Citation Nr: 1624029	
Decision Date: 06/15/16    Archive Date: 06/29/16

DOCKET NO.  14-38 881A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida


THE ISSUE

Entitlement to a clothing allowance for the year 2013.

(The issues of entitlement to an effective date prior to October 15, 2008 for service connection of coronary artery disease, as well as whether clear and unmistakable error (CUE) existed in a January 1982 Board decision, are the subjects of separate decisions).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Counsel


INTRODUCTION

The Veteran had active service from July 1965 to May 1974, from November 1993 to December 1994, and from January 1995 to March 1995, as well as periods of ACDUTRA and INACDUTRA.  He was awarded a Vietnam Cross of Gallantry with a palm and a Purple Heart, among other awards, for his service. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 decision issued by the Veterans Affairs Medical Center in Bay Pines, Florida.  

The Board notes that in addition to the Veteran's paper claims file, there are paperless, electronic files associated with his claim (Virtual VA and Veterans Benefits Management System (VBMS)).  A review of his electronic files reveals numerous records not found in the paper file, including the May 2016 Informal Hearing Presentation.  


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the service-connected right knee disability required the use of a rigid brace that caused wear and tear to the Veteran's clothing, for the year 2013.


CONCLUSION OF LAW

The criteria for establishing entitlement to an annual clothing allowance for the  year 2013, have been 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

Given that the Board herein grants the requested benefit in full, the need to discuss VA's obligations as to its duties to notify and assist the Veteran under 38 U.S.C.A. §§ 5103 , 5103A (West 2014) and 38 C.F.R. § 3.159, is obviated. 

The Veteran contends that he is entitled to a clothing allowance under 38 C.F.R. § 3.810, for the year 2013.  The regulation provides, in pertinent part, that a veteran is entitled to one annual clothing allowance if the Under Secretary for Health or a designee certifies that because of a service-connected disability, the veteran wears or uses one qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing.  38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810(a) (2015).  

In this case, a clothing allowance was granted in years prior to 2013 for use of a rigid knee brace for the Veteran's service-connected right knee disability.  However, for the clothing allowance year 2013, the Veteran's claim for clothing allowance was denied based on an indication in the list of prescribed orthotics, that the Veteran was prescribed a non-rigid brace in 2013.  The Veteran contends that he did not actually use the softer, non-rigid brace during the clothing allowance year, 2013, because it did not offer enough support.  In his November 2014 statement, he reported that he continued to wear the eligible, rigid brace which had been prescribed previously, in 2009.  He also reported that in March 2014, the VA prosthetics department realized they had prescribed the wrong brace and corrected the mistake with a prescription for a rigid brace.  See November 2014 statement.  

The Board finds the Veteran's statement to be competent and credible.  The Board has no reason to doubt the credibility of his statement that he used the older, rigid brace during the year 2013.  Further, he is able to observe wear and tear of his clothing.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  Moreover, as a clothing allowance was granted in prior years for use of the older, rigid brace, the Board finds that the requirement that the Under Secretary for Health or a designee certify eligibility of the device has been met.  See 38 C.F.R. § 3.810(a).  

Accordingly, the Board concludes that the use of a VA prescribed, rigid knee brace for treatment of the service-connected right knee disability, tends to cause wear and tear to the Veteran's clothing, thereby warranting continued entitlement for a clothing allowance for the year 2013.  To this extent, the appeal is granted in full. 


ORDER


An annual clothing allowance for the year 2013 is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs