Citation Nr: 1622990 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 13-03 569A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center in Decatur, Georgia THE ISSUE Entitlement to clothing allowance for 2012 and 2013. [The issue of entitlement to a compensable rating for tinea pedis and onychomycosis and entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) will be a addressed in a separate decision]. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1979 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 decision of the Decatur, Georgia VA Medical Center (VAMC). FINDING OF FACT The medications the Veteran takes for his service-connected skin disabilities, including those taken in 2012 and 2013, have not been certified to irreparably damage his outer garments. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance have not been met. 38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's service connected disabilities include posttraumatic stress disorder (PTSD), GERD, pseudofolliculitis barbae (PB), right wrist tendonitis, tinnitus, bilateral hearing loss, tinea pedis and onychomycosis, and erectile dysfunction. He has perfected two appeals for entitlement to clothing allowance; one appeal is based on an initial claim filed in February 2012 and the other is based on an initial claim filed in June 2013. As clothing allowances are awarded on an annual basis, the initial appeal pertains to whether award of a clothing allowance is warranted for 2012 and the second appeal pertains to whether award of a clothing allowance is warranted for 2013. See 38 C.F.R. § 3.810(a). Both of the Veteran's claims on appeal are based on his assertion that the medication that has been prescribed for his skin disabilities damages/stains his clothing. According to his claims, these medications include miconazole cream, urea cream, capsaicin cream, betnovate cream (i.e. betamethasone valerate), hydrocortisone cream, clindamycin phosphate, tretinoin, and an additional compound skin cream. In pertinent part, a clothing allowance is authorized if the Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for a skin condition which is due to a service-connected disability and that medication causes irreparable damage to the veteran's outer garments. See 38 C.F.R. § 3.810(a)(1)(ii). Certain clothing allowance claims require a determination by a Veteran's Health Administration (VHA) Prosthetic Representative or designated physician when a review of the record is necessary. In all cases where a review is determined to be necessary, the Prosthetic Representative, and/or designated physician, must determine that: (1) Use of the device or skin medication is medically prescribed; and (2) In the case of a device, such device qualifies as a prosthetic or orthopedic appliance; (3) The device or skin medication tends to wear out, tear, or cause irreparable damage to the veteran's clothing; and (4) The veteran actually uses the device or skin medication with sufficient consistency to wear out, tear, or cause irreparable damage to clothing. See VHA Handbook 1173.15 sec. 3(b)(c). Regarding the skin creams prescribed for the Veteran's service connected skin disability (i.e. tinea pedis, onychomycosis and pseudofolliculitis barbae), VAMC prosthetics representatives affirmatively found in January 2013 and September 2013 statements of the case that these creams do not cause irreparable damage to clothing, citing the findings of the VHA Pharmacy and Prosthetic Workgroup. See VHA Handbook 1173.15 sec. 8(c), which lists skin medications that VHA has determined cause permanent (i.e. irreparable) damage to clothing and skin medications that VHA has determined do not cause such damage. Thus, the prosthetics representatives (i.e. designees of the VA Under-Secretary of Health) did not certify that any of the Veteran's prescribed skin medications have caused such damage. Consequently, as a matter of law, the Board has no basis for awarding a clothing allowance for either 2012 or 2013 based on the Veteran's use of any of the above mentioned skin medications. 38 C.F.R. § 3.810(a)(1)(ii)(B). The Veteran did submit information from drugs.com indicating that capsaicin cream "may stain clothes or bedding." However, the advisement from this source also says that because of this potential staining, one should "allow capsaicin to dry before (it comes in) contact with clothing or any other surface." See http://www.drugs.com/cdi/capsaicin-menthol-methyl-salicylate-lotion.html. Thus, it appears that VHA had a reasonable basis for concluding that this medication will not irreparably damage clothing when allowed to dry properly. The Veteran has also noted that the September 2013 statement of the case (SOC) did not specifically address the betnovate (betamethasone valerate) cream that he uses to treat his PB and that the January 2013 SOC did not address miconazole nitrate, which he has also used for skin problems. However, the SOCs generally noted that all associated documents and the Veteran's profile were reviewed. The SOCs then generally concluded that the currently prescribed medications did not contain ingredients that caused irreparable damage to outer garments. Given that the basis for denial of clothing allowance for betnovate and miconazole nitrate is the same as that for the other listed medications; given that betnovate (betamethasone valerate) and miconazole nitrate are not among VHA's list of medications that may stain or damage clothing (See VHA Handbook 1173.15 sec. 8(c)); and given the absence of any indication (or assertion by the Veteran) that the Under Secretary for Health or a designee (e.g. prosthetics representative) has certified that use of the betnovate, miconazole nitrate or any other medication prescribed by a physician for his service-connected skin disabilities causes irreparable damage to the Veteran's outer garments, the Board finds that the denial of the clothing allowances in the SOCs is sufficiently detailed despite betnovate and miconazole nitrate not being listed as among the Veteran's skin medications. See 38 C.F.R. § 19.29. The Board sympathizes with the challenges the Veteran faces in dealing with his numerous disabilities, including those of the skin, and the challenge of applying his topical skin medications in a way that minimizes the amount that gets on his clothing. However, it must follow the controlling regulations. These regulations simply do not allow for an award of a clothing allowance in relation to skin medicine use in the absence of the appropriate certification from the Under Secretary for Health or a designee (e.g. a VAMC Prosthetics Representative or Prosthetics Chief) that such medication results in irreparable damage to outer garments. As such a certification has not been provided in this case, the Board does not have a basis for awarding entitlement to clothing allowance. 38 C.F.R. § 3.810(a)(1)(ii). II. Due Process VA generally has a duty to notify and assist claimants in substantiating claims for VA benefits under the Veterans Claims Assistance Act (VCAA). See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, the provisions of the VCAA are not applicable to this claim on appeal because it turns on a matter of law (i.e. that the Veteran is precluded from receiving a clothing allowance without receipt of the appropriate certification from the VA Undersecretary or designee) and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). Therefore the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. ORDER Entitlement to clothing allowance for 2012 and 2013 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs