Citation Nr: 1306543 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-39 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a temporary total disability rating due to the effect of a nonservice-connected condition (pregnancy) on service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 2003 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. Based on the evidence of record, the Board has restyled the issue on appeal to better reflect the matter. In September 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is service connected for numerous disabilities, to include residuals of closed right fibula fracture with residual pain, scars of both legs, and post surgical abdominal scar, due to a shrapnel injury in service in 2005. The clinical evidence of record reflects that the Veteran was pregnant from August 2009 through April [redacted], 2010. She contends that she is entitled to a total temporary disability rating during her pregnancy, and until six weeks after childbirth. An August 14, 2009 VA nurse practitioner clinical record reflects that the Veteran "had swelling in her legs with her first pregnancy [which was in 2005 and 2006], worse on the [right], the leg which sustained injuries in the service, and was put on 4 hour days with her office job. She currently parks cars/works valet at [St. V.] hospital. It is my opinion that when the swelling begins in her legs during the course of pregnancy, she will be unable to work as it would threaten her and the fetus' well being." An August 27, 2009 VA nurse practitioner clinical record reflects that the Veteran reported pain in the legs, worse at night after working all day on feet, but had not noticed swelling yet. A September 4, 2009 VA nurse practitioner clinical record reflects that the Veteran had mild right leg edema. The nurse practitioner noted that she completed the forms for restriction at work. It was noted that the Veteran worked as a valet on her feet 8 to 10 hours a day. The restriction was no standing for more than 15 minutes with no lifting greater than 10 pounds, no pushing or pulling. A September 10, 2009 VA primary care record reflects that the clinician had received Family and Medical Leave Act (FMLA) forms for the Veteran. It was further noted that the Veteran's "pregnancy exacerbating a service connected condition. Exposed to explosion and fractured [right leg June 2005]. Has swelling in [right] leg aggrevated [sic] by pregnancy. Not able to perform job functions as valet [sic] i.e. not able to run, stand [greater than 15 minutes], push, pull, left [greater than 10 lbs]. Anticipate off work as valet [sic] 9/11/09 through 4-6 weeks after delivery." Correspondence received by VA in September 2009 from nurse practitioner P.C. states as follows: I have placed my patient, [the Veteran], on light duty effective September 11, 2009 until 6 weeks after the birth of her child. This is due to her service connected injuries and the complications and difficulties that these injuries have caused my patient. This is to protect both my patient's health and her unborn baby's health. A January 28, 2010 registered nurse women's health telephone record reflects that the Veteran reported that her pregnancy was progressing well without complications. Correspondence (in the form of an electronic record) dated in September 2010 from VA nurse practitioner P.C. reflects the opinion of the nurse practitioner, based on her findings and the Veteran's clinical history, that "it is more likely than not that the veteran's service connected conditions of retained shrapnel and neurovascular injuries are aggrevated [sic] her pregnancy. I base this on the fact that during her first pregnancy in 2006, her pain and leg swelling (worse in injured right leg) were aggrevated [sic] by her pregnancy. She was not able to perform her duties as parking valet [sic] due to these conditions. It is felt with a reasonable degree of medical certainty that [the Veteran's] pregnancy in this case would have been critically agrevated [sic] by her retained shrapnel and prior injuries, and due to these complications, must require her to be placed on convalescence to protect her life and her unborn child at the time." The Board notes that subsequent to the Veteran's first pregnancy, and prior to her second pregnancy, the shrapnel was removed from her forelegs. (See December 2007 VA clinical record.) The Veteran testified that she was seen by Dr. B at Flower Hospital, who provided most of her treatment during her pregnancy. She stated that she was placed on bed rest in August 2009. (The Veteran has also submitted a statement that she was placed on light duty/bed rest; however, the Board finds that the two terms are not synonymous.) She testified that she was placed on bed rest and had a cesarean performed due to the shrapnel which was retained in her body, to include in her abdomen. The Board has considered various regulations to determine if the Veteran is entitled to a temporary total disability rating during her pregnancy, from approximately September 11, 2009 until approximately May 21, 2010 (six weeks after the April [redacted], 2010 birth of her child.) 38 C.F.R. § 4.29 is not applicable because the Veteran was not hospitalized for a period in excess of 21 days. 38 C.F.R. § 4.30 is not applicable because the Veteran did not have surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast, without surgery. 38 C.F.R. § 4.16 (a) is also not applicable. The Veteran's numerous service connected disabilities have a combined evaluation of 50 percent, with no single disability having a rating in excess of 10 percent. The Board acknowledges that disabilities resulting from common etiology or a single accident (e.g. mortar explosion) will be considered as one disability. Even with consideration of this, the Veteran does not have a single disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent. Thus, she does not met the criteria for consideration of TDIU under 38 C.F.R. § 4.16 (a). The Board has also considered whether the Veteran's claim should be referred to the Director of VA's Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). 38 C.F.R. § 4.16(b) permits the award of a total disability rating based on a temporary inability to follow a substantially gainful occupation; however, an inability to work for temporary periods does not necessarily establish an inability to follow a substantially gainful occupation for purposes of VA regulations. In determining whether an individual is unable to follow a substantially gainful occupation, VA must consider a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. See VAOPGCPREC 5-2005. Under 38 C.F.R. § 3.340(a)(1), total ratings will not be assigned, generally, for temporary exacerbations or acute infectious disease except where specifically prescribed by the schedule. Not every period of inability to work establishes an inability to pursue a substantially gainful occupation. As noted in VAOPGCPREC 5-2005, in view of the availability of medical leave, leaves of absence, and other routine accommodations for periods of incapacity, it is reasonable to conclude that some periods of incapacity or time lost from work would not preclude a veteran from securing or maintaining substantially gainful employment. Based on the foregoing, the Board finds that VA should attempt to obtain the Veteran's OBGYN (obstetrics and gynecology) records. Although there are VA nurse practitioner records in evidence, the Veteran has indicated that the majority of her pregnancy was under the care of Dr. B at Flower Hospital. Such records may indicate the severity and length of any exacerbation of service-connected disabilities, or the need for light duty or bed rest. Thereafter, the Director of the Compensation and Pension Service should consider whether the Veteran is entitled to a temporary total disability rating under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom she received treatment for her pregnancy in 2009 and 2010, to include Dr. B. at Flower Hospital, and to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records, to include VA records, and associate them with the claims file. 2. Thereafter, refer the issue of whether the Veteran is entitled to TDIU on temporary basis under 4.16(b) to the Director of VA's Compensation and Pension Service. 3. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran, and her representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant 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. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).