Citation Nr: 1601427 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 14-15 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Decatur, Georgia THE ISSUE Entitlement to an annual clothing allowance for the year 2012. ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to October 2004. This appeal arises from an August 2012 determination of the VA Medical Center (VAMC) in Decatur, Georgia that denied eligibility for an annual clothing allowance for 2012. FINDINGS OF FACT 1. The Veteran is service-connected for quadriceps tendonitis with quadriceps atrophy, status post reconstructive repair, left knee and service-connected right knee pain; both knees require the use of a brace. 2. The Veteran does not suffer from a disability involving loss or loss of use of a hand or foot that require use of certain prosthetic or orthopedic appliances that tend to wear or tear his clothing; and neither the Under Secretary for Health nor his designee has certified that due to a service-connected disability, the Veteran wears or uses a prosthetic or orthopedic device that tends to wear or tear on clothing. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the year 2012 are not met. 38 U.S.C.A. §§ 1162 (West 2014); 38 C.F.R. §§ 3.159(a), 3.810 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). Here, the VAMC notified the Veteran of the evidence needed to substantiate his claim for an annual clothing allowance. This letter also explained VA's duties to notify and assist the Veteran with regard to his claim, and that VA would make reasonable efforts to obtain relevant private medical records, and make as many requests as necessary to obtain federal records. To the extent that the VAMC's actions did not comply with any other potentially applicable VCAA notice requirements, the Veteran has not alleged or shown any prejudice from such error. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (when there is a VCAA notice error, a Veteran has the burden of showing that such error was prejudicial). Furthermore, the essential fairness of the adjudication has not been affected because the Veteran demonstrated through his comments in his notice of disagreement and substantive appeal that he is aware of what is needed to establish entitlement to an annual clothing allowance. VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the pertinent information and evidence that have been associated with the claims file include VA treatment records, VA examination reports, the Veteran's lay statements, and opinions by the Decatur VAMC Prosthetic Representative of the Prosthetic and Sensory Aids Service and the VISN Prosthetic Representative VA Southeast Network. Analysis The Veteran claims entitlement to a clothing allowance based on the wear and tear of clothing caused by his bilateral knee braces issued for his service-connected quadriceps tendonitis with quadriceps atrophy, status post reconstructive repair, left knee and service-connected right knee pain. Under 38 C.F.R. § 3.810(a)(1) (2015) as it pertains here, a veteran is entitled to one clothing allowance if either: (i) 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 that involves loss or loss of use of a hand or foot, wears or uses a qualifying prosthetic or orthopedic appliance that tends to wear or tear clothing; or (ii) the Under Secretary for Health or a designee certifies that the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance that tends to wear or tear clothing, or the veteran uses medication prescribed by a physician for a skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran's outer garments. A veteran is entitled to two annual clothing allowances if a veteran uses more than one prosthetic or orthopedic appliance, (including, but not limited to, a wheelchair), medication for more than one skin condition, or an appliance and a medication, and the appliance(s) or medication(s): (i) Each satisfy the requirements of 38 C.F.R. § 3.810(a)(1); and (ii) Together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. See 38 C.F.R. § 3.810(a)(3). The Under Secretary for Health designee is the Prosthetic Representative. See VHA Handbook 1173.15 paragraph 5.c (Issued May 14, 2015). If a clinical determination is required pursuant to VHA Handbook 1173.15 paragraph 6, then the Under Secretary for Health designee will be the appropriate clinician (e.g., VHA clinician, Prosthetist, or Orthotist, or Pharmacist). Id. To determine that a Veteran is entitled to the allowance, the Under Secretary for Health designee must find and document that: (1) The use of the prosthetic, orthopedic appliance, or skin medication is medically necessitated for a service-connected disability or disabilities; (2) The prosthetic, orthopedic appliance, or skin medication meets the definition in this Handbook; and (3) The prosthetic or orthopedic appliance tends to wear out or tear the clothing of the Veteran or the skin medication causes irreparable damage (e.g., permanent irreversible staining, bleeding or damage not removable with laundering or dry cleaning) to the Veteran's outer garments. See VHA Handbook 1173.15 paragraph 5.c (1)-(3). An April 2010 VA treatment note shows that a hinged knee brace and cane were ordered for the Veteran following an evaluation of his knee. Additional VA records compiled in connection with the claim for a clothing allowance reflect that the Veteran was issued two KO Elastic Frontline braces for his knees in April 2010. In the Veteran's September 2012 notice of disagreement, he stated that he was issued two rigid metal braces for his knee. He further asserted he had received an annual clothing allowance for the two prior years for the same disabilities, and thus he should be entitled to a clothing allowance for the year 2012. As detailed in the December 2012 statement of the case, the Under Secretary for Health designee determined that the Veteran was issued off-the-shelf KO elastic knee braces in April 2010. These braces consisted of an elastic wrap-around knee orthosis that featured covered aluminum polycentric hinges with no exposed joints or surfaces which would cause damage or wear and tear of clothing. On the Veteran's April 2014 substantive appeal (VA Form 9), he indicated that his knee braces have hinges and Velcro straps that wear certain types of his clothing, particularly his dress pants. He also indicated that he wears his knee braces on top of his clothing. The Board has considered the Veteran's lay assertions in support of his claim. Lay statements may be competent to support a claim by supporting the occurrence of lay-observable events. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The wear and tear of clothing is certainly capable of lay observation, and it is noted the Veteran asserts that wearing his knee braces, on top of and underneath his pants, caused wear and tear on his clothing. Nonetheless, the regulation requires either that a medical report disclose that the Veteran 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 or loss of use of a hand or foot; or the Under Secretary for Health or his designee certifies that because of such disability a prosthetic or orthopedic device is worn or used that tends to wear or tear on the Veteran's clothing. 38 C.F.R. § 3.810(a). The Veteran's service-connected disabilities for which he uses the braces does not involve loss or loss of use of a hand or foot, nor is it a skin condition. As further indicated, the Under Secretary for Health designee has determined that the Veteran's knee braces are not the type that tends to wear or tear on the Veteran's clothing because the knee brace hinges are covered and have no exposed joints or surfaces that would cause wear and tear on clothing. In sum, 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 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). ORDER An annual clothing allowance for the year 2012 is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs