Citation Nr: 1509595	
Decision Date: 03/06/15    Archive Date: 03/17/15

DOCKET NO.  13-03 479A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Memphis, Tennessee


THE ISSUE

Entitlement to eligibility for an annual clothing allowance.

(The issue of entitlement to an earlier effective date for the grant of service connection for impotency with penile prosthesis is the subject of a separate decision by the Board.)


REPRESENTATION

Appellant represented by:	American Red Cross


ATTORNEY FOR THE BOARD

B. Elwood, Counsel



INTRODUCTION

The Veteran served on active duty from December 1980 to December 1984 and from November 1990 to July 1991.  He also had a period of active duty for training with the Army National Guard from April to July 1976.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 decision of the Department of Veterans' Affairs (VA) Medical Center in Memphis, Tennessee.  In that decision, the VA Medical Center denied entitlement to eligibility for an annual clothing allowance.

In addition to the paper file, there are Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims files associated with the Veteran's claim.  The documents in these files have been reviewed and considered as part of this appeal.


FINDINGS OF FACT

1.  The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD), impotency with penile prosthesis, voiding dysfunction, tinnitus, right great toe distal phalanx fracture with hallux rigidus and degenerative changes, bilateral hearing loss, and a surgical scar associated with impotency with penile prosthesis.

2.  The Veteran does not use any prosthetic, orthopedic appliance, or medication for a service-connected disability that wears out or tears his clothing or otherwise causes irreparable damage to his outergarments.


CONCLUSION OF LAW

The criteria for eligibility for an annual clothing allowance are not met.  38 U.S.C.A. §§ 1162, 5107(b) (West 2014); 38 C.F.R. § 3.810 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Veteran was provided with pre-adjudication notice of the evidence needed to substantiate his claim for eligibility for an annual clothing allowance by way of the "Application for Annual Clothing Allowance" form (VA Form 10-8678) that he submitted in July 2012.  A June 2013 letter satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The post-decisional June 2013 letter could not serve to provide legally compliant VCAA notice.  Mayfield v. Nicholson, 444 F.4d 1328 (2006).  It should, however, have served to put the Veteran on notice as to what evidence was required and he has had ample time within which to submit additional evidence and argument.

To the extent that the Veteran was not provided with pre-adjudication notice of some of the information required by the VCAA, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication.  Id. See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful).  No such showing of prejudice has been made in this case.  The Veteran received actual notice of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide by way of the June 2013 letter. 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified relevant post-service medical records.  The Veteran has not indicated that there are any additional records that VA should obtain on his behalf.  Also, there is no indication that any examinations or opinions would assist in substantiating entitlement to eligibility for an annual clothing allowance.

Analysis

A veteran is entitled to one annual clothing allowance per year when the following eligibility criteria are satisfied: (1) a VA examination or a hospital or examination report from a facility specified in 38 C.F.R. § 3.326(b) establishes that the veteran, because of a service-connected disability or disabilities due to 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), wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing; or (2) the Undersecretary for Health or a designee certifies that, (i) the veteran, because of a service-connected disability or disabilities, wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited, a wheelchair) which tends to wear or tear clothing.  38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(a). 
Where a claim for a clothing allowance is based on medication use, an annual clothing allowance is payable if the Under Secretary for Health or a designee certifies that the medication was prescribed for a skin condition, which is due to a service-connected disability, and that the medication causes irreparable damage to the veteran's outergarments.  Id.   

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

In the present case, the Veteran reported in his July 2012 claim and February 2013 substantive appeal (VA Form 9) that he was prescribed medications and pain relieving cream for joint and muscle soreness (e.g., arthritis and back aches) and used a walking cane, knee brace, back brace, and elbow brace for joint pain (including pain associated with his service-connected right foot disability and pain associated with a non service-connected back disability).  These medications and appliances impacted his chest, back, hip, right leg, right knee, right elbow, and right foot/toe.  He also reported in a December 2014 statement (VA Form 21-4138) that he wore prosthetic shoes and an ankle brace and that he had to buy bigger pants because of his penile implant.

The Veteran is service-connected for PTSD, impotency with penile prosthesis, voiding dysfunction, tinnitus, right great toe distal phalanx fracture with hallux rigidus and degenerative changes, bilateral hearing loss, and a surgical scar associated with impotency with penile prosthesis.  Although the evidence confirms that he has been issued ankle, back, and elbow braces, he is not service-connected for any ankle, back, elbow, knee, or leg disabilities.  Also he is not service-connected for any loss or loss of use of a hand or foot or any skin condition.
Hence, he is not entitled to a clothing allowance on the basis of any medication or orthopedic appliance used for any such disabilities.  

VA examination reports dated in June and August 2014 reflect that the Veteran uses a cane for ambulation.  However, the June 2014 VA examination reports indicate that the cane was reportedly used for non service-connected arthritis involving the knees and lumbar spine.  Moreover, there is no other evidence or any certification from the Undersecretary for Health or a designee that the Veteran wears or uses any qualifying prosthetic or orthopedic appliance, because of a service-connected disability, which tends to wear or tear his clothing.  

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not helpful to the Veteran in this instance and the claim of eligibility for an annual clothing allowance must be denied.  See 38 U.S.C.A. §§ 1162, 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 55-57; 38 C.F.R. § 3.810.


ORDER

Entitlement to eligibility for an annual clothing allowance is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs