dissenting:
I entirely agree with Judge Farley in his conclusion that there is no ease or controversy before the Court vis-a-vis the “issue” of post-service aggravation of a post-service injury. Hence the attempt to “reach” for a nonexistent “issue” to resolve the conflict between the Tobin case and the Leopoldo case should be saved for another day when, and if, the issue is presented to the Court. That may never be, in light of the Secretary’s concession in this ease adopting the Tobin result. Presumably the Secretary’s position in this litigation will be made known to those responsible for the administrative adjudications below. That being said, I am constrained to say that in my opinion neither the Leopoldo analysis nor the wholly new analysis, which is entirely based on the assumption that either the Tobin result or the Leopoldo result must be adopted, is correct. I say this with some degree of diffidence as the author of the opinion in Leopoldo (to which Judges Kramer and Steinberg concurred without exception). Since my two colleagues are persuaded by a new and different analysis, I presume it is permissible for me to have second thoughts as well.
First, some comments about those two cases. In Tobin the “issue” was neither raised nor argued before this Court, nor, interestingly enough, had it been raised at the RO level or before the BVA. Despite the fact that the “issue” had not been raised at the RO, the BVA, or this Court, the Court, sua sponte, really almost as an afterthought and with virtually no analysis, assumed that post-service aggravation of a non-service-connected condition by a service-connected con*452dition was compensable. In Leopoldo, as in Tobin, the “issue” likewise was not raised before the RO or the BVA, nor raised on appeal to this Court, but was picked up sua sponte by the Court. There was at least an analysis in Leopoldo, however flawed some (including myself) now think it to be, that at least explained the decision. Moreover, this analysis had the virtue of reconciling the definition of disability as it applies to compensation with the definition as it applies to treatment. Parenthetically, I must say I fear that the disparate definitions adopted by Judge Kramer will, despite his optimism to the contrary, create confusion and result in some unintended consequences. Whether a better analysis or not, Leopoldo was in conflict with Tobin, a previous precedential opinion of this Court. The “whys and wherefores” of how this happened, while interesting, are not germane to the ease before us now except to the unfortunate extent that it has developed a mindset that this is an “either/or” situation. Either Leopoldo is right or Tobin is right. After further research and reflection, I now think they are both ■wrong.
Veterans benefits are a matter of positive law. If the law does not provide a benefit in a given fact situation there is no benefit. It is that simple. Compensation for disability is payable only in circumstances specifically provided for by statute or by regulation consonant with statute. See OPM v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Neither the Secretary nor this Court can create a remedy out of whole cloth that is not provided for in the statute. Certainly a remedy cannot be fashioned that is contrary to statute. The relevant statutory language is simple and direct and provides as follows: “For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military....” 38 U.S.C. § 1110 (emphasis added). The statute is silent, absolutely silent, about post-service aggravation (whatever the cause) of a post-service injury. In fact, the plain language of the statute, by linking injury and aggravation to periods when the claimant was in the line of duty, precludes compensation for such injury. Insofar as it speaks to aggravation at all, the statute clearly and unambiguously limits compensation to in-service aggravation of preexisting injuries.
Congress could have easily provided for the post-service aggravation situation now before us. Perhaps it should have. That is a matter for legislative policy makers, not judicial usurpation by this Court. We can only assume that if Congress had intended to provide compensation for post-service injuries or aggravation it would have done so by specific legislation as it did for service aggravation of preservice injuries. Any attempt to provide a remedy not contemplated by the statute is judicial law making, pure and simple. Moreover, it flies in the face of the express statutory language that the injury, or in the case of preexisting injuries only, its aggravation, must be incurred during active service while “in the line of duty.” In this case even if the appellant’s post-service injury was aggravated by his in-service injury it is clear beyond any doubt that this aggravation postdated active sendee by many years and, a fortiori, could not have possibly been incurred “in line of duty.” Only a statutory provision similar to that which is applicable to line of duty aggravation of preservice injuries can provide a remedy for an injury or its aggravation that is not incurred in line of duty. At such time as a case or controversy properly presents this issue to the Court, I will urge that an en banc Court overrule both Tobin and Leopoldo and decide the case by simply reading, as the Gardner case cited by the majority enjoins us to do, the plain language of the statute.