Citation Nr: 0813594 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-17 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than November 24, 2003, for a 10 percent rating for bipolar affective disorder, to include whether there was clear and unmistakable error (CUE) in an April 1963 rating decision. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from June 1960 to June 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in March 2007 and was remanded for further development and for the RO's initial consideration of the veteran's claim of CUE in an April 1963 rating decision. The RO denied the CUE claim (as reflected in the October 2007 supplemental statement of the case) and returned this matter to the Board for appellate consideration. This is discussed in more detail below. A claim of CUE is related to a claim for an earlier effective date, and both issues are, therefore, before the Board. See Crippen v. Brown, 9 Vet. App. 413, 420 (1996) (noting that an appellant reasonably raised claim for CUE with the requisite specificity because he argued for an earlier effective date asserting that evidence compelling a grant of service connection was of record at the time of the prior final rating decisions), citing Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (noting that a claim for an earlier effective date was claim of CUE in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (stating that to be awarded earlier effective date, veteran must show CUE in RO decision disallowing higher rating). Accordingly, the issue on appeal has been recharacterized as indicated on the title page of this decision. The March 2007 Board remand also indicated that the veteran should be scheduled for a hearing before a Decision Review Officer (DRO). The record indicates that a letter to the veteran, dated in August 2007, notified him of a DRO hearing scheduled for October 11, 2007. A RO informal conference report, dated October 11, 2007, notes that an informal conference was held on that date and the veteran decided to withdraw his request for a DRO hearing. The veteran requested that his appeal be immediately returned to the Board. As such, the Board considers the veteran's request for a hearing to be withdrawn. The veteran also submitted additional evidence that was considered by the RO in the October 2007 supplemental statement of the case. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's March 2007 remand. See Dyment v. West, 13 Vet.App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. In an unappealed April 1963 rating decision, the RO granted service connection for schizophrenic reaction, schizo-effective type, and assigned a noncompensable rating effective June 12, 1962, the day following discharge from active service. 2. The April 1963 RO rating decision was reasonably supported by evidence then of record, and the evidence does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time such that the outcome of the claim would have been manifestly different but for the error. 3. There was no formal or informal claim for an increased rating prior to November 24, 2003, nor is it factually ascertainable that there was an increase in severity within the year preceding this date. CONCLUSIONS OF LAW 1. An April 1963 rating decision wherein the RO granted service connection for schizophrenic reaction, schizo- effective type, and assigned a noncompensable rating did not constitute CUE. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2007). 2. The criteria for an effective date, prior to November 24, 2003 for entitlement to a 10 percent rating for a service- connected bipolar affective disorder, have not been met. 38 U.S.C.A. §§ 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. VA satisfied its duty to notify by means of a June 2007 letter from the AOJ to the appellant. The letter informed the appellant of what evidence was required to substantiate the claim for an earlier effective date, and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit pertinent evidence and/or information in his possession to the AOJ. Additionally, the June 2007 letter informed the veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. After the notice was provided, the case was readjudicated and a supplemental statement of the case was provided to the veteran in October 2007. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. With regard to the CUE allegation, the Court has held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant was advised of the legal criteria pertinent to the issue of CUE in an October 2007 supplemental statement of the case, and there is no factual dispute to which development of the evidence would be pertinent. As there is no need to develop evidence, there is nothing of which to notify the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Additionally, the veteran has submitted his contentions in support the CUE claim. The record as a whole shows that VA has informed the appellant of the requirements of the law regarding his CUE claim. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service private and VA treatment and examination. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed his statements and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The Board notes that the veteran, in a VA Form 21-4142, Authorization and Consent to Release Information, stated that he had received treatment from a private physician, J.M., M.D. The record contains a response from Dr. J.M.'s office, received in August 2005, indicating that they did not have any records for the veteran. Additionally, the record contains a document with a handwritten note that is signed by veteran stating that Dr. J.M.'s records for the year 1996 could not be found and that they are presumed lost in a tornado. As such, the Board finds that further development is not necessary. See id. (finding that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Board notes that the veteran is aware that he can obtain and submit any relevant evidence in his possession. Based on the foregoing, the Board finds that 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 veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Relevant law and regulations Earlier effective date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 3.400(b)(2) (2007). The effective date with respect to an increase in disability evaluation will be date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o). However, 38 C.F.R. § 3.400(o)(2) provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date, otherwise the date of receipt of claim. A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2007). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r) (2007). Any communication or action, indicating 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 claims must identify the benefit sought. 38 C.F.R. § 3.155 (2007). Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However the provisions of 38 C.F.R. § 3.157(b)(1) state that such reports must relate to examination or treatment of a disability for which service-connection has previously been established or that the claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1) (2007). CUE Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error; it is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, e.g., Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence submitted by the veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (stating that the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An April 1963 rating decision granted the veteran service connection for his schizophrenic reaction, schizo-effective type at a noncompensable evaluation from June 12, 1962, the day following his separation from active service. A letter, dated May 10, 1963, notified of the veteran of the April 1963 rating decision and advised him of his ability to appeal such decision. The veteran did not appeal that decision, and it is final in the absence of CUE. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). The veteran requested entitlement to an increased rating for his service-connected bipolar affective disorder, which was received on November 24, 2003. An April 2004 rating decision increased the rating from noncompensable to 10 percent disabling effective November 24, 2003, the date of receipt of the claim. Then, the veteran filed a notice of disagreement as to the April 2004 rating decision that challenged the effective date, but not the disability evaluation. The Board will now consider the veteran's contention that the effective date for a 10 percent evaluation award should precede November 24, 2003, the date presently assigned. As previously noted, the effective date with respect to an increase in disability evaluation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o) (2007). An exception is provided in 38 C.F.R. § 3.400(o)(2), which states that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date, otherwise the date of receipt of claim. Under 38 C.F.R. § 3.400(o)(2), it is necessary to determine whether, sometime from November 24, 2002 through November 23, 2003 an increase in the veteran's bipolar affective disorder became factually ascertainable. However, in this case, there is no evidence of record indicating that an increase in the level of disability occurred during the year prior to the claim. In March 2004, the VA examiner opined that the veteran was doing well with only mild symptoms and only occasional episodes of mild depression or hypomanic behavior. It was noted that the veteran, at times, has some mild symptoms which may decrease his ability to work and perform his occupational tasks, but such symptoms are generally well- controlled with medication. The examination report indicated that the veteran was working as a truck driver. The VA examiner did not attribute any increase in the veteran's service-connected disability to the year prior to the claim. Private medical records in this period indicate treatment for prostate cancer, but do not reflect an ascertainable increase in the veteran's service-connected mental disability. See Private treatment records from B.K.G., M.D., dated from 2001 to 2004. There must be some evidence showing that the disability had increased in severity within the prior year and warranted a higher rating. In this case, there is none. Further, the veteran does not contend that the disability increased in severity during that year; he contends it occurred years earlier. Thus, an increase in his disability was not factually ascertainable within the year prior to the November 24, 2003 claim date. As the exception provided in 38 C.F.R. § 3.400(o)(2) is thus inapplicable, the standard remains that of a comparison between the date of receipt of claim or the date entitlement arose, with the later of the two serving as the effective date. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o); see also VAOGCPREC 12-98. Thus, the November 24, 2003 date of claim is the appropriate effective date here, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400(o). There remains one possible means by which the veteran could be awarded an earlier effective date for a compensable rating as to his service-connected bipolar affective disorder. Specifically, if, as the veteran argues, there is a showing of CUE with respect to the unappealed April 1963 rating decision wherein the RO initially assigned a noncompensable rating upon granting service connection, then that determination would cease to be final and a claim date retroactive to April 1963 (the date of his original claim) could be applied. See September 2004 Notice of Disagreement, June 2005 statement in support of his claim (reflecting the veteran's contention that his 10 percent disability rating should start in June 1962); see also August 2007 statement in support of his claim (contending that the 1963 hospital stay was not long enough to properly diagnosis bipolar disorder and that an interview with a VA psychiatrist lasted only two minutes and was not long enough to draw any conclusions about his condition). Thus, it is necessary to revisit the April 1963 rating decision. At that time, the rating decision had the veteran's disability evaluated under Diagnostic Code 9205. This diagnostic code was used to designate schizophrenic reaction, other, under psychotic disorders. At that time, the schizophrenic reaction was rated under the General Rating Formula for Psychotic Reactions. This rating schedule provided a noncompensable rating for psychosis in full remission. A 10 percent rating was warranted for slight impairment of social and industrial adaptability. A 30 percent rating was warranted for definite impairment of social and industrial adaptability. The April 1963 rating decision was primarily based on a VA neuropsychiatric examination conducted in August 1962 and a VA narrative summary, dated in March 1963, of an inpatient admission of the veteran due his service-connected disability for observation and evaluation. The August 1962 VA neuropsychiatric evaluation report indicated that the veteran complained of worrying about jobs, sleeping trouble, having no appetite, and being extremely nervous. It was noted that the veteran denied hallucinations or delusions, but he admitted to being very depressed. The VA examiner found the veteran's judgment to be impaired and his concentration and attention to be very short. It was noted that some of the veteran's statements were contradictory. As an example, the examiner noted that the veteran initially stated that he could not sleep, but he later stated that he was sleeping wonderfully. It was further noted that the veteran's memory was normal and this sensorium was clear. Socially, the veteran was living with his parents. It was noted that the veteran got along fine with his parents and friends. Occupationally, the examination report reflects that the veteran was working as a farm laborer since his discharge from the military. The diagnosis was manic depressive reaction, manic type, active. It was noted that the degree of psychiatric impairment was moderate, at that time. The March 1963 VA narrative summary indicates that the veteran was admitted on March 12, 1963 for observation and evaluation regarding a pension due to his service-connected disability. It was noted that the veteran was not under the care of any physician and he was not receiving any medications. Mental status examination revealed the veteran's speech to be logical and goal directed, although he spoke somewhat slowly at times. It was noted that the veteran appeared anxious as he shifted often in his chair. His affect was noted as somewhat bland, but generally appropriate. The veteran was oriented to time, place, and person and no delusion or hallucinations were elicited. The veteran's attention and concentration were within normal limits and his memory (remote and recent) was good. The narrative summary indicated that the veteran's judgment and reasoning were not impaired and his thinking tended to be somewhat concrete. Occupationally, it was noted that the veteran worked as a farm laborer until about three weeks prior to admission when he took a job working in a chemical plant. The narrative summary further reflects that the veteran understood that he was to come in for only one day, but upon learning that it was for a period of observation and evaluation, the veteran requested discharge so that he might return to work. It was indicated that the veteran was discharged on March 14, 1963, and returned to work. The diagnosis was schizophrenic reaction, schizo-affective type, in complete remission. The physician's clinical impression included a good prognosis and that the veteran was to return to work. The RO held that, based on the above facts, the evidence did not establish that the veteran's bipolar affective disorder met the criteria for a compensable evaluation. After reviewing the diagnostic codes in effect in 1963, the Board finds that Diagnostic Code 9205 for schizophrenic reaction and the General Rating Formula for Psychotic Reaction is the most comparable to the veteran's disability. One means of establishing CUE is to demonstrate that the correct facts, as they were known at the time, were not before the adjudicator at the time of the final decision being challenged. See Russell, 3 Vet. App. at 313-14. However, upon review of the evidence then of record in 1963, it can be seen that the RO correctly stated the facts pertinent to the veteran's claim. Thus, one basis for a finding of CUE has been eliminated here. Another means by which to establish CUE is to demonstrate that the adjudicator incorrectly applied the statutory or regulatory provisions extant at the time. See id. at 313. Moreover, such misapplication must result in an error that is undebatable, such that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. In essence, then, in order for the veteran to prevail in his contention of CUE, he must demonstrate that the evidence of record at the time of the earlier decision could have resulted in only one possible conclusion, namely, that he was entitled to a 10 percent (or greater) evaluation for his bipolar affective disorder. As stated above, the evidence before the RO in 1963 did not necessitate the finding that the veteran's service-connected mental disorder warranted a compensable rating. Again, a 10 percent rating was warranted for slight impairment of social and industrial adaptability and 30 percent rating was warranted for definite impairment of social and industrial adaptability. See Schedule for Rating Disabilities 1945, Loose Leaf Edition-1957, Transmittal Sheet 6, 123-R (effective Oct. 1, 1961). In this case, the veteran's schizophrenic reaction was diagnosed as being in complete remission. See 1963 VA narrative summary. Further, and in contradiction to the veteran's August 2007 statement in support of his claim, the 1963 VA narrative summary noted that the veteran requested to be discharged in order to return to work. The August 1962 VA examination report indicated that the veteran got along well with his parents and friends. Thus, a noncompensable rating under Diagnostic Code 9205 is consistent with the evidence then of record. The Board acknowledges that the veteran was found to have active manic depressive reaction by the 1962 VA examiner. The Board also acknowledges the 1962 VA examiner's finding that the veteran had short attention and concentration spans. Thus, one could argue, as the veteran does, that such findings suggest that he should have had a compensable rating since 1962. The Board agrees that the evidence does suggest such relationship is possible. However, for a CUE claim to be successful, it is not enough that the evidence suggests that another outcome was possible. Rather, the evidence of record must demand that the only possible outcome was a grant of the benefit sought by the veteran. The Board concludes that the April 1963 rating decision does not include the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the alleged error, and there is no basis upon which to find clear and unmistakable error in this decision. The evidence of record in 1963 did not require a finding of a compensable rating. Indeed, based on the evidence of record, including the 1962 VA examination report and 1963 VA narrative summary, the RO's denial of a compensable rating is logical and permissible. The Board acknowledges the veteran's contentions in the August 2007 statement in support of his claim that the 1963 hospital stay was not long enough to properly diagnosis bipolar disorder and that an interview with a VA psychiatrist lasted only two minutes and was not long enough to draw any conclusions about his condition. In this regard, the Board notes that failure to fulfill the duty to assist and a disagreement as to how the facts were weighed or evaluated are not examples of CUE. The Board also notes that the veteran submitted an internet article about bipolar disorder. However, the Board notes that the veteran's cited article is too general in nature to provide, in and of itself, the necessary evidence to demonstrate that the veteran's service- connected disability warranted a compensable evaluation prior to November 24, 2003. See, e.g., Sacks v. West, 11 Vet. App. 314, 316-17 (1998). For the foregoing reasons, the Board finds that the April 1963 rating decision is valid and remains final. 38 U.S.C.A. § 7105 (West 2002). This being the case, the earliest possible effective date permitted for an increased evaluation of his service-connected bipolar affective disorder is November 24, 2003, the date of receipt of the veteran's request for an increase in his service-connected disability after the last final RO denial in April 1963. As this is the effective date presently assigned for the 10 percent rating, the veteran's claim of entitlement to an earlier date must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an effective date earlier than November 24, 2003 for a 10 percent rating for bipolar affective disorder, to include whether there was CUE in an April 1963 rating decision, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs