Citation Nr: 1744157 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 12-11 481A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Houston, Texas THE ISSUES 1. Entitlement to a clothing allowance for 2011. 2. Entitlement to a clothing allowance for 2012. 3. Entitlement to a clothing allowance for 2014. [Additional pending claims for medical expense reimbursement, clothing allowance, specially adapted housing benefits, benefits under 38 U.S.C.A. § 1151, service connection, increased disability ratings, and entitlement to an automobile allowance will be addressed in separate decisions.] WITNESS AT HEARING The Veteran and her daughter ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to January 1975, from November 2005 to March 2006, and from October 2006 to December 2007, to include service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal of decisions issued in August 2011, October 2012, and June 2014 by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Houston, Texas. In September 2013, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in November 2014, when it was remanded for further development, to include giving consideration to the Veteran's claims by the Under Secretary for Health or a designee. Included in the Board remand of November 2014 was the Veteran's appeal of the October 2013 denial of special home adaptation and specially adapted housing by the Houston Regional Office (RO), which was remanded under Manlincon v. West, 12 Vet. App. 238 (1999), for issuance of a Statement of the Case. That claim is addressed in one of the other decisions currently being adjudicated by the Board because it has a separate Agency of Original Jurisdiction (AOJ). The case was also before the Board in November 2016, when it was found that the claims file as presented on appeal did not contain all of the relevant documents, to include the claims forms and other necessary procedural documents. The matter was remanded to have the documents associated with the claims file. The Board notes that this matter was addressed by the United States Court of Appeals for Veterans Claims (Court) in an Order issued in November 2016 instructing VA to adjudicate and process these claims, for which appeals had been pending for some time. FINDINGS OF FACT 1. The Veteran is service-connected for a skin disability and her service-connected fibromyalgia results in skin symptoms. 2. The Veteran is not shown to use any prosthetic or orthopedic assistive devices which have exposed metal or are judged by VHA prosthetics services to cause wear and tear to clothing for any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing eligibility for clothing allowance due to use of topical medications for the years 2011, 2012, and 2014 have been met. 38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810 (2017). 2. The criteria for establishing eligibility for clothing allowance due to use of a prosthetic or orthopedic assistive devices in 2011, 2012, and 2014 have not been met. 38 U.S.C.A. § 1162 (West 2014); 38 C.F.R. § 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. The provisions relating to notice and development found in the VCAA apply to benefits adjudicated under chapter 51 of title 38 of the United States Code and are thus not applicable to this case, which is determined under chapter 11 of title 38. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Notwithstanding the fact that the notice and development provisions are not controlling in these matters, the Board has reviewed the case and determined the Veteran has had a fair opportunity to present arguments and evidence in support of her claim. In this regard, the Agency of Original Jurisdiction (AOJ) has afforded the Veteran the opportunity to present information and evidence in support of the appeal, and she has done so, to include at the Board hearing in September 2013. In addition, notwithstanding the holding in Barger, the Veteran has been advised of her rights under VCAA in several letters sent throughout the pendency of her multiple claims. The Board finds there is no indication in the record of any additional existing evidence relevant to the issue to be decided herein that is available and not part of the claims file. Therefore, the Board will proceed to the merits of the Veteran's appeal. Legal Standard for Clothing Allowance A veteran who has a service-connected disability that requires the use of a prosthetic or orthopedic appliance which the Secretary determines tends to wear out or tear the clothing of the veteran or uses medication which (A) a physician has prescribed for a skin condition which is due to a service-connected disability, and (B) the Secretary determines causes irreparable damage to the veteran's outergarments is entitled to an annual clothing allowance, payable in a lump sum. 38 U.S.C.A. § 1162, 38 C.F.R. § 3.810 (a). A veteran is entitled to one annual clothing allowance if a VA examination or a hospital or examination report from a qualifying facility establishes that the veteran, because of a service-connected disability or disabilities due to loss or loss of use of a hand or foot compensable at a rate specified in § 3.350(a), (b), (c), (d) or (f), wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing; or, 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 (including, but not limited to, a wheelchair) which tends to wear or tear clothing, or a veteran uses medication prescribed by a physician for one skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran's outer garments. 38 C.F.R. § 3.810 (a)(1). A veteran is entitled to an annual clothing allowance for each prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication satisfies the requirements of section (a)(1) and affects a distinct type of article of clothing or outergarment. 38 C.F.R. § 3.810 (a)(2). A veteran is entitled to two annual clothing allowances if he or she 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) each satisfy the requirements of section (a)(1) and together tend to wear or tear a single type of article of clothing or irreparably damage a type out outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. 38 C.F.R. § 3.810 (a)(3). 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). 2011 Clothing Allowance In May 2011, the Veteran applied for an annual clothing allowance, citing the use of bilateral hand splints and capsaicin cream for bilateral hand arthritis/tendonitis. (See File Folder.) In August 2011, the Veteran was notified that her claim for clothing allowance had been denied because she was not using a prosthetic device or orthopedic appliance for a service-connected disability, nor was she using a topical medication for a service-connected skin disability. (See File Folder.) The Veteran filed a Notice of Disagreement in October 2011, asserting that the record showed she was service connected for disabilities of the hands and feet; although the feet were not included in the rating decision, they were part of the original claim. (See File Folder.) She stated that she had special shoes and hard braces for both hands which tend to cause small tears in her outer garments that grew into large tears. Even the soft braces used Velcro which wore out her clothes, including when taking them off. She used cayenne pepper cream for her hands and feet to increase circulation and that caused irreparable damage to anything she touched, including her clothes. She also had to change her clothing multiple times per day because she was either too hot or too cold, a symptom of her Reynaud's Disease. The Statement of the Case in January 2012 stated that the Veteran's appliances did not qualify for clothing allowance because they were not braces, rigid spinal braces, rigid cervical braces, rigid orthotics, or ankle or foot orthosis. (See VBMS, Statement of the Case, received 01/31/2012, p. 1.) In her VA Form 9 filed in July 2012, the Veteran stated the decision to deny clothing allowance was in error because she had claimed it based on both an appliance and a cream, but the decision had addressed only the appliance. (See VBMS, VA 9, received 07/24/2012, p. 1.) The Veteran stated that the issue should be readjudicated and that consideration should be given to the fact that she had just been given a 60 percent combined disability rating, 40 percent of which was for fibromyalgia and 10 percent of which was for traumatic arthritis. The Triacin cream and the mupirocin ointment were prescribed by the VA doctors to treat her fibromyalgia and arthritis pain. A statement submitted by a VA social worker in September 2012 asked for expedited consideration of the 2011 and 2012 clothing allowance claims. (See VBMS, Third Party Correspondence, received 02/26/2013, p. 1.) The social worker noted that the Veteran had recently had additional service connection claims granted which should be considered. A Supplemental Statement of the Case issued in May 2017 stated that the Veteran had been issued an off-the-shelf elastic cock-up splint in July 2011, which had no metal which would cause any wear or tear to the Veteran's clothing. (See File Folder for related clothing allowance claim.) She had also been prescribed Capsin cream, which would not cause staining of clothes per the VHA Pharmacy workgroup. The Board has reviewed all of the evidence of record, to include that set forth above. The Veteran has a service-connected skin disability and is service-connected for hypothyroidism, which the Veteran has stated is linked to dry skin. She also is service-connected for traumatic arthritis, peripheral neuropathy, and fibromyalgia, all of which result in pain. In order to treat these issues, she was prescribed Bactroban ointment beginning in 2009. Bactroban is a brand name for mupirocin ointments. See www.drugs.com. Mupirocin 2% ointment is listed as a medication that would stain or damage clothing, according to the list available on the VA Patient Care Services Prosthetic and Sensory Aids Service website. See http://vaww.infoshare.va.gov/sites/prosthetics/Clothing%20Allowance/Guides/MEDS%20THAT%20STAIN%20CLOTHING11172016.xls Based on the fact that the Veteran's prescription topical ointment appears to be linked to several service-connected disabilities, and the fact that the ointment is included on the list of medications which would stain or damage clothing on the VA's own website, the Board finds that a clothing allowance for the year 2011 is warranted and should be granted. The record shows that the Veteran was prescribed a corset-style back brace in October 2009 for her back pain. (See VBMS, CAPRI, received 07/14/2015, p. 954.) The record also shows that the Veteran uses bilateral soft hand braces and a soft back brace, as well as a cane, to address her peripheral neuropathy, arthritis, and fibromyalgia. (See VBMS, Disability Benefits Questionnaire, received 12/27/2012, p. 7.) While there is evidence that the Veteran uses forearm crutches, it is not shown that these are related to any service-connected disability. Inasmuch as the record does not show that the Veteran uses any brace or other orthopedic or prosthetic device which has been determined by the VHA Prosthetics services to cause wear and tear to the clothing. The Board has considered the Veteran's arguments that the Velcro on her soft braces causes damage to her clothing and that the requirements with respect to clothing allowance do not include that the brace or prosthetic device have exposed metal. However, the Board notes that the provisions for clothing allowance indicate that qualifying devices are to be determined by the Secretary or a designee; the decisions on appeal have indicated that the Veteran's devices do not qualify. Therefore, a second clothing allowance for prosthetics devices is not warranted. 2012 Clothing Allowance In July 2012, the Veteran filed a claim for clothing allowance, citing her use of capsicum cream for arthritis and fibromyalgia. (See VBMS, Application for Clothing Allowance, received 07/24/2012, p. 2.) A statement submitted by a VA social worker in September 2012 asked for expedited consideration of the 2011 and 2012 clothing allowance claims. (See VBMS, Third Party Correspondence, received 09/01/2012, p. 1.) The social worker noted that the Veteran had recently had additional service connection claims granted which should be considered. In October 2012, the VAMC issued a decision denying clothing allowance, stating that this was based on the Veteran's application, her medical records, records of her prosthetic and orthotic appliances, and her rated disabilities as shown in VA records. (See VBMS, Notification Letter, received 10/18/2012, p. 1.) The Statement of the Case issued in February 2013 noted that clothing allowance was denied in accordance with the VHA handbook. (See VBMS, VA Form 9, received 02/13/2016, p. 1.) The clothing allowance is authorized for veterans who use a topical ointment that causes irreparable damage to outer garments. The ointment claimed by the Veteran, mupirocin, was determined by VA pharmacy not to cause irreparable damage to outer garments, and was prescribed for disabilities that are not service connected. The Veteran was advised that any oily residue from the ointment could be removed by presoaking prior to laundering. In November 2014, the Board remanded the Veteran's clothing allowance claims with instructions that consideration by the Under Secretary for Health or a designee address both the appliances and the topical medications on which the Veteran based her claim. (See VBMS, Remand, received 11/21/2014, pp. 4-7.) The Board also erroneously stated that the Veteran had claimed use of a manual wheelchair for a spine disability in October 2012; a review of the document shows that this was the example provided in the document, rather than a part of the claim by the Veteran. A Supplemental Statement of the Case issued in March 2016 stated that in order to qualify for an annual clothing allowance, the Veteran must wear or use a prosthetic or orthopedic appliance which tends to wear out or tear clothing due to a service-connected disability, or use medication that causes irreparable damage to outer garments due to a service-connected skin condition. (See File Folder.) The VAMC acknowledged that the Veteran is service-connected for a skin condition but stated that her currently prescribed medications do not contain ingredients that cause irreparable damage to the outer garments, as determined by the VHA Pharmacy. Also, the Veteran's cock-up wrist splint is a wraparound wrist brace with no exposed metal that would cause wear and tear to the Veteran's clothes. In a statement filed in April 2016, the Veteran noted that VHA's website listed mupirocin as damaging clothes and did not require that braces have exposed metal in order to qualify for a clothing allowance. Also, she felt that the denial of diabetic shoes was incorrect because her Reynaud's disease complicated by hypertension, cardiovascular disease, and weak ankles warranted the use of diabetic shoes, even if she did not have diabetes. A Supplemental Statement of the Case issued in May 2017 stated that the Veteran had been prescribed mupirocin ointment which would not cause staining of the clothes according to the VHA Pharmacy workgroup. (See File Folder.) She had also been issued a single-point walking cane in July 2012, which is not an item considered for clothing allowance. The Board has reviewed all of the evidence of record, to include that set forth above. The Veteran has a service-connected skin disability and is service-connected for hypothyroidism, which she has stated is linked to dry skin. She also is service-connected for traumatic arthritis, peripheral neuropathy, and fibromyalgia, all of which result in pain. In order to treat these issues, she was prescribed Bactroban ointment beginning in 2009. Bactroban is a brand name for mupirocin ointments. See www.drugs.com. Mupirocin 2% ointment is listed as a medication that would stain or damage clothing, according to the list available on the VA Patient Care Services Prosthetic and Sensory Aids Service website. See http://vaww.infoshare.va.gov/sites/prosthetics/Clothing%20Allowance/Guides/MEDS%20THAT%20STAIN%20CLOTHING11172016.xls Based on the fact that the Veteran's prescription topical ointment appears to be linked to several service-connected disabilities, and the fact that the ointment is included on the list of medications which would stain or damage clothing on the VA's own website, the Board finds that a clothing allowance for the year 2012 is warranted and should be granted. The record shows that the Veteran was prescribed a corset-style back brace in October 2009 for her back pain. (See VBMS, CAPRI, received 07/14/2015, p. 954.) The record also shows that the Veteran uses bilateral soft hand braces and a soft back brace, as well as a cane, to address her peripheral neuropathy, arthritis, and fibromyalgia. (See VBMS, Disability Benefits Questionnaire, received 12/27/2012, p. 7.) While there is evidence that the Veteran uses forearm crutches, it is not shown that these are related to any service-connected disability. Inasmuch as the record does not show that the Veteran uses any brace or other orthopedic or prosthetic device which has been determined by the VHA Prosthetics services to cause wear and tear to the clothing. The Board has considered the Veteran's arguments that the requirements with respect to clothing allowance do not include that the brace or prosthetic device have exposed metal. However, the Board notes that the provisions for clothing allowance indicate that qualifying devices are to be determined by the Secretary or a designee; the decisions on appeal have indicated that the Veteran's devices do not qualify. Therefore, a second clothing allowance for prosthetics devices is not warranted. The Board acknowledges the Veteran's references to claims for diabetic shoes. However, this claim is not currently in appellate status before the Board and will not be addressed herein. The Veteran is encouraged to continue the appeals process with respect to her claim for diabetic shoes. 2014 Clothing Allowance In March 2014, the Veteran filed a claim for clothing allowance, based on her use of forearm crutches and a cane for her TBI, fibromyalgia, and arthritis, and her use of topical medications Bactroban and mupirocin for Hashimoto's thyroid disease. (See VBMS, Application for Clothing Allowance, received 06/17/2014, p. 1.) The June 2014 decision denying clothing allowance noted that the decision was based on review of the Veteran's application, her medical records, records of her prosthetic and orthotic appliances, and her rated disabilities as shown in VA records. (See File Folder.) In her Notice of Disagreement, filed in June 2014, the Veteran stated that she was diagnosed with folliculitis skin condition secondary to fibromyalgia in October 2012, and that her service-connected hypothyroid or Hashimoto's thyroid disease contributed to her folliculitis. (See File Folder.) The combination of the service-connected disabilities caused her skin to be extremely dry and cracked and to become infected easily with ulcers. She used mupirocin ointment which stained her clothes and caused them to need frequent replacement. In addition, her feet and legs were affected by her service-connected fibromyalgia which caused her to experience generalized weakness, numbness, instability, and severe pain which made her legs and feet completely useless at frequent intervals. These conditions, combined with her service-connected TBI, tinnitus, migraines, and traumatic arthritis caused her dizziness and instability in walking and necessitated the use of a cane or hand crutch. She asserted that these factors warranted grant of a clothing allowance. The Statement of the Case issued in January 2015 noted that the Veteran was not service-connected for a skin disability or for a back disability. (See File Folder.) Therefore, the use of a topical ointment for her skin problems and the use of the forearm crutches for her back disability did not qualify her for the clothing allowance. A Supplemental Statement of the Case issued in March 2016 stated that in order to qualify for an annual clothing allowance, the Veteran must wear or use a prosthetic or orthopedic appliance which tends to wear out or tear clothing due to a service-connected disability, or use medication that causes irreparable damage to outer garments due to a service-connected skin condition. (See File Folder.) The VAMC acknowledged that the Veteran is service-connected for a skin condition but stated that her currently prescribed medications do not contain ingredients that cause irreparable damage to the outer garments, as determined by the VHA Pharmacy. Also, the Veteran's cock-up wrist splint is a wraparound wrist brace with no exposed metal that would cause wear and tear to the Veteran's clothes. In a statement filed in April 2016, the Veteran noted that VHA's website listed mupirocin as damaging clothes and did not require that braces have exposed metal in order to qualify for a clothing allowance. Also, the denial of diabetic shoes was wrong because her Reynaud's disease complicated by hypertension, cardiovascular disease, and weak ankles warranted the use of diabetic shoes, even if she didn't have diabetes. A Supplemental Statement of the Case issued in May 2017 stated that the Veteran had been issued forearm crutches in March 2013 for her chronic back pain; however, she is not service-connected for a back disability. (See File Folder.) She was also prescribe Bactroban and mupirocin ointment which would not cause staining of the clothes according to the VHA Pharmacy workgroup. The Board has reviewed all of the evidence of record, to include that set forth above. The Veteran has a service-connected skin disability and is service-connected for hypothyroidism, which the Veteran has stated is linked to dry skin. She also is service-connected for traumatic arthritis, peripheral neuropathy, and fibromyalgia, all of which result in pain. In order to treat these issues, she was prescribed Bactroban ointment beginning in 2009. Bactroban is a brand name for mupirocin ointments. See www.drugs.com. Mupirocin 2% ointment is listed as a medication that would stain or damage clothing, according to the list available on the VA Patient Care Services Prosthetic and Sensory Aids Service website. See http://vaww.infoshare.va.gov/sites/prosthetics/Clothing%20Allowance/Guides/MEDS%20THAT%20STAIN%20CLOTHING11172016.xls Based on the fact that the Veteran's prescription topical ointment appears to be linked to several service-connected disabilities, and the fact that the ointment is included on the list of medications which would stain or damage clothing on the VA's own website, the Board finds that a clothing allowance for the year 2014 is warranted and should be granted. The record shows that the Veteran was prescribed a corset-style back brace in October 2009 for her back pain. (See VBMS, CAPRI, received 07/14/2015, p. 954.) The record also shows that the Veteran uses bilateral soft hand braces and a soft back brace, as well as a cane, to address her peripheral neuropathy, arthritis, and fibromyalgia. (See VBMS, Disability Benefits Questionnaire, received 12/27/2012, p. 7.) While there is evidence that the Veteran uses forearm crutches, it is not shown that these are related to any service-connected disability. Inasmuch as the record does not show that the Veteran uses any brace or other orthopedic or prosthetic device which has been determined by the VHA Prosthetics services to cause wear and tear to the clothing. Therefore, a second clothing allowance for prosthetics devices is not warranted. The Board acknowledges the Veteran's references to claims for diabetic shoes. However, this claim is not currently in appellate status before the Board and will not be addressed herein. The Veteran is encouraged to continue the appeals process with respect to her claim for diabetic shoes. ORDER Entitlement to a clothing allowance for the years 2011, 2012, and 2014 for the use of mupirocin ointment is granted. Entitlement to a second clothing allowance for the years 2011, 2012, and 2014 for the use of prosthetic or orthopedic assistive devices ointment is denied. ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs