Citation Nr: 1306009 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 11-26 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tuscaloosa, Alabama THE ISSUE Entitlement to a clothing allowance for the year 2011 pursuant to 38 U.S.C.A. § 1162 and 38 C.F.R. § 3.810. (The issues of entitlement to a rating in excess of 30 percent for residuals of a total replacement of the left knee; entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee, with traumatic arthritis; and entitlement to a total rating by reason of individual unemployability due to service connected disabilities will be addressed in a separate decision by the Board.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1979 to May 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2011 administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Tuscaloosa, Alabama. By that administrative decision, the VAMC denied the Veteran's claim of entitlement to a clothing allowance for the year 2011 because the evidence did not show that the Veteran wore a prosthetic device or orthopedic appliance or used a medication as a result of a service-connected disability that tended to cause irreparable damage to outer garments. In June 2012, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the VAMC. VA will notify the appellant if further action is required on his part. REMAND The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which the VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin disability which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C.A. § 1162. 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); 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. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(a). In the instant case, the Veteran was denied an annual clothing allowance on the basis that the Veteran had been issued a knee brace in September 2009 that had a life expectancy of six to eight months. There was no record that the Veteran had sought a replacement appliance nor was there a record of a repair history of the brace. Review of the record, however, shows that the Veteran was noted to be wearing a knee brace at the time of a VA compensation examination in April 2011 and that he was issued a new knee brace by VA in August 2011. The Veteran has not been service connected for a disability that causes loss of use of a hand or foot. As such, a certification that the orthopedic appliance tends to wear or tear a veteran's clothing from the Chief Medical Director or designee is necessary for the Veteran to be found eligible for a clothing allowance. During testimony before the undersigned, the Veteran testified that he wore a metal knee brace on each of his knees. He also stated that he uses medication to treat the skin disorder of his feet for which service connection has been established. Under these circumstances, the Board finds that the case must be REMANDED for the following action: 1. The VAMC should arrange for the Veteran's claims folder and medical folder to be reviewed by the Chief Medical Director or designee who should certify whether or not the knee brace(s) worn by the Veteran or the medication utilized by the Veteran to treat his service-connected skin disorder renders him eligible for a VA clothing allowance under 38 U.S.C.A. § 1162 and 38 C.F.R. § 3.810. A complete rationale for all conclusions reached should be included with the certification. 2. Thereafter, the VAMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).