probative examinations when when they are trying to meet their obligation to provide assistance to provide a medical examination of veterans veterans have a unique right to assistance from the partner veterans affairs and establishing their claims for service connection this right includes this system in the form of medical examination or medical opinion one is necessary to decide the claim the controversy before the court is whether or not these opinions have to be probative in order to satisfy the duty to us can you tell us what you mean by probative because there are a lot of terms thrown around inadequate that inconclusive conclusive what exactly certainly probity of as defined by this court in hogan and fagan means that it offers evidence either for the claim or against the claim specifically whether or not there is an idiotic g opinion be current disability such as that back disability or diagnose back disorder is at least as likely as not related to a service injury disease or some type and currents under fifty one of seven b of thirty  a veteran need only establish that it's at least as likely as not one of the benefit of doubt that an injury suffered in service is the cause of a disorder i mean if if the theory that there's a service connection is speculative would be entirely speculative in other words there's really not a basis upon which one can conclude that there is a service connection is that not enough known that as an exam are unable to offer an opinion whether or not it's at least as likely as not that a disability is what it deserves why is that answer that question i mean if you say it would be he says there's the absence the in the absence of any documentation to do x y and z it would be the only the only argument as to whether or not there's a nexus would have to be based only on  a unique opportunity to get service connected disability if it's at least as likely as not right so that means yes but spect saying that it would be entirely speculative answers the question that there's it's not at least as likely as not it would be unfounded speculation but but he didn't say it's at least as likely as not he could have said if you thought that he probably would have said that but he did but if he said that he would when the veteran would be in town the survey not only didn't find that yet but on something entirely different which is it's not at least as likely as not there's really no basis if you ask me to conclude whether their service connection i'd have to say it or does it mean that there is just an absence of any type of information out there upon which to form a medical opinion and therefore that itself answer the question and it's probably there that that the disability injures not sure is connected exactly as you mention that if an examiner says there's evidence for this claim and there's evidence against this claim but i can't provide an opinion without speculating examiner doesn't truly understand what is being asked of him or her because if an examiner says well on one hand it could be related service on the other hand it may not you have a service under fifty want to seven be the veteran in our system gets benefits because it's at least as likely as not the veteran wins enjoins be shinseki judge lance wrote a very nice concurring opinion to point out that the problem with a lot of the medical payments from v a is if there are two causes for veterans current disability and one of them is related to service if they're both co equal then under fifty one o seven b the veteran is supposed to get service connected benefits for that disability in mr hill's case he saw it with how do you take a way to be and this is the other part of judge ranges question he says it would be unfounded speculation to conclude that there was a nexus that there was a service connection how does that not answer your question that no the evidence wasn't an ethical well there was no basis it would be the only way i could conclude see the connection would have to be unfounded speculation that know not in so many words but in so many words that answers your question right now i would disagree with you because i think that the problem that we're getting hung up on is whether or not there's an ability to  versus may versus providing opinion that it's not likely that the veterans current disability is related to service when i when a doctor says i can't if i can't provide an opinion without resorting to speculation that's surely that it's very cut and dry i can't pry open and i can't find any that was wrong speculation i can't provide an opinion on your question that is going to speculation and i can't provide an opinion linking this to service without speculation are all the same the all the same questions i mean that the bet that the doctor cannot provide an opinion when that happens the veterans left in the same position when he started refused or she started which was that she there is no evidence that the do duty to assess now because the secretary's through to assist is not satisfied merely by providing an examination or opinion because amerasian examination or opinion has to meet certain standards there have been many decisions which have stated that for example that there's no problem that he didn't do what his job as contemplated by the statute by not considering the record it's entirely right he did look at all the evidence but the problem is in the conclusion v a doesn't have only to provide an examination but regardless there are also in this case required to provide an opinion which is sufficient for reading purposes or for a step further for the claim which is either for or conclusion was if you were phrase that in of certain way that you were to phrase it which is not how i was phrased it would be an opinion which would be against nexus such as the it based on my review of the evidence it's unlikely that the veterans disability is related to his back injury and service that's cut and dry but that's not what the senate is so you're saying it would be ok if he says this based on my review of the evidence there is not a basis there veterans current low back pain is the result low back pain treated military service without resort to unfounded speculation what should in your on your position what should have happened are you saying they should have continued to get medical examinations until some physician or other would give a more likely than not result and you do side rather than saying in my medical judgment there isn't enough evidence tell yes because an examiner should be asked to either provide an opinion as whether whether it's at least as likely as not when an examiner says that i can't see how if you go either way that's a fifty want to a seven b solution and as judge lance wrote in this current veteran would be entitled to service connection should not be your argument that when you have a medical opinion that speculative or is that doesn't answer the question one way or the other  or let me restate that you have a medical opinion that doctor sense i don't have enough information in order to make a determination whether the injury is service connected or if i do it would be speculative excess now you're  arguing that that that opinion does not meet the duty to assess the veteran should you be arguing that that under under case law that that opinion should count and that it should count towards towards a veteran and get getting the better in the benefits yes is what we're left with apollo or what happens if you throw out that opinion that the you're absolutely correct in that situation the problem is that the way that questions are asked the doctors if they don't understand the question is that least as likely as not they might respond back i can't tell whether it's at least as likely as not that his disability to service because it could be related to service or could be related to after sims if you see that that's indication that that's at least as likely as not but in your to i don't want to confuse anyone but yes you're exactly right that's the type of opinion which actually is not a spec that of any but actually shows that it's at least as likely as not it meet the benefit of the doubt it's least as likely as not and that's why it would be a non speculative opinion when someone can't open a dr jeff and said i can't plan without resort to speculation then the trouble there is that it leaves the better in the same position before they provide and in the first place a lot of times information that's missing say its service records that are burned down and destroyed from the n p r c file fire what happens with there are no records at all the doctor says i can't provide an opinion or that your inspectors because i have no records that veterans get completely written out for any type of v a benefits because his records were destroyed no nobody is saying that at all and this case look at what the medical opinion he looked through all the records and he found an absence of any reference to this so we have the records and we found an absence and he drew the right conclusion right if your position if i can understand it correctly would be that he this is a negative medical opinion saying that there is no medical and i'm not switching any inclusion reading his report he says i was just contra and there were no records to document the presence of a problem intermittently that's not suggesting that somebody burned the records is that there there are no records right well there are no records by la times there records when someone says i'm unable to provide an opinion about resort to speculation that is an inconclusive medical opinion that can satisfy the two assessed the lower court held that this opinion was inconclusive civility was with his service and without resorting to speculation there's a difference between an ability to apply an inability to provide so at that point the court is acknowledging that even the board found his inability to  and more likely he wants the more likely the watch on either side which was exactly incorrectly as to the physician who i didn't use exactly those words in responding yes your honor however as will show this is really a question of semantics and the terminology used by the examiner in this particular case in the rest of it do you agree that the standard is more likely than not that's the a possibility can be one in a thousand but he pointed out but what if the doctor says i can't make up my mind but there's a possible there's a fifty percent possibility that there there's a service connection they should not be in love to find fifteen percent possibility it's still not the same as the more likely than not standard and in this case the examiner used the specific term unfounded speculation not merely you know there's a great possibility or a high possibility the examiner left the room that there could possibly be evidence which is not available that no one has access to that possibly could show but that mu didn't say that i think let's stick with what at exactly and as i was trying to point out the examiner and the context for the examiners opinion was that he pointed out that there was one episode a back strain in service that there was no mention of back pain during the knology he used is that he could not say that his back pain was related to his service the veteran's current lower back pain is the result of the low back pain treated in military service without resort to did not respond you have an opinion as to what was more likely than not he didn't say in my opinion it is not likely that more likely than not shouldn't the to do not going to do so it's not as definitive as we need these are serious important compensation rights for veterans the examiner didn't respond to the inquiry should not salute the obligation of the v a to at least sure that their questions incident in this case the v a determine that there question was answered and they used the framework that they set out in john's versus shinseki which is in response to this court's precedents in hogan and they can and in that using that test which is when an examiner has done all that reasonably should be done to become informed about a case however and the an inability to render a requested opinion is adequately explained by the examiner or otherwise the parent in the board's review of the evidence there is nothing further to be obtained from that particular examiner using that standard the board and then the veterans court made a determination that the examiner had adequately explained his inability to use the more likely than not terminology and ill if in fact he can't give a more likely than i don't know it's not clear he said that the only way he could find that there was that he didn't find that he didn't find that the disability what was service connected and he didn't find that that it wasn't and that is crowe this is a this is a medical opinion that really gives no opinion is that what we have here and now your honor because the board in the v a did treat it as an opinion and said about resort to unfounded speculation stated that that medical exam that medical opinion it was not not evidence it was simply insufficient to establish served connection and this court how that the letter was competent medical evidence under thirty eight the f are three point one five nine a one so this court has considered and medical evidence that he or medical examiner's report that uses similar language to be competent medical evidence in other words is it your view that this was not an opinion that this offered no opinion or that the opinion was there is no basis on the record upon which i could conclude in the absence of unfounded speculation that there was a disservice to the latter your honor that it was not a not opinion but that there was no basis in the record to find service connection without unfounded speculation and that was and the board made a determination that was both it is unclear on the record but the medical examiner offered the four reasons why he stated the basis why he believes that it it cannot be determined with one hundred percent certainty  with the board which was reviewed by the veterans court for clear air so in essence this is something outside this court's jurisdiction for that reason and i ask that you dismiss the appeal or alternatively alternatively if you find a legal could you speak for a moment to the jurisdictional question which you didn't publish and in the first opening argument if if the standard under the statute i mean there's no explicit standard it's that it has to be  arguments and their strong arguments about why it wasn't probative but they made a finding that it was how can we review the fop the content of that funding because it's it's a misapplication of lot of the undisputed fact as far as i can say the they found that it was productive even though it's our position that it's clearly inconclusive and then an inconclusive opinion is synonymous with not having probably value under hogan and under hogan and fagan i didn't see that hogan well under hogan and figured the test is whether or not the average if the evidence is pertinent because down below the veterans court used to treat these these opinions as not evidence perhaps mr carpenter and offer a better explanation i would but in any of that i want to make clear that our veterans have a unique opportunity to become to receive benefits for injury sustained while they serve this country the standard of proof is under thirty eight u s c fifty one zero seven b it is not a more likely than not standard the standard is the benefit of the doubt which is at least as likely as not when there is an approximate b positive and negative evidence regarding any issue material to the terminations of the matter the secretary shall give the benefit of the doubt to the claimant and it's so clear that when there is opinion that cannot win the pennant says it at least it could be this could be that and one of the it's really a disservice one could be not really to service the veteran gets a benefit is there anything in this opinion that would suggest that that's what he concluded i think not right there's not he didn't say well the evidence is equal and what's hot it could be as to whether it could be service connected and it couldn't be and i'm breaking the tie and finding against him unfounded speculation that the only argument for service connection is unfounded speculation suggest that it was a fifty fifty right is that fair to assume that unspoken of finding of an unfounded question time and he said i can't answer that question why i don't know is your position that they should have found another doctor it may very well be that no one will know with the passage of time with the absence of symptoms of various times so it is your position that in such uncertainty the better and should always be given the benefit of the doubt absolutely