Citation Nr: 1752966 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-15 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Birmingham, Alabama THE ISSUE Entitlement to an annual clothing allowance for the 2013 calendar year. (The issues of entitlement to service connection for a bilateral foot condition, dermatitis, bilateral hearing loss, a bilateral eye condition, nasal allergies, and diverticulitis, and entitlement to an increased rating for posttraumatic stress disorder will be addressed in a separate decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from August 1988 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 determination of the Department of Veterans Affairs (VA) Medical Center (MC) in Birmingham, Alabama, which denied an annual clothing allowance for the 2013 calendar year. The Board observes that in the Veteran's substantive appeal received in May 2014, he requested a Board hearing. However, in correspondence received in March 2016, he indicated that he no longer wished to have a Board hearing. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. The Veteran is service-connected for a disability of the lumbosacral spine, for which he wears a brace that does not tend to wear or tear clothing. 2. The Veteran reported that he uses topical creams to treat his back disability; however, he is not service-connected for a skin disability. CONCLUSION OF LAW The criteria for establishing eligibility for a clothing allowance for the 2013 calendar year have not been met. 38 U.S.C. § 1162 (West 2014); 38 C.F.R. § 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Laws 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 is entitled, on application therefore, to an annual clothing allowance, payable in a lump sum. 38 U.S.C. § 1162 (2012), 38 C.F.R. § 3.810(a) (2017). 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 § 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 multiple types of garments. 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). Factual Background The evidence indicates that the Veteran's service-connected disabilities include a lower lumbar strain. In May 2013, the Veteran submitted a claim for annual clothing allowance for a back brace, shoe inserts, TENs units, and topical medication for the 2013 calendar year. The claim was denied in August 2013 based on a determination that there was no qualifying back brace on file and that TENs units and shoe inserts are not qualifying devices. It was also determined that the appellant is not service-connected for a skin condition requiring the use of topical medication. In September 2013, the Veteran submitted a notice of disagreement regarding the denial of entitlement to an annual clothing allowance for his back brace and topical medication. He asserted that his service-connected back disability requires him to wear a brace and that he has been prescribed methyl salicylate for his back. He indicated that the prescription for the cream expires in 2013 and that he will also need a new back brace in 2013. He noted that he was approved for clothing allowance in 2012 without stating which items qualified for the allowance. In the April 2013 Statement of the Case, the Assistant Chief of Prosthetics and Prosthetic Representative indicated that the Veteran's back brace is an elastic wrap around back orthotic. The back brace features covered aluminum stays with no exposed joints or surfaces which would damage and wear/tear clothing. Furthermore, the appellant is not service connected for a skin condition. In a May 2014 statement from the Veteran, he reported that he was given a prosthetic without further instruction on wearing the device as well as the replacement of the device. He also indicated that the device itself did not come with instruction on the longevity expiration. He asserted that prosthetics knew that a new brace would be needed every 6 months. The appellant also reported that he was prescribed methyl salicylate and was also given over the counter medication as a gift. He contends that the creams cause loss and damage to the clothing. Specifically, he argued that the prescribed cream for his back disability caused the same type of damage to outer garments as creams for a skin condition. Analysis After considering the evidence of record in light of the applicable legal criteria, the Board finds that the preponderance of the evidence is against the award of an annual clothing allowance for the 2013 calendar year. In this regard, in the Statement of the Case, the Assistant Chief of Prosthetics and a Prosthetic Representative determined that the back brace was not the type of device that would cause damage to the clothing; rather the device is an elastic wrap around back orthotic which features covered aluminum stays with no exposed joints or surfaces. Further, the Veteran has not submitted any evidence to support his claim or even described the nature of the damage done to his clothing. See Skoczen v. Shineski, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (38 U.S.C. § 5107(a) "obligates the claimant to provide some evidentiary basis for his or her benefits claim"). Instead, he provided arguments pertaining to the frequency of replacing the back brace, which is not determinative in a clothing allowance claim. The Board finds the determinations of the Assistant Chief of Prosthetics and Prosthetics Representative to be significantly more probative than the Veteran's unsupported assertions. Turning to the topical creams, the regulation is predicated on a medication prescribed to treat a service-connected skin condition that cause irreparable damage to the outer garments. Although the Veteran has asserted that the creams used to treat his service-connected back disability cause the same damage to clothing as medications used for skin conditions, he does not have a service-connected skin disability and the cream in question is not prescribed to treat a skin condition due to a service-connected disability. The Board can readily understand the Veteran's reasoning in this regard, but the regulation is clear that the medication in question must be prescribed for "one skin condition, which is due to a service-connected disability." 38 C.F.R. § 3.810(a)(1). Further, the Veteran failed to provide any description regarding damage to the outer garment caused by the medication. The Board acknowledges the Veteran's argument that he was awarded a clothing allowance in 2012. However, eligibility for a clothing allowance must be revalidated on an annual basis. The evidence for the 2013 calendar year does not show that the Veteran's back brace caused damage and wear/tear to clothing or that the topical cream was used to treat a service-connected skin condition. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to an annual clothing allowing for the 2013 calendar year. Thus, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an annual clothing allowance for the 2013 calendar year is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs