Citation Nr: 1304035 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-36 399A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma THE ISSUE Entitlement to an annual clothing allowance. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to June 1990 and from March 2008 to April 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Oklahoma City, Oklahoma Medical Center (VAMC) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is service-connected for status post posterior fracture dislocation fo the right hip and acetabulum with status post open reduction internal fixation, rated as 30 percent disabling; low back strain, sated as 10 percent disabling; residuals for right forehead laceration with minimal cosmetic defect, rated as 10 percent disabling; right lower extremity neuralgia, rated as 10 percent disabling; residual of a right eye injury with visual acuity of 20/20, rated as noncompensable; residual of laceration right pretibial area, rated as noncompensable; and, eczema on the foot, rated as noncompensable. The appellant argues that an error was made in applying the law to her case. She has stated that due to her service connected back and hip disabilities she uses a back brace that allows weight bearing to be preserved to her right hip. She stated she wears the brace daily under her clothes and this cases wear on her clothes. She further argues that she has recently been issued crutches to take the weight off her hips and the crutches too causes wear to her clothes. Prior to resolution of these questions the Board finds that additional development is warranted. First, upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A review of the claim file shows that the Veteran has not been issued a notice letter in regard to the claim for entitlement to clothing allowance. She has only been informed of the regulations applicable to her claim in the supplemental statement of the case of April 2010. However, this does not satisfy the notice requirements. Upon remand of this matter, appropriate notice under the Veterans Claims Assistance Act of 2000 (VCAA) should be provided. The Board further notes that in a letter of September 2010, the Veteran stated she was enclosing orders, a duty roster, and current medical evidence relating to her hip and back. However, a review of the record shows the referenced evidence has not been associated with the claim file. On remand, this evidence should be obtained and associated with the claim file. Furthermore, in the same letter, the Veteran stated that she had a pending appointment at the VA Medical Center. Upon review of the claim file and Virtual VA file, the Board notes that only records through September 1, 2010 have been associated with the claim file. The Veteran's letter clearly states there are outstanding records. Moreover, the Board notes that in the statement of the case, the Agency of Original Jurisdiction (AOJ) noted that a review of the Veteran's VA prosthetic records had been reviewed. However, nowhere does the AOJ specify the date of the records that were considered. In fact, there is no list of the evidence that was considered in adjudicating the claim. Further, a review of the record reveals that most of the records associate with the claim file pertain to unrelated conditions and not to prosthetic records. Therefore, the Board cannot be sure that all relevant records have been associated with the claim file. Given the above, to ensure the duty to assist has been complied with, on remand, outstanding VA treatment records must be obtained. Finally, 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, there is irreparable damage to the veteran's outer garments. 38 C.F.R. § 3.810(a) (2) (2012). The regulations further provide that the annual clothing allowance is payable in a lump sum where a VA examination or hospital or examination report discloses that (1) 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 or (2) where 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. 38 C.F.R. § 3.810 (2012). Based on the evidence considered by the VAMC, this matter was not referred to the Undersecretary for Health or a designee. The Board believes that pursuant to 38 C.F.R. § 3.810, certification from the Undersecretary of Health or a designee, that the Veteran's use of a qualifying prosthetic or orthopedic appliance for her service-connected disability tends to wear or tear her clothing, is warranted before appellate review can proceed. Accordingly, the case is REMANDED for the following action: 1. The VAMC should provide the Veteran notice of the evidence and information necessary to substantiate her claim for an annual clothing allowance, as well as her and VA's respective responsibilities for obtaining evidence in support thereof. 2. The VAMC should obtain and associate with the claim file the records enclosed with the Veteran's September 2010 letter. 3. The VAMC should list the evidence considered in the adjudication of the Veteran's claim. Any evidence considered which has not been associated with the claim file must be obtained and associated with the claim file. The Board notes that in the April 2010 statement of the case, the AOJ stated that a review of the Veteran's prosthetic records had been reviewed. 4. The VAMC should associated all VA treatment records for treatment of the Veteran's back and hip from September 2010 through the present; however it is unclear as to what this evidence includes. 5. The VAMC should submit the Veteran's claim to the Undersecretary of Health or her designee, to obtain certification as to whether the Veteran's use of a qualifying prosthetic or orthopedic appliance for her service-connected spine disability tends to wear or tear her clothing. 6. Thereafter, the VAMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).