Citation Nr: 0214345 Decision Date: 10/15/02 Archive Date: 10/17/02 DOCKET NO. 00-22 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for lumbar strain from February 19, 1999 to February 3, 2002 and in excess of 20 percent on and after February 4, 2002. ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran served on active duty from October 1992 to February 1999. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of July 1999 from the Waco, Texas Regional Office of the Department of Veterans' Affairs (VA), which granted service connection for lumbar strain and assigned a zero percent evaluation, effective from February 19, 1999. The veteran timely filed notice of disagreement. In an October 2000 rating action the Decision Review Officer (DRO) granted an increased evaluation to 10 percent for lumbar strain, effective from February 19, 1999. In an April 2002 DRO's decision the veteran was granted an increased evaluation of 20 percent for lumbar strain, effective from February 4, 2002. As this grant was less than the maximum available rating, the veteran's appeal remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Jurisdiction of the veteran's file has subsequently been transferred to the VA Regional Office (RO) in Phoenix, Arizona. In addition in the July 1999 rating decision the RO denied service connection for a cervical spine injury due to whiplash and a tailbone injury. The veteran did not appeal these determinations. The issue of entitlement to an evaluation in excess of 10 percent for a lumbar strain was previously before the Board in July 2001. The Board remanded the issue to the RO for further development. By a rating action in January 2002, the RO denied service connection for headaches, heartburn and skin rash claimed as due to an undiagnosed illnesses. There has been no notice of disagreement filed on these issues and they are not before the Board for appellate consideration at this time. In this decision, the Board has recharacterized the issue on appeal in order to comply with the United States Court of Appeals for Veterans Claims (Court) decision in Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All evidence necessary for review of the issue on appeal has been obtained, and the VA has satisfied the duty to notify and assist the veteran in the development of his claim. 2. From February 19, 1999 to February 3, 2002 the veteran's lumbar strain was manifested by slight limitation of motion of the lumbar spine and subjective complaints, without muscle spasm or unilateral loss of lateral spine motion. Slight posterior disc space narrowing noted on X-ray in September 2000 was not shown in subsequent X-rays. 3. Since February 4, 2002 the veteran's lumbar strain is manifested by slight limitation of motion of the lumbar spine with normal alignment, subjective complaints, and no documented muscle spasm, listing of the spine, loss of lateral motion with osteo-arthritic changes, or abnormal mobility on forced motion. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent from February 19, 1999 to February 3, 2002 for lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5292, 5295 (2001). 2. The criteria for an evaluation in excess of 20 percent on and after February 4, 2002 for lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5292, 5295 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records show that in May 1997 the veteran injured his back while playing basketball. The diagnosis was low back pain. In February 1998 he was moving furniture and felt tightness in his back. The diagnosis was mild low back pain. In May 1998 he complained of low back pain for the previous two days. He stated that he felt a sharp pain in the middle back while playing basketball. The diagnosis was mild low back pain. In October 1998 the veteran was involved in a motor vehicle accident when the vehicle overturned onto its side. He received emergency treatment. The assessment was low back pain. On follow-up examination in October 1998 he reported pain in the lower muscles and that it hurt when he bent over. He stated that the pain was constant and irritating. He had decreased range of motion and increased pain with passive straight leg raising. The assessment was backache secondary to trauma/ muscle spasm. On the following day the veteran stated that he had constant severe back pain and that he was not getting better. Following an examination, the assessment was non-organic low back pain versus lumbar strain. He was referred for a physical therapy consultation, with a notation that there were five out of five Waddell categories and that the provisional diagnosis was lumbar strain versus non-organic low back pain. Following several sessions of physical therapy, it was noted in January 1999 that range of motion had increased by 50 percent and that the veteran was still lacking approximately 25 percent in all directions. In March 1999, one month after his discharge from active duty, the veteran filed a claim of entitlement to service connection for a back condition. Service connection was granted in July 1999 for lumbar strain and a zero percent disability evaluation was assigned effective from February 19, 1999, one day following discharge from service. In September 2000 a VA examination of the spine was conducted. The veteran complained of nagging back pain four to five times a year that lasted three or four days. He stated that it tended to occur when he bent forward. He reported that he was employed as a corrections officer. On physical examination he had a normal gait and moved about the examination room normally. He was able to hop on either foot and could heel and toe walk and squat and arise. He could forward bend to 80 degrees, backward extend to 25 degrees, lateral flex to 25 degrees and rotate to 30 degrees. While seated, straight leg raising was negative bilaterally. There were no sensory or motor deficits, sciatic notch tenderness or muscle spasm. The impression was chronic lumbosacral strain with no radiculopathy. X-rays of the lumbar spine showed minimal lower lumbar levoscoliotic curvature and slight narrowing of the L5-S1 disc space posteriorly. The radiographic impression was lumbar spine changes as noted. A VA orthopedic examination was conducted in February 2002. The examiner noted that the claims file had been reviewed. The veteran reported that he worked full time as a corrections officer and was noted to push a stroller with two small children without apparent distress. The veteran stated that he had low back pain daily and that coughing and sneezing increased the pain in the lower region and slightly to the left. He stated that when he put his left leg forward in a stride he had pain in the left low back and pointed to the medial aspect of the left buttock longitudinally. He reported no radiating lower extremity pain or paresthesias. He stated that his back would occasionally "go out" about twice a month and that it was difficult for him to bend forward, walk or sit during those times. On physical examination there was no acute distress. His gait was normal. There was some right and left paralumbar musculature tenderness subjectively and slight tenderness of the left posterior superior iliac spine, but none on the right. There was no muscle spasm. There were slight complaints of pain subjectively on percussion of the lower lumbar spine. Deep tendon reflexes were 2+ bilaterally. While seated, straight leg raising on the right was negative and on the left there were complaints of slight pulling in the left low back. Flexion of the thoracic lumbar spine was to 90 degrees, extension was to 15 degrees and side bending to the right and left was 20 degrees each. There were slight complaints of discomfort at the terminal degrees of motion. An MRI (magnetic resonant imaging) showed a normally aligned lumbar spine. The impressions were L3-4 through L5-S1 disc desiccation with small central disc protrusions without evidence for canal stenosis; and mild bilateral inferior neuroforminal narrowing at L5-S1. X-rays were essentially normal. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2001). The Court in Fenderson, supra, discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Thus, in initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Id.; 38 C.F.R. § 4.2 (2001). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has acknowledged that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Under 38 C.F.R. § 4.71a, Diagnostic Code 5295, the maximum 40 percent evaluation is warranted for lumbosacral strain that is severe with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation is appropriate when lumbosacral strain is accompanied by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is warranted when there is characteristic pain on motion, and a zero percent evaluation is assigned when lumbosacral strain is manifested by slight subjective symptoms only. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001). Under Diagnostic Code 5292, a 10 percent rating is assigned for limitation of motion of the lumbar spine when limitation is slight, 20 percent when moderate and 40 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.10, 4.40, 4.45 (2001). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2001). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2001). Traumatic arthritis substantiated by X-ray findings is rated analogous to degenerative arthritis. Degenerative arthritis, in turn, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2001). With any form of arthritis, painful motion is an important factor of disability. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2001); see also DeLuca, supra. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1997) and DeLuca, supra, at 206. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002); See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Preliminary Matter: Duty to Assist The Board initially notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The VCAA provides that, upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97 (2000) (codified as amended at 38 U.S.C.A. § 5103 (West Supp. 2002)). The Act also requires the Secretary to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VCAA § 3(a), 114 Stat. 2096, 2097-98 (codified at 38 U.S.C.A. § 5103A (West Supp. 2002)). In addition, VA has recently published new regulations, which were created for the purpose of implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide a claimant who files a substantially complete application for VA benefits. These new regulations also provide guidelines regarding VA's duties to notify claimants of necessary information or evidence and to assist claimants in obtaining evidence. These new regulations, which in pertinent part are effective as of the date of enactment of the VCAA, interpret and implement the mandates of the statute, "and do not provide any rights other than those provided by the VCAA." 66 Fed. Reg. 45,629. In the case at hand, the Board is satisfied that the duty to notify and the duty assist have been met under the new law. In November 2001 the RO provided notice to the veteran concerning the VCAA in which the RO advised him of what evidence it would attempt to obtain and the veteran's responsibilities in obtaining evidence (e.g., adequately identifying such records). The RO specifically told the veteran that it would obtain his VA medical records and other medical records that he identified and advised him that he could submit other evidence such as his own statements or statements from others people describing the symptoms of his back disability. He was further advised that, if appropriate, he would be afforded an examination and/or a medical opinion would be obtained by the RO. See Quartuccio v. Principi, 01-997 (U.S. Vet. App. June 19, 2002). Additionally, through the issuance of the July 1999 rating decision, the statement of the case (SOC) and the DRO decision/supplemental SOCs (SSOC) in October 2000 and April 2002, respectively, the veteran has been placed on notice of the laws and regulations pertaining to evaluation of disability of the lumbar spine, including extraschedular consideration and through the rationales provided in the above-mentioned determinations, the veteran was provided with notice of what was needed to substantiate his claim. Thus, the duty to notify has been satisfied. The duty to assist has also been satisfied. The veteran's service medical records have been obtained. 38 U.S.C.A. § 5103A (West Supp. 2002); see also 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). Additionally, he was afforded VA examinations in September 2000 and February 2002. 38 U.S.C.A. § 5103A(d) (West Supp. 2002); 38 C.F.R. §§ 4.1, 4.2 (2001). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist under both the former law and the new VCAA. 38 U.S.C.A. § 5107(a), 5103 and 5103A (West Supp. 2002)); 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). Lumbar Strain Rating from February 19, 1999 to February 3, 2002 The evidence shows that from February 19, 1999 to February 3, 2002 the veteran's lumbar strain was evaluated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5295. Under Diagnostic Code 5295 a 10 percent disability evaluation is warranted when lumbosacral strain is manifested by characteristic pain on motion. In order to warrant the next higher evaluation of 20 percent under Diagnostic Code 5295 for the period in question, the evidence must establish that lumbar strain was productive of muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in a standing position. The service medical records show several complaints and treatment for low back pain secondary to trauma and from a motor vehicle accident in October 1998. On examination following the motor vehicle accident the veteran reported that he had experienced pain in the lower muscles and that it hurt on bending. On examination he had decreased range of motion in flexion and extension, and the assessment was backache secondary to trauma/ muscle spasm. However, on examination two weeks after the accident, the diagnosis was non-organic low back pain versus lumbar strain. "Non-organic" back pain suggests that the claimed symptoms were thought not to be based on any back pathology, consistent with the noting of multiple Waddell factors when he was referred for physical therapy. At the time of the VA examination in September 2000, the veteran demonstrated no more than mild limitation of motion, and there was no muscle spasm and no loss of lateral spine motion, unilaterally. In fact, lateral flexion was present and bilaterally equal. Thus, this evidence does not support a 20 percent rating under either Code 5292 or 5295 and there is no other evidence through February 3, 2002 showing at least moderate loss of motion of the lumbar spine or muscle spasm on extreme forward bending with loss of lateral spine motion unilaterally, even with consideration of the DeLuca factors. Separate ratings under Codes 5292 and 5295 are not warranted inasmuch as they both include limitation of motion. Lumbar Strain Rating on and after February 4, 2002 The veteran's lumbar strain has been evaluated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5295 since February 4, 2002. In order to warrant the next higher evaluation of 40 percent under Diagnostic Code 5295 the competent evidence must establish a severe disorder with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The most recent VA orthopedic examination, performed in February 2002, some subjective paralumbar muscle tenderness but no muscle spasm, which is a requirement for a 20 percent rating. The veteran also had a "slight" complaint of pain on percussion of the lower lumbar region, also noted to be subjective. The spine could be forward flexed to 90 degrees, extended to 15 degrees and laterally bent to 20 degrees with a complaint of slight discomfort only at the terminal degrees of motion. After reviewing an MRI the clinical examiner characterized the veteran's low back disability as moderate. Thus, although the examiner did not state the normal range of lumbar spine motion as had been requested in the remand, clearly the limitation manifested at the examination was not severe as would be necessary for a 40 percent rating under Code 5292. Additionally, there is no competent evidence of listing of the whole spine to opposite side. To the contrary, the MRI showed normal alignment of the spine. Forward bending to 90 degrees clearly is not marked limitation of forward bending, and the evidence does not show loss of lateral motion with osteo-arthritic changes. In that regard, an X-ray of the spine in February 2002 was normal. There also is no evidence or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Consequently a higher evaluation of 40 percent is not warranted under Code 5293. Rather, the veteran's reported symptomatology more nearly approximates the criteria for a 20 percent disability evaluation for his lumbar strain disability from February 4, 2002. Even with consideration of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint, a higher rating is not warranted. See DeLuca, supra. The February 2002 examination revealed only slight complaints of discomfort at the terminal degrees of motion. Thus, such discomfort or similar factors are not shown to result in greater loss of motion than reported on the examination, which clearly does not constitute severe limitation so as to warrant a rating higher than 20 percent with consideration of 38 C.F.R. §§ 4.40 and 4.45. As noted above, the veteran's case involves an appeal as to the initial rating assigned for lumbar strain. Fenderson, supra 126. Here, the evidence shows that the veteran's back disability has been assigned rating for separate periods based on the facts found. Additional Consideration The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO's conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case, the RO considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1), and the July 2000 SOC and the April 2002 SSOC informed the veteran of this provision as well as the decision. The evidence does not show the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard, he has not required frequent inpatient care, nor has his lumbar strain been shown by objective evidence to markedly interfere with his employment. He is able to work as a corrections officer, an occupation he chose to enter after service despite his back disability, and there is no evidence to show that his back disability presents a disability picture not contemplated by the schedular rating. Thus, the Board finds no basis for further action on this question. The Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent from February 19, 1999 to February 3, 2002 and in excess of 20 percent on and after February 4, 2002 for lumbar strain. 38 U.S.C.A. § 5107 (West Supp. 2002); see also Gilbert, supra. ORDER Entitlement to an initial evaluation in excess of 10 percent for lumbar strain from February 19, 1999 to February 3, 2002 and in excess of 20 percent on and after February 4, 2002 is denied. JANE E. SHARP Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.