Citation Nr: 1618741 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 14-32 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Memphis, Tennessee THE ISSUE Entitlement to clothing allowance benefits for the year 2013 pursuant to 38 U.S.C. § 1162 and 38 C.F.R. § 3.810. [The issues of entitlement to a rating higher than 20 percent for low back disability from November 1, 2009, ratings higher than 10 percent for radiculopathy of the right and left lower extremities, and a total disability rating based on individual unemployability due to service-connected disabilities are addressed in a separate document.] REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1992. This matter comes before the Board of Veterans' Appeals on appeal from a September 2013 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Memphis, Tennessee. The record before the Board consists of a paper claims file and electronic records within Virtual VA and the Veterans Benefits Management System. REMAND The Veteran contends that the back and knee braces that he used because of his service-connected low back and right knee disabilities caused wear and tear to his clothing. Specifically, he claims that the braces have Velcro fasteners that have become bent and snag his clothes. In further support of the claim, the Veteran highlights that he was previously granted clothing allowance benefits for the back and knee braces for fiscal years 2008 and 2011. In pertinent part, 38 C.F.R. § 3.810(a) authorizes a clothing allowance if the Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, wears or uses one qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing. See 38 C.F.R. § 3.810(a)(1)(ii)(A). The VAMC denied the Veteran's claim for a clothing allowance for the year 2013 based on a finding that braces covered in fabric, braces with metal/plastic stays covered in fabric, and appliances/devices with Velcro fasteners/stays do not cause wear and tear to clothing or other garments. In so doing, the VAMC relied on an August 2013 notation of record relaying that the Veteran's back and knee braces were fabric covered. The VAMC continued the denial of the claim based on a June 2014 finding by the Chief of Prosthetic Sensory Aids Service that the Veteran's braces do not qualify for a clothing allowance because they are the types that do not tend to cause wearing or tearing of clothing. The Board notes that the controlling regulation pertaining to clothing allowance benefits cited above does not require that a brace have no fabric covering; it simply indicates that it must tend to wear and tear clothing. 38 C.F.R. § 3.810(a). In this case, the VAMC has rendered its determination based on generic information concerning the types of braces used by the Veteran. There has been no actual examination of the braces in question to determine whether they would tend to wear and tear the Veteran's clothing. Therefore, the Board has determined that a remand for that purpose is required. Accordingly, the case is remanded to the VAMC for the following actions: 1. It should arrange for the Veteran to be scheduled for an appointment to enable a suitable professional to examine the braces in question and render a determination as to whether the braces would tend to wear and tear clothing. 2. The VAMC should also undertake any other development it determines to be warranted. 3. Then, the VAMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a Supplemental Statement of the Case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ Shane A. Durkin 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).