Citation Nr: 1620912	
Decision Date: 05/24/16    Archive Date: 06/02/16

DOCKET NO.  12-24 090A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Martinsburg, West Virginia


THE ISSUE

Entitlement to a clothing allowance for the years 2014 and 2015.


REPRESENTATION

Veteran represented by:	Harry Binder, Attorney


ATTORNEY FOR THE BOARD

David Gratz, Counsel







INTRODUCTION

The Veteran served on active duty from March 1982 to June 1982.

This matter comes before the Board of Veterans' Appeals (Board) from determinations by the Department of Veterans Affairs (VA) Medical Center (MC) in Martinsburg, West Virginia.  

The Veteran was previously scheduled for a hearing in relation to his appeal of a denial of a 2014 clothing allowance, but withdrew such request in an April 2016 statement.  To the extent his request for a hearing in relation to his denial of a 2015 allowance is still pending, the Board finds that proceeding with a decision on this claim at this time is of no prejudice to the Veteran, as the Board's determination is fully favorable.


FINDING OF FACT

The back braces provided to the Veteran in 2014 and 2015 for his service-connected lumbar spondylolisthesis tend to wear and tear clothing.


CONCLUSION OF LAW

The criteria for entitlement to a clothing allowance for 2014 and 2015 are met.  38 U.S.C.A. §§ 1162, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.810 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 record confirms that the Veteran is in receipt of service connection for lumbar spondylolisthesis throughout the pendency of the claim, and the VAMC does not dispute that he has a qualifying orthopedic appliance.  Instead, to date, his claim has been denied based on the VAMC's finding that the Veteran's appliance does not tend to wear or tear clothing.  The VAMC has highlighted the fact that the Veteran's appliance is encased in a foam shell with soft foam lining that can be trimmed with scissors, and has an aluminum frame that can be contoured without tools.  The VAMC also notes that the brace is to be used for lifting and therefore is only worn occasionally.

The Veteran counters in his April 2015 statement that his VA-issued back brace does not have a soft inner liner, but rather "has a very dense and firm poly-foam covering both on the inside and outside."  He further reports that trimming the brace would detract from its function of providing support.  Specifically, the Veteran contends that his back brace is designed "in order to assure a safe amount of stability to an already weakened or compromised skeletal area.  Given the latter this wearer does not believe that support surface area should just be indiscriminately removed from the brace."  Moreover, the Veteran reported that VA issued him a heavier back brace in 2015 "that is in no way able to be trimmed."  In support of his statement, the Veteran attached an annotated photograph of his VA-issued back brace with metal fasteners.  He further asserts in his April 2016 statement that he wears his brace many hours during the day in conjunction with his work repairing wheelchairs and scooters, and this use of his brace causes the most wear to his clothing. 

The Board is persuaded by the Veteran's arguments, and finds that a clothing allowance is warranted for the years 2014 and 2015 based on his use of VA-issued back braces with metal fasteners.  The Board finds that the picture thereof, when combined with the Veteran's competent and credible lay statements, is sufficient to show that the brace causes wear and tear to his clothing.  The Board is also convinced by the Veteran's assertions that the instructions by the VAMC to trim the device to prevent any wear and tear would defeat the purpose of its use.  As the most probative evidence of record demonstrates that the Veteran wore and used an orthopedic appliance-a VA-issued back brace with metal fasteners-in 2014 and 2015 that tended to wear and tear clothing, a clothing allowance is warranted for those years, and the claim is granted.  38 C.F.R. § 3.810.


ORDER

Entitlement to a clothing allowance for the years 2014 and 2015 is granted.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs