Citation Nr: 1223012 Decision Date: 07/02/12 Archive Date: 07/13/12 DOCKET NO. 04-37 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an annual clothing allowance for the 2010 calendar year. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from 1972 to 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 administrative decision of the Lake City, Florida, Department of Veterans Affairs (VA) Medical Center (MC), which denied the benefit currently sought on appeal. The Board notes that additional VA treatment records were added to the Veteran's Virtual VA claims file following the November 2010 certification of this appeal to the Board. However, as the Board is granting the Veteran's appeal, solicitation of a waiver for the initial consideration by the VA Regional Office (RO) of this evidence is not necessary. 38 C.F.R. §§ 20.800, 20.1304 (2011). FINDINGS OF FACT 1. The Veteran is currently service-connected for the following disabilities: left shoulder impingement; right shoulder arthralgia; right knee arthralgia; hallux valgus of the left foot; hallux valgus of the right foot; hyperpigmentation of the skin with skin lesions; sarcoidosis; recurring throat and ear infections; and bilateral eye condition. 2. The Veteran's service-connected skin disorder is treated with prescribed medications in the form of topically applied creams and ointments. 3. The topically applied medications prescribed for the treatment of the Veteran's service-connected skin disorder produce clothing stains that cannot be completely removed with laundering and professional cleaning. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the 2010 calendar year have been met. 38 U.S.C.A. §§ 1162, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.810 (2010 & 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Since the Board is granting the Veteran's claim, in full, there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA because even if for the sake of argument there has not been, this is ultimately inconsequential and, therefore, at most harmless, i.e., non-prejudicial error. 38 C.F.R. § 20.1102 (2011); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Clothing Allowance Claim Under 38 C.F.R. § 3.810, 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 and such disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d) or (f) (2011); 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 ware or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to the service-connected disability, irreparable damage is done to the veteran's outer garments. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(a). Effective August 1, 1972, the initial lump-sum clothing allowance is due and payable for veterans meeting the eligibility requirements of paragraph (a) of this section as of that date (that is, as of August 1st). Subsequent annual payments for those meeting the eligibility requirements of paragraph (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously established entitlement. 38 C.F.R. § 3.810(b). 38 C.F.R. § 3.810 further states that except as provided in paragraph (c)(2) of this section, the application for clothing allowance must be filed within 1 year of the anniversary date (August 1st) 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 (August 1st) and terminate on July 31st of the following year. 38 C.F.R. § 3.810(c)(1). If the initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, then the application for clothing allowance may be filed within 1 year from the date of notification to the veteran of such determination. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(c)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran submitted a timely formal application for the annual clothing allowance in April 2010. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. The Veteran's credible testimony and the history of his claim establishes that he is presently service-connected for a skin disability. The Veteran contends that topically applied cream and ointment medications, which have been prescribed by the VA Medical Center (VAMC) to treat his skin disorder, produce permanent stains of his clothing. At his April 2012 Board hearing, the Veteran testified that he had previously been awarded a clothing allowance by VA to compensate him for these stains from 2004 to 2009 and again in 2011. The Veteran submitted copies of these prior positive determinations. The Veteran's appeal arises from the fact that he was denied the annual clothing allowance for the 2010 calendar year, and the Veteran appealed that adverse decision. According to the September 2010 Statement of the Case (SOC), the basis of VA's denial of the Veteran's claim for a 2010 annual clothing allowance is that the topical medications prescribed by VA and documented in the VA medication registry are non-staining and water-washable. VA determined that the medications prescribed do not cause irreparable damage to the outer garments. Evidence in support of the Veteran's claim for an annual clothing allowance includes the Veteran's lay statements, Board hearing transcript, VA medical records, and two medical opinions. Specifically, the VA medical records document that the Veteran is currently prescribed the following topical medications: Triamcinolone cream, Clotrimazole Cream, and Terbinafine Hydrochloride (HCL) Cream. These medications were most recently prescribed by VA for the Veteran from June 2009 to June 2010. In a November 2004 statement, a VA pharmacist, Dr. S.W., determined that the Veteran was currently prescribed several skin medications, to include Triamcinolone Acetonide ointment, "Yeast Cell Der" ointment (Preparation H), "Lubricating Oph" ointment, Clindamycine Phospate, and Selenium Sulfide lotion. The VA pharmacist determined that all of these medications were non-soluble and stained clothing. The VA pharmacist also indicated that the Clindamycine Phospate and Selenium Sulfide medications could bleach fabric. Although this statement was not provided during the 2010 calendar year, the Board still finds that it can be afforded great probative weight, as the statement lists the side effects of the same skin medications that the Veteran is currently prescribed by VA. In October 2010, the Veteran's VA treating physician submitted a medical statement. The physician noted that the Veteran has been prescribed several topical treatments and creams over the years to treat his various skin disorders. The physician stated that the Veteran believes these treatments warrant the annual clothing allowance. Thus, the Board finds that the medical and lay evidence of record demonstrates that the Veteran's topically applied medications for his service-connected skin disability cause irreparable staining damage to his garments. There is no contrary medical evidence in the claims file. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an annual clothing allowance for the 2010 calendar year. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an annual clothing allowance for the 2010 calendar year is granted, payable as of August 1, 2010. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs