## Facts

- Michael H. Jones, a Marine Corps veteran (active duty February 1964 to January 1967, including Vietnam), sought VA benefits for left-ear hearing loss and erectile dysfunction (ED) and sought a compensable initial rating for service-connected right-ear hearing loss.
- Jones’s separation examination recorded normal ears and genitourinary findings, with whispered and spoken voice tests of 15/15 bilaterally.
- VA granted service connection for diabetes mellitus and later for right-ear conditions, including right-ear hearing loss rated noncompensable, but denied service connection for left-ear hearing loss and for ED claimed as secondary to diabetes/medications.
- VA obtained two medical examinations. Each examiner stated an etiological opinion could not be provided without resort to speculation.
- The examination reports did not meaningfully explain why an opinion would be speculative, whether additional testing or evidence could permit a non-speculative opinion, or whether the inability to opine was due to limits of the record, the examiner, or medical knowledge.
- The Board denied the claims and relied substantially on the speculative statements.

## Issues

1. When VA obtains an examination in which the examiner states that an etiological opinion cannot be provided “without resort to mere speculation,” what must the record show for the opinion to be adequate under 38 U.S.C. § 5103A and 38 C.F.R. § 4.2?
2. Whether the Board erred by relying on unexplained speculative statements as support for denying service connection for left-ear hearing loss and ED and denying a compensable initial rating for right-ear hearing loss.

## Decision

- The court set aside the Board’s denial of service connection for left-ear hearing loss and ED and the denial of an initial compensable rating for right-ear hearing loss.
- The court remanded for further development consistent with the duty to assist.
- The court held that the examinations were inadequate because the “mere speculation” statements lacked an adequate explanation, and the Board erred by relying on them rather than returning the reports or developing the record.

## Legal Principles

- A statement that a nexus opinion cannot be provided without resort to speculation is not automatically inadequate, but it is adequate only if the basis for that conclusion is made clear.
- It must be apparent from the examiner’s explanation or the Board’s analysis that the examiner considered all procurable and assembled data and that VA made reasonable efforts to obtain relevant evidence bearing on the question.
- An adequate speculative opinion must explain why an opinion cannot be given, including whether:
  - the limits of current medical knowledge prevent an answer,
  - additional information or testing is needed (and what would be needed), or
  - the cause cannot be determined because multiple potential causes cannot be medically distinguished.
- The Board may not treat an unexplained speculative statement as negative evidence against the claim.
- If the record does not show that all reasonable development was completed or does not clarify whether the inability to opine stems from medical science versus missing facts, the Board must return the examination report as inadequate and remand for further development under 38 C.F.R. § 4.2.

## Conclusion

The court required VA and the Board to ensure that “cannot opine without resort to speculation” opinions are supported by a clear explanation and a developed record; otherwise, the opinions are inadequate for adjudication and cannot be used to deny veterans’ benefits claims without further development.


Jones v. Shinseki, 23 Vet. App. 382 (2010)