can be completely speculative saying i think this is what caused my problem it cannot be completely speculative so if there is a medical opinion in which the examiner says i can't make an opinion without resorting to speculation i just can't i can't tell you when where the other that's not good enough and the court has said that's not good enough that's not evidence it's neither positive nor negative it's essentially nothing yes examiner says well i think it's more likely it's reasonable to assume that this  related to that that's a nasty in the absence of negative evidence if there is no evidence that contradicts that or negate that in some way that's good enough under v a law because the constant statute contemplate tell me if i'm remembering is wrong i thought that the cac said was this is in fact a case in which you had nothing more than speculative is now maybe that's right maybe that's wrong but we don't get to review that right but there's no legal error if in fact it is that determination that if there was no more than speculative evidence and fagan it's close and say we're not into the event of the doubt i think i think you can review initially the question of whether or not you need negative evidence to satisfy the negative evidence requirement of the statute so i think that that on the yes may have been due to contraction of a parasite while serving in vietnam is only speculative and not supported by the medical evidence of record it only suggested within the realm of medical possibility that the veteran may have contracted a parasite not that it is is it not well i guess what i would say is that i don't know if that's a question that's been decided whether or not the board can decide whether or not it's in unicycling or not because a second opinion traditionally has been an opinion where the examiner specifically sa the examiner did that speculative opinion in this case that was a was a v examiners opinion that i can't make an opinion because i don't know that if he ate the fish or nah as opposed to dr o'reilly who most times said there's a relationship between these two things it's within the realm of possibility that one is related to the other dr violet did not speculate he said this is my opinion he provided an opinion there was other evidence in the record he said were medical what was his opinion beyond beyond it is within the realm of possibility that it's reasonable to assume it's within the realm of he should be but he did not ever even express the opinion he thinks is more likely than not or that this relative risk analysis in the medical literature about how many people who get c c a were exposed to this parasite and how many were no your honor and then we submitted whatever treatise evidence we could find on that in terms of the statistical data with the kalandia carcinoma and the relationship between the population of southeast asia and specifically the condiment the not mom i don't know if i'm saying that correctly but and that and the ingestion of that and the fact that it is not a cancer that exists in such a high percentage in this country so i mean you're right we had what we we gave you what we had basically you know we had one doctor saying i think the relationship it seems unusual he spent twenty years in service he was in vietnam we can do is remain here with legal question has us troops to i'm asking you to define negative  i'm asking you under fifty one a seven subsection b what constitutes negative evidence and then this is not language in the substance the language is negative evidence negative evidence where there is a balance of positive and negative evidence then the red benefit of reasonable doubt goes to the right and even if we agree that that we would have jurisdiction to do that we have to get past a and assume you've got to be right desist citing legal question that you can for purposes of a remedy send it back and if you send it that then you do need to look at the fact that they will make any difference if we make this ruling and they apply that and i would say that yes but if you're going to tell the court you've got to have  these things together to connect the dots is there any any thing in the statistical data or the other other evidence that you submitted that would have indicated how else someone might to  had we were and i know i mean obviously when you're dealing with cancers you're never dealing with certainties we didn't say i will admit that we don't we don't look for an intervening has i mean what we're looking with a way to link positively link one to the other washing should have demonstrated the presence of organisms only if one is looking at the boy and the the c a v scene i thought quite pointedly did not rely on that pass as a paid seventeen i assume because they might have or they would have indicated it if they were being tested for but there is no evidence is there that they were in fact being tested for and doing these at least illyria when my understanding unit is that and the r c that the examiner was mention of this i think because it's one of the various reasons your honor why the court of veterans claims appropriately affirmed the decision of the board there are lots of other bases as well i just want to point this out to the court that there is in fact negative evidence here in this here the board found there isn't any evidence all we have is merely speculative evidence which doesn't rise to the level of being sufficient evidence to grant a claim in the first instance so we don't have to put a question of balancing evidence for evidence against we never get there because here there's just not enough evidence of the already got a really weird and rare parasite and then you have a doctor who says it's reasonable there's reasonable cause to believe that this weird and rare parasite came from this service connection there is no evidence that mr roosevelt was infected with a parasite or that's it's important to know that if if there were evidence that he had a parasite and then that he had this cancer we may be looking at a different case that would be less speculative in that case that as my for the council noted in cancer there's always a realm of speculation that we're dealing it that would make it more likely parson omar says are all fat those are all facts or are is literally will question here as to what the meaning of negative evidence is there that is that would be a legal question if properly presented here it's that basis the veteran supports that it's harmless error here even if the board were made an error as to the very another speculation leading to that point so there are a lot of steps in the causal chain here that veterans or did the veterans court actually said we don't even get to the benefit of the doubt roll and what constitutes negative happened at the absolutely correct around that you never get to do that because it was just speculation as to the first couple of steps and then after that there's that whether the parasites caused a parasite infection in his body we actually have negative evidence of veterans worked in address that directly but it need not have because we never even get to the question i could happen here there's no need to get there because there's not enough positive evidence first y to reach the benefit that out so while that could be a legal question that the court might address in some it in some cases we think the courts already sufficiently addressed it in those and in fabian but that could be a legal question it's not presented here because we never are medical treatment is suggesting that that is a risk factor that if he had showed that he had parasite infection that would be a risk factor for developing the cancer but that's not enough to be the causal chain that the board in this instance that that was sufficient to say that here it caused cancer so that she didn't challenge that at the at this court and she doesn't mention it in the reporters so there's a number of different ways this court has concluded that the veterans does and ultimately that was the problem in this case or what the board and then the court affirmed the board and that the evidence just wasn't convincing enough to them and what i would say is that under fifty one a thousand feet that's not the standard the standard is you either and problems after eating food an unapproved eating savageness we have plenty of carcinoma we have we have people who who said that they ate with him in those establishment i don't have a photograph of him actually eating the raw fish and so yeah absolutely we're trying to put all of these things together i don't think they're disputing that he ate the raw fish but they're saying that he said that they're disputing that there's even evidence that he got a parasite from  wealth and then or that there is evidence that that kind of parasite is what caused the cancer well and i'm sure the assumption is the only way he would have gotten a parasite is from eating the raw fish and that's what that parasite that is commonly the way that people contract that parasite eventually to that kind of cancer is by the ingestion of the raw fish that is why it's such a high percentage of the type of cancer in southeast asia because of the condiment because of their diet so  event i you know i would assert that i think that there is a not for the court i don't think it would be an advisory opinion i think that you can certainly say that there are that negative evidence requires just that negative evidence and that must be some evidence that negates the claim before you can just throw it out before to two of a panel of the court in the where there was a non practicing in the court said that in fact if you don't get past the threshold of showing vision evidence you never get into it b i would say that in a situation where you have absolutely speculative evidence and you have no favorable evidence you have nothing that really links it then i would say yet that i'd say that that's not what we have in this case we have quite a bit of evidence in favor of this claimants claim it just wasn't it wasn't what they wanted what they wanted was the examiner or an examiner a medical expert to say yes this is at least as likely related to that well that wasn't something that was necessarily impossible to obtain in this case because we're dealing with obviously many years after and what we have a circumstantial evidence one leading up to another and we do have a doctor saying yeah it's all make sense it's reasonable to assume that this is related to based on his history in the military where he served the type of cancer that he had all these things add up the exam or alternatively said i can't i don't know i can't make an opinion so that's what we've got and i would say that that's sufficiently favorable to meet the standard i would say that in the absence of any evidence that negate that and you really want i'm saying is you've got to have some negative evidence if you're going to say there's not enough