BVA9503210 DOCKET NO. 93-04 527 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to accrued benefits based on the veteran's claim for an increased rating for bipolar disorder. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Ripley P. Schoenberger, Counsel INTRODUCTION The veteran served on active duty from December 1983 to July 1985. This appeal originally arose from a January 1990 decision by the RO. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran's widow, maintains that the veteran suffered from substance abuse because of his service connected psychiatric disorder; thus, his death was due to a service- connected disability. She also maintains that at the time of the veteran's death, his psychiatric disorder was worse than the current 50 percent evaluation. She maintains that 100 percent evaluations should be assigned for periods of hospitalization from 1987 to 1989 because the veteran was hospitalized because of a service-connected disability. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence favors the claim for accrued benefits. FINDINGS OF FACT 1. The veteran was hospitalized from mid April to late May 1987, from mid September to late October 1987, and from mid November to mid December 1987, from late October to late November 1988, and from early November to early December 1989, because of a service- connected bipolar disorder. 2. While hospitalized it was reported that he was unemployed, and at discharge, on all five occasions, it was felt that he was incapable of handling his funds, and his Global Assessment of Functioning was reported as poor. CONCLUSION OF LAW The criteria for a 100 percent evaluation for accrued benefits based on a claim for an increased rating for bipolar disorder have been met. 38 U.S.C.A. §§ 1155, 5107, 5121, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.1000, 4.7, 4.132, Diagnostic Code 9206 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Historical By a rating decision of January 1990, based on a Board decision, the RO granted service connection for a bipolar disorder and assigned a 10 percent evaluation. In March 1990, the veteran filed a claim for increased compensation benefits and submitted into the record copies of several hospital reports. The hospital reports show that the veteran was hospitalized six times from late 1986 through late 1989. The veteran was hospitalized from mid April to late May 1987. It was reported that he was unemployed, presented very poor judgment, and had ideas of harming himself. He had a history of suicide attempts, and he was hospitalized to prevent self harm. His urine was positive for cocaine and cannabis. While hospitalized he improved. At discharge it was felt that he was not competent to handle his funds, and the Axis V diagnosis (Global Assessment of Functioning Scale) was poor. The veteran was hospitalized from mid-September to mid-October 1987 because of aggressive behavior at home. He had been using drugs. He was unemployed. On admission he was not fully spontaneous, and he was admitted to the closed ward. With medication his condition improved. At discharge it was felt that he was unable to handle his funds, and the Axis V diagnosis was poor. The veteran was rehospitalized from mid-November through mid-December 1987 because he was anxious, depressed and was having suicidal ideas. It was reported that he was unemployed. His medication was adjusted. His response to treatment was slow and his participation in treatment and ward activities was passive. At discharge he was relevant, coherent, logical, oriented and not suicidal or homicidal. However, it was felt he was not competent to handle his funds and the Axis V diagnosis was poor. The veteran was hospitalized from late October to late November 1988 because of insomnia, restlessness, and ideas of self-harm. His medications were adjusted. At discharge he was not verbalizing ideas of self-harm. However, it was felt he was unable to handle funds or to engage in any gainful work or occupation, and the Axis V diagnosis was poor. The veteran was rehospitalized from early November to early December 1989 due to depression, insomnia, and aggressive impulses. He was cooperative, coherent, and relevant, but his affect and mood were depressed. He reported restless sleep, feelings of worthlessness, and decreased energy. He denied suicidal plans, but admitted to recurrent thoughts of harming aggressors and was fearful of losing control. He admitted to racing thoughts, flight of ideas and decreased concentration. He was oriented and his memory was intact, but his insight and judgment were clouded by thoughts and moods. While hospitalized he was given medication. He gradually improved and was to be discharged with medications and to be followed up at the day treatment center. It was reported that he was unable to handle his funds and the Axis V diagnosis was fair to poor. In a March 1990 Police Report it was stated that a resident saw the veteran inject himself with an intravenous drug. Afterwards, the veteran stated that he was feeling dizzy and he was taken for treatment at a Health Center. The veteran was pronounced dead on arrival. A toxicology report, performed in June 1990, stated that the cause of the veteran's death was probably accidental due to poisoning from cocaine, opiates and alcohol. The toxicology report showed that the veteran's blood was positive for morphine and codeine. The report stated that analgesic concentrations of morphine usually ran from .05 to .07. The morphine level in the veteran's blood was .56. By a rating decision of January 1991, the RO increased the evaluation for the veteran's service-connected psychiatric disorder to 50 percent, and granted a temporary 100 percent evaluation based on being hospitalized because of a service connected disability from November 1, 1989 to December 31, 1989. II. Accrued Benefits The Board finds that the claim for accrued benefits based on a claim for an increased rating at the time of the veteran's death is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran's claim for increased compensation benefits for the service-connected psychiatric disorder was plausible. With active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability, bipolar disorder is rated 100 percent disabling. With lesser symptomatology such as to produce severe impairment of social and industrial adaptability, bipolar disorder is rated 70 percent disabling. With considerable impairment of social and industrial adaptability, bipolar disorder is rated 50 percent disabling. 38 C.F.R. § 4.132, Diagnostic Code 9206. After a review of the claims folder, the Board is of the opinion that the appellant is entitled to accrued benefits. The hospital reports show that the veteran was hospitalized on at least one occasion each year from 1986 through 1989. Several of the hospital reports indicate that the veteran was unemployed, and the appellant has stated that the veteran did not work after his discharge from service. Moreover, it was reported that he was unable to handle his funds, and the rating on Axis V was poor. Consequently, the Board is of the opinion the evidence in this case presents a reasonable basis for concluding that the veteran was incapacitated due to his service-connected disorder to such a degree prior to his death that he was precluded from working at substantially gainful labor. Hence, the Board concludes that a total rating based on individual unemployability due to his service-connected disability is warranted. The Board has considered the appellant's claim that a 100 percent evaluation should be granted for each period of hospitalization from 1986 to 1989. The evidence does show that the veteran was hospitalized of several occasions because of his service connected psychiatric disorder. However, accrued benefits are only paid for one year prior to the veteran's death. 38 C.F.R. § 3.1000. Thus, accrued benefits cannot be paid for the periods of hospitalizations prior to March 1989. ORDER Accrued benefits based on an increased rating of 100 percent for bipolar disorder are granted, subject to the regulations controlling disbursement of monetary benefits. REMAND The evidence shows that during the periods of hospitalization from 1986 to 1989 the veteran was treated for substance abuse as well as his service connected psychiatric disorder. The record is unclear as to the etiology of the substance abuse. Consequently, additional development is necessary before the issue of service connection for the cause of the veteran's death is ready for appellate review. This issue is referred to the RO for the following: 1. A VA psychiatrist should review the claims folder and render an opinion as to the medical probability that the veteran's substance abuse, including his cocaine addiction, was the result of his service- connected psychiatric disorder. The opinion should be set out in detail and contain complete reasons and bases for the conclusions reached. 2. After the development requested above has been completed, the RO should again review the record. If the issue of entitlement to service connection for the cause of the veteran's death remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board for the purpose of appellate disposition, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).