Citation Nr: 0932496 Decision Date: 08/28/09 Archive Date: 09/04/09 DOCKET NO. 08-00 017A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to an annual clothing allowance. (Claims of entitlement to an initial evaluation in excess of 10 percent for frontal fibrosing alopecia and entitlement to an effective date prior to May 23, 2001, for frontal fibrosing alopecia are addressed in a separate appellate decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from April 1977 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the VAMC in Gainesville, Florida, that denied the Veteran's claim for an annual clothing allowance. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence reflects that the medication prescribed for service-connected alopecia does not cause irreparable damage to her outergarments. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance are not met. 38 U.S.C.A. § 1162 (West 2002 & Supp. 2009); 38 C.F.R. § 3.810 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). This fourth element for proper VCAA notice is no longer applicable for claims pending before VA on or after May 30, 2008. See Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008). In this case, the Veteran filed a claim seeking entitlement to an annual clothing allowance in August 2007. The U.S. Court of Appeals for Veterans Claims (Court) has held that, when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to- notify provisions of the VCAA are implicated. The Court has also recognized that enactment of the VCAA does not affect matters before it on appeal from the Board when the question is limited to statutory interpretation, as is the case here. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Factual Background and Legal Analysis The Veteran maintains that physician prescribed medication, to include Minoxidil and Desonide ointment, used to treat service-connected alopecia, stains and damages her clothing, warranting the grant of an annual clothing allowance. She also maintains that the skin disorder requires wearing hats and wigs, also warranting the grant of a clothing allowance. Under the applicable criteria, a veteran who has a service- connected disability is entitled, upon application therefore, to an annual clothing allowance as specified in 38 U.S.C.A. § 1162. The annual clothing allowance is payable in a lump sum, and the following eligibility criteria must also be satisfied: (1) a VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such disability; or (2) the Chief Medical Director or designee certifies that because of the use of a physician-prescribed medication for a skin condition which is due to the service-connected disability, irreparable damage is done to the veteran's outer garments. See 38 U.S.C.A. § 1162 (West 2002 & Supp. 2009); 38 C.F.R. § 3.810(a) (2008). The Veteran's service-connected conditions consist of status- post excision of a left breast mass, and frontal fibrosing alopecia. VA outpatient records and a VA examination report of August 2006 document that the Veteran's prescribed treatment regimen for alopecia includes the use of Minoxidil solution and Desonide ointment, twice daily, each. The file contains a medical opinion rendered in December 2007 by a prosthetic representative noting that the Veteran did not use any prosthetic appliances for her service-connected disorders. The reviewing official acknowledged that the Veteran used Minoxidil and ointment for treatment of her alopecia, but indicated that this was to be used on the scalp (as opposed to on the skin); thereby not causing wear and tear to clothing. The Board has reviewed the evidence of record pertaining to this claim, but unfortunately finds that the eligibility criteria for an annual clothing allowance have not been met. As firmly established, the Board acknowledges that the Veteran uses prescribed creams and ointments for treatment of her alopecia; she generally maintains that this causes damage to her clothing. While the Veteran is competent to provide statements to the effect that the medication she uses for treatment of alopecia damages her clothing, these statements must be weighed in conjunction with the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this regard, the Board is unable to locate any outpatient records, or any other evidence, documenting complaints of damaged clothing due to the use of any medications for alopecia. In addition, the August 2006 VA examination report fails to document any such complaints. Moreover, and significantly, the eligibility criteria pursuant to 38 C.F.R. § 3.810(a)(2) require that a VA physician, private physician, or the Chief Medical Director disclose that the orthopedic appliance or the prescribed medicines cause damage to clothing. Here, the Veteran's claim was forwarded for review by a designee of the Chief Medical Director, and the designee determined that the criteria were not satisfied. In addition, the Board observes that hats and wigs are unfortunately not considered "outergarments," as thus are not the type of clothing for which an annual clothing allowance is permitted due to the use of medication. See Short Bear v. Nicholson, 19 Vet. App. 341, 343-345 (2005). For the foregoing reasons, the claim for entitlement to an annual clothing allowance must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the only legally viable contentions in support of the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an annual clothing allowance is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs