Citation Nr: 9906183 Decision Date: 03/05/99 Archive Date: 03/11/99 DOCKET NO. 97-19 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to retroactive payment for clothing allowance benefits pursuant to 38 U.S.C.A. § 1162 (West 1991); 38 C.F.R. § 3.810 (1998). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from October 1964 to October 1967, and from February 1970 to January 1973. Intially, the Board of Veterans' Appeals (Board) notes that in response to the regional office (RO)'s May 1998 denial of entitlement to an effective date earlier than February 1, 1993 for the grant of service connection for post-traumatic stress disorder (PTSD) with an evaluation of 100 percent, the veteran submitted a Department of Veterans Affairs (VA) Form 1-9 that same month, which may be construed as a notice of disagreement with the RO's decision of May 1998. Thereafter, the RO issued a statement of the case as to this issue in September 1998, and the record does not reflect that the veteran filed a substantive appeal as to this issue. Consequently, the Board finds that this issue is not a proper subject for current appellate review. Parenthetically, the Board notes that although consideration was given to the possibility of utilizing the earlier VA Form 1-9 as the veteran's substantive appeal with respect to the September 1998 statement of the case, such a consideration was found to be squarely precluded by recent United States Court of Veterans Appeals (Court) precedent. See Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). The Board further notes that to the extent that the veteran's May 1998 VA Form 1-9 may constitute a motion for clear and unmistakable error (CUE) with respect to earlier Board decisions in 1977, 1982, 1986, and 1993, this matter will be referred for further action in accordance with the Board's Rules of Practice. FINDINGS OF FACT 1. An informal application for annual clothing allowance with regard to service-connected skin disorders was first received by the RO in November 1993. Payment was approved and paid in March 1994 for the year of 1993. 2. An informal application for retroactive payment of annual clothing allowance from the date of the grant of service connection for skin disorders was also received by the RO in November 1993. CONCLUSION OF LAW Retroactive payment of clothing allowance from the date of the grant of service connection for skin disorders based on an application submitted in 1993 is not provided for by law. 38 U.S.C.A. § 1162 (West 1991); 38 C.F.R. §§ 3.151(a), 3.810 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background A veteran is entitled to a clothing allowance if he: (1) "because of a service-connected disability," wears or uses a prosthetic or orthopedic appliance (including a wheelchair) that tends to wear out or tear his clothing; or (2) uses medication that a physician has prescribed for a skin condition "due to a service-connected disability" that causes irreparable damage to the veteran's outergarments. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. Effective August 1, 1972, the initial lump-sum clothing allowance was due and payable for veterans meeting the eligibility requirements as of that date. Subsequent annual payments for those meeting the eligibility requirements will become due on the anniversary date thereafter (August 1), both as to the initial claims and recurring payments under previously established entitlement. 38 C.F.R. § 3.810(b). Except as provided in paragraph (c)(2) of this section, the application for clothing allowance must be filed within one year of the anniversary date (August 1) for which entitlement is initially established; otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within one year of such date. The one-year period for filing application will include the anniversary date and terminate on July 31 of the following year. 38 C.F.R. § 3.810(c)(1). Where the initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, the application for clothing allowance may be filed within one year from the date of notification to the veteran of such determination. 38 C.F.R. § 3.810(c)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C.A. § 5101 (West 1991); 38 C.F.R. § 3.151(a). Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law. Sabonis v Brown, 6 Vet. App. 426, 430 (1994). The record reflects that in a July 1974 rating decision, service connection was established for epidermophytosis, tinea cruris, and residuals of acne vulgaris, from January 17, 1973. The record further reflects that in November 1993, the RO received the appellant's claim for the annual clothing allowance with regard to his service-connected skin disorders. In November 1993, the RO also received the appellant's claim for retroactive annual clothing allowance benefits since the time the veteran was originally service- connected for skin disorders. The veteran filed his first formal claim for annual clothing allowance benefits in December 1993, and in March 1994, the RO awarded the veteran the annual clothing allowance for 1993. In a letter to Senator B. in April 1994, the veteran specifically acknowledged he had not filed a claim for annual clothing allowance benefits for any year prior to 1993. The record reveals that the veteran filed annual applications for the annual clothing allowance benefits for the years following 1993 and that the RO granted these applications. II. Analysis The appellant did not submit his first formal application for the annual clothing allowance until December 1993, and the first informal application was not filed until November 1993. The veteran's informal application in November 1993 also included a claim for the retroactive payment of annual clothing allowance benefits from the date of the grant of service connection for certain skin disorders. Thereafter, the veteran was paid the annual clothing allowance for the year 1993. However, his informal and formal claims in November and December 1993 were not submitted within the necessary time limit for entitlement to the annual clothing allowance for the year 1992 and prior years. Thus, entitlement to the annual clothing allowance for the period from the original grant of service connection for skin disorders would not be in order. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. The appellant has maintained that he was not advised by the VA of his potential entitlement to the annual clothing allowance and is being penalized for lack of knowledge regarding the law. He has asserted, in effect, that the VA failed to assist him in connection with his claim. The Board notes, however, that the veteran in this case did not submit a claim for the annual clothing allowance until November 1993, and that in in view of the lack of such a claim, any obligation to assist the veteran had not yet arisen. Although the VA makes a concerted effort to notify veterans of potential entitlement to VA benefits, the Court has held that the VA does not have the duty to provide a veteran with personal notice of potential eligibility for VA benefits. Hill v. Derwinski, 2 Vet. App. 451 (1991). Consequently, the Board concludes that it has no alternative but to find that the veteran's claim lacks legal merit and must be denied. ORDER The claim for retroactive payment for clothing allowance benefits is denied. Richard B. Frank Member, Board of Veterans' Appeals Department of Veterans Affairs