Citation Nr: 0532817 Decision Date: 12/05/05 Archive Date: 12/21/05 DOCKET NO. 04-27 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a higher compensation rate for a total disability rating based on individual unemployability due to service-connected disability beginning August 1, 1991, pursuant to 38 U.S.C.A. § 1114(j). 2. Entitlement to an effective date earlier than July 31, 1991, for the grant of a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The appellant had active military service from June 1970 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2002 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Wichita, Kansas, which granted the appellant's claim of entitlement to service connection for bipolar affective disorder. In the November 2002 rating action, the RO assigned a 70 percent disability rating, effective from July 31, 1991, for the appellant's service-connected bipolar affective disorder. In that same rating action, the RO also granted the appellant's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective from July 31, 1991. In November 2003, the appellant's attorney-representative submitted a notice of disagreement (NOD) on behalf of the appellant. In the NOD, the appellant's attorney- representative disagreed with the effective date assigned for the appellant's TDIU maintaining, in essence, that the effective date should be established from January 9, 1979, the date when the appellant had filed his original claim for service connection for "nerves/depression." The appellant's attorney-representative noted that the appellant's claim for an effective date of January 9, 1979 was based upon two theories. The first theory was based upon an unadjudicated and pending claim pursuant to 38 C.F.R. § 3.156(b). The appellant's attorney-representative noted that in a June 1979 rating action, the appellant's original claim for a nervous condition was denied based upon evidence insufficient to establish service connection for a nervous condition, diagnosed as a personality disorder, because such a condition was considered a constitutional or developmental abnormality which was not compensable under the law. According to the appellant's attorney-representative, in December 1979, the appellant submitted evidence which showed that during service, he was treated for a mental condition at the European Army Hospital in Wiesbaden, Germany. The appellant's attorney-representative maintained that the evidence submitted by the appellant was new and material, and that because the evidence was never considered by an agency decision, pursuant to the requirements of 38 C.F.R. § 3.156(b), the appellant's claim from December 1979 remained pending and unadjudicated. The appellant's second theory in support of an earlier effective date was based upon a clear and unmistakable error committed by the RO in its rating decision of September 1980. The appellant's attorney-representative stated that in the September 1980 rating action, the RO failed to correctly consider a VA hospitalization summary which showed that the appellant was hospitalized from November to December 1979 for "depressive reaction with anxiety." According to the appellant's attorney-representative, the RO committed clear and unmistakable error in the September 1980 rating action by failing to reopen the previously denied claim for service connection for a nervous condition. Upon a review of the evidence of record, the Board notes that in January 1979, the appellant filed an original claim for "nerves/depression." In a letter from the RO to the appellant, dated on May 8, 1979, the RO informed the appellant that they were having difficulty obtaining his service medical records. In this regard, the RO requested that the appellant send any service medical records that he had in his possession. By a June 1979 rating action, the RO denied the appellant's claim for service connection for a nervous condition. At that time, the RO noted that during service, the appellant was hospitalized after inflicting a superficial wound to the left wrist with a razor blade. The appellant was then transferred to another hospital for further treatment; the final diagnosis was immature personality. Subsequent to the appellant's discharge, a VA hospitalization report, dated in January 1977, showed a diagnosis of a personality disorder, with drug abuse and habitual excessive drinking. Thus, the RO concluded that the evidence of record was insufficient to establish service connection for a nervous condition, diagnosed as a personality disorder, because it was a constitutional or developmental abnormality. By a June 1979 letter from the RO to the appellant, the appellant was provided notice of the decision and of his appellate rights but did not file a notice of disagreement. Therefore, the June 1979 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2005). In a statement in support of claim (VA Form 21-4138), received by the RO on December 10, 1979, the appellant requested to "please refer to your letter to me dated May 8, 1979." The appellant stated that in March 1970, he was with the Army Security Agency stationed in Sinop, Turkey. According to the appellant, from there, he was transferred to the European Army Hospital at Wiesbaden, Germany, where he was treated for a mental condition. The appellant indicated that he was then recommended for a discharge because he was "unadaptable for the service." In August 1980, the appellant filed VA Form 21-526, Veteran's Application for Compensation or Pension. In the form, in regard to the nature of sickness, disease, or injuries for which that claim was made, the appellant noted "mental depression; mal adjustment; suicidal tendencies." In a letter from the RO to the appellant, dated in August 1980, the RO informed the appellant that he had been previously denied service connection for a nervous condition. According to the RO, the condition from which the appellant was suffering from was not an acquired one resulting from his military service, but was a personality condition from which service connection could not be established. The RO also noted that if his reopened claim was for nonservice-connected pension benefits, he needed to notify the RO and complete and return the enclosed VA Form 21-6897 showing his and his family's current income and net worth from all sources. The evidence of record is negative for a reply from the appellant. In August 1980, the RO received a VA hospitalization summary which showed that the appellant was hospitalized from November to December 1979. Upon his discharge, the diagnosis was depressive reaction, anxiety, and drug abuse. In September 1980, the RO received private medical records, from May to August 1980. The records reflect that the appellant was hospitalized from May to June 1980. Upon his discharge, the diagnosis was alcoholism, episodic, excessive drinking. By a September 1980 rating action, the RO denied the appellant's claim for entitlement to nonservice-connected pension benefits. In addition, the RO addressed the appellant's "reopened claim" of entitlement to service connection for a nervous condition. In this regard, the RO apparently determined that there was new and material evidence regarding the appellant's claim for service connection for a nervous condition, reopened the claim, and denied the claim on the merits. However, although the evidence of record shows that the RO, in an October 1980 letter, notified the appellant that his claim for nonservice- connected pension benefits had been denied in the September 1980 rating action and provided his appellate rights, there is no evidence of record showing that the appellant was ever notified that his claim for service connection for a nervous condition had been reopened and denied on the merits in the September 1980 rating action or that he was provided his appellate rights with respect to that determination. As such, the September 1980 RO decision, which reopened the appellant's claim for service connection for a nervous condition and denied the claim on the merits, did not become final and the claim has remained open. To the extent that the appellant's representative has raised the issue of whether there was clear and unmistakable error in the September 1980 rating action, the Board notes that a claim of clear and unmistakable error can only be raised with respect to a final decision. Since the September 1980 decision, which reopened the appellant's claim for service connection for a nervous condition and denied the claim on the merits, has not become final because the appellant has not received notice or his appellate rights with respect to that determination, and given the fact that service- connection for bipolar affective disorder was granted in a November 2002 rating action and that the current "downstream" issue of the earlier effective date was appealed to the Board, a claim for clear and unmistakable error is not proper at this time. FINDINGS OF FACT 1. A November 2002 rating decision granted a total disability rating based on individual unemployability, effective from July 31, 1991. 2. The appellant was given notice of his monthly compensation amounts in a February 2003 letter. The payments were authorized from August 1, 1991. The monthly compensation amount, effective from December 1, 2002, was $2,193. 3. By an unappealed June 1979 rating action, the RO denied the appellant's claim of entitlement to service connection for a nervous condition. 4. On December 10, 1979, the appellant filed an informal claim to reopen his claim for service connection for a psychiatric disability. 5. In August 1980, the appellant filed VA Form 21-526, Veteran's Application for Compensation or Pension. In the form, in regard to the nature of sickness, disease, or injuries for which that claim was made, the appellant noted "mental depression; mal adjustment; suicidal tendencies." 6. By a September 1980 rating action, the RO addressed the appellant's "reopened claim" of entitlement to service connection for a nervous condition and determined that there was new and material evidence regarding the appellant's claim for service connection for a nervous condition, reopened the claim, and denied the claim on the merits. There is no evidence of record showing that the appellant was ever notified that his claim for service connection for a nervous condition had been reopened and denied on the merits in the September 1980 rating action or that he was provided his appellate rights with respect to that determination. 7. In a letter from the appellant's attorney-representative, received by the RO on July 31, 1991, the appellant's attorney-representative filed an informal claim for a 100 percent disability rating for the appellant due to depression and associated symptoms. 8. In an addendum, dated on February 27, 2002, the examiner from the appellant's September 2001 VA psychiatric examination opined that the appellant's past symptomatologies as shown in his medical records had a relationship to his current diagnosis of bipolar affective disorder. 9. By a November 2002 rating action, the RO granted service connection for bipolar affective disorder and assigned an effective date for service connection of July 31, 1991; the RO also granted TDIU, and assigned an effective date for TDIU of July 31, 1991. CONCLUSIONS OF LAW 1. A higher monthly compensation rate for a total rating for compensation purposes based upon individual unemployability beginning August 1, 1991, is not warranted. 38 U.S.C.A. § 1114(j) (West 2002). 2. A June 1979 denial of the appellant's claim for service connection for a nervous condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2005). 3. The legal criteria for an effective date prior to July 31, 1991 for TDIU have not been met. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to a higher compensation rate for a total disability rating based on individual unemployability due to service-connected disability beginning August 1, 1991, pursuant to 38 U.S.C.A. § 1114(j) The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). In the present case, the essential facts relevant to the issue before the Board are not in dispute and the factual evidence is not dispositive of the appeal. The issue in this case is a legal one, the outcome of which is determined by the interpretation and application of the law and regulations. The United States Court of Appeals for Veterans Claims (the Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Consequently, the notice and duty to assist provisions of the VCAA are not applicable to the present appeal. By a November 2002 rating action, the RO granted the appellant's claim for a total disability rating based on individual unemployability due to service-connected disability, effective from July 31, 1991. The appellant was notified in a letter from VA dated in February 2003 as to the monthly amount that he would be receiving beginning August 1, 1991, and continuing to the date of the letter. These amounts started at $1,620 beginning on August 1, 1991, and increased by specified amounts each December 1, with the maximum amount noted in the letter of $2,193 beginning December 1, 2002. Although it is contended on behalf of the appellant that he should be paid the amount of disability benefits assigned by law for a total disability rating beginning in December 2002, back to the beginning of the effective date of the claim in August 1991, the Board notes that the monthly amount of disability compensation provided to veterans for a total disability rating is established by law. See 38 U.S.C.A. § 1114(j). These rates are periodically adjusted by Congress, usually on an annual basis. For example, the current version of 38 U.S.C.A. § 1114(j) provides that the monthly rate for total disability is $2,239, and Congress specifically provided that the current version of section 1114 providing the $2,239 monthly rate was to take effect on December 10, 2004. Pub. L. No. 108-454, § 307, 118 Stat. 3612 (Dec. 10, 2004). In previous years, Congress consistently specified effective dates for its amendments to section 1114. The legal criteria governing the payment of compensation benefits in this case are clear and specific and the Board is bound by them. See 38 U.S.C.A. §§ 502, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Although the appellant's attorney-representative argues that the "plain language" of 38 U.S.C.A. § 1114(j) requires payment at the dollar amount written into the version of the statute in effect at the time the November 2002 rating decision was issued, the Board notes that such argument has been specifically considered and rejected by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). Specifically, the Federal Circuit held that such an argument would be tantamount to reading the statute's incorporation of an explicit dollar amount as a waiver of sovereign immunity and as an expression of a willingness to compensate veterans disadvantaged by a [clear and unmistakable error] in real, rather than nominal, dollars. This argument fails because § 1114 does not address the issue of retroactive payments, much less provide a clear, explicit waiver of the government's sovereign immunity from interest payments accruing to retroactive payments. Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004). In Sandstrom as in this case, the veteran was awarded past due benefits. Also as in this case, the veteran in Sandstrom argued that VA had erroneously calculated the rate of his retroactive benefits during the time period in question (from 1969 to 1996) by applying the monthly rate in effect for 1969, then increasing the monthly amount due by the amount authorized by statute during that time period. The veteran in Sandstrom asserted that the amount should have been calculated according to the 1996 rate, so that the 1996 correction would have had the "same effect," pursuant to 38 U.S.C.A. § 5109A and 38 C.F.R. § 3.105(a), as if the decision had been made in 1969. The Federal Circuit rejected his arguments and held that VA's decision to pay in nominal dollars was legally correct. The Board finds that the facts in the instant case fall squarely within the holding of the Federal Circuit in Sandstrom. In conclusion, the Board notes that it is bound by the laws enacted by Congress. 38 U.S.C.A. § 7104(c) (West 2002). In this case, for the reasons set forth above, it is clear that the law passed by Congress does not provide a basis to award the benefit sought by the appellant. The appellant argues for a benefit that is not permitted under the law. He has cited to no authority to support his contentions other than his own conclusion as to how the statute should be interpreted. There is no legal merit to his argument and his claim is therefore denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (finding that where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). II. Entitlement to an effective date earlier than July 31, 1991, for the grant of a total rating based on individual unemployability due to service-connected disability A. VCAA In November 2000, the VCAA was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). VCAA includes an enhanced duty on the part of VA to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits and which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA. See 38 U.S.C.A. § 5103(a), (b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify By a November 2002 rating action, the RO granted the appellant's claim of entitlement to service connection for bipolar affective disorder and assigned a 70 percent disability rating, effective from July 31, 1991. In that same rating action, the RO also granted the appellant's claim of entitlement to a TDIU, effective from July 31, 1991. In November 2003, the appellant's attorney-representative, on behalf of the appellant, expressed timely disagreement with the effective date assigned for the grant of a TDIU, and initiated an appeal. It has been determined by VA's Office of the General Counsel that, when a claim is granted and the veteran submits a notice of disagreement as to a "downstream element" of such claim, such as the effective date or the rating percentage assigned, notice under 38 U.S.C.A. § 5103(a) is not required as to the secondary claim raised in the notice of disagreement. See VAOPGCPREC 8-03; 69 Fed. Reg. 25180 (2004). Instead, it was concluded that the RO's only obligation under such circumstances is to develop or review the claim and, if the disagreement remains unresolved, to issue a statement of the case. Id. Such was done with respect to the effective date claim on appeal in the present case. Thus, it is not necessary to scrutinize the quality of notice afforded the appellant, as notice was not required for this issue. Duty to Assist VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 C.F.R. § 3.159(c). In regard to the appellant's earlier effective date claim, the Board emphasizes that throughout this appeal, the appellant has argued that effective dates prior to July 31, 1991, for an award of a TDIU are warranted based on the evidence already of record. The appellant has not identified the existence of any additional evidence or argued that there are any developmental deficiencies in the current record. In this regard, in a statement from the appellant's attorney- representative, dated in December 2004, the appellant's representative specifically stated that no additional argument or evidence would be submitted on behalf of the appellant. There is no outstanding evidence to be obtained, either by VA or the appellant. The RO has obtained all relevant VA and private medical records identified by the appellant. In regard to the effective date claim, resolution of that claim turns on the Board's application of the relevant law and regulations governing effective dates for service connection to the evidence already associated with the claims file, in particular, the medical records showing treatment for the disability in question and the dates claims for compensation were received. See 38 C.F.R. § 3.400. In other words, there is no medical opinion that would affect adjudication of this claim. Therefore, based on the foregoing, all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim on appeal. Accordingly, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). B. Earlier effective date claim The appellant's attorney-representative maintains that the appellant is entitled to an effective date prior to July 31, 1991 for TDIU. Specifically, the appellant's representative contends that the effective date should be established from January 9, 1979, the date when the appellant had filed his original claim for service connection for "nerves/depression." A review of the appellant's adjudicative history shows that in January 1979, the appellant filed an original claim for "nerves/depression." By a June 1979 rating action, the RO denied the appellant's claim for service connection for a nervous condition. In a June 1979 letter from the RO to the appellant, the appellant was provided notice of the decision and of his appellate rights but did not file a notice of disagreement. Therefore, the June 1979 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2005). In a statement in support of claim (VA Form 21-4138), received by the RO on December 10, 1979, the appellant requested to "please refer to your letter to me dated May 8, 1979." The appellant stated that in March 1970, he was with the Army Security Agency stationed in Sinop, Turkey. According to the appellant, from there, he was transferred to the European Army Hospital at Wiesbaden, Germany, where he was treated for a mental condition. The appellant indicated that he was then recommended for a discharge because he was "unadaptable for the service." In August 1980, the appellant filed VA Form 21-526, Veteran's Application for Compensation or Pension. In the form, in regard to the nature of sickness, disease, or injuries for which that claim was made, the appellant noted "mental depression; mal adjustment; suicidal tendencies." In a letter from the RO to the appellant, dated in August 1980, the RO informed the appellant that he had been previously denied service connection for a nervous condition. According to the RO, the condition from which the appellant was suffering from was not an acquired one resulting from his military service, but was a personality condition from which service connection could not be established. The RO also noted that if his reopened claim was for nonservice-connected pension benefits, he needed to notify the RO and complete and return the enclosed VA Form 21-6897 showing his and his family's current income and net worth from all sources. The evidence of record is negative for a reply from the appellant. By a September 1980 rating action, the RO denied the appellant's claim for entitlement to nonservice-connected pension benefits. In addition, the RO addressed the appellant's "reopened claim" of entitlement to service connection for a nervous condition. In this regard, the RO apparently determined that there was new and material evidence regarding the appellant's claim for service connection for a nervous condition, reopened the claim, and denied the claim on the merits. However, although the evidence of record shows that the RO, in an October 1980 letter, notified the appellant that his claim for nonservice- connected pension benefits had been denied in the September 1980 rating action and provided his appellate rights, there is no evidence of record showing that the appellant was ever notified that his claim for service connection for a nervous condition had been reopened and denied on the merits in the September 1980 rating action or that he was provided his appellate rights with respect to that determination. As such, the September 1980 RO decision, which reopened the appellant's claim for service connection for a nervous condition and denied the claim on the merits, did not become final and the claim has remained open. In a letter from the appellant's attorney-representative, received by the RO on July 31, 1991, the appellant's attorney-representative filed an informal claim for a 100 percent disability rating for the appellant due to depression and associated symptoms. In a January 1992 decision letter, the RO denied the appellant's claim and the appellant subsequently filed a timely appeal. By an October 1994 decision, the Board remanded the appellant's claim for entitlement to service connection for dysthymic disorder and/or major depression. In an August 1995 decision, the Board then denied the aforementioned claim. The appellant appealed that decision to the Court, and in March 1997, the Court affirmed the Board's decision. Subsequently, the appellant sought review from the Court of Appeals for the Federal Circuit (Federal Circuit), and in a March 1998 decision, the Federal Circuit remanded this claim to the Court for reconsideration of the appellant's claim in light of Savage v. Gober, 10 Vet. App. 488 (1997). In a February 1999 remand decision, the Court found that Savage had no effect on the outcome of the appellant's appeal and reaffirmed the Board's disallowance of the appellant's claim. The appellant again sought review from the Federal Circuit and in August 2000, the Federal Circuit remanded this matter to the Court for reconsideration of the appellant's claim in light of Nolen v. Gober, 222 F.3d 1356 (2000). In August 2000, the Court vacated the Board's August 1995 decision and remanded the matter to the Board for clarification of the Board's reasons and bases for denial of the appellant's claim. By a July 2001 decision, the Board then remanded the appellant's claim for service connection for dysthymic disorder and/or major depression. In a November 2002 rating action, the RO granted the appellant's claim of entitlement to service connection for bipolar affective disorder. In the November 2002 rating action, the RO assigned a 70 percent disability rating, effective from July 31, 1991, for the appellant's service- connected bipolar affective disorder. In that same rating action, the RO also granted the appellant's claim of entitlement to a TDIU, effective from July 31, 1991. The appellant then filed a timely appeal regarding the issue of entitlement to an effective date prior to July 31, 1991 for TDIU. The appellant's only service-connected disability is bipolar affective disorder, and his TDIU was based on the evaluation for this disability. Therefore, as a matter of law, the effective date for the appellant's TDIU may not precede the date of service connection for his bipolar affective disorder. Under the circumstances, the Board will first determine the correct effective date for service connection for bipolar affective disorder, followed by a determination of the correct effective date for TDIU. The applicable law and regulations provide that the effective date of an evaluation and entitlement of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(q)(1)(ii). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2005). Any application for a benefit that is received after final disallowance of an earlier claim will be considered a reopened claim if accompanied by new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.160(e) (2005). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2005). As previously stated, in a June 1979 rating action, the RO denied the appellant's original claim for service connection for a nervous condition. By a June 1979 letter from the RO to the appellant, the appellant was provided notice of the decision and of his appellate rights but did not file a notice of disagreement. Therefore, the June 1979 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In a statement in support of claim, received by the RO on December 10, 1979, the appellant noted that during service, he was treated for a mental condition. The Board finds that the appellant's December 1979 statement constitutes an informal claim to reopen the previously denied claim for service connection for a nervous condition, given that a formal claim to reopen was received within one year of the December 1979 statement. See VA Form 21-526, Veteran's Application for Compensation or Pension, dated in August 1980. Thus, given the RO's final June 1979 denial, the appellant's claim for a psychiatric disability received in December 1979 was a "reopened" claim. See 38 C.F.R. § 3.160(e). In this regard, as stated above, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). In September 1980, the RO received private medical records, from May to August 1980. The records reflect that the appellant was hospitalized from May to June 1980. Upon his discharge, the diagnosis was alcoholism, episodic, excessive drinking. Subsequent VA and private medical records document treatment and hospitalization of the appellant on numerous occasions for drug and alcohol abuse, as well as for problems with depression. Records document treatment for dysthymia, depression, and anxiety, with the appellant reporting that he began drinking at an early age, first regularly using alcohol at age 14. A September 1988 VA group psychological assessment report, which included extensive psychological testing, noted that the appellant was hospitalized four years previously, with marked depression and frequent thoughts of suicide. The appellant's problems with his relationship with his father were emphasized. Clinical depression was viewed as the appellant's "most likely" diagnosis. Subsequent records record continued treatment for substance abuse and depression, with an October 1989 clinical record also noting rule-out bipolar disorder and personality disorder. A copy of an August 1990 Social Security Administration (SSA) decision granting the appellant benefits noted that the appellant had a long history of treatment for depression and substance abuse, beginning in 1977. In evaluating the credibility of the appellant's testimony, the SSA judge cited the appellant's significant medical treatment history, including multiple hospitalizations for the treatment of alcohol abuse and a personality disorder. The judge determined that the "severe impairments" which prevented the appellant from engaging in substantially gainful activity consisted of chronic alcoholism, a personality disorder, impingement of the C5-6, and bronchitis. In conformance with an October 1994 Board remand request, the appellant underwent a VA neuropsychiatric examination in December 1994. The appellant reported that he first began having problems in the service, and had been hospitalized approximately 30 times since 1971, 13 of these for detoxification. The impressions were of alcohol and cannabis abuse, continuous, dysthymic disorder, and personality disorder with features of borderline dependent and avoidant traits. The examiner opined that the appellant's dysthymic disorder appeared to be similar to the symptoms manifested in service. However, he believed it was exacerbated by his noncompliance with medication and treatment, and his substance abuse. The examiner felt the appellant's avowed "self-medicating" with alcohol was not valid based on the appellant's own reports, and did not believe that the appellant's alcohol use was closely related to his dysthymic disorder. In a January 1985 addendum to this examination report, the examiner specifically stated that the appellant's problems with substance abuse were not related to psychiatric symptoms evidenced during service, and that the appellant's mild dysthymic disorder was not related to psychiatric symptoms during service. By a July 2001 decision, the Board remanded the appellant's claim for entitlement to service connection for dysthymic disorder and/or major depression. In that decision, the Board noted that the opinions from the VA examiner who had conducted the appellant's December 1994 VA examination were inconsistent and, as such, the appellant should be afforded a VA examination in order to obtain a clarifying opinion regarding the etiology of the appellant's current psychiatric disorder. Thus, as per the Board's July 2001 remand decision, in September 2001, the appellant underwent a VA psychiatric examination. Following the mental status evaluation, the diagnoses were the following: (Axis I) (1) bipolar affective disorder, (2) history of being diagnosed with dysthymia and major depression, and (3) polysubstance abuse by history; in remission for two years, (Axis III) personality disorder, and (Axis V) adaptive functioning for the past year was from 50 to 60. The examiner stated that although the appellant might have been diagnosed with major depression and dysthymic disorder in the past, and with chronic polysubstance abuse, he might have some underlying problems with mood swings, even though he saw his doctors in the past mostly with the claim of depression. According to the examiner, the appellant's depression was more apparent when he was in the military and especially more so when discharged early for medical reasons. The examiner noted that the appellant attempted to medicate himself with the increasing use of alcohol and drugs to the extent of giving him more problems, including incarcerations for driving under the influence charges, disorderly conduct, and public drunkenness. According to the examiner, it could be argued that alcohol and drugs could manifest episodes of highs and lows, like those in bipolar affective disorder, and even with perception distortion. Subsequent to the September 2001 VA psychiatric examination, the RO determined that the September 2001 examination report was inadequate. Thus, on February 27, 2002, the examiner from the appellant's September 2001 VA psychiatric examination provided an addendum to the September 2001 examination report. In the addendum, the examiner concluded that the appellant's past symptomatologies, as shown in his medical records, had "some relations" to his current diagnosis of bipolar affective disorder. In September 2002, the appellant underwent a second VA psychiatric examination in September 2002. Following the mental status evaluation, the diagnoses were the following: (Axis I) (1) bipolar affective disorder, mixed, (2) alcohol dependence in five month remission, and (Axis V) Global Assessment of Functioning (GAF) score of 45 to 55. The examiner stated that the appellant was significantly depressed while he was in the military in light of the fact that he was treated with antidepressants after a suicidal gesture and that there was documentation that the appellant felt dysfunctional. According to the examiner, that the appellant's life had remained marked by depression and mood swings, which was not an opinion but a historical fact, and that he had been on medications and even after sobriety and abstinence, his condition of mood disorder was persistent and significant enough for him to have 18 hospitalization discharge notes since January 1995. In addition, of those 18 hospitalization discharge notes, the appellant had diagnosis of major depression and bipolar and only two dysthymic diagnosis given by the same physician, who later changed his diagnosis for the first time to bipolar disorder after a manic episode in 1996. Thus, the examiner opined that the appellant was depressed in the military and he was just given another "title," but his symptoms were likely the result of his bipolar depressed illness. As previously stated, the September 1980 RO decision, which reopened the appellant's claim for service connection for a nervous condition and denied the claim on the merits, did not become final and the claim has remained open. Thus, in light of the above, and given the RO's final June 1979 denial, the date of receipt of the appellant's claim is December 10, 1979, the date the RO received the appellant's informal claim to reopen the previously denied claim for service connection for a nervous condition. However, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r) (emphasis added). In this regard, service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In such instances, a grant of service connection is warranted only when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). If a psychosis is manifest to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). In his case, the first definitive evidence of record showing that the appellant's psychiatric disability, diagnosed as bipolar affective disorder, was attributable to the appellant's active military service was in the February 27, 2002 addendum to the September 2001 VA psychiatric examination report, where the examiner specifically opined that the appellant's past symptomatologies as shown in his medical records had some relationship to his current diagnosis of bipolar affective disorder. Thus, the date of receipt of the appellant's reopened claim is December 10, 1979, and the February 27, 2002 addendum to the September 2001 VA psychiatric examination is the date when the evidence of record first showed that the appellant's psychiatric disability, diagnosed as bipolar affective disorder, was attributable to his period of active military service. Therefore, the Board finds that the "date entitlement arose" is the later of the two dates and February 27, 2002, is the appropriate effective date. 38 C.F.R. § 3.400(r). However, the RO has assigned a date of July 31, 1991, for the effective date for the grant of service connection for bipolar affective disorder. As such, the RO has assigned an effective date that benefited the appellant beyond the technical requirements of the law. With regard to the effective date for TDIU, the Board again points out that the RO's grant of TDIU was based on its grant of service connection for bipolar affective disorder, which is the appellant's only service-connected disability. In this regard, in a letter from the appellant's attorney- representative, received by the RO on July 31, 1991, the appellant's attorney-representative filed an informal claim for a 100 percent disability rating for the appellant due to depression and associated symptoms which, in essence, was a claim to reopen the appellant's claim for entitlement to service connection for a psychiatric disorder and a claim for TDIU. At that time, service connection was not in effect for any disease or injury. It was not until the RO granted service connection for bipolar affective disorder and assigned a 70 percent disability rating were the criteria for TDIU at 38 C.F.R. § 4.16(a) satisfied. In other words, the TDIU issue was inchoate and remained as an underlying issue until a final decision on the question of service connection was issued. See In the Matter of the Fee Agreement of Mason, 13 Vet. App. 79, 87 (1999). As previously stated, under the circumstances, as a matter of law, the effective date for the appellant's TDIU may not precede the date of service connection for his bipolar affective disorder. In addition, also as previously stated, although the correct effective date for service connection for bipolar affective disorder is February 27, 2002, the RO has assigned a date of July 31, 1991 for the effective date for the grant of service connection for bipolar affective disorder. Accordingly, the Board finds that there is no basis upon which to grant entitlement to an effective date prior to July 31, 1991 for TDIU, and the claim must be denied. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a higher monthly compensation rate for a total disability rating based on individual unemployability due to service-connected disability beginning August 1, 1991, is denied. Entitlement to an effective date prior to July 31, 1991 for TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs