Citation Nr: 1237443	
Decision Date: 11/01/12    Archive Date: 11/09/12

DOCKET NO.  09-24 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center (VAMC) in 
Columbia, South Carolina


THE ISSUE

Entitlement to an annual clothing allowance.  


REPRESENTATION

Appellant (Veteran) represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran served on active duty from February 1968 to January 1970.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the VAMC in Columbia, South Carolina, which denied entitlement to an annual clothing allowance.  

The Veteran was issued a Statement of the Case (SOC) in this matter in June 2009.  Since then, the RO has included in the Veteran's claims file VA treatment records dated up until March 2012.  There is no Supplemental SOC (SSOC) of record dated after March 2012 indicating review of these records.  Nor has the Veteran waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ).  See 38 C.F.R. §§ 19.31, 20.1304(c) (2011).  Nevertheless, the Board finds neither a waiver nor a remand for AOJ consideration necessary.  That is because, as will be detailed further below, the issue in this matter is whether the Veteran is entitled to a clothing allowance for damage that may be caused by treatment involving a nonservice-connected disorder.  As the record is clear that the Veteran has not been service-connected for the disorder at issue (psoriasis), the VA treatment records are not relevant to the issue on appeal.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained.

2.  The Veteran has not been granted service connection for a disability requiring the use of ointments that may cause damage to his clothing.    


CONCLUSION OF LAW

The criteria for entitlement to an annual clothing allowance are not met.  38 U.S.C.A. §§ 1162, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159(a), 3.810 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION


I.  Duty to Notify & Assist  

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  

VA's duties to assist and notify have been considered in this case.  However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  

In this case, the law is dispositive, and entitlement to an annual clothing allowance is precluded because the record shows that the Veteran is not service connected for the skin disorder that necessitates the use of ointments which, he asserts, damage his clothing.  Therefore, entitlement to an annual clothing allowance must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).




II.  Decision  

The Veteran has asserted that he is entitled to an annual clothing allowance.  The implementing regulation addressing clothing allowances under VA, 38 C.F.R. 
§ 3.810, provides in pertinent part that a clothing allowance may be granted when the following criteria are met:

a) Except as provided in paragraph (d) of this section a veteran who has a service-connected disability, or a disability compensable under 38 U.S.C. 1151 as if it were service-connected, is entitled, upon application therefore, to an annual clothing allowance as specified in 38 U.S.C. 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 hospital or examination report from a facility specified in § 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 and such disability is the loss or loss of use of a hand or foot compensable at a rate specified in §3.350(a), (b), (c), (d), of (f); or (2) The Chief Medical Director or designee certifies that because of such disability a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran's clothing, or 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. 2011); 38 C.F.R. § 3.810(a) (2011).

In this matter, the evidence shows that the Veteran is prescribed certain topical ointments to treat psoriasis, which he has been diagnosed with since the mid 1980s.  The Veteran asserts entitlement to a clothing allowance because he states that the ointments damage his clothing.  On the April 2009 VA Form 10-8678, Application for Annual Clothing Allowance, the Veteran based his claim on several medications that he indicated were used for the scalp and psoriasis.  The Board finds that entitlement to the claimed annual clothing allowances in not warranted.  The Veteran is not service connected for the psoriasis that necessitates the ointment use.  Indeed, the Board denied service connection for psoriasis in a final June 2008 decision, while the RO denied claims to reopen that service connection claim in final March 2009 and May 2010 rating decisions.  As the Veteran has not been service connected for psoriasis, he is not entitled to a clothing allowance for damage he claims is done by ointments prescribed and used for the disorder.  

The Board notes that the Veteran is service connected for one disorder.  He is rated as 0 percent disabled for a scar on his lower right extremity.  The Board has reviewed the record to assess whether the use of the claimed damaging ointments is in any way related to the treatment of that scar.  But the record contains no evidence that indicates a relationship between the ointment use and the scar.  Rather, the evidence indicates no relationship between the two.  A November 2007 VA compensation examination report describes the Veteran's service-connected scar as firm without any ulceration.  The examiner indicated that the scar was stable.  The examiner did not indicate that the Veteran used medication for his scar.  Moreover, the examiner noted other nonservice-connected scars on the Veteran's lower right leg which relate to his nonservice-connected psoriasis.  Further, the Board has reviewed VA treatment records which note treatment for the Veteran's skin.  Though these records address ointment treatment for the Veteran's nonservice-connected psoriasis, the records do not indicate that the Veteran uses ointments for his service-connected scar.  As such, the Board finds that no evidence of record indicates that the Veteran uses the claimed damaging ointments for his service-connected scar on the right lower extremity.  
 
Moreover, 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 prescribed medicines cause damage to clothing.  Here, no evidence indicates that treatment for the service-connected scar in any way damages the Veteran's clothing.  

In summary, the Board finds there is competent and probative evidence of record does not demonstrate that a service connected disability requires the use of ointments which damage clothing.  See 38 C.F.R. § 3.810.  As a result, the Board finds the Veteran is not entitled to an annual clothing allowance, and the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

(CONTINUED ON THE NEXT PAGE)



ORDER

Entitlement to an annual clothing allowance is denied.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs