Citation Nr: 1310333	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  99-08 946	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Lake City, Florida


THE ISSUES

1.  Entitlement to a clothing allowance for the year beginning August 1, 2003, and ending July 31, 2004.

2.  Entitlement to a clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010.

(The issues of entitlement to an initial evaluation in excess of 10 percent for residuals of a cold injury to the right and left feet prior to January 12, 1998, entitlement to an initial evaluation in excess of 10 percent for residuals of a cold injury to the right foot from January 12, 1998, to September 26, 2000, entitlement to an initial evaluation in excess of 10 percent for residuals of a cold injury to the left foot from January 12, 1998, to September 26, 2000, entitlement to an effective date earlier than September 26, 2000, for the assignment of a 30 percent evaluation for residuals of a cold injury to the right foot, entitlement to an effective date earlier than September 26, 2000, for the assignment of a 30 percent evaluation for residuals of a cold injury to the left foot, and entitlement to a separate initial compensable evaluation for bilateral calluses will be addressed in separate decisions).


ATTORNEY FOR THE BOARD

S. B., Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1979 to November 1982.

This matter comes before the Board of Veterans' Appeals (Board) from decisions dated in August 2003 and September 2010 by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Lake City, Florida.  A clothing allowance was denied in each.  The Veteran appealed these determinations.

Recharacterization of issues comprising this matter from entitlement to a clothing allowance to entitlement to a clothing allowance for the year beginning August 1, 2003, and ending July 31, 2004, and for the year beginning August 1, 2009, and ending July 31, 2010, has been undertaken.  This greater specificity comports with applicable law.  See 38 C.F.R. § 3.810(c)(1) (the one year period for filing an application for clothing allowance includes the anniversary date (August 1) and terminates on July 31 of the following year; an application filed more than one year after the anniversary date for which entitlement is initially established will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided it is filed within one year of such date).  Here, the Veteran filed for clothing allowance in August 2003 and in May 2010.  Specificity is needed to reduce confusion as to which issue is being discussed.

In September 2010, the Board remanded the issue of clothing allowance for the year beginning August 1, 2003, and ending July 31, 2004, for additional development.  This development has not been completed fully or even substantially.  See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  The aforementioned issue therefore is addressed in the REMAND portion of the decision below.  Thus, it is REMANDED to the Lake City, Florida, VAMC via the Appeals Management Center (AMC), in Washington, DC.  The following determination for the issue of clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010, is made based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."

The Veteran has been represented by service organizations during the pendency of this matter.  However, no representative is set forth herein.  This is because the Veteran has revoked representation by all service organizations.  He indeed recently has repeatedly conveyed his desire to represent himself.  He confirmed this desire in response to an inquiry by the Board made following his submission of documentation via a private attorney's facsimile machine in July 2012.  Revocation of representation may be made by a claimant at any time.  38 C.F.R. § 14.631(f)(1).  While the Veteran also indicated in February 2013 that he intended to seek/obtain representation by a service organization again in the near future, he has not yet done so.  It is uncertain when or even if he will do so.  He further indicated that he does not want adjudication to be held in abeyance for representation confirmation.  Indeed, he elected to proceed pro se.


FINDING OF FACT

During the year beginning August 1, 2009, and ending July 31, 2010, the Veteran did not wear or use a prosthetic or orthopedic appliance which tended to wear or tear clothing and did not use physician-prescribed medication for a skin condition which caused irreparable damage to outer garments because of a service-connected disability or disabilities.





CONCLUSION OF LAW

The criteria for establishing entitlement to a clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010 have not been met.  38 U.S.C.A. §§ 1162, 5107 (West 2002); 38 C.F.R. § 3.810 (2010); 38 C.F.R. §§ 3.102, 3.810 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These requirements apply to all elements of a claim to include effective date if the benefit sought is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of pertinent treatment records, whether or not they are in Federal custody.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4).


The duties to notify and to assist are not applicable, however, where a claim cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that where the law and not the evidence is dispositive, the claim should be denied on the ground of lack of legal merit or lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (concluding that providing notice of how to substantiate a claim is not required where that claim cannot be substantiated because there is no legal basis for it or because undisputed facts render the claimant ineligible for the benefit sought); Mason v. Principi, 16 Vet. App. 129 (2002) (noting "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim"); see also Manning v. Principi, 16 Vet. App. 534 (2002); Livesay v. Principi, 15 Vet App 165 (2001); Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  The ensuing discussion reveals that this is the situation here.  

Even assuming VA's duties to notify and to assist are applicable in this case, they have been met.  With respect to the duty to notify, consideration on a case-by-case basis is made as to whether a notice error is harmful to the claimant.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning the holding in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), that all VCAA errors are presumed harmful unless VA shows the essential fairness of the adjudication was not affected); see also Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311(Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran has not alleged prejudice with respect to notice, as is required.  

The Veteran was sent a letter dated in September 2010 concerning his and VA's respective duties for obtaining evidence.  This letter also addressed the information and evidence required to establish entitlement to a clothing allowance based on a prosthetic device.  Although the discussion below reveals that medication rather than a prosthetic device is primarily at issue here, the Veteran conveyed his actual knowledge of the information and evidence needed to establish entitlement to a clothing allowance on this basis in his claim, notice of disagreement, as well as his substantive Appeal to Board (VA Form 9).  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (overturned on another point in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009)); Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Notification concerning an effective date (a one-time payment on August 1) never was provided.  However, this is of no consequence.  No effective date will be assigned given that a clothing allowance is denied herein.  

Acknowledgement is given to the fact that the aforementioned notice letter was provided to the Veteran contemporaneous with the initial September 2010 decision by the AOJ, which in this case is the VAMC in Lake City, Florida.  To the extent this constitutes a timing error, such has been cured.  Readjudication was undertaken subsequent to the letter in a November 2010 statement of the case (SOC).  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (holding that where notice was not provided prior to initial adjudication, the timing problem can be cured by issuance of notice followed by readjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370 (2006) (holding that the issuance of fully compliant notification followed by readjudication of the claim, such as a SOC, is sufficient to cure a timing defect).  It follows that the Veteran had time to respond to the letter.  He also was afforded, though he did not take advantage of, the opportunity to testify at a Travel Board hearing.  It finally is notable that he has been represented during the pendency of the appeal.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (holding that a claimant's representation by counsel "is a factor that must be considered when determining whether that [claimant] has been prejudiced by any notice error"). 

With respect to the duty to assist, the Veteran's VA treatment records and his Department of Corrections (DOC) treatment records dated through August 2007 have been obtained.  This was through VA's efforts, him submitting them on his own behalf, or both.  Some of the DOC treatment records are dated in 1996 and 1997, well outside of the applicable period of concern here from August 1, 2009, to July 31, 2010.  The other DOC treatment records likely are incomplete, as the Veteran was incarcerated from July 2006 to August 9, 2009.  However, the vast majority if not all of any such outstanding records would be of only marginal pertinence.  The applicable period of concern here once again begins on August 1, 2009.  Available treatment records, in any event, additionally are sufficient.

Social Security Administration (SSA) records have not been obtained despite the Veteran's receipt of disability benefits.  The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument in Golz that SSA records are always relevant and VA always is required to obtain them.  Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321.  The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim."  Id.  The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant."  Id. at 1323  .

There is no indication in the record that the Veteran's SSA records are relevant or would aid in substantiating his claim for a clothing allowance for the period from August 1, 2009, to July 31, 2010.  Most notably, the May 2007 SSA decision finding him disabled was based on evidence at most contemporaneous thereto.  The decision and the evidence considered in that decision would not address the applicable time period.   Further, the list of exhibits for this decision consists almost entirely of VA treatment records, which are of record, and assessments for disabilities not of concern in this matter.  

No private treatment records have been submitted by the Veteran.  None have been obtained by VA.  Yet the Veteran did not adequately identify any such records.  See 38 U.S.C.A. § 5103A(b).  He identified private treatment records from a chiropractic facility, but he did not specify condition for or the dates of such treatment as required.  38 C.F.R. §§ 3.159(c)(1), (3).  Without this information, it cannot be concluded that the records concern the service-connected disabilities involved in this matter in the August 1, 2009, to July 31, 2010, period of concern in this matter.  The records are of questionable pertinence, in other words.  Of further note is that the aforementioned SSA list of exhibits includes treatment records from the chiropractic facility, but they were dated in 1997 and 1998.

No VA medical examination specifically concerning a clothing allowance has been conducted.  However, a medical examination is not necessary.  The discussion below indeed reveals that the state of the Veteran's service-connected disabilities is not at issue.  The issue rather is whether or not specific treatment for these disabilities wears or tears clothing or irreparably damages outer garments.  Information regarding it is readily procured from the Veteran's treatment records and his VA medical examinations concerning other issues.  Resolution of it depends largely on facts.  In any event, the impact of the Veteran's medication on clothing was researched by VA to some extent.  This is akin to a medical opinion.

In perfecting his appeals, the Veteran requested a hearing at his local VA office.  A Travel Board Hearing accordingly was scheduled for January 2012.  Notification thereof was sent to the Veteran's address of record in December 2011.  See 38 C.F.R. § 20.704(b).  He did not request postponement.  See 38 C.F.R. § 20.704(c).  Yet he failed to appear.  In January 2012, he submitted a motion for a new hearing.

The January 2012 motion did not substantially comport with the requirements for such motions.  See 38 C.F.R. § 20.704(d).  It was untimely, was not submitted to the proper authority, and did not set forth good cause for the failure to appear which arose under such circumstances that a timely postponement request could not have been submitted.  Indeed, the Veteran simply argued for rescheduling the hearing "due to health reasons."  This matter accordingly will be processed as though his hearing request had been withdrawn.  Id.  Parenthetically, as the Veteran's appeal on the issue was not perfected until November 2010, the Board held no duty to assist the Veteran in his claim during his earlier Board hearings in May 2000 and September 2009.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).


For each of the above reasons, proceeding at this time without additional development does not result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Appellate adjudication on the merits therefore is undertaken.

II.  Clothing Allowance

From the time the Veteran filed his claim in May 2010 to present, a clothing allowance is paid if one of three criterion is satisfied.  38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(a) (2010 & 2012).  The first criterion is that the Veteran, because of a service-connected disability or disabilities constituting loss or loss of use of a hand or foot, wears or uses a prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing.  38 U.S.C.A. § 1162(1); 38 C.F.R. §§ 3.810(a)(1) (2010); 38 C.F.R. § 3.810(a)(1)(i) (2012).  Such must be established during a VA examination or an examination or hospital report from any government or private institution.  Id.; see also 38 C.F.R. § 3.326(b).  The second criterion is that the Veteran, because of a service-connected disability or disabilities, wears or uses a prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing.  38 U.S.C.A. § 1162(1); 38 C.F.R. § 3.810(a)(2) (2010); 38 C.F.R. § 3.810(a)(1)(ii)(A) (2012).  The third criterion is that the Veteran, due to a service-connected disability, uses a medication prescribed by a physician for a skin condition that causes irreparable damage to outer garments.  38 U.S.C.A. § 1162(2); 38 C.F.R. § 3.810(a)(2) (2010); 38 C.F.R. § 3.810(a)(1)(ii)(B) (2012).  Both the second and third criterion must be established by the Under Secretary for Health, to include the Chief Medical Director or a designee thereof.  38 C.F.R. § 3.810(a)(2) (2010); 38 C.F.R. § 3.810(a)(1)(ii) (2012).

In Sursely v. Peake, 551 F.3d 1351 (Fed. Cir. 2009), it was determined that the award of multiple clothing allowances to a Veteran was not prohibited.  A final rule amending 38 C.F.R. § 3.810 to implement Sursely subsequently was issued by VA.  See 76 Fed. Reg. 70,883 (Nov. 16, 2011); see also 77 Fed. Reg. 74,218 (June 11, 2012) (correcting amendment).  The regulation thus now provides for a clothing allowance for each prosthetic or orthopedic appliance or medication that affects a distinct type of article of clothing or outer garment.  38 C.F.R. § 3.810(a)(2) (2012).  It further provides for two clothing allowances if more than one prosthetic or orthopedic appliance or medication together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate.  38 C.F.R. § 3.810(a)(3) (2012).

The Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran.  See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, an assessment of the probative value of the lay (non-medical) evidence in addition to the medical evidence must be undertaken.  

The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim.  Id.

Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed herein.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  

The Veteran has been in receipt of service connection for residuals of a cold injury to the right foot and for residuals of a cold injury to the left foot for a number of years.  As noted above, a separate decision addresses whether he is entitled to a separate initial compensable evaluation for bilateral calluses.  It is the determination of the Board therein that no such evaluation is warranted, as calluses are not a separate disability from the residuals of a cold injury to each foot but rather a symptom indistinct from the other symptoms of such injury.  Residuals of a cold injury to the right foot and the same to the left foot therefore are the only service-connected disabilities of the Veteran's feet.

As a result of these disabilities, the Veteran contends that he uses a cream as well as Betadine or povidone iodine.  See Dorland's Illustrated Medical Dictionary 214 (31st ed. 2007).  He indicates that these medications stain his clothes, which necessitate that he get his pants hemmed, and socks, which he characterizes as an outer garment.  Further, the Veteran contends that he has been given ankle braces as a result of the aforementioned disabilities.

Available DOC treatment records for the Veteran's incarceration beginning in 2006 document the following.  Poor foot skin care was found upon initial physical examination in July 2006.  Bilateral athlete's foot was diagnosed.  The Veteran thereafter complained repeatedly of bilateral foot pain and swelling.  These symptoms ultimately were determined to be secondary to his cold exposure in September 2006.  Soft ankle supports/braces were among the treatments prescribed around then.  

At a September 2009 Travel Board hearing concerning entitlement to automobile and adaptive equipment or adaptive equipment only, the Veteran testified that his feet have good days and bad days.  He indicated that he was able to walk without an assistive device on good days but he sometimes stays in bed on bad days.  He further indicated that he is able get up and walk to the bathroom on these bad days. The Veteran argued that his bad days constitute loss of use of his feet.

A March 2010 VA treatment record reflects that the Veteran had been prescribed clotrimazole cream for "fungal infection."  It further reflects that bilateral tinea pedis was found.  

Upon VA cold injury examination concerning the Veteran's right foot in April 2010, skin fungus was not found.

The skin on the Veteran's feet was noted to have exfoliative chronic tinea changes in a May 2010 VA treatment record.

The Assistant Chief of Prosthetic and Sensory Aids Service at the North Florida/South Georgia Northern Tier noted in the September 2010 decision that clotrimazole cream "is listed as non-staining and water-washable and would not cause irreparable damage to outer garments.  Socks are not listed as an outer garment."

Given the above, the Board finds that a clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010, is not warranted.  None of the criterion for establishing entitlement to this benefit is met.  

The first criterion is not satisfied because there is no VA examination or examination or hospital report from any government or private institution confirming that the Veteran's service-connected residuals of a cold injury to the right foot and to the left foot constitute loss or loss of use of either or both of his foot.  Such cannot exist since the Veteran's service-connected residuals of a cold injury to the right foot and to the left foot do not constitute loss or loss of use.  Special monthly compensation in this regard indeed has not been awarded.  See 38 C.F.R. § 3.350(a-d), (f).  Simply put regarding loss, neither of the Veteran's feet has been amputated.  Regarding loss of use, the Veteran retains functionality in both feet.  He indeed admits he can walk on good days and at least somewhat even on bad days.  The Board came to the same conclusion, based in part on this same admission, that loss of use is not shown in its July 2010 decision denying entitlement to automobile and adaptive equipment or adaptive equipment only.  In sum, it appears that the Veteran is mistaken as to the meaning of loss of use.

The first criterion, in addition to the second criterion, also is not satisfied because there is no indication that the Veteran wore or used a prosthetic or orthopedic appliance as a result of his service-connected residuals of a cold injury to the right foot and to the left foot.  While the Veteran was prescribed soft ankle supports/braces early on during his incarceration, it is unknown how long he wore them.  Even if it is assumed that he wore them until his release on August 9, 2009, absent is any indication that they tended to wear or tear his clothing.  Their soft and therefore flexible nature suggests that they did not cause any such wear or tear.  Of further note is that establishing wear or tear due to a prosthetic or orthopedic appliance sometimes does not equate to an award of clothing allowance for an incarcerated Veteran.  VA shall reduce the amount of the clothing allowance by 1/365th of the amount otherwise payable for each day the Veteran was incarcerated during the 12 month period preceding the anniversary date for which entitlement is established if clothing is furnished without charge by the institution holding him.  38 C.F.R. § 3.810(d) (2010 & 2012).  Finally, and most significantly since the period of concern is the year beginning August 1, 2009, and ending July 31, 2010, there is no indication that the Veteran has worn or used a prosthetic or orthopedic appliance since his release from incarceration.  VA treatment records are silent about such an appliance.  It follows that there cannot be any indication of wear or tear to his clothing as a result of such an appliance, much less certification in this regard by authorized VA personnel. 

Concerning the third criterion, authorized VA personnel have not certified that the Veteran used a medication prescribed by a physician for a skin condition that caused irreparable damage to outer garments because of his service-connected residuals of a cold injury to the right foot and to the left foot.  Such a certification indeed is not warranted.  Only the medications mentioned by him are considered in this regard.  This is because no other medication is shown by the evidence to have been used as a result of the aforementioned disabilities.

Betadine was not prescribed by a physician.  Indeed, it was not mentioned in the Veteran's available DOC treatment records for his incarceration beginning in 2006 or more importantly in his subsequent VA treatment records.  VA treatment records reveal that clotrimazole was prescribed by early 2010.  These records further reveal that this medication was for a skin condition.  Fungal infection generally was referenced.  Tinea of the feet, or tinea pedis, specifically was referenced.  See Dorland's at 1,955.  Tinea pedis is also known as athlete's foot.  Id.; see also Antonian v. Brown, 4 Vet. App. 179 (1993).  

Service connection is not in effect for a fungal skin condition such as tinea pedis/athlete's foot.  Such a condition further is not a factor for consideration in rating cold injury residuals, which are addressed by 38 C.F.R. § 4.113, Diagnostic Code 7122. This Diagnostic Code indeed sets forth evaluations for cold injury residuals based on arthralgias or other pain, numbness, cold sensitivity, tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, and X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).  However, a note following the Diagnostic Code indicates that disabilities diagnosed as the residual effects of a cold injury may be separately evaluated.  The possibility of a fungal skin condition being a residual of cold injury is implied from the fact that VA cold injury examinations such as the Veteran's in April 2010 call for assessment in this regard.  Yet this relationship does not exist with respect to the Veteran.  In other words, there is no indication that the Veteran's tinea pedis/athlete's foot is a residual of his cold injury to either or both of his feet.  At no point has a determination been made to this effect.  Tinea pedis/athlete's foot indeed has not been diagnosed as a residual of cold injury.  It instead was noted that the Veteran had poor foot skin care.

Even assuming that the Veteran's tinea pedis/athlete's foot was service-connected or had been established as a residual of his cold injury to the feet, it has not been shown that the physician-prescribed clotrimazole he used for it caused irreparable damage to outer garments.  Two notable points were made by the Assistant Chief of Prosthetic and Sensory Aids Service, a designee of the Under Secretary for Health.  First, clotrimazole is indicated as non-staining and water-washable.  It thus does not leave stains on any clothing.  To the extent it causes other damage (such as saturating the clothing to the point of making it hard) to clothing, the damage should be repaired with laundering.  Second, socks are not an outer garment.  The characterization of outer is reserved for clothing that is not covered by other clothing or material.  See Short Bear v. Nicholson, 19 Vet. App. 341 (2005) (discussing that a clothing allowance cannot be granted for irreparable damage to underwear).  Normally, socks are covered by shoes.  

Acknowledgement is given to the fact that the Veteran disputes the above notable points.  Lay evidence from an individual lacking medical knowledge, training, or expertise, such as the Veteran, may be sufficient by itself to support a claim.  Barr v. Nicholson, 21 Vet. App. 307 (2007).  This is the case where the evidence is both competent and credible.  Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted."  Layno v. Brown, 6. Vet. App. 465 (1994).  

A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge.  Id.  In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible.

The Veteran is competent to assert that clotrimazole cream caused irreparable damage to his clothes because such would have been experienced by him.  However, he is not credible in this regard.  His assertion is contrary to the information found on research by the Assistant Chief of Prosthetic and Sensory Aids Service.  The Veteran's self-interest in making his assertion further cannot be ignored.  If his assertion is found to be both competent and credible, it is more likely that a clothing allowance will be granted.  Such a grant would result in his receipt of increased financial compensation from VA.  The Veteran's claims file and Virtual VA "eFolder" readily evidence his strong desire for monetary gain.  Finally, even if the Veteran were competent and credible in asserting that his medication caused irreparable damage to his clothing, his competency and credibility does not factor into whether or not socks constitute an outer garment.  That determination is factual in nature.

In sum, the Veteran's claim of entitlement to a clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010, is denied.  It lacks legal merit, as the law is dispositive.  The evidence preponderates against the claim even if this were not so.  Accordingly, the benefit of the doubt is inapplicable.


ORDER

A clothing allowance for the year beginning August 1, 2009, and ending July 31, 2010, is denied.


REMAND

The issue of the Veteran's entitlement to a clothing allowance for the year beginning August 1, 2003, and ending July 31, 2004, unfortunately must be remanded once more.  Although the Board sincerely regrets the further delay this will cause, adjudication cannot proceed as of yet.  

In its September 2010 remand, the Board noted that the July 2006 Board remand directed provision of a SSOC "if any issue remains denied."  Entitlement to a clothing allowance (now recharacterized as discussed above) was identified as one of the issues that had remained denied.  Finally, it was indicated that no SSOC had been provided for this issue.  Readjudication of "all issues in appellate status" was directed.  If any benefit sought remained denied, it additionally was directed that the Veteran and his representative be provided with a SSOC and afforded an opportunity to respond.

One SSOC was issued subsequent to September 2010.  This SSOC, dated in February 2012, did not address entitlement to a clothing allowance (now rechacterized as discussed above).  There accordingly has not been any compliance with the Board's September 2010 remand.  A remand "confers on the Veteran or other claimant, as a matter of law, the right to compliance with the" directives therein.  Stegall, 11 Vet. App. at 268.

A SSOC is prepared "to inform the appellant of any material changes in, or additions to, the information included in the" SOC or any prior SSOC.  38 C.F.R. § 19.31(a).  One shall be furnished if additional pertinent evidence is received after a SOC or the most recent SSOC, to include through compliance with a Board remand.  38 C.F.R. §§ 19.31(b), (c).  Here, additional pertinent evidence in the form of VA treatment records was obtained following the November 2003 SOC.  No SSOCs have been issued.  

A SSOC, in sum, is needed whether Stegall applies or not.  Undertaking this additional development necessitates a remand.  In issuing the SSOC, the Veteran's contentions specifically should be addressed.  He contends that as a result of his service-connected feet disabilities, he wore or used orthopedic shoes with steel heels during the period beginning August 1, 2003, and ending July 31, 2004.  He indicates that these shoes wore out his socks and tore the bottom of his pants.  The Veteran also contends that he used a cream on his feet during the aforementioned period due to his service-connected feet disabilities which stained his socks.

Accordingly, the case is REMANDED for the following action:

1.  Readjudicate the Veteran's entitlement to a clothing allowance for the year beginning August 1, 2003, and ending July 31, 2004.  If this benefit is not granted, he and his representative, if any, shall be provided with a SSOC.  The SSOC specifically should address the Veteran's contentions (orthopedic shoes with steel heels causing wear and tear to socks and pants bottoms as well as foot cream staining socks).  He and his representative, if any, shall be afforded the requisite time period to respond to the SSOC.  A copy of the SSOC shall be placed in the claims file or "eFolder."

2.  If appropriate, then process the aforementioned issues for return to the Board in accordance with established procedure.

The Veteran has the right to submit additional evidence and argument on the issue 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 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).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs