different approach and that that approach is twofold first to look at the statute the duty to assess statute and what is required when congress has instructed the v a as to what to do in this issue that would be helpful to me in this case congress has clearly stated at fifty one of three capital a small d in capital c that after the evidence it describes when and why you get an opinion and what congress said was you get a necessary opinion clearly a nexus opinion in this case was necessary but it's not available if in fact the physician can decide on the evidence for that and then what happens then the v a has to attempt to solicit another opinion now clearly there is some point in time if consistently the answer is we are unable to provide such an opinion for whatever stated reasons then the duty to assist can be considered fulfilled but that's the second important consideration here this decision judge castle's decision was based upon the decision and jones jones provide a post hoc a valuation of an include close of opinion where you can't be i mean what you're saying seems to me quite far different than if the evidence is an equitable absolutely not and if there one of the position said i can't say one hundred percent that with a one hundred percent certainty that this wasn't caused by that's you know i can say with one hundred percent perfect certainty what happened fifty years ago but it's my strong medical opinion that there's only a slight chance that there's really no real firm basis to establish a nexus would that be sufficient for you or you say the veteran has to do it because there's veteran to be denied service connection a position has to love one hundred percent certainty that the this this incident could have created his disability number and i think it's important to shift the focus from service connection from the ultimate question to the true issue in this appeal which is the duty to assist has the duty to assist in comply with the statute the statutory language it is is when the record not contain sufficient medical evidence for the secretary to make a decision on the claim so when the v a solicit an opinion when they solicited the opinion in this case that was the status that status based upon the opinion received in this case was unchanged they still didn't have sufficient evidence to decide the case and what in your view is sufficient e when there is a direct answer to the question of is that it as least as likely as not that the current disability is related to an injury or disease incurred in or aggravated during services or it is more likely than not that it is not related it is a simple either or proposition this new and around approach by v a examiner which has been embraced by the a is inconsistent with the duty to assist the duty to assist wants an answer to the question give us medical evidence give us your opinion we're soliciting an expert question no that would be inadequate if the if it was framed just that way it would be inadequate the easy way to make it adequate is to say it is at and it is more likely than not that this condition is not related to serve i we don't necessarily disagree and maybe the veterans administration ought to be listening to this argument and find an easier way to get through this but that's  in the absence of our having ever said that you need to use those magic words you're saying that the opinion is inadequate yes and more importantly that under the case relied upon below the jones case the jones case is a rehabilitation mechanism to post hoc make a non conclusive opinion pro it becomes provocative because you do an analysis but that after the fact it doesn't comply with the duty to assist the duty to assist is to obtain a necessary medical opinion the necessary medical opinion in this case was a medical nexus opinion we don't have one we don't have one one way or the other the veteran under the duty to assist was entitle to that he didn't receive it that  decision was appealed to the bor the board's decision was appealed to the court below the court below relied upon jones in which they acknowledge in jones it when there is an inconclusive opinion that uses precisely this kind of speculation the language so that it's a sort of not an opinion that that non opinion can achieve evidentiary status can become probative if you will when in fact it doesn't answer the question and more importantly it does not result in either positive evidence in favor of the claim or negative evidence against the client in order to defeat claims there must be a preponderance of evidence against the claim the preponderance of the evidence in this case is based upon a medical opinion that was a non opinion with the government has to disprove serves  to the extent that it is more likely than not that the current disability is not related to serve and it's and it's not in terms of the v a has to prove it's what the evidence shows it is an examination of the evidence and under fifty one of the seven b you put evidence in the two distinct categories positive evidence and they give evidence not evidence does not appear in that equation and yet under jones the veterans court would happen transform previously conceded not evidence into probative evidence i e negative evidence in this case in order to defeat the claim that's inconsistent with the intent of congress in providing the duty to assist congress at v a go get an opinion the v a went and got a non opinion the a is perfectly capable of figuring out the dr didn't answer the question and not opinion why is that and you're saying that's a legal question because you want us to define the statute is saying it needs to use these words that under fifty one through a necessary medical opinion in the context of a claim for compensation under fifty one o three capital a d requires eight clear statement positively or negatively that the evidence that the medical opinion of pain the necessary medical opinion addresses the matter at issue in this case it happens to be a medical lexus is there or isn't there at least as likely as not in your opinion opinions and and construed it or rather after receiving a one then say well that's all we can do now there's no other opinions we can get or for whatever reason they've gone on and awarded the is there any situation that you're aware of where the v a has said well we don't have an opinion and therefore under the statute we have to grant a service connection judgment in this case none comes immediately to mind but  i am reasonably confident that that has happened the problem here however your honor is not really whether or not anecdotally this has occurred the question here is one of clear question of law what did congress mean when it directed the v a to assist specifically to assist in terms of getting a medical opinion so the speak a little bit about the jurisdiction that we have to this case are you arguing that it springs from this particular set to yes that this statute defines the duty to assist and described was specificity the instructions from congress to the v a and that they are to obtain any necessary medical opinion when the evidence contained of record does not is not sufficient medical evidence for the secretary to make the decision if the secretary could have made the decision the secretary would have not needed to go get this medical opinion but whether there was conflicting evidence or inadequate evidence or speculative evidence in the record the secretary concluded under see he needed to get a necessary medical opinion so this case are you saying this case is really not about the probative value of one of these opinions but whether it has satisfied that we quarreling of a secretary under the statute to supply lesser medical opinion correct and that the lower courts use in jones of the rehabilitation process for inconclusive opinions is at odds with that statutory mandate that the statutory mandate is you would taint a necessary medical opinion and that that medical opinion passed to answer the question if you get a medical opinion that does not answer the question you have not fulfilled your duty to assess the songwriter hours from necessary when the evidence of record does not taint sufficient medical evidence for the secretary to decide a claim in this case the secretary decided that it needed a medical examination in order to determine whether there was severed service connection  and opinion from the audiologist in this case that it is not possible to determine whether or not the hearing loss was connected to service not that she couldn't do it or that maybe if she had some other evidence she could do it but that it i simply not possible didn't she say that that one of the problems was that audio exams or audio graphs had not been obtained earlier and had only been obtained then perhaps the you could have been reached would she say it was without previous audiograms and because of several other enumerated reasons it is not possible medically to connect the hearing loss to the previous to the service connection and so yes i mean if if if there was all types of other evidence perhaps you know it could have filled the gap the medical gap to enable her to make an opinion that evidence doesn't exist and what she was saying today that that's the problem is the issue if it's not possible to establish one way or another where it is not the presumption favored veteran well i think the problem is that they are trying to sort of turn this into a fifty want to seven b case but what they're arguing is whether or not the duty to assist is satisfied as to whether in a very is entitle to benefits is now placed in the hands of the physicians theirs or they turn it over to the physician he says i can't tell you i don't know then much there's no requirement whatsoever in the statutory language or legislative history or in any case law that the opinion has to be a definitive yes or no and you or even has to be a definitive as likely as not or otherwise what what that requirement would do would require in but it's not a tie the problem is that there there's there's there's no medical evidence to to connect the service with the injury and so what they're arguing is really a policy which is that in a case as unfortunate as it's maybe where there is  service was a long time ago and there was no complaint of injury up until for forty years to physician didn't say in my opinion it's not connected because they were in any complaints for a period of time you didn't say that right no opinion it's not as likely as no it's not going to do since i can't tell you what it actually says that nobody can tell you it's not medically possible to even come to a as likely as not or a yes or no no it's a non opinion it's not a not a thing the opinion as the court held and hogan fagan is evidence is that it cannot be medically determined and so you go back to the duty to assist and what the duty to assist puts into the secretary's responsibility to determine when there is sufficient medical evidence to decide the claim when a doctor states that there is no possibility of determining a yes or no or even as likely as not it's within the secretary's discretion to say ok we find that that sufficient evidence in order to decide this claim what they're what they're asking is for a new definition of sufficiency or for this court to impose a definition of sufficiency within fifty one of the three eighty upon the v a how do you arguments that were necessary opinion or just necessary in the statute means an opinion that answer one way or the other well there's no support in the statutory language or the legislative history or precedent for that reading  term necessary what that means if you connect it to fifty want to three eighty see is that at that time the secretary has determined that there isn't sufficient medical evidence within the record to decide the claim the opinion comes back saying there's no way nobody can do this it cannot be determined if there's a connection or not because the question is really a practical question what what what is the what is the secretary to do in that circumstance and then to go back and try and find a doctor who was willing to fudge the facts or or try and you know draw facts out of the air i mean the fact is here the audiologist considered all the available evidence did an examination of mr ayres but he didn't say on these on the opinions there is but there is no requirement upon the medical examiner to make any particular determination the examination as to make that determination especially yes but but if they're not able to do so than th what the court would be saying is that even though medically you're unable to say yes or no or even as likely as not that we're forcing you to do it that means it's possible even if it's remote that willing to say it's unlikely so it's possible medical opinion that cannot state one way or the other that the that the that the secretary then can utilize that against the better it's it in this case they're not utilizing it against the veteran veteran here i mean case there's no presumption or burden upon the government just the government under the statute have a duty to provide substantial assistance to veterans to substantiate their claims they have a duty specifically  by congress to do certain things to obtain records for them to get them medical to help them substantiate their claims correct but if but if there's no evidence to substantiate their claims that doesn't mean the duty to assist isn't satisfied the requirement isn't satisfied only when the claim has been substantiated the duty to assist is satisfied when it has met its statutory obligations and the problem we run into here is that the question of sufficiency of the medical evidence is a is a factual determination either viet the air receive the examination here and determined it had sufficient evidence that factual determination was reviewed by the veterans court here and it was found to be correct under seventy two ninety two this court simply doesn't have jurisdiction to go back and say well the we think that opinion really wasn't sufficient or veterans court you misapplied fifty one of the three a d c i don't believe that were we believe that that we can faced with the jurisdictional problems with asking this court to review the sufficiency of a medical examination they have sort of contrived a legal requirement upon the v a that they obtain a medical opinion that says either yes or no that just simply doesn't exist in the statutory or regulatory language there are requirements so you have a you conceding that there is a legal it argument you're just saying that they move but there is a legal question presented by their argument just tell us that no what i'm saying is if this court were to find there is a legal argument what they're they're creating a legal argument in this case where it doesn't fit the board here found a medical examination probative and the veteran the secretary found it sufficient and what they're saying is that no it wasn't probative it was not evidence no they're not saying that what they were probative or whatever they're saying that the statute compels as a matter of law that the medical examination this question is not just whether it's probative it goes to so why it's not a legal question well i think if they've done their job right it is a legal question what i would say is that in order to make a legal question what they're doing is they're drawing a requirement completely out of thin air it's not based on the legist such story language legislative history or any case law and so they've invented a legal issue but there's no basis for that legal issue there's no basis to find a veterans court misinterpreted or  misapplied fifty one or three a d and i think you run back into the jurisdictional problem because what the veterans court here did was they applied fifty one of the three eight the two the facts of the case it's an application of law to fact which this court again can't you but were we to concede that there is a legal issue with say the fifty one of three is an ambiguous hanes no requirement upon the content of the medical examination thirty eight c a far four point one and four point two do speak to the regulations or the statute session simply says they need to assemble the pot of medical evidence that they deem sufficient and when they've done that and they've determined that it's sufficient and the veterans court reviews that and and i since but but the but the but the board is responsible for looking at more than just the v a examination report they look at all the medical so that sufficiency requirement is not upon all the medical evidence of record not just this one on the board actually in this case i think lot of those cases talks about the evidence not being will as well in this case i mean the evidence certainly isn't that was the only evidence supporting his claim it's his late testimony the evidence that goes against it if we're going to try and sort of weigh the scales here is signals i think one last point i want to make is simply that in this terrorist brief he recognizes that there's the potential for an absurd result from what they're arguing which is that if  doctor comes in and simply says it is not possible to determine service in action what they want is for the v a to go out and find another doctor well what if the next doctor says what they want is for the line to shift forward somehow to entitle them to more than they're entitled to by congress and there simply is no support in either the statute or the legislative history or case law for their attempt to shift that line forward and provide more than what congress has already provided lesser and other questions allegations made by mr lowe and it specifically refers to an allegation that inadequate based statement reasons or bases that the finding that the favorable march two thousand and six private medical examination report was not persuasive now that was a report that was of record and is characterized by the court below as being favorable to mr ayers which presumably went to the question of causation and then v a obtained two years later in april of two thousand and eight the v a examination report at issue here so what we're dealing with is a determination under fifty one of three that the secretary said i read the private medical report i'm not persuaded by that private medical report in my view it's insufficient to make a determination in this case so a medical opinion is necessary they didn't get a medical opinion now let's talk about what congress intended in our brief we refer to the explanatory statement of the relevant statute here for the v a s duty to assist and it says that when the medical evidence is insufficient to make a determination on the claim the v a must obtain a medical evaluation or opinion if the evidence is sufficient to decide the v a may proceed to decide that the evidence wasn't sufficient to decide it after they got the opinion the evidence was insufficient to decide it because it didn't answer the question the question presented in this appeal is is does fifty one o three compel the v a when required to get a necessary medical opinion to get a medical opinion that is capable of deciding the case jones says oh well we can rehabilitate those jones was wrongly decide it is either any evidence that is favorable or it is evidence that is