Citation Nr: 1632634 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 14-24 768A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Memphis, Tennessee THE ISSUE Entitlement to a clothing allowance pursuant to 38 U.S.C.A. § 1162 and 38 C.F.R. § 3.810 for wear or tear of the clothing of the Veteran due to a back brace, knee braces, and due to damage to the Veteran's outer garments caused by prescribed topical medications for service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision of the Department of Veterans Affairs (VA) Medical Center in Memphis, Tennessee. In August 2015, the Veteran testified before the undersigned at a Board hearing via videoconference from the Nashville, Tennessee RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Under 38 C.F.R. § 3.810(a)(1) (2015), a veteran is entitled to one clothing allowance if either: (i) a VA examination or a hospital or examination report from a facility specified in 38 C.F.R. §3.326(b) establishes that the veteran, because of a service-connected disability, wears or uses a qualifying prosthetic or orthopedic appliance that tends to wear or tear clothing; or (ii) the Under Secretary for Health or a designee certifies that the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance that tends to wear or tear clothing, or the veteran uses medication prescribed by a physician for a skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran's outer garments. See 38 C.F.R. § 3.810(a)(1). The applicable regulations further provide that: A veteran is entitled to two annual clothing allowances if a veteran uses more than one prosthetic or orthopedic appliance, (including, but not limited to, a wheelchair), medication for more than one skin condition, or an appliance and a medication, and the appliance(s) or medication(s): (i) Each satisfy the requirements of 38 C.F.R. § 3.810(a)(1); and (ii) Together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. See 38 C.F.R. § 3.810(a)(3) . The Under Secretary for Health designee is the Prosthetic Representative. See VHA Handbook 1173.15 paragraph 5.c (Issued May 14, 2015). If a clinical determination is required pursuant to VHA Handbook 1173.15 paragraph 6, then the Under Secretary for Health designee will be the appropriate clinician (e.g., VHA clinician, Prosthetist, or Orthotist, or Pharmacist). Id. To determine that a Veteran is entitled to the allowance, the Under Secretary for Health designee must find and document that: (1) The use of the prosthetic, orthopedic appliance, or skin medication is medically necessitated for a service-connected disability or disabilities; (2) The prosthetic, orthopedic appliance, or skin medication meets the definition in this Handbook; and (3) The prosthetic or orthopedic appliance tends to wear out or tear the clothing of the Veteran or the skin medication causes irreparable damage (e.g., permanent irreversible staining, bleeding or damage not removable with laundering or dry cleaning) to the Veteran's outer garments. See VHA Handbook 1173.15 paragraph 5.c (1)-(3). If insufficient medical evidence of record exists to award the claim, then a clinical review or physical evaluation of the prosthetic, orthopedic appliance, or skin medication is warranted. See VHA Handbook 1173.15 paragraph 6.a. The examining physician will re-evaluate the Veteran to determine whether the prosthetic, orthopedic appliance or skin medication is still medically necessary for their service-connected disability. Annual re-evaluation of the Veteran's prosthetic, orthopedic appliance or skin medication is recommended. For unusual circum-stances veterans can submit pictures to certify their prescribed prosthetic, orthopedic appliance or skin medication causes wear, tear or irreparable staining. Submission of pictures by the Veteran is considered sufficient evidence in such unusual circumstances. See VHA Handbook 1173.15 paragraph 6.b. The Veteran contends that his back brace and knee braces result in damage to his clothing, apparently due to friction to his clothing as well as the metal in the braces which make them rigid, all causing damage to fabric. He explained that the braces are made of metal and covered, but the metal still tears the fabric of his shirts and pants on a monthly basis. The Veteran also indicates that his braces are similar to the prior braces for which he was granted a clothing allowance. The Veteran further maintains that he has been prescribed topical medications which cause permanent staining of his clothing. The Board finds that there is insufficient medical evidence to determine whether the Veteran's back and knee braces and topical medications cause the damage, as claimed. The Chief of Prosthetics reviewed the Veteran's chart, but the Veteran was not physically evaluated. In view of his testimony in particular, the Board finds that he should be examined to address the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements or other evidence documenting for the applicable years of his claim(s): the medical necessity for the use of back and knee braces and topical medication for service-connected disability; the extent of his use of such braces and medication; the excessive wear and tear to clothes due to the use of his braces; and the extent of irreparable staining due to topical medication prescribed for service-connected disability. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Schedule the Veteran for an appropriate examination by a designated clinician to address whether the Veteran's back and knee braces result in wear and tear to the Veteran's clothing. The examiner should also assess if the Veteran's topical medications cause irreparable damage to outer garments. If there is wear and tear and staining due to prescribed braces/orthotics, and topical medications, for service-connected disabilities, the examiner should certify any such wear and tear, and staining to the Veteran's clothing was caused by his prescribed braces/orthotics, and topical medications, for service-connected disabilities. The report of examination should include a complete rationale for all opinions expressed. 3. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied as to each clothing allowance issue, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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). _________________________________________________ S. L. Kennedy 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).