Citation Nr: 1804946	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  15-36 718	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Durham, North Carolina


THE ISSUES

1.  Entitlement to an annual clothing allowance based on use of a back brace in 2015.

2.  Entitlement to an annual clothing allowance based on use of a right hand crutch in 2015.

[The matters of entitlement to increased initial ratings for degenerative disc disease of the lumbosacral spine, and entitlement to special monthly compensation based on the need for aid and attendance are the subject of a separate decision.]


ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel




INTRODUCTION

The Veteran served on active duty from September 1987 to November 1987 and from May 1988 to May 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and September 2015 decisions from the Department of Veterans Affairs Medical Center (VAMC) in Durham, North Carolina.

The issue of entitlement to an annual clothing allowance based on use of a right hand crutch in 2015 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's back brace is covered in fabric and does not cause irreparable damage to clothing.


CONCLUSION OF LAW

The criteria for establishing eligibility for clothing allowance due to wearing of a back brace in 2015 have not been met.  38 U.S.C. § 1162 (2012); 38 C.F.R. § 3.810 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA 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 his 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 he has done so.  In addition, notwithstanding the holding in Barger, the Veteran was advised of his rights under VCAA in a letter sent in September 2015.  The Veteran was also advised of his entitlement to a hearing before the Board but he has declined such a hearing.  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

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.  The Veteran is then entitled to an annual clothing allowance, payable in a lump sum.  38 U.S.C. § 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).

Facts and Analysis

The August 2015 decision by the Durham VAMC and the Chief of the Prosthetic Sensory Aids Service (PSAS) at the VA Central Office in Washington, DC to deny the clothing allowance for the back brace in 2015 was based on guidance from PSAS.  This guidance constituted the determination by the entity designated by the Secretary that "only braces with exposed metal hinges, exposed rigid plastic inserts, or exposed metal stays" could be considered for clothing allowances.  Braces such as those worn by the Veteran with Velcro fasteners and fabric covered plastic or metal inserts had been determined not to cause irreparable damage to clothing and therefore did not qualify for clothing allowance.

The Board acknowledges the Veteran's argument that his back brace causes actual wear on his clothing.  However, the regulation clearly establishes that unless there is loss of use of a hand or foot (at the compensable rating specified in § 3.350(a), (b), (c), (d), or (f)) the prosthetic or orthopedic appliance must be certified by the Under Secretary for Health, or a designee, as a device that that tends to wear or tear clothing.  In this case, the designee, the Prosthetic Sensory Aids Service, determined the Veteran's back brace is not of a type to cause wear and thus does not qualify. 

The Board also acknowledges the Veteran's argument that he should continue to receive clothing allowance for a back brace because he had received such an allowance in previous years.  However, the question of whether the Veteran had previously received clothing allowance is moot, as eligibility for a clothing allowance must be revalidated on an annual basis and the VA Under Secretary for Health's designee determined that the current back brace did not qualify in 2015.  See 38 C.F.R. § 3.810 (a) (stating that if meeting the requirements, a Veteran is entitled "to an annual clothing allowance") 

Based on the evidence and analysis above the Board finds the requirements to establish entitlement to clothing allowance for back brace in 2015 are not met and the claim must be denied.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  38 U.S.C. § 5107 (b).



ORDER

An annual clothing allowance based on use of a back brace in 2015 is denied.


REMAND

The Veteran also contends that he is entitled to a clothing allowance for the year 2015 based on his use of a right hand crutch for his service-connected left knee disability.  The AOJ denied the claim on the sole basis that, as the Veteran was already in receipt of a clothing allowance for a left knee brace due to the service-connected left knee disability, a second clothing allowance was precluded for an appliance based on the same service-connected disability.  

The pertinent regulations provide that 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).

Here, the Veteran's contention is essentially that the right hand crutch affects a distinct type of article of clothing or outer garment from the left knee brace, such that a separate clothing allowance would not be precluded.  Based on a review of regulations, the Board tends to agree with the Veteran's assertion.  See 38 C.F.R. § 3.810 (a)(2) which provides for more than one clothing allowance when multiple types of garments are affected.  As the Veteran does not appear to be precluded from a separate clothing allowance for the right crutch that presumably affects his shirts, as opposed to his pants from a left knee brace, this matter must be referred to the Under Secretary for Health or a designee for an initial determination as to whether the Veteran's right hand crutch tends to wear or tear clothing.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ must submit the Veteran's claim to the Under Secretary of Health, or his designee, to obtain certification as to whether the Veteran's use of a right hand crutch for his service-connected left knee disability tends to wear or tear clothing.

A complete rationale for all conclusions reached should be included with the certification.

If the local prosthetics representative or the Chief of prosthetics and sensory aids has been designated to act on these matters by the Under Secretary of Health, this should be documented.

2.  After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal.  If the benefit sought is not granted, provide the Veteran a supplemental statement of the case and an appropriate period to respond before returning the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs