Citation Nr: 1805338 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-11 639 ) DATE ) ) On appeal from the Department of Veterans Affairs North Texas VA Healthcare System in Dallas, Texas THE ISSUE Entitlement to a clothing allowance pursuant to 38 U.S.C. § 1162 and 38 C.F.R. § 3.810. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from March 2008 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) North Texas VA Health Care System in Dallas, Texas. The Veteran's claim was remanded by the Board for additional development in September 2015. Based on the scheduling of the Veteran for a VA examination and the readjudication of the claim, the Board concludes that there has been substantial compliance with the remand instructions. In addition to the clothing allowance claim, the Board notes that the Veteran has submitted timely substantive appeals as to the issues of entitlement to service connection for depression and entitlement to increased ratings for skin, right knee, and left knee disabilities. That said, the foregoing issues are under the jurisdiction of another VA agency or original jurisdiction, and they have not been certified to the Board. As such, consideration of these claims is not warranted at this time. FINDING OF FACT The evidence does not show that the Veteran currently has a right or left knee orthopedic appliance provided for service-connected knee disabilities that have been certified by an appropriate VA official that tend to wear or tear clothing. CONCLUSION OF LAW The criteria for entitlement to allowances for braces for the bilateral knees are not met. 38 U.S.C. § 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has identified any potential shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Entitlement to Clothing Allowance The Veteran claims entitlement to a clothing allowance on the basis that he has prescribed right and left knee braces for his service-connected disabilities that cause excessive wear to pants. VA laws and regulations authorize payment of an annual clothing allowance to each veteran who, because of a service-connected disability, uses a prosthetic or orthopedic appliance which tends to wear or tear the Veteran's clothing, or who uses physician-prescribed medication for a service-connected skin disability which causes irreparable damage to the Veteran's outer garments. 38 U.S.C. § 1162. 38 C.F.R. § 3.810 provides for a clothing allowance for each prosthetic or orthopedic appliance or medication that affects a distinct type of article of clothing or outer garment, when the Under Secretary for Health, or a designee, certifies that the qualifying prosthetic or orthopedic appliance or medication for a skin disorder and the use of the prosthetic, appliance, or medication is for a service-connected disability and causes damage to outer garments. 38 C.F.R. § 3.810(a)(1), (2), (3). The regulation further provides for two clothing allowances if more than one prosthetic or orthopedic appliance or medication 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. 38 C.F.R. § 3.810(a)(3); see also Sursely v. Peake, 551 F.3d 1351 (Fed. Cir. 2009). VA treatment records document that the Veteran constantly wears bilateral knee braces. Specifically, he is prescribed a K64 "Knee Mate" hinged knee brace. The treatment records do not discuss any matters pertaining to the wear and tear of clothing. The Veteran's right and left knee disabilities each are rated as 10 percent disabling for limitation of flexion. From January 20, 2012, to September 1, 2014, the Veteran also had separate 20 percent ratings for right and left patellofemoral syndrome. The Veteran filed his claim for clothing allowance in November 2013. In December 2013, the Prosthetics Department of the VA North Texas Health Care System denied the Veteran's 2014 clothing allowance claim. The rationale stated that only braces with exposed metal hinges, exposed rigid plastic inserts, or exposed metal stays could be considered for clothing allowance. A brace with Velcro fasteners and fabric covered plastic / metal inserts did not cause irreparable damage to clothing and did not qualify for clothing allowance. In a February 2014 notice of disagreement, the Veteran alleged, "I have been receiving clothing allowance for 2 yrs. The plastic on the knee prosthetics wear your clothes out as well. I don't understand how you can award a vet. an allowance then take it from him." In his March 2014 substantive appeal, the Veteran also noted that the back of the braces also wore on his clothes, as well as metal rods. The Veteran's claim was remanded for an examination of his knee braces; however, the Veteran failed to appear for the scheduled examination. The Veteran's representative has not provided any explanation for the failure to appear or requested that a new examination be scheduled. In that regard, when a claimant fails to report for an examination scheduled in conjunction with an original claim, regulations provide that the claim will be decided on the evidence of record. 38 C.F.R. § 3.655(b) (2017). The January 2016 Supplemental Statement of the Case (SSOC) included a picture and description of the Veteran's prescribed knee braces. The description indicated that the stainless steel hinges were covered and that the open back eliminated bunching. The Board finds that there is no basis for entitlement to a clothing allowance in this case as the determination as to eligibility for a clothing allowance must come from the Under Secretary for Health or the appropriate designee. To qualify for a clothing allowance, that official must certify that the appliance tends to wear and tear clothing. That designee has specifically determined that certification eligibility is not met because there is no wear and tear on clothing associated with the specific knee braces used by the Veteran. As noted, the Board remanded the claim to afford the Veteran the opportunity to appear at an examination to demonstrate how his knee braces caused excessive wear and tear to clothing. He failed to appear and there is no indication that he did not receive notification of the examination or was unable to appear due to good cause. Therefore, the claim must be denied as a matter of law because the designated agency official did not certify that the Veteran uses a prosthetic device that tends to wear or tear clothing. 38 C.F.R. § 3.810(a) (2017). ORDER Entitlement to a 2014 clothing allowance pursuant to 38 U.S.C. § 1162 and 38 C.F.R. § 3.810 is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs