Citation Nr: 1613902 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 16-03 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in North Little Rock, Arkansas THE ISSUE Entitlement to a clothing allowance for 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 decision of the North Little Rock, Arkansas Regional Office VA Medical Center (VAMC). FINDINGS OF FACT 1. The Veteran's back brace, knee brace and shoe inserts have not been found to produce wear and tear by a designee of the Under Secretary for Health. 2. The Veteran does not have a service-connected skin condition. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for 2015 have not been met. 38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis The Veteran's service connected disabilities include lumbar spine disability, bilateral pes planus, left and right lower extremity sciatic nerve impairment, bilateral planovalgus foot with minimally preserved arches and metatarsalgia and pseudofolliculitis barbae (PB). He has claimed entitlement to a clothing allowance for 2015 because of braces used for his service-connected low back and knees, Perrigo pain-relieving muscle rub cream used apparently for pain from his service-connected orthopedic and neurological disabilities and custom insoles used for his service-connected feet. He has generally alleged that his back and knee braces cause his clothing to wear out faster than normal and that his pain-relieving muscle rub cream has caused permanent damage to his clothing through staining. A clothing allowance is authorized if a VA examination or hospital report establishes that a veteran, due to the service-connected loss of a hand or foot (compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d) or (f)) or wears or uses a prosthetic device which tends to wear or tear clothing. 38 C.F.R. § 3.810(a)(1)(i). A clothing allowance is also available if the Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing, or a veteran uses medication prescribed by a physician for a skin condition which is due to a service-connected disability, and causes irreparable damage to the veteran's outer garments. See 38 C.F.R. § 3.810(a)(1)(ii). Certain clothing allowance claims require a determination by a Veteran's Health Administration (VHA) prosthetic representative or designated physician when a review of the record is necessary. In all cases where a review is determined to be necessary, the prosthetic representative, and/or designated physician, must determine that: (1) Use of the device or skin medication is medically prescribed; and (2) In the case of a device, such device qualifies as a prosthetic or orthopedic appliance; (3) The device or skin medication tends to wear out, tear, or cause irreparable damage to the veteran's clothing; and (4) The veteran actually uses the device or skin medication with sufficient consistency to wear out, tear, or cause irreparable damage to clothing. See VHA Handbook 1173.15 sec. 3(b)(c). The Board notes that the Veteran has not lost a foot or hand as specified in 38 C.F.R. § 3.50(a)-(f).Thus, a designee for the Under Secretary for Health (e.g. a VHA Prosthetics Representative) must certify that the Veteran's orthopedic appliances and/or medications are eligible for a clothing allowance in order for such an allowance to be received. In this case, the VAMC's Chief of Prosthetics and Sensory Aids Service and a VAMC Prosthetics Representative have reviewed the Veteran's claim to determine whether such a certification could be made. See the December 2015 statement of the case. The Veteran does not appear to have a skin condition other than PB that is due to a service connected disability and it is neither shown nor alleged that the Perrigo muscle rub cream is used to treat his PB. Consequently, he appears to be legally precluded for obtaining a clothing allowance based on the use of the Perrigo skin cream. C.F.R. § 3.810(a)(1)(ii)(B). Also, even assuming the cream is used to treat a skin condition due to a service-connected disability, the VAMC Prosthetics Representative and Prosthetics Chief affirmatively found in the SOC that the cream does not cause irreparable damage to clothing, citing a finding of the VHA Pharmacy and Prosthetic Workgroup. See VHA Handbook 1173.15 sec. 8(c), which lists skin medications, which can cause permanent damage to clothing. Thus, as these officials (i.e. designees of the VA Under-Secretary of Health) did not certify that the Veteran's use of the skin cream tended to cause irreparable damage to his clothing, the Board may not award a clothing allowance based on such use. C.F.R. § 3.810(a)(1)(ii)(B). Regarding the custom insoles, the Prosthetics Representative and Prosthetics Chief affirmatively found that such shoe inserts are an example of an item that does not tend to wear or tear clothing and also found that shoes and socks were not qualifying items of clothing for purposes of receiving a clothing allowance. See VHA Handbook 1173.15 sec. 8(b). Thus, as these officials did not certify that the Veteran's insoles tend to wear or tear his clothing, the Board may not award a clothing allowance based the Veteran's use of them. C.F.R. § 3.810(a)(1)(ii)(A). Regarding the knee and back braces, the Prosthetics Representative and Prosthetics Chief noted that the back brace was an LSO corset issued to the Veteran in October 2013 and the left and right knee braces were hinged knee sleeves (i.e. hinges covered by material) that were issued to him in October 2013 and June 2014 respectively. They also noted that the Veteran's back brace, while having a metal frame, was considered a softgood orthotic, as were his right and left knee hinged sleeves (with hinges covered by material). Thus, they found that these prosthetics did not wear and tear clothing, based on the findings of the VHA Prosthetic Field Advisory Committee. See. E.g. VHA Handbook 1173.15 sec. 8(c), indicating that soft orthotics do not tend to wear and tear clothing. Thus, as these officials did not certify that the Veteran's braces tend to wear or tear clothing the Board may not award a clothing allowance based on the use of these prosthetics C.F.R. § 3.810(a)(1)(ii)(A). The Veteran has argued that the muscle rub cream does, in fact, stain the fabric of some of his shirts, as well as leaving an odor on them; that his back brace tears the waist of his pants because it contains exposed metal; and that he knows the knees of his pants wear out faster than they should due to him wearing the knee braces. Regarding the skin cream, as alluded to above, even assuming that it actually does irreparably stain or otherwise irreparably damage the Veteran's clothing, he is still precluded from receiving a clothing allowance in relation to it, as his only skin condition due to service-connected disability is PB and there is no indication or allegation that the Perrigo muscle rub cream is being used to treat PB. Also, the Veteran has not provided any corroborating evidence that the back or knee braces issued to him by VA have caused damage to his clothing (e.g. pictures of such damage) nor has he provided any corroborating evidence indicating that the back brace issued to him by VA contains exposed metal that would tend to damage clothing. Additionally, the Prosthetics Representative and Prosthetics Chief are presumed to have specific expertise pertaining to the nature of the different types of available back and knee braces, including whether exposed metal that would tend to wear and tear clothing would be present on the back brace issued to the Veteran. Thus, the Board credits their finding that the braces issued to the Veteran by VA were indeed softgood orthotics that would not tend to wear and tear clothing. Consequently, to the extent the Veteran is contending otherwise (i.e. that the type of back brace actually issued to him by VA, when in a proper working/undamaged state, has exposed metal that tends to wear and tear clothing, and that the type of knee braces actually issued to him by VA, when in a proper working/undamaged state, tend to wear and tear clothing), the Board does not find this contention accurate. Accordingly, the Board does not find a basis for remanding this claim to seek potential confirmation of the Veteran's assertion that the back brace issued to him by VA contains exposed metal and damages his clothing or to attempt to confirm the assertion that his knee braces accelerate the wear and tear of the knees of his jeans. The Board notes, however, that if the Veteran has in fact been issued a back brace by VA subsequent to the one provided to him in October 2013, which does contain exposed metal that is damaging his clothing, he may want to file a new claim for clothing allowance for 2016. Also, if the Veteran's current VA issued back brace has exposed metal as a result of damage to it, or if his knee braces have been damaged, he may want to inquire about receiving replacement(s). The Board sympathizes with the challenges the Veteran faces in dealing with his numerous disabilities. However, it must follow the controlling regulations. These regulations simply do not allow for an award of a clothing allowance for the Veteran in the absence of the appropriate certification from the Under Secretary for Health or a designee (e.g. the VAMC Prosthetics Representative or Prosthetics Chief). As such a certification has not been provided in this case, the Board does not have a basis for awarding entitlement to a clothing allowance. II. Due Process VA generally has a duty to notify and assist claimants in substantiating claims for VA benefits under the Veterans Claims Assistance Act (VCAA). See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, the provisions of the VCAA are not applicable to this claim on appeal because it turns on a matter of law (i.e. that the Veteran is precluded from receiving a clothing allowance without receipt of the appropriate certification from the VA Undersecretary or designee) and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). Therefore the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. ORDER Entitlement to clothing allowance for 2015 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs