dr. will make a reference or state it as a result of X that this caused that so next time you apply for an increase you will have more ammo on your side. Continue to see the Dr. as well to keep the info at a current state and it will show that you are continuing to have problems. Sometimes you have to keep getting it put into your record to help. Take care and I hope I have helped some.
the law says all of our records are in the hands of the VA and they are “of record” the problem is the VA does NOT bother to check the records they already have…..IF YOU dont submit it they claim they dont have it.
Deny, deny, deny; Delay until they die!
I have been fighting with the VA since 1977 when my claim for hearing loss was made. No luck getting the 10 percent raised to reflect my real hearing ability until 2009 when it was raised to 20 percent. I was issued hearing aids while on active duty and was disqualified from my AFSC because of hearing loss. The hearing tests given by the VA are not realistic and do not reflect daily life.
My other issue with the VA is herbicide exposure while stationed in Thailand in 1967-68. I have since contracted parkinson’s disease, diabetes type 2, and prostate cancer. None of these diseases run in my family. The VA’s own web site says if you worked near or on the base perimeter, you are deamed exposed. I worked right next to the perimeter fence in the bomb preload area which was cleared with herbicides. The VA has declined all three claims because the VA says I was not treated for these diseases while on active duty, nor did I serve in Vietnam. My claim never said I was in Vietnam. It is difficult to prove anything that happened 46 years ago. The VA just denies the claims because of the coverup with the herbicide use in Thailand.
What base Chris?
Chris, I can’t help if you don’t answer. I am the first vet to get them to admit they used herbicide, but if you don’t contact me w/information, I can’t guide you in the right direction.
I sure can Verify Kurt is the MAN on Thailand and AO.
His award spurred a VA directive on Thailand and MANY Thailand vets have succeeded on AO claims since, solely due to his help and his relentless research to prove his exposure.
He needs more info..
Ben, this blog has very good timing for me. I have been fighting my case since 2008 and I have went to the VBA and was awarded an increase from 20% to 40%. My complaint was still with my left knee. My right knee was approved from 10% to 30%; however, they completely denied my left and left it at 10%. Both knees have the same condition and neither had a limitation on extension until my C&P exam in 2013 when they both had a 10 degree limitation. The VA changed the coding on my disability so that my limitation is now part of that coding and if they would include it along with the pain then it would lead to pyramiding. I am furious about this because now I cannot appeal it or try to request another increase unless my knees get to the point they are unusable and need replaced. How can the VA do this? My other (older) letters of denial state in them that for me to get an increase above 10% (my old rating) that I would need to have an extension with a limitation of 10 – 14 degrees for a 20% rating. I now have that and I feel that I should get the increase. With the VA changing my coding, I now can no longer get it. I does state on this SSOC that for an increase I would need to have a limitation of 15 – 19 degrees for a 20% increase and the 10 degree limitation as well as the arthritis is now included in this new coding. This is the VA clearly screwing me and from what I can find, they can do this because they have changed my “diagnosis” and therefore changed my code. My code now includes scars from my arthroscopic surgery in ’84 which consists of five 1/4 in scars that can hardly bee seen now. Because of the VA’s bait and switch method, I now am screwed and see no way to appeal this to the highest board. I believe that I am going to have to take what they are putting because of the switch. My C&P exam has so much in it that should get an increase; however, in the final summary the Dr. put in that it would only be speculative for him to say that my knees condition would have an impact on my working ability. This is what the VA also used to deny my increase for my left knee. The Dr. never asked me about how this affected my work and I took a paper with me to the VBA hearing showing that I had missed over 80 hrs. of work directly related to my knee condition. One thing I should put in here is the increase for my right knee was changed to a 5258 code which means I have frequent episodes of locking, pain, effusion, dislocation, and they give it the highest rating of 20%. Instability is the other 10%.
If they want to play this game then I will have a 15 – 19 degree of limitation in both knees and see how they try to get out of that. I hate the VA more and more everyday. They play God and have to be held accountable to no one but themselves. They can change things to benefit them, reword things to benefit them and nothing can be done. I did not fight this this long only to get screwed by them because they can change things to their advantage. This should have been an easy case looking at my old paperwork because I met their requirement for an increase and because of that, they changed things so now I cannot get what is due to me.
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