Citation Nr: 1436664 Decision Date: 08/15/14 Archive Date: 08/20/14 DOCKET NO. 11-23 701A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tuscaloosa, Alabama THE ISSUE Entitlement to an annual clothing allowance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2001 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision of the Department of Veterans Affairs Medical Center (VAMC) in Tuscaloosa, Alabama. The Board notes that the Veteran made a statement on her VA Form 9, referencing a girdle she wears at work. Because the girdle is not a prosthetic or orthopedic appliance, the Board finds this evidence is not relevant to the claim on appeal and a waiver is not required to proceed with adjudication of the claim. See 38 C.F.R. § 20.1304. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The documents within these systems do not include any non-duplicative materials pertinent to the present appeal, other than an Informal Hearing Presentation submitted by the Veteran's representative. FINDINGS OF FACT 1. The Veteran is service-connected for chronic lumbosacral strain. 2. The Veteran was prescribed a back brace in March 2010. 3. The evidence does not show that the Veteran currently has a back brace provided for her service-connected chronic lumbosacral strain which tends to wear or tear her clothing as certified by the Chief Medical Director or designee. CONCLUSION OF LAW The requirements for eligibility for a clothing allowance have not been met. 38 U.S.C.A. §§ 1162 , 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.810 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that she had previously been awarded a clothing allowance for a back brace provided for her service-connected chronic lumbosacral strain. In a December 2011 statement, the Veteran indicated that she must purchase new business clothing due to the stretching and tearing caused by wearing the back brace. The Veteran's husband submitted a statement echoing these contentions. However, in her August 2011 Notice of Disagreement (NOD), the Veteran indicated that she does not wear the brace at work, but only wears it at home. She also stated that she purchases "larger size shirts" and elastic waistband pants "to provide a more comfortable fit while wearing the device." Under pertinent 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). In denying the clothing allowance, the designee of the Chief Medical Director found that the evidence did not show that the Veteran wears or uses a prosthetic device or orthopedic appliance which tends to wear out or tear clothing because of a service-connected disability. Furthermore, in the September 2011 Statement of the Case, another VA prosthetic representative indicated that there was no evidence of wear and tear but rather only evidence of providing comfortable fit while wearing the device at home. He also indicated that the life expectancy of the Veteran's brace was six to eight months. The Veteran's statements regarding wearing a girdle at work are not relevant to this claim as there is no indication that the girdle was provided by VA for her service-connected disability, nor has the Veteran asserted that the girdle results in wear or tear of her clothing. To the contrary, the Veteran first indicated that her professional clothing became torn and stretched while wearing the brace at work, but she later indicated that she actually does not wear the brace at work. Regardless of how often the Veteran uses the brace, the Board finds most persuasive the opinion of the VAMC designee that the Veteran's back brace for her service-connected chronic lumbosacral strain did not did not tend to wear or tear her clothing. Again, a clothing allowance under the law is payable where the orthopedic appliance is worn or used and tends to wear or tear the Veteran's clothing as certified by the Chief Medical Director or designee. See 38 U.S.C.A. § 1162 ; 38 C.F.R. § 3.810(a)(ii). 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify has been satisfied by a June 2011 letter sent to the Veteran that informed her of what evidence was required to substantiate her claim, which was augmented by the laws and regulations provided in the September 2011 Statement of the Case. Furthermore, the essential fairness of the adjudication has not been affected because the Veteran demonstrated through her comments in her NOD that she is aware of what is needed to establish entitlement to an annual clothing allowance. The Veteran's representative also reviewed the Veteran's claims file and offered arguments in support of her claim, most recently, in the July 2014 Informal Hearing Presentation. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond; it is not prejudicial to the Veteran for the Board to proceed with adjudication of the appeal. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes the Veteran's service treatment records, VA medical records, statements in support of the claim by the Veteran and her representative, and other lay statements. The Veteran has not indicated there are any additional records that VA should obtain on her behalf. Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an annual clothing allowance is denied. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs