Citation Nr: 1544472 Decision Date: 10/19/15 Archive Date: 10/29/15 DOCKET NO. 14-41 125A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an annual clothing allowance for the 2014 calendar year. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2014 decision by the Department of Veterans Affairs Regional Office (RO) in Roanoke, Virginia, which denied the Veteran's claim for an annual clothing allowance for the 2014 calendar year. He perfected a timely appeal to that decision. As a final preliminary matter, the Board notes that a review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the claim being decided herein, other than an informal hearing presentation from the Veteran's service representative dated September 3, 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. Service connection is currently in effect for degenerative disc disease of L5-S1, with final fusion, rated as 60 percent disabling; and stricture of right ureter, postoperative, with hydronephrosis and incisional hernia of right flank, rated as 20 percent disabling. 2. The evidence of record shows that service connection is not in effect for a skin disability. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the 2014 calendar year have not been met. 38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist. The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes initially that it is not clear whether the duty to notify and duty to assist the Veteran under the VCAA is applicable to clothing allowance claims. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties to notify and assist claimants, is not applicable to cases involving the waiver of recovery of overpayment claims. The Court pointed out in Barger that the statute at issue in waiver of recovery of overpayment claims was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by the VCAA). Similarly, the statute at issue in this matter is not found in Title 38, United States Code, Chapter 51. In Beverly v. Nicholson, 19 Vet. App. 394, 403-4 (2005), although not explicitly stated, the Court appeared to assume the VCAA is applicable to a Chapter 17 claim but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. The Board also notes that, to the extent that the VCAA is applicable to clothing allowance claims, VCAA notice is not required in this case because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); see also VAOPGCPREC 5-2004 (June 23, 2004) (finding that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the Veteran ineligible for the claimed benefit). Thus, any failure to notify and/or develop this claim under the VCAA cannot be considered prejudicial to the Veteran. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Laws and Regulations. 38 U.S.C.A. § 1162 provides that VA will pay an annual clothing allowance to a Veteran who meets either of the following two criteria: (1) because of a service connection disability wears or uses a prosthetic or orthopedic appliance which VA determines tends to wear out or tear his clothing, or (2) uses medication prescribed for a skin condition due to a service-connected disability that VA determines causes irreparable damage to his outer garments. The implementing regulation provides that the following criteria must also be satisfied. With regard to the first criteria, a medical report must disclose that the applicant wears or uses certain prosthetic or orthopedic appliances that tend to wear or tear clothing because of such disability, and such disability is the loss of a hand or a foot. 38 C.F.R. § 3.810(a) (1). With regard to both criteria, the Chief Medical Director or his designee must certify that that because of such disability a prosthetic or orthopedic device is worn or used that tends to wear or tear the applicant's clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to a service-connected disability, irreparable damage is done to the applicant's outergarments. 38 C.F.R. § 3.810(a) (2). III. Factual Background & Analysis. The Veteran has been granted service connection for degenerative disc disease of L5-S1, with final fusion, rated as 60 percent disabling; and stricture of right ureter, postoperative, with hydronephrosis and incisional hernia of right flank, rated as 20 percent disabling. The Veteran contends that he is entitled to an annual clothing allowance. In his September 2014 application, he indicated that he was prescribed steroid cream for treatment of a skin disorder. However, review of the private treatments submitted in support of the claim, dated in May 2014, reflects that the Veteran is prescribed topical ointments for a skin condition, diagnosed as Asteatotic Dermatitis. There is no indication that he is currently service connected for any skin disability. Moreover, the evidence does not indicate that the Veteran's treating physicians have prescribed any topical solutions to treat any of the disabilities for which service connection is currently in effect. As the evidence does not reflect that the Veteran has been granted service connection for his asteatotic dermatitis, this request for an annual clothing allowance must be rejected as a matter of law, because the statute and regulation require that damage to clothing be from an appliance worn or used because of a service-connected disability. See 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810(a) (1) (ii). See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the Board finds that the Veteran's claim for an annual clothing allowance for the 2014 calendar year must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). In closing, the Board notes that, were the Veteran to subsequently be awarded service connection for a skin disability that did result in qualification for a clothing allowance, he would be free to submit a new claim for that benefit. ORDER Entitlement to an annual clothing allowance for the 2014 calendar year is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs