Citation Nr: 0629685	
Decision Date: 09/19/06    Archive Date: 09/26/06

DOCKET NO.  03-02 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to an evaluation in excess of 40 percent for 
lumbar degenerative disc disease and degenerative joint 
disease. 

2.  Entitlement to service connection for a heart disability, 
to include hypertension with tricuspid valve incompetence.  

3.  Entitlement to service connection for herbicide exposure. 

4.  Entitlement to an effective date prior to December 11, 
2002, for a total rating based on individual unemployability 
due to service connected disabilities.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. L. Prichard, Counsel


INTRODUCTION

The veteran had active service from July 1972 to September 
1980.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of the following rating decisions of the 
Roanoke, Virginia, regional office (RO) of the Department of 
Veterans Affairs (VA).  In August 2002, the RO increased the 
rating for the veteran's low back disability to 40 percent, 
and denied entitlement to service connection for hypertension 
and tricuspid valve incompetence.  In June 2004, the RO 
granted a total rating for compensation based on individual 
unemployability, effective December 11, 2002, and denied 
entitlement to service connection for herbicide exposure.

In April 2006, the veteran submitted a statement in which he 
claimed entitlement to service connection for diabetes as a 
result of exposure to Agent Orange.  This claim has not been 
addressed by the RO, and is referred to them for initial 
consideration.  

The April 2006 statement also made reference to a claim 
related to hearing loss.  This reference was made in the 
context of the veteran's discussion of claims for service 
connection.  Service connection for hearing loss had been 
granted in a March 2006 rating decision.  It is unclear 
whether the veteran intended the April 2006 statement as a 
notice of disagreement with the initial evaluation for 
hearing loss or was referring to his claim for service 
connection that had already been granted.  This question is 
referred to the RO for clarification.

On several occasions the veteran raised a claim for 
entitlement to service connection for a clothing allowance, 
asserting that VA erred by failing to inform of his 
eligibility for the benefit and in failing to award the 
benefit.  A January 2006, deferred rating decision makes 
reference to the veteran's October 2004 "NOD" with the 
denial of a clothing allowance.  There is no evidence, 
however, that the claim was ever denied.  In any event, in 
January 2006, the RO referred the "NOD" to a VA medical 
center for adjudication.

The issues of an increased evaluation for the veteran's back 
disability, service connection for a heart disability and 
hypertension, and an earlier effective date for a total 
rating based on unemployability due to service connected 
disabilities are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDING OF FACT

The veteran has asserted that he was exposed to herbicides.  


CONCLUSION OF LAW

Herbicide exposure is not a disability within the meaning of 
applicable laws and regulations.  38 U.S.C.A. §§ 1110, 1116, 
1131 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran contends that he was exposed to herbicides, 
including Agent Orange, during active service.  He argues 
that although he did not serve in Vietnam, he was stationed 
on the Johnson Atoll, which was used for storage of Agent 
Orange.  

The Board finds that the outcome of the present appeal is 
based upon application of the law to the known facts.  The 
United States Court of Appeals for Veterans Claims (Court) 
has specifically held that the provisions of VCAA are not 
applicable in cases which are decided as a matter of law, and 
not the underlying facts, or development of facts.  Manning 
v. Principi, 16 Vet. App. 534, 542- 43 (2002); See also Smith 
v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on 
appeal limited to interpretation of law); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where 
law, not factual evidence, is dispositive).

Finally, in the circumstances of this case, where there is no 
legal basis for eligibility for mere exposure to herbicides, 
the notice and assistance requirements of the VCAA are not 
applicable.  VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 
(2004).

Similarly the United States Court of Appeals for Veterans 
Claims (Court) has held that the VCAA was not applicable 
where the outcome is controlled by the law, and the facts are 
not in dispute.  Livesay v. Principi, 15 Vet App 165, 178 
(2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131.  

A disease associated with exposure to certain herbicide 
agents, listed in 38 C.F.R. § 3.309 will be considered to 
have been incurred in service even though there is no 
evidence of such disease during the period of service.  38 
C.F.R. § 3.309.

A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the period beginning 
on January 9, 1962 and ending on May 7, 1975 shall be 
presumed to have been exposed during such service to an 
herbicide agent, unless there is affirmative evidence to 
establish that the veteran was not exposed to any such agent 
during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 
3.307(a)(6), 3.309(e).

In this case, the veteran did not have service in Vietnam, 
and does not contend that he served in Vietnam.  Therefore, 
he is not presumed to have been exposed to an herbicide agent 
during service.  If he were to develop any of the 
disabilities associated with exposure to herbicide agents 
listed at 38 C.F.R. § 3.309, he will not be entitled to 
service connection on a presumptive basis for these 
disabilities.  

The veteran does contend that he was exposed to an herbicide 
agent on Johnson Atoll.  However, the Board does not need to 
consider whether or not the evidence supports these 
contentions because the veteran did not identify a disability 
that has developed as a result of exposure an herbicide agent 
prior to the completion of his appeal.  

The existence of a current disability is the cornerstone of a 
claim for VA disability compensation.  Degmetich v. Brown, 
104 F.3d 1328 (1997) (holding that Secretary's and Court's 
interpretation of sections 1110 and 1131 of the statute as 
requiring the existence of a present disability for VA 
compensation purposes cannot be considered arbitrary and 
therefore the decision based on that interpretation must be 
affirmed); see also Caluza v. Brown, 7 Vet. App. 498, 505 
(1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 
Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). 

The Court has found that mere exposure to Agent Orange, 
without something more, is not a compensable occurrence under 
governing law.  Winsett v. West, 11 Vet. App. 420 (1998); see 
also 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  

Until very recently, the veteran has argued only that he was 
exposed to Agent Orange in service, but without specifying a 
disability as a result of this exposure.  Entitlement to 
service connection for exposure to herbicide agents was the 
issue considered in the June 2004 rating decision on appeal, 
as well as the January 2005 statement of the case.  The 
veteran did not identify a disability in his claim, his 
notice of disagreement, or his March 2005 substantive appeal.  
The Board notes that the veteran has argued that exposure to 
herbicide agents adversely affected his heart disability, but 
this is the subject of a separate appeal.  The Board again 
notes that the veteran submitted a statement in April 2006 
indicating that diabetes should be the disability for 
consideration in this appeal, that issue has been referred to 
the RO.  As this issue is not inextricably intertwined with 
the issue of service connection for mere exposure, it has 
been referred to the RO for initial consideration.

Therefore, the aspect of the veteran's claim that is 
currently on appeal to the Board does not present a basis for 
which relief may be granted, and has no legal merit.  As the 
disposition of this claim is based on law and not the facts 
of this case, the claims must be denied based on lack of 
entitlement under the law.  Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994).


ORDER

Entitlement to service connection for herbicide exposure is 
denied.  


REMAND

The record shows that the veteran was awarded disability 
benefits from the Social Security Administration (SSA), 
effective from April 2003.  There is no indication that the 
records used by the SSA in reaching this decision have been 
either obtained or requested.  "VA has a duty to assist in 
gathering social security records when put on notice that the 
veteran is receiving social security benefits."  Clarkson v. 
Brown, 4 Vet. App. 565, 567-68 (1993); see Murincsak v. 
Derwinski, 2 Vet. App. 363 (1992) (pursuant to duty to 
assist, VA must seek to obtain all pertinent records, 
including Social Security Administration (SSA) records, of 
which it is put on notice); Masors v. Derwinski, 2 Vet. App. 
181, 187-88 (1992); 38 C.F.R. § 3.159 (1999).

The Social Security records are potentially relevant to the 
claims remaining on appeal.

Accordingly, the case is REMANDED for the following action:

1.  The AMC or RO should obtain from the 
Social Security Administration the 
records pertinent to the veteran's claim 
for Social Security disability benefits 
as well as the medical records relied 
upon concerning that claim.

2.  After the development requested above 
has been completed to the extent 
possible, re-adjudicate the claims on 
appeal.  If any benefit sought on appeal, 
remains denied, issue a supplemental 
statement of the case.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The veteran need take no action until 
otherwise notified.

The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs