Citation Nr: 1414594 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 11-08 809A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an annual clothing allowance for the 2010 calendar year. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1993 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the Department of Veterans Affairs (VA) Medical Center in Temple, Texas, which is the Agency of Original Jurisdiction (AOJ) for this matter. Jurisdiction of the case was subsequently transferred to the Regional Office (RO) in Waco, Texas. In May 2012 the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of this hearing has been associated with the Veteran's physical claims folder and has been reviewed. The Board has also reviewed the Veteran's electronic claims files. The Board notes that by an August 2011 rating decision, service connection for right knee anterior cruciate ligament instability (right knee disability) was denied. At his May 2012 travel Board hearing, the Veteran testified that he disagreed with this rating, appealed the issue, and was waiting on a statement of the case (SOC). Although the Board does not find a notice of disagreement (NOD) when reviewing the claims file, the Veteran's hearing testimony concerning this issue, once transcribed, was tantamount to a timely NOD with that August 2011 decision. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating an NOD need not contain any magic words or phrases). See also Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (indicating that testimony offered at a hearing, once transcribed, can satisfy the requirement that a statement be "in writing"). However, the Veteran has not yet been afforded an SOC; therefore, this claim is being remanded for the issuance of an appropriate SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected retropatellar pain syndrome, left knee, with medial collateral ligament injury (left knee disability) requires a knee brace which tends to wear his clothing. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the 2010 calendar year have been met. 38 U.S.C.A. §§ 1162, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.810 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Since the Board is granting the Veteran's claim, there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act of 2000. 38 C.F.R. § 20.1102 (2013); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Clothing Allowance Claim 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) (2013); 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 ware or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition that 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). Effective August 1, 1972, the initial lump-sum clothing allowance is due and payable for veterans meeting the eligibility requirements of paragraph (a) of this section as of that date (that is, as of August 1st). Subsequent annual payments for those meeting the eligibility requirements of paragraph (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously established entitlement. 38 C.F.R. § 3.810(b). 38 C.F.R. § 3.810 further states that except as provided in paragraph (c) (2) of this section, the application for clothing allowance must be filed within 1 year of the anniversary date (August 1st) for which entitlement is initially established; otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within one year of such date. The one-year period for filing application will include the anniversary date (August 1st) and terminate on July 31st of the following year. 38 C.F.R. § 3.810(c) (1). If the initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, then the application for clothing allowance may be filed within 1 year from the date of notification to the veteran of such determination. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(c) (2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran submitted a formal application for the annual clothing allowance in May 2010. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. The Veteran's credible testimony and the history of his claim establish that he is presently service-connected for a left knee disability. The Veteran contends that he requires a hard plastic knee brace with metal on the inside due to his left knee disability. He asserts that the brace is made of a rigid material with a hard hinge that wears out his clothing, especially his work trousers, based on the brace's size and friction alone. According to the January 2011 SOC, the basis of VA's denial of the Veteran's claim for a 2010 annual clothing allowance was that the brace provided by VA did not tend to wear or tear clothing as it was not rigid and had no exposed metal. The Board finds the Veteran's testimony as to the nature of his knee brace credible. That is, the Veteran is not claiming that his knee brace has exposed metal but instead causes wear on his clothing due to its size and friction. As such, the Board finds the assessment of the knee brace in the January 2011 SOC inaccurate. Thus, the evidence of record demonstrates that the Veteran's knee brace for his service-connected left knee disability causes damage to his garments. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an annual clothing allowance for the 2010 calendar year. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an annual clothing allowance for the 2010 calendar year is granted, payable as of August 1, 2010. REMAND As discussed in the Introduction, in an August 2011 rating decision, the RO denied entitlement to service connection for a right knee disability. In May 2012, the Veteran testified at a travel Board hearing before the undersigned VLJ that he wished to appeal the decision. A transcript of that hearing is of record. Because the Veteran's testimony offered during the hearing was later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as a NOD regarding the issue of entitlement to service connection for a right knee disability. See Tomlin supra. However, the RO has not issued a SOC that addresses this issue. In such cases, the appellate process has commenced, and the Veteran is entitled to an SOC. See Pond v. West, 12 Vet. App. 341 (1999); Manlicon supra. Accordingly, the case is REMANDED for the following action: The AMC/RO should furnish an SOC to the Veteran and his representative addressing the issue of entitlement to service connection for a right knee disability. The Veteran and his representative must be advised of the need to file a timely Substantive Appeal following the issuance of the SOC if he wishes to complete an appeal from that specific decision. This issue should be returned to the Board only if the Veteran perfects a timely appeal with respect to the denial of this claim. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs