Citation Nr: 1323903 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-27 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an annual clothing allowance for the year 2012. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service from April 1974 to April 1978, with subsequent Reserve service through 1995, including verified active duty for training from August 1983 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 determination of the Prosthetics & Sensory Aids Service (PSAS) at the Portland, Oregon, VA Medical Center (VAMC), which denied the Veteran's annual request for a clothing allowance. He thereafter filed a timely Notice of Disagreement and Substantive Appeal. Therefore, while cognizant that his clothing allowance claim has not been formally certified for appellate review, the Board nevertheless finds that it has jurisdiction to address the issue. See 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a) (2012). Additionally, the Board observes that, while the Veteran presented testimony in connection with a separate appeal at a September 2012 Board hearing, he subsequently waived his right for such a hearing in support of his clothing allowance claim. See October 24, 2012, Substantive Appeal. [The Veteran's Motion to Revise a June 2012 Board Remand based on clear and unmistakable error and his appeal regarding entitlement to earlier effective dates for the grant of service connection for folliculitis barbae of the face and neck, posttraumatic stress disorder, and irritable bowel syndrome; service connection for a cervical spine disorder; whether new and material evidence has been submitted to reopen a claim of service connection for a lung lesion; service connection for a lung disorder; service connection for gastroesophageal reflux disease, an increased rating for a lumbar spine disorder; initial increased ratings for a left shoulder joint disorder, a left shoulder scar, a bilateral foot disorder, and irritable bowel syndrome; and a total disability rating based upon individual unemployability are addressed in separate Board decisions.] FINDING OF FACT The Veteran's service-connected skin disabilities (tinea cruris and folliculitis barbae of the face and neck) require ongoing use of topical medications that cause irreparable damage to his outer garments. CONCLUSION OF LAW A clothing allowance for the year 2012 is warranted. 38 U.S.C.A. § 1162(a) (West 2002); 38 C.F.R. §§ 3.155(a), 3.810(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to a clothing allowance for the year 2012. In support of his claim, he asserts that the physician-prescribed topical creams and lotions used to treat his service-connected skin disabilities (tinea cruris and folliculitis barbae of the face and neck) cause permanent damage to his outer garments. At the outset of its discussion, the Board observes that, insofar as this decision is fully favorable to the Veteran, no discussion of the VA's duties to notify and assist is necessary. VA's governing laws and regulations provide that an annual clothing allowance is payable when the Chief Medical director or designee certifies that the use of a physician-prescribed medication for one or more service connected skin disabilities irreparably damages a veteran's outer garments. 38 U.S.C.A. § 1162(a) (West 2002); 38 C.F.R. § 3.810(a)(2) (2012). Here, the record reflects that, from 2004 to 2011, the Veteran was assigned an annual clothing allowance in accordance with the above provisions. However, after receiving his June 5, 2012, application to continue his clothing allowance, the Chief of PSAS at the Portland VAMC informed the Veteran that he no longer met the requirements for that annual benefit. The only reason stated for the denial was that the Veteran had not established that the physician-prescribed medications used to treat his service-connected skin problems irreparably damaged his outer garments. See August 3, 2012, Denial Letter from the Chief of PSAS, Portland VAMC. After filing a Notice of Disagreement with the above determination, the Veteran was sent a September 20, 2012, Statement of the Case (SOC), which offered scant additional detail regarding the basis for the denial. Significantly, the SOC conceded that the Veteran treated his service-connected skin disabilities with four prescription medications (Clotimazole 1% topical cream, Clorhexidine Cluconate 4% topical liquid, Aluminum Lactate 12% lotion, and Clorhexidine Gluconate 4% liquid). However, the SOC concluded that none of these medications was "staining." The SOC then informed the Veteran that each of his prescribed medications "must be used as instructed by the doctor to insure its proper function." Following the issuance of the SOC, the Veteran submitted written argument in which he described at length the irreparable damage caused to his pants and shirts by his VA-prescribed topical medications. See Arguments in Support of October 24, 2012, Substantive Appeal to the Board. The Veteran also stated that, when he personally went to PSAS to display evidence of his clothing damage, he was told that his "medications [were] not on the VA's list." Id. at p. 6. It appears from the Veteran's statements that his clothing allowance claim was denied because the topical creams, liquids, and lotions prescribed for his tinea cruris and folliculitis barbae were not on a particular list of designated medications. However, there is nothing in the applicable statutory and regulatory provisions that indicates that a clothing allowance is only payable for certain physician-prescribed medications. 38 U.S.C.A. § 1162(a) (West 2002); 38 C.F.R. § 3.810(a)(2) (2012). Similarly, the designated VA form for applying for such an allowance imposes no conditions on the types of prescription medications that qualify. To the contrary, that VA form expressly states that "[a]ny medication prescribed for a service-connected skin condition that causes permanent stains or otherwise damages the Veteran's outer garments" is included. See generally VA Form 10-8678, Application for Annual Clothing Allowance. Moreover, it is undisputed that the topical mediations the Veteran uses for his service-connected skin disabilities are prescribed by his treating VA physician. Further, there is nothing in the record that explains why the Chief Medical director or designee - in this case, the PSAS Chief at the Portland VAMC - has determined that, after years of receiving a clothing allowance, the Veteran no longer qualifies for that annual benefit. Indeed, there is nothing in the August 3, 2012, denial letter or the September 20, 2012, SOC that clarifies why the Veteran no longer meets the criteria of 38 U.S.C.A. § 1162(a) and its implementing regulation based upon the prescribed medications he has long used to treat his service-connected skin disabilities. While a lay person, the Veteran is competent to attest to the damage to his outer garments caused by his VA-prescribed topical skin medications. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Moreover, the Board has no basis to question in his credibility as there is nothing in the record to suggest that he has misrepresented the medications he takes or their deleterious effects on his clothing. To the contrary, while the PSAS Chief has concluded that the Veteran's VA-prescribed medications do not stain his clothing, she has provided no basis for that cursory determination. It follows that, just a mere conclusion by a medical doctor is an insufficient basis for a medical opinion, the PSAS Chief's blanket statement is similarly inadequate and, therefore, lacking in probative value. Cf. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a mere conclusion by a medical professional is insufficient to allow the Board to make an informed decision as to what weight to assign to the underlying opinion). Accordingly, absent more persuasive evidence supporting the denial of the Veteran's claim, the Board resolves reasonable doubt in his favor by finding that the physician-prescribed medications used to treat his service-connected skin disabilities tend to irreparably damage his outer garments, thereby warranting continued entitlement for a clothing allowance for the year 2012. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). (CONTINUED ON NEXT PAGE) ORDER A clothing allowance for the year 2012 is granted. __________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs