Citation Nr: 1414040 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-05 424A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Temple, Texas THE ISSUE Entitlement to an annual clothing allowance pursuant to 38 C.F.R. § 3.810. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1981 to July 1987 and again from January 1988 to December 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in Temple, Texas. The Veteran had a hearing before the Board in December 2011 and the transcript is of record. FINDINGS OF FACT 1. The Veteran's service connected disabilities include bilateral knee and lumbar spine disabilities. 2. The Veteran was prescribed bilateral knee braces and a lumbar brace in October 2009, December 2009, and again in August 2010. 3. While the VA physician opined that the Veteran's bracing devices do not tend to wear and tear clothing, the Veteran demonstrated actual wear and tear of clothing at his hearing before the Board in December 2011. CONCLUSION OF LAW The requirements for eligibility for a clothing allowance have been met. 38 U.S.C.A. §§ 1162, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.810 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, since the benefit sought is being granted in full, any deficiencies in notice or assistance are considered non-prejudicial. Clothing Allowance Under VA laws and regulations, an annual clothing allowance as specified in 38 U.S.C.A. § 1162 is payable when the Chief Medical Director or designee certifies that because of a service-connected disability a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the Veteran's clothing, or that because of use of a physician prescribed medication for a skin condition which is due to a service-connected disability produces irreparable damage to the Veteran's outer garments. 38 C.F.R. § 3.810(a)(2). The Veteran asserts that braces supplied by VA for his service connected lumbar spine and bilateral knee disabilities result in wear on his clothing, thereby warranting entitlement to a clothing allowance under the provisions set forth above. The Veteran is service-connected for lumbar and bilateral knee disabilities. In October 2009, the Veteran was prescribed knee sleeves, no hinges, and a lumbar corset. Shortly thereafter, in December 2009, the Veteran was prescribed bilateral hinged knee sleeves for joint stabilization and pain management. An August 2010 VAMC note indicates the Veteran's clothing allowance request was evaluated and the physician opined "bracing devices does not tend to wear and tear clothing." In contrast, the Veteran testified before the Board in December 2011 that within four to five months of using the braces, the metal hinges tore through the fabric and caused damage to his clothing. Even before the metal hinges tore through, moreover, the Veteran claims the braces caused excessive wearing of his clothes. At the time of the hearing, the Board observed the knee braces and indeed the hinges metal apparatuses, which were covered by fabric, were torn through with metal sticking through the fabric. The Veteran testified that the knee braces cause excessive wearing and holes on his pants. Similarly, the back brace was observed to contain four metal vertical bars, each of them sliding in and out of the brace easily. The Veteran claimed that the metal bars on the back brace rub against his shirt and cause holes and excessive wearing. While the Veteran had his braces replaced, he testified that the metal hinges inevitably pop through the fabric of the brace after a few months. Although the VA physician noted that the Veteran's braces do not "tend" to cause wear and tear to clothing, the Veteran clearly demonstrated actual wear and tear to his clothing due to his VA prescribed knee and back braces during his hearing before the Board. At the very least, the Board finds the evidence in relative equipoise and, thus, the Veteran is entitled to the benefit of the doubt. In light of the above, the Board concludes an annual clothing allowance is warranted. ORDER Entitlement to an annual clothing allowance pursuant to 38 C.F.R. § 3.810 is granted subject to the laws and regulations governing monetary awards. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs