Citation Nr: 1609505 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 14-34 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Huntington, West Virginia THE ISSUE Entitlement to an additional Clothing Allowance under 38 U.S.C.A. § 1162 (West 2014). (The issues of entitlement to increased evaluations for posttraumatic stress disorder will be addressed in a separate decision by the Board.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1990 to February 1992 and from February 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a July 2014 decision of the Department of Veterans Affairs Medical Center (VAMC) in Huntington, West Virginia. In July 2015, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. The claims file is entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he uses a medically prescribed salicylic acid/sulfur shampoo for his service-connected skin disability which causes irreparable damage to his outer garment and that he has previously received a clothing allowance for this medicated shampoo. It is significant to note that the Veteran is a Licensed Practical Nurse, and as such may have medical expertise in the subject matter at issue herein. A review of the file indicates that on VA examination in July 2004, the Veteran's scalp revealed a one-centimeter slightly indurated firm fibrotic lesion in the left parietal area and another also on the right parietal area. At the base of the neck, there was a one-centimeter firm indurated nodule at the left base and a smaller one on the right side. Dermatitis of unknown etiology at the left axillary region was also found on examination. On VA examination in December 2004, red popular and some fibrotic lesions scattered over the upper extremities and upper trunk and on the right antecubital area and upper left arm were noted. There was also a fine erythematous rash on the right inner aspect of the forearm and a large red area on the right olecranon. The Veteran was diagnosed with dermatitis of unknown etiology (Methicillin-resistant Staph aureus diagnosed by Infectious Disease). Service connection was established in an August 2004 rating decision for an unspecified disorder of the skin and subcutaneous tissue, noted specifically to be residual scarring from lesions or nodules around the neck area being incised and drained after receiving an anthrax injection as well as recurrent outbreak of boils on the upper extremities described as MRSA. In addition, based on the findings at the December 2004 VA examination, an increase in the disability rating was granted by a January 2005 rating decision which noted that the percentage of body affected was less than 20 percent but the Veteran was shown to have been on Bactrim DS for more than six weeks over the prior 12-month period. The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance which VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin disability which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C.A. § 1162 (West 2014). Under 38 C.F.R. § 3.810 (2015), 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 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) (2015); 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 wear or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition which 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). In order for the Veteran to be found eligible for a clothing allowance, a certification is needed from the Chief Medical Director or designee that the use of a physician-prescribed medication for his service-connected skin disability irreparably damages his outer garments. In the instant case, the Veteran sought multiple clothing allowances in May 2014. In July 2014, the Veteran was notified that he was entitled to one clothing allowance. It was noted that one clothing allowance was denied based on the fact that the National Pharmacy and Prosthetic Workgroup had determined that salicylic acid/sulfur shampoo did not cause irreparable damage of staining to clothing. The September 2014 Statement of the Case, however, did not address the damage caused by the Veteran's medications but noted, [A]ccording to Title 38 U S C 1162, in order to receive multiple clothing allowances a veteran must use more than one qualifying prosthetic or orthopedic appliance; medication for more than one skin condition; or an appliance and a medication that tends to wear, tear or cause irreparable damage to the clothing or outer garments due to more than one appliance(s) or medication(s). Review of your record indicates that you are currently service connected for one skin condition. You were granted one clothing allowance for your service connected skin condition. The regulation provides for a clothing allowance for each medication that affects an outer garment, when the Under Secretary for Health, or a designee, certifies that the qualifying medication for a skin disorder causes damage to outer garments. 38 C.F.R. § 3.810(a)(1), (3) (2015). The regulation does not place a numeric limit on the number of clothing allowances a Veteran may receive, but specifies that where multiple clothing allowances are at issue, the medication on which the clothing allowance request is based must affect a distinct type of article of clothing or outer garment. See 77 Fed. Reg. 34, 218-01 (revision of language of regulation to clarify that an appliance or medication need only affect a distinct type of clothing to qualify for a clothing allowance); 76 Fed. Reg. 70, 883 -01, 70,884 (comment on proposed regulation asked that VA establish "no limitation" for the number of clothing allowances, but VA declined to use that language, stating that a clothing allowance for each prosthetic or orthopedic appliance was available if each appliance affects a distinct article of clothing). The Veteran maintains that his clothing is damaged by a salicylic acid/sulfur shampoo that he uses to treat a service-connected skin disability. The record includes pharmacy information regarding the Veteran's prescription for salicylic acid/sulfur shampoo which indicates that it is used to treat dandruff and other scalp conditions. The information notes that salicylic acid and sulfur are known as keratolytic agents which cause the skin to shed dead cells from its top layer by increasing the amount of moisture in the skin and dissolving the substance that makes the cells clump together, that the effect makes it easier to shed the skin cells, softens the top layer of skin, and decreases scaling and dryness. The directions indicate that it should be applied to the scalp, left on for five minutes, and then rinsed off well. The instructions also note to avoid getting the medication on clothing, wood, plastic, metal, or other surfaces because it can cause damage. The Veteran essentially testified at his July 2015 Board hearing that he uses salicylic acid/sulfur shampoo for a service-connected disability and that such shampoo ruins his clothes. The Veteran also testified that he had been receiving a clothing allowance previously for this particular physician-prescribed shampoo. He did not, however, provide detailed information as to how or which outer garments were damaged by the use of the prescribed shampoo. Unfortunately, there is no information in the file concerning grants for clothing allowances prior to July 2014. In addition, for the clothing allowance granted in July 2014, there is no detail as to the particular medication or outer garment involved. Further, an opinion from the Chief Medical Director or designee has yet to be obtained regarding whether the physician prescribed shampoo in question is used for a service-connected condition; and if so, whether it causes any irreparable damage to the Veteran's outer garments. Such evidence is vital prior to a final adjudication of the Veteran's claim for an annual clothing allowance. Thus, the claim must be remanded to obtain an opinion from the Chief Medical Director or designee. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be notified that he may submit lay statements or other evidence, including pictures, documenting the medical necessity for the use of salicylic acid/sulfur shampoo for his service-connected skin disability, the extent of his use of such shampoo, and the damage to clothes due to the use of such shampoo. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Information regarding previous clothing allowances should be associated with the file. 3. A memorandum should be prepared and associated with the file which provides additional information with regard to the grant of a clothing allowance in July 2014. Specifically, the memorandum should contain the name of the medication and the particular outer garment irreparably damaged by the use of such medication for which a clothing allowance was granted in July 2014. 4. After the above has been completed, access to Virtual VA and VBMS should be provided to the Chief Medical Director (or appropriate designee) for a determination as to whether the Veteran's salicylic acid/sulfur shampoo meets the criteria for a clothing allowance in accordance with VHA directives. The designee must specify in the report that Virtual VA and VBMS records have been reviewed. The designee should address whether (a) use of the salicylic acid/sulfur shampoo is medically necessitated for a service-connected skin disability; and (b) the salicylic acid/sulfur shampoo tends to cause irreparable damage to the Veteran's clothing. 5. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).