Citation Nr: 1338478 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-18 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Temple, Texas THE ISSUE Entitlement to a clothing allowance. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Andrew Ahlberg INTRODUCTION The Veteran served on active duty from June 2003 to August 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the above Department of Veterans Affairs (VA) Medical Center in Temple, Texas, which is the Agency of Original Jurisdiction (AOJ) for this matter. The Veteran was scheduled for a hearing before a Veterans Law Judge in March 2013 but did not report for the hearing. 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). FINDINGS OF FACT 1. The service connected disabilities include lumbar and right knee strain. 2. While the record documents provision by a VA prosthetic clinic in July 2010 of braces for the lumbar spine and right knee, medical professionals affiliated with the AOJ have certified that the Veteran's service-connected lumbar spine and right knee disabilities do not require the use of a prosthetic or orthopedic appliance which tends to wear or tear the Veteran's clothing. CONCLUSION OF LAW The requirements for eligibility for a clothing allowance have not been met. 38 U.S.C.A. §§ 1162, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.810 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VA Form 10-8678 (Application for Annual Clothing Allowance) submitted by the Veteran provided her notice of the criteria for entitlement to an annual clothing allowance, and a June 2011 letter provided the Veteran with general information with regard to the duty to assist. While the June 2011 letter was not received prior to initial adjudication, any timing defect in this regard was cured by readjudication in an October 2012 Supplemental Statement of the Case. Prickett, supra. VA's duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). Clinical reports from a prosthetic clinic affiliated with the AOJ have been obtained, and the benefit at issue does not require the accumulation, submission, or development of any additional evidence as the certification from the Chief Medical Director or designee that the Veteran is entitled to the clothing allowance based on the nature of her service-connected disabilities is the only pertinent evidence or information for consideration. As such, the Board believes that no further notice or assistance is required in connection with the Veteran's claim for a clothing allowance. II. Legal Criteria/Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the paperless, electronic (Virtual VA) file. (The Virtual VA file reflects no pertinent information not physically of record.) 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 produces irreparable damage to the Veteran's outer garments. 38 C.F.R. § 3.810(a)(2) The Veteran asserts that braces supplied by VA for her service connected lumbar spine and right knee disabilities result in wear on her clothing, thereby warranting entitlement to a clothing allowance under the provisions set forth above. The service connected disabilities include lumbar and right knee strain, and the record documents provision by a VA prosthetic clinic in July 2010 of braces for the lumbar spine and right knee. However, the record reflects certifications from medical professionals affiliated with the AOJ that the braces at issue do not tend to wear or tear the Veteran's clothing, to include the Prosthetic Treatment Chief who participated in the initial consideration of the Veteran's claim in September 2010 and another individual affiliated with the prosthetic unit (said in the June 2011 statement of the case to be the Chief of the Prosthetic Laboratory) who conducted a review the Veteran's application in December 2010. After reviewing the evidence of record, the Board agrees with the determinations of the AOJ. The benefit at issue is based on a certification of a medical professional and the certifications in this case clearly reflect that the Veteran does not meet the criteria for a clothing allowance. In the absence of such medical evidence, the Board concludes that the preponderance of the evidence is against the Veteran's claim. As such, the reasonable doubt doctrine does not apply and the claim for a clothing allowance must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. ORDER Entitlement to a clothing allowance is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs