Citation Nr: 1801284 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-32 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Huntington, West Virginia THE ISSUE Entitlement to a clothing allowance for the year 2014. REPRESENTATION Appellant represented by: Disable American Veterans ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision letter issued by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Huntington, West Virginia. Jurisdiction over the appeal presently rests with the Veteran's Health Administration (VHA) Central Office (CO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran consistently uses his VA-issued forearm crutches with sufficient consistency to wear out, tear, or cause irreparable damage to clothing. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for 2014 are met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, to the extent that the VCAA applies to this claim, the Board has granted the underlying claim and therefore any failure on the part of VA to comply with the duty to notify and assist would constitute harmless error. Clothing Allowance The Veteran seeks entitlement to a clothing allowance due to use of forearm crutches for the year 2014. 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 U.S.C. § 1162 (2012); 38 C.F.R. § 3.810(a)(1)(ii)(A) (2017). The Board finds that the clothing allowance should be granted. A review of the record confirms that the Veteran is in receipt of service connection for traumatic arthritis of the right ankle, left knee, and right knee. Further, the VAMC does not dispute that he uses a qualifying orthopaedic appliance; the record reflects that the Veteran uses forearm crutches on both arms to ambulate. Rather, to date, his claim has been denied based on the VAMC's finding that the Veteran's forearm crutches have not been used with sufficient consistency to wear and tear clothing. The VAMC has highlighted the fact that the Veteran did not seek repairs or replacements to his forearm crutches between October 2007 and August 2014. Essentially, the VAMC argues that, had the Veteran used the crutches with the frequency to cause damage to his clothing, he would have needed to have the crutches replaced or repaired during that period of time. The Veteran counters in his August 2014 Notice of Disagreement that his VA-issued forearm crutches are used on a daily basis to ambulate. Although they were worn, they were maintained properly by him so as not require frequent repair. He also argued that although his crutches were worn, he continued to use them, and was never informed that he should have them replaced in the five years that they were issued. He also states that on August 4, 2014, he returned the crutches to the VAMC and was issued a new pair (this fact is confirmed by the Veteran's VAMC treatment records). He has also submitted statements from his wife and daughter, testifying as to his daily consistent use and good care of his VA-issued forearm crutches. The Board finds this testimony to be both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 471 (1994) (competent lay testimony includes that which the witness has actually observed, and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498 (1995) (providing factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, and consistency with other evidence). The Board also observes that, although not evaluated in the year 2014, the Veteran has been examined for his service-connected knee disabilities in July and October 2015, at which time it was noted that he requires regular to constant use of forearm crutches to walk. Here, the Board is persuaded by the Veteran's arguments, and finds that a clothing allowance is warranted for 2014 based on his use of VA-issued forearm crutches. The Board finds that the picture thereof, when combined with the Veteran's competent and credible lay statements, is sufficient to show that the crutches are used with such consistency to cause wear and tear to his clothing. The evidence supports his assertions that he requires the use of such equipment on regular to constant basis; that he cared for the equipment so as to not require repair prior to August 2014 does not prove otherwise. In sum, the Board sees no reason to penalize the Veteran for taking adequate care of his VA-issued equipment. Further, VA replaced his forearm crutches in August 2014, implying that they had been sufficiently worn to the point of requiring replacement. Essentially, had they been used with such infrequency as implied in the denial letter, they would not have required replacement in August 2014. In light of the above, and affording the Veteran the complete benefit of the doubt, the Board finds that the Veteran's use of forearm crutches in 2014 tended to wear and tear clothing, and therefore, a clothing allowance based on use of forearm crutches is granted for that year. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). ORDER Entitlement to a clothing allowance for the year 2014 is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs