Citation Nr: 1323016	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  13-03 225A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Decatur, Georgia


THE ISSUE

Entitlement to a clothing allowance for the year 2012.


REPRESENTATION

Appellant represented by:	Blinded Veterans Association


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran had active service from May 1969 to January 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Decatur, Georgia, denying the Veteran entitlement to a clothing allowance for the year 2012.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

The Veteran is service-connected for internal derangement of the right knee; degenerative joint disease (DJD) of the right knee, associated with internal derangement of the right knee; and hepatitis C.  

The statement of the case (SOC) found that the Veteran used an off-the-shelf right knee brace which was an elastic wrap around knee orthosis and that the brace featured covered aluminum joints with no exposed joints or surfaces which would cause damage and wear or tear to clothing.  

In the Veteran's VA Form 9, Appeal to the Board, he reported that he also applied Capsaicin cream which was issued in 2012, for pain.  

In this regard, the Board notes that 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) 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, as established during a VA examination or an examination or hospital report from any government or private institution.  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.  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; 38 C.F.R. § 3.810(a) (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)(1)(ii) (2012).  

Here, it is not alleged that the Veteran is entitled to a clothing allowance under the first criterion.  As to the third criterion, the Veteran is not service-connected for a skin condition.  In any event, in a June 2013 VA Form 21-4138, Statement in Support of Claim, the Veteran's service representative stated that the Veteran had provided notice that he had been issued a new knee brace that met the qualifications for a clothing allowance.  It was requested that the case be remanded to the agency of original jurisdiction (in this case the Veterans Affairs Medical Center in Decatur, Georgia) for readjudication.  However, it is not clear when the Veteran was issued a new knee brace.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Take the appropriate steps to determine whether the Veteran has been issued a different right knee brace which qualifies for payment of a clothing allowance for the year 2012.  

2.  Then readjudicate the Veteran's entitlement to a clothing allowance for the year 2012.  If this benefit is not granted, he and his representative, if any, shall be provided with a supplemental statement of the case (SSOC).  He and his representative, if any, shall be afforded the requisite time period to respond to the SSOC.  

3.  Thereafter, if appropriate, return the case to the Board in accordance with established procedure. 

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 action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
MARJORIE A. AUER
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).