For me, Russ Bolt, Rassist, Secretary of Veterans Affairs, 2012-71-77, is Shira Grady when you're ready. Virginia Guard Grady appearing on behalf of Charmy Roussville, who is the climate widow in this case. As you probably already aware, the evidentiary standards for VA disability benefits are found at 38 U.S.C. 50107 since section B. And that statute provides that where there is a balance of positive and negative evidence, then the climate gets the benefit of the doubt. Both this court and the VA disability. Is there such a balance here or was there no evidence? Well, that the claimants have been a raw fish and or that the raw fish caused the disease. Well, we would ask in this case that the court examined negative evidence and what negative evidence means. And this case, I think, provides a good example of a situation in which there was no evidence which negated or served to specifically negate. That sounds like an absence of evidence. Well, I would say that's a nice evidence. Does that have any evidence? Not under your case law or C
.A.V.C. This court has found as well as the C.A.V.C. that the absence of evidence cannot constitute negative evidence. And a speculative medical opinion cannot constitute negative evidence. So this court has, in fact, in the past ruled upon what can and cannot constitute negative evidence for purposes of the VA disability claim. Do we even get so to sub-care graffiti? I mean, it doesn't, don't we have and isn't there a provision first that there is an obligation on the part of the claimant to satisfy an initial burden? Not in VA law. In VA law, the claimant has the obligation to present and support the claim. This court has referred to that or it has been about that as the burden of production
. So, but there is an obligation on both the part of the veteran and the VA. So the veteran must file a claim that is admittedly possible. At that point, VA has certain obligations. It's kind of a tennis match back and forth. Veterans have, here is my assertion, here is my evidence that I have. VA looks at that and says, okay, well, here's what we'll do for you. And here's what we still need for you. The veteran's claim 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 and when the examiner says, I can't make an opinion without resorting to speculation. I just can't, I can't tell you one way or the other. That's not good enough. And this court has said, that's not good enough, that's not evidence, it's neither positive nor negative, it's essentially nothing
. His examiner says, well, I think it's more likely or it's reasonable to assume that this is related to this. That's enough in the absence of negative evidence. If there is no evidence that contradicts that or negates that in some way, that's good enough under VA law. Because the statute contemplates doubt. So doubt cannot defeat a claim. What if the claim is a preponderance of negative evidence? And I believe that in this particular case, there was no negative evidence, which there couldn't, there couldn't have been any preponderance. Tell me if I'm remembering this one. I thought that the, the CABC said was this is in fact a case in which you had nothing more than speculative evidence. Now, maybe that's right, maybe that's wrong, but we don't get to review that, right? So that there's no legal error if in fact, I mean, when in the determination that if there was no more than speculative evidence than fake and scows and say we're not into the, into the, you know, in the foot of the doubt rule. 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 outside you say, yes, you've got to have some negative evidence to do that. No, but I'm sorry, but, but as I read our cases, fake and scows and that's not correct, there doesn't have to be negative evidence as long as the claimant has nothing more than speculative evidence. The rule is claimant loses, even if there's no negative evidence
. That's correct. If there is no evidence, there's zero evidence, this is zero balance sheet. So if there is, if there's no negative evidence, but the, the veteran or VA, because both there are an equal obligation to present evidence, if VA says we always got as a speculative opinion purely speculative. Then yeah, we've got nothing zero balance. There's no evidence and that defeats the claim. Here's how the board described Dr. O'Reilly's opinion. And now you have a different view of what Dr. O'Reilly said. But what the board said is Dr. O'Reilly's opinion that the vendor, I'm not even trying to pronounce the principle. Yes, may have been due to contraction of a parasite while serving in Vietnam is wholly speculative and not supported by the medical evidence of record. It only suggests that within the realm of medical possibility that the veteran may have contracted a parasite, not that it is at least as likely as not
. So even if we read Dr. O'Reilly's opinion and say we think he actually went a little farther than that, we can't, this is a finding fact as to that opinion, 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 the opinion is speculative or not. Because a speculative opinion traditionally has been an opinion where the examiner specifically says, I can't make an opinion without resorting to speculation. And that is what has always been understood to be a speculative opinion in VA law. In this case, the board said we're going to read that as being speculative. Well, what he said was he didn't say he was speculating. Dr. O'Reilly didn't be a examiner did the speculative opinion in this case, I would say was the VA examiner's opinion that said, I can't make an opinion because I don't know if he ate the fish or not. As opposed to Dr. O'Reilly, who both 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. O'Reilly did not speculate
. He said, this is my opinion. He provided an opinion. There was other evidence in the records besides the medical. What was his opinion? It's beyond beyond it is within the realm of possibility that it's reasonable to assume it's within the realm of medical possibility. But he did not ever even express the opinion. He thinks it's more likely than not or that this was the cause. He did not say the magic work. Am I remembering right that I guess this is a memory of what's not there. Nobody has examined the traditional kind of relative risk analysis in the medical literature about how many people who get CCA were exposed to this parasite and how many weren't and. No, you're on our I mean, we presented and submitted whatever treatise evidence we could find on that in terms of the statistical data. With the colangio carcinoma and the relationship between the population of Southeast Asia and specifically the condiment, the nook mom. I don't even know if I'm saying that correctly. 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 gave you what we had basically. You know, we had one doctor saying I think this relationship it seems unusual. He spent 20 years in service. He was in Vietnam. These are what legal question is that jurisdiction. I'm asking you to define negative evidence. I'm asking you under 51 or 7 subsection B. What constitutes negative evidence and the language in the statute. The language is negative evidence negative evidence where there is a balance of positive and negative evidence. Then the rate benefit of reasonable doubt goes to the veteran. And even if we agree that we would have jurisdiction to do that, we have to get past A and assume you got to B. Then you go to the remedy and you say is there a presidential air here? Is there a reason to even send it back even if we make that finding at that point then you do
. You look at the facts aside whether it would make any difference if you send it back. You can't look at the facts obviously for purposes of deciding legal question, but you can for purposes of a remedy to send it back. And if you send it back then you do. You need to look at the facts and say, well, 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 negative evidence before you can find that there's a preponderance of evidence. You've got to have something that negate because, and I can and you can look back and say, well, wasn't as all speculative. Well, I suppose that's obviously in the eye of the people who are aware of something is speculative or not. Absolutely. But as opinions were not the only evidence in the record, there was also there were bloody statements from people that the veteran had served with who said I ate with him in those establishment. He ate those condiments like everybody else did. We had basically as much as we could give you to tidy things together to connect the dots. Is there anything in the statistical data or the other evidence that you submitted that would have indicated how else someone might contract a parasite like this? No, we had, we were in a, I mean, obviously when you're dealing with cancers, you're never dealing with certainties. We didn't, I will admit that we don't, we didn't look for an intervening cause
. I mean, what we were looking with the way to link positively linked one to the other. So I did not. So, am I on personal research? Thank you. Thank you. I'll say, there are a lot of time Mr. Rodgerady. Mr. Goodman. Good morning, Your Honour. May I please the court? There is negative evidence in this case, the court relied upon. So even if Mr. Rodgerady was correct as to her entire argument, none the last this would be issuing advisory opinion. In this case, like the point that court took a couple of specifics in the record, the board noted that biliary washings were done
. That what? The ERCP was done with biliary washings. And the VA examiner said biliary washing should have demonstrated the presence of organisms. Only if one is looking and the, the CAVC, I thought quite pointedly did not rely on that passage at page 17. I assume because they might have, or they would have indicated it is if they were being tested for, but there's no evidence is there that they were infected. And the fact being tested for and doing these, this, at least, the area. My understanding of the ER is that an ERC, the VA examiner was saying is that when an ERCP is done, that it, it, this one came back negative, that it would have come back positive and showed the president. He doesn't say it came back negative for a, on a test designed to detect the, the parasite residue. It just says he had one of these. They would have shown up there. What he said was ERCP was negative and biliary psychology was negative. That's the treating physicians, those are the treating physicians were. Then the VA examiner looked to that and said, biliary washing should have thus demonstrated the presence of organisms. What, why did the court of veterans claim to not make any mention of this? I think because it's one of the various reasons, Your Honor, why the court of veterans claims appropriately affirmative the decision of the board. There are lots of other bases as well. I just wanted to point this out to the court that there is in fact negative evidence here in this case. But it is true, though, that the, you know, and this is sort of one of those basic principles of law that you get all the time in short cases, but the absence of evidence is not evidence of absence. The absence of evidence is not always evidence of absence, but as Judge Laurie pointed out earlier, under VA law, the veteran has to present some evidence under 507a in the first instance before we ever get to the question of whether there's just preponderance. 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 a question of balancing evidence for an evidence again. We never even get there because here there's just not enough evidence for a grant line. You get a really weird and rare parasite. And then you have a doctor who says if this reasonable, there's a reasonable cause to believe that this weird and rare parasite came from this service connection. There is no evidence that Mr. Rosegull was infected with the parasite you're on. That's, that's important to note that if there were evidence that he had a parasite and then that he had this cancer, we may feel he had a different case
. There are lots of other bases as well. I just wanted to point this out to the court that there is in fact negative evidence here in this case. But it is true, though, that the, you know, and this is sort of one of those basic principles of law that you get all the time in short cases, but the absence of evidence is not evidence of absence. The absence of evidence is not always evidence of absence, but as Judge Laurie pointed out earlier, under VA law, the veteran has to present some evidence under 507a in the first instance before we ever get to the question of whether there's just preponderance. 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 a question of balancing evidence for an evidence again. We never even get there because here there's just not enough evidence for a grant line. You get a really weird and rare parasite. And then you have a doctor who says if this reasonable, there's a reasonable cause to believe that this weird and rare parasite came from this service connection. There is no evidence that Mr. Rosegull was infected with the parasite you're on. That's, that's important to note that if there were evidence that he had a parasite and then that he had this cancer, we may feel he had a different case. That would be less speculative than that case. As my closing counsel noted in cancer, there's always a realm of speculation that we're dealing in. That would make it more likely perhaps. But here there's a lot of levels of speculation along the way. There's speculation that Mr. Rosegull ate raw food that the raw food was contaminated with parasites that the parasites caused a parasite infection in him and that the parasite infections and led to Kalangio carcinoma. These are all facts. Those are all facts, your honor. Is there a legal question here as to what the meaning of negative evidence is? That is, that would be a legal question if properly presented here. It's not because we have all these facts presented such that we never have a situation where the board relied on just negative evidence. The veterans court specifically noted here. Why are you saying it would be an advisory opinion? Yes, your honor. In addition, the veterans court specifically said here that even if Mr
. That would be less speculative than that case. As my closing counsel noted in cancer, there's always a realm of speculation that we're dealing in. That would make it more likely perhaps. But here there's a lot of levels of speculation along the way. There's speculation that Mr. Rosegull ate raw food that the raw food was contaminated with parasites that the parasites caused a parasite infection in him and that the parasite infections and led to Kalangio carcinoma. These are all facts. Those are all facts, your honor. Is there a legal question here as to what the meaning of negative evidence is? That is, that would be a legal question if properly presented here. It's not because we have all these facts presented such that we never have a situation where the board relied on just negative evidence. The veterans court specifically noted here. Why are you saying it would be an advisory opinion? Yes, your honor. In addition, the veterans court specifically said here that even if Mr. Rosegull were correct, that we have confirmed that Mr. Rosegull ate raw food and that the raw food was contaminated by parasites. And even if we assume that he had a sore kiaisis, which is a parasite infection, even if that's all true, the board found that even in that situation there's not enough evidence that the parasite infection actually causes the cancer. And that's again a finding of facts. And on that basis, the veterans court said it's harmless error here, even if the board made an error as to the various other speculation leading to that point. So there's a lot of steps in the causal chain here that Mr. Rosegull has to show, the four steps I just outlined. Here, there's only speculation as to the first two, that he ate raw food and that raw food was contaminated with parasites. There's no evidence in the record of the court that it's just speculation. So as I understand what the veterans court did, the veterans court actually said we don't even get to the benefit of the doubt rule and what constitutes negative evidence. That's an absolutely correct one. You never get to that because it was just speculation as to the first couple of steps. And then as to the third step, whether the parasite caused a parasite infection in his body, we actually have negative evidence
. Rosegull were correct, that we have confirmed that Mr. Rosegull ate raw food and that the raw food was contaminated by parasites. And even if we assume that he had a sore kiaisis, which is a parasite infection, even if that's all true, the board found that even in that situation there's not enough evidence that the parasite infection actually causes the cancer. And that's again a finding of facts. And on that basis, the veterans court said it's harmless error here, even if the board made an error as to the various other speculation leading to that point. So there's a lot of steps in the causal chain here that Mr. Rosegull has to show, the four steps I just outlined. Here, there's only speculation as to the first two, that he ate raw food and that raw food was contaminated with parasites. There's no evidence in the record of the court that it's just speculation. So as I understand what the veterans court did, the veterans court actually said we don't even get to the benefit of the doubt rule and what constitutes negative evidence. That's an absolutely correct one. You never get to that because it was just speculation as to the first couple of steps. And then as to the third step, whether the parasite caused a parasite infection in his body, we actually have negative evidence. The veterans court didn't address that directly, but it need not have because we never even get to the question of negative evidence here. There's no need to get there because there's not enough positive evidence in the first place to reach the benefit of the doubt. So while that could be a legal question, the court might address in some case, we think the court's already sufficiently addressed it and goes and infegin. But that could be a legal question. It's not presented here because we never get there. And court of veterans, I have explained why there's, it's harmless there because that's the back end, the last of the four speculations, whether the parasite infection can cause the cancer. The board found no here. There's not enough evidence. There are medical treaties suggesting that there is a risk factor that if he showed that he had parasite infection, that 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 thought was sufficient to say that here it caused cancer. So and she doesn't challenge that at this court and she doesn't mention it in the recovery. So there's a number of different ways this court is to conclude that the veteran's court was correct and affirming the decision of the board. Any of those steps along the way would be sufficient in our opinion
. The veterans court didn't address that directly, but it need not have because we never even get to the question of negative evidence here. There's no need to get there because there's not enough positive evidence in the first place to reach the benefit of the doubt. So while that could be a legal question, the court might address in some case, we think the court's already sufficiently addressed it and goes and infegin. But that could be a legal question. It's not presented here because we never get there. And court of veterans, I have explained why there's, it's harmless there because that's the back end, the last of the four speculations, whether the parasite infection can cause the cancer. The board found no here. There's not enough evidence. There are medical treaties suggesting that there is a risk factor that if he showed that he had parasite infection, that 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 thought was sufficient to say that here it caused cancer. So and she doesn't challenge that at this court and she doesn't mention it in the recovery. So there's a number of different ways this court is to conclude that the veteran's court was correct and affirming the decision of the board. Any of those steps along the way would be sufficient in our opinion. Thank you very much, Your Honor. It's no further questions. We respectfully request the court firm. Thank you. Mr. Goodman. Mr. Rodgerady has almost five minutes to rebuttal. I just want to make a couple of points. First of all, I would assert that the lack of sufficiently positive evidence doesn't constitute negative evidence anymore than the absence of evidence does. And that ultimately that was the problem in this case or what the board and then the court firms the board and that the evidence just wasn't convincing enough to them. And what I would say is that under 51 or 7b, that's not the standard. The standard is you either have a preponderance of negative evidence
. Thank you very much, Your Honor. It's no further questions. We respectfully request the court firm. Thank you. Mr. Goodman. Mr. Rodgerady has almost five minutes to rebuttal. I just want to make a couple of points. First of all, I would assert that the lack of sufficiently positive evidence doesn't constitute negative evidence anymore than the absence of evidence does. And that ultimately that was the problem in this case or what the board and then the court firms the board and that the evidence just wasn't convincing enough to them. And what I would say is that under 51 or 7b, that's not the standard. The standard is you either have a preponderance of negative evidence. And that way if you can deny it, they've got a preponderance. Otherwise, you've either got a balance of positive negative or you have positive evidence and you grant the claim. So in this case, what we have the board and the court saying is, well, it should not be necessary. Even though there's nothing that negates the favorable evidence, and I would agree there was that everything is circumstantial. So it's kind of like he's the speculative, I think circumstantial. So I say we had evidence while he was in service that he had gastroenteritis and problems after eating food and unapproved eating establishment. We have, if Colandio Carcinoma, we have people who said that they ate with him in those establishments. 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. But I don't think they're disputing that he ate the raw fish. But they're saying that they're disputing that there's even evidence that he got a parasite from that. Or there's evidence that that kind of parasite is what caused the cancer
. And that way if you can deny it, they've got a preponderance. Otherwise, you've either got a balance of positive negative or you have positive evidence and you grant the claim. So in this case, what we have the board and the court saying is, well, it should not be necessary. Even though there's nothing that negates the favorable evidence, and I would agree there was that everything is circumstantial. So it's kind of like he's the speculative, I think circumstantial. So I say we had evidence while he was in service that he had gastroenteritis and problems after eating food and unapproved eating establishment. We have, if Colandio Carcinoma, we have people who said that they ate with him in those establishments. 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. But I don't think they're disputing that he ate the raw fish. But they're saying that they're disputing that there's even evidence that he got a parasite from that. Or there's evidence that that kind of parasite is what caused the cancer. Well, and that's true. 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 that eventually leads to that kind of cancer is by the ingestion of the raw fish. So that is why it's such high percentage of this type of cancer in Southeast Asia because of this condiment and because of their diet. So, but in any event, I, you know, I was, I said, I think that there is enough to 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. There must be some evidence that negates the claim before you can just throw it out and before you can say it. The difference between this case and Dulan, I understand that's non-practice. I apologize, I have not looked at Dulan within the last week. Can you refresh my memory? It was essentially the exact same argument was made to a panel of this court and it's not where there was a non-practice decision. The court said that in fact, if you don't get past the threshold of showing sufficient evidence, you never get into to sub-paragraph 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
. Well, and that's true. 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 that eventually leads to that kind of cancer is by the ingestion of the raw fish. So that is why it's such high percentage of this type of cancer in Southeast Asia because of this condiment and because of their diet. So, but in any event, I, you know, I was, I said, I think that there is enough to 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. There must be some evidence that negates the claim before you can just throw it out and before you can say it. The difference between this case and Dulan, I understand that's non-practice. I apologize, I have not looked at Dulan within the last week. Can you refresh my memory? It was essentially the exact same argument was made to a panel of this court and it's not where there was a non-practice decision. The court said that in fact, if you don't get past the threshold of showing sufficient evidence, you never get into to sub-paragraph 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 yes, but I'd say that that's not what we have in this case. That we have quite a bit of evidence in favor of this claim. It just wasn't, it wasn't what they wanted, what they wanted was a VA 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 been possible to obtain in this case because we're dealing with obviously many years after. What we have is circumstantial evidence, one leading up to another. We do have a doctor saying, yeah, it all makes sense. It's reasonable to assume that this is related to this based on his history in the military where he served, the type of cancer that he has, all of these things add up. The VA examiner alternatively said, I can't, I don't know, I can't make an opinion. That's what we've got. And I would say that that's sufficiently favorable to meet the standard. So I would say that in the absence of any evidence that negates that, and really what I'm saying is, you've got to have some negative evidence. If you're going to say there's not enough favorable evidence, but there has to be something that cancels out that favorable evidence before you can deny because that's what the law says
. Then I would say yes, but I'd say that that's not what we have in this case. That we have quite a bit of evidence in favor of this claim. It just wasn't, it wasn't what they wanted, what they wanted was a VA 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 been possible to obtain in this case because we're dealing with obviously many years after. What we have is circumstantial evidence, one leading up to another. We do have a doctor saying, yeah, it all makes sense. It's reasonable to assume that this is related to this based on his history in the military where he served, the type of cancer that he has, all of these things add up. The VA examiner alternatively said, I can't, I don't know, I can't make an opinion. That's what we've got. And I would say that that's sufficiently favorable to meet the standard. So I would say that in the absence of any evidence that negates that, and really what I'm saying is, you've got to have some negative evidence. If you're going to say there's not enough favorable evidence, but there has to be something that cancels out that favorable evidence before you can deny because that's what the law says. It's a preponderance of negative evidence. That means something negative evidence. Thank you Mr. R. Grady, thank you for your time.
For me, Russ Bolt, Rassist, Secretary of Veterans Affairs, 2012-71-77, is Shira Grady when you're ready. Virginia Guard Grady appearing on behalf of Charmy Roussville, who is the climate widow in this case. As you probably already aware, the evidentiary standards for VA disability benefits are found at 38 U.S.C. 50107 since section B. And that statute provides that where there is a balance of positive and negative evidence, then the climate gets the benefit of the doubt. Both this court and the VA disability. Is there such a balance here or was there no evidence? Well, that the claimants have been a raw fish and or that the raw fish caused the disease. Well, we would ask in this case that the court examined negative evidence and what negative evidence means. And this case, I think, provides a good example of a situation in which there was no evidence which negated or served to specifically negate. That sounds like an absence of evidence. Well, I would say that's a nice evidence. Does that have any evidence? Not under your case law or C.A.V.C. This court has found as well as the C.A.V.C. that the absence of evidence cannot constitute negative evidence. And a speculative medical opinion cannot constitute negative evidence. So this court has, in fact, in the past ruled upon what can and cannot constitute negative evidence for purposes of the VA disability claim. Do we even get so to sub-care graffiti? I mean, it doesn't, don't we have and isn't there a provision first that there is an obligation on the part of the claimant to satisfy an initial burden? Not in VA law. In VA law, the claimant has the obligation to present and support the claim. This court has referred to that or it has been about that as the burden of production. So, but there is an obligation on both the part of the veteran and the VA. So the veteran must file a claim that is admittedly possible. At that point, VA has certain obligations. It's kind of a tennis match back and forth. Veterans have, here is my assertion, here is my evidence that I have. VA looks at that and says, okay, well, here's what we'll do for you. And here's what we still need for you. The veteran's claim 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 and when the examiner says, I can't make an opinion without resorting to speculation. I just can't, I can't tell you one way or the other. That's not good enough. And this court has said, that's not good enough, that's not evidence, it's neither positive nor negative, it's essentially nothing. His examiner says, well, I think it's more likely or it's reasonable to assume that this is related to this. That's enough in the absence of negative evidence. If there is no evidence that contradicts that or negates that in some way, that's good enough under VA law. Because the statute contemplates doubt. So doubt cannot defeat a claim. What if the claim is a preponderance of negative evidence? And I believe that in this particular case, there was no negative evidence, which there couldn't, there couldn't have been any preponderance. Tell me if I'm remembering this one. I thought that the, the CABC said was this is in fact a case in which you had nothing more than speculative evidence. Now, maybe that's right, maybe that's wrong, but we don't get to review that, right? So that there's no legal error if in fact, I mean, when in the determination that if there was no more than speculative evidence than fake and scows and say we're not into the, into the, you know, in the foot of the doubt rule. 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 outside you say, yes, you've got to have some negative evidence to do that. No, but I'm sorry, but, but as I read our cases, fake and scows and that's not correct, there doesn't have to be negative evidence as long as the claimant has nothing more than speculative evidence. The rule is claimant loses, even if there's no negative evidence. That's correct. If there is no evidence, there's zero evidence, this is zero balance sheet. So if there is, if there's no negative evidence, but the, the veteran or VA, because both there are an equal obligation to present evidence, if VA says we always got as a speculative opinion purely speculative. Then yeah, we've got nothing zero balance. There's no evidence and that defeats the claim. Here's how the board described Dr. O'Reilly's opinion. And now you have a different view of what Dr. O'Reilly said. But what the board said is Dr. O'Reilly's opinion that the vendor, I'm not even trying to pronounce the principle. Yes, may have been due to contraction of a parasite while serving in Vietnam is wholly speculative and not supported by the medical evidence of record. It only suggests that within the realm of medical possibility that the veteran may have contracted a parasite, not that it is at least as likely as not. So even if we read Dr. O'Reilly's opinion and say we think he actually went a little farther than that, we can't, this is a finding fact as to that opinion, 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 the opinion is speculative or not. Because a speculative opinion traditionally has been an opinion where the examiner specifically says, I can't make an opinion without resorting to speculation. And that is what has always been understood to be a speculative opinion in VA law. In this case, the board said we're going to read that as being speculative. Well, what he said was he didn't say he was speculating. Dr. O'Reilly didn't be a examiner did the speculative opinion in this case, I would say was the VA examiner's opinion that said, I can't make an opinion because I don't know if he ate the fish or not. As opposed to Dr. O'Reilly, who both 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. O'Reilly did not speculate. He said, this is my opinion. He provided an opinion. There was other evidence in the records besides the medical. What was his opinion? It's beyond beyond it is within the realm of possibility that it's reasonable to assume it's within the realm of medical possibility. But he did not ever even express the opinion. He thinks it's more likely than not or that this was the cause. He did not say the magic work. Am I remembering right that I guess this is a memory of what's not there. Nobody has examined the traditional kind of relative risk analysis in the medical literature about how many people who get CCA were exposed to this parasite and how many weren't and. No, you're on our I mean, we presented and submitted whatever treatise evidence we could find on that in terms of the statistical data. With the colangio carcinoma and the relationship between the population of Southeast Asia and specifically the condiment, the nook mom. I don't even know if I'm saying that correctly. 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 gave you what we had basically. You know, we had one doctor saying I think this relationship it seems unusual. He spent 20 years in service. He was in Vietnam. These are what legal question is that jurisdiction. I'm asking you to define negative evidence. I'm asking you under 51 or 7 subsection B. What constitutes negative evidence and the language in the statute. The language is negative evidence negative evidence where there is a balance of positive and negative evidence. Then the rate benefit of reasonable doubt goes to the veteran. And even if we agree that we would have jurisdiction to do that, we have to get past A and assume you got to B. Then you go to the remedy and you say is there a presidential air here? Is there a reason to even send it back even if we make that finding at that point then you do. You look at the facts aside whether it would make any difference if you send it back. You can't look at the facts obviously for purposes of deciding legal question, but you can for purposes of a remedy to send it back. And if you send it back then you do. You need to look at the facts and say, well, 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 negative evidence before you can find that there's a preponderance of evidence. You've got to have something that negate because, and I can and you can look back and say, well, wasn't as all speculative. Well, I suppose that's obviously in the eye of the people who are aware of something is speculative or not. Absolutely. But as opinions were not the only evidence in the record, there was also there were bloody statements from people that the veteran had served with who said I ate with him in those establishment. He ate those condiments like everybody else did. We had basically as much as we could give you to tidy things together to connect the dots. Is there anything in the statistical data or the other evidence that you submitted that would have indicated how else someone might contract a parasite like this? No, we had, we were in a, I mean, obviously when you're dealing with cancers, you're never dealing with certainties. We didn't, I will admit that we don't, we didn't look for an intervening cause. I mean, what we were looking with the way to link positively linked one to the other. So I did not. So, am I on personal research? Thank you. Thank you. I'll say, there are a lot of time Mr. Rodgerady. Mr. Goodman. Good morning, Your Honour. May I please the court? There is negative evidence in this case, the court relied upon. So even if Mr. Rodgerady was correct as to her entire argument, none the last this would be issuing advisory opinion. In this case, like the point that court took a couple of specifics in the record, the board noted that biliary washings were done. That what? The ERCP was done with biliary washings. And the VA examiner said biliary washing should have demonstrated the presence of organisms. Only if one is looking and the, the CAVC, I thought quite pointedly did not rely on that passage at page 17. I assume because they might have, or they would have indicated it is if they were being tested for, but there's no evidence is there that they were infected. And the fact being tested for and doing these, this, at least, the area. My understanding of the ER is that an ERC, the VA examiner was saying is that when an ERCP is done, that it, it, this one came back negative, that it would have come back positive and showed the president. He doesn't say it came back negative for a, on a test designed to detect the, the parasite residue. It just says he had one of these. They would have shown up there. What he said was ERCP was negative and biliary psychology was negative. That's the treating physicians, those are the treating physicians were. Then the VA examiner looked to that and said, biliary washing should have thus demonstrated the presence of organisms. What, why did the court of veterans claim to not make any mention of this? I think because it's one of the various reasons, Your Honor, why the court of veterans claims appropriately affirmative the decision of the board. There are lots of other bases as well. I just wanted to point this out to the court that there is in fact negative evidence here in this case. But it is true, though, that the, you know, and this is sort of one of those basic principles of law that you get all the time in short cases, but the absence of evidence is not evidence of absence. The absence of evidence is not always evidence of absence, but as Judge Laurie pointed out earlier, under VA law, the veteran has to present some evidence under 507a in the first instance before we ever get to the question of whether there's just preponderance. 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 a question of balancing evidence for an evidence again. We never even get there because here there's just not enough evidence for a grant line. You get a really weird and rare parasite. And then you have a doctor who says if this reasonable, there's a reasonable cause to believe that this weird and rare parasite came from this service connection. There is no evidence that Mr. Rosegull was infected with the parasite you're on. That's, that's important to note that if there were evidence that he had a parasite and then that he had this cancer, we may feel he had a different case. That would be less speculative than that case. As my closing counsel noted in cancer, there's always a realm of speculation that we're dealing in. That would make it more likely perhaps. But here there's a lot of levels of speculation along the way. There's speculation that Mr. Rosegull ate raw food that the raw food was contaminated with parasites that the parasites caused a parasite infection in him and that the parasite infections and led to Kalangio carcinoma. These are all facts. Those are all facts, your honor. Is there a legal question here as to what the meaning of negative evidence is? That is, that would be a legal question if properly presented here. It's not because we have all these facts presented such that we never have a situation where the board relied on just negative evidence. The veterans court specifically noted here. Why are you saying it would be an advisory opinion? Yes, your honor. In addition, the veterans court specifically said here that even if Mr. Rosegull were correct, that we have confirmed that Mr. Rosegull ate raw food and that the raw food was contaminated by parasites. And even if we assume that he had a sore kiaisis, which is a parasite infection, even if that's all true, the board found that even in that situation there's not enough evidence that the parasite infection actually causes the cancer. And that's again a finding of facts. And on that basis, the veterans court said it's harmless error here, even if the board made an error as to the various other speculation leading to that point. So there's a lot of steps in the causal chain here that Mr. Rosegull has to show, the four steps I just outlined. Here, there's only speculation as to the first two, that he ate raw food and that raw food was contaminated with parasites. There's no evidence in the record of the court that it's just speculation. So as I understand what the veterans court did, the veterans court actually said we don't even get to the benefit of the doubt rule and what constitutes negative evidence. That's an absolutely correct one. You never get to that because it was just speculation as to the first couple of steps. And then as to the third step, whether the parasite caused a parasite infection in his body, we actually have negative evidence. The veterans court didn't address that directly, but it need not have because we never even get to the question of negative evidence here. There's no need to get there because there's not enough positive evidence in the first place to reach the benefit of the doubt. So while that could be a legal question, the court might address in some case, we think the court's already sufficiently addressed it and goes and infegin. But that could be a legal question. It's not presented here because we never get there. And court of veterans, I have explained why there's, it's harmless there because that's the back end, the last of the four speculations, whether the parasite infection can cause the cancer. The board found no here. There's not enough evidence. There are medical treaties suggesting that there is a risk factor that if he showed that he had parasite infection, that 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 thought was sufficient to say that here it caused cancer. So and she doesn't challenge that at this court and she doesn't mention it in the recovery. So there's a number of different ways this court is to conclude that the veteran's court was correct and affirming the decision of the board. Any of those steps along the way would be sufficient in our opinion. Thank you very much, Your Honor. It's no further questions. We respectfully request the court firm. Thank you. Mr. Goodman. Mr. Rodgerady has almost five minutes to rebuttal. I just want to make a couple of points. First of all, I would assert that the lack of sufficiently positive evidence doesn't constitute negative evidence anymore than the absence of evidence does. And that ultimately that was the problem in this case or what the board and then the court firms the board and that the evidence just wasn't convincing enough to them. And what I would say is that under 51 or 7b, that's not the standard. The standard is you either have a preponderance of negative evidence. And that way if you can deny it, they've got a preponderance. Otherwise, you've either got a balance of positive negative or you have positive evidence and you grant the claim. So in this case, what we have the board and the court saying is, well, it should not be necessary. Even though there's nothing that negates the favorable evidence, and I would agree there was that everything is circumstantial. So it's kind of like he's the speculative, I think circumstantial. So I say we had evidence while he was in service that he had gastroenteritis and problems after eating food and unapproved eating establishment. We have, if Colandio Carcinoma, we have people who said that they ate with him in those establishments. 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. But I don't think they're disputing that he ate the raw fish. But they're saying that they're disputing that there's even evidence that he got a parasite from that. Or there's evidence that that kind of parasite is what caused the cancer. Well, and that's true. 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 that eventually leads to that kind of cancer is by the ingestion of the raw fish. So that is why it's such high percentage of this type of cancer in Southeast Asia because of this condiment and because of their diet. So, but in any event, I, you know, I was, I said, I think that there is enough to 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. There must be some evidence that negates the claim before you can just throw it out and before you can say it. The difference between this case and Dulan, I understand that's non-practice. I apologize, I have not looked at Dulan within the last week. Can you refresh my memory? It was essentially the exact same argument was made to a panel of this court and it's not where there was a non-practice decision. The court said that in fact, if you don't get past the threshold of showing sufficient evidence, you never get into to sub-paragraph 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 yes, but I'd say that that's not what we have in this case. That we have quite a bit of evidence in favor of this claim. It just wasn't, it wasn't what they wanted, what they wanted was a VA 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 been possible to obtain in this case because we're dealing with obviously many years after. What we have is circumstantial evidence, one leading up to another. We do have a doctor saying, yeah, it all makes sense. It's reasonable to assume that this is related to this based on his history in the military where he served, the type of cancer that he has, all of these things add up. The VA examiner alternatively said, I can't, I don't know, I can't make an opinion. That's what we've got. And I would say that that's sufficiently favorable to meet the standard. So I would say that in the absence of any evidence that negates that, and really what I'm saying is, you've got to have some negative evidence. If you're going to say there's not enough favorable evidence, but there has to be something that cancels out that favorable evidence before you can deny because that's what the law says. It's a preponderance of negative evidence. That means something negative evidence. Thank you Mr. R. Grady, thank you for your time