Citation Nr: 1806297 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-47 053A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tuscaloosa, Alabama THE ISSUE Entitlement to an annual clothing allowance for the year 2010. (The issues of service connection for sleep apnea and psychiatric disability; entitlement to an initial compensable rating for right ear hearing loss, to a rating in excess of 10 percent for bilateral foot calluses, to a rating in excess of 10 percent for right knee disability, and to a rating in excess of 10 percent for left knee disability are the subject of separate decisions.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1978, and from May 1980 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Tuscaloosa, Alabama. In April 2011, the Veteran appeared with his then-representative for a travel Board hearing before another member of the Board on the issue at hand. A transcript of that proceeding has been associated with the record. The Board is cognizant that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any final determination made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, this matter is being remanded for the reasons stated below and therefore is not a final decision. As such, the Board finds that no prejudice to the Veteran will result from the assignment of another VLJ in this Board action. This matter was remanded by the Board in May 2013 for additional development. The matter has been returned to the Board for appellate consideration. Parenthetically, the Board notes the Veteran has additional pending issues before the Board; however, those issues will be not discussed in this decision, but rather a separate Board decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he wears hinged metal knee braces on both knees when he is at work, and that the braces tear up his pants. He further indicated that he previously received a clothing allowance. Initially, the Board notes that the only physical record presently before the Board is an appeals folder prepared by the VAMC; the Veteran's claims file is not before the Board. A review of the Veteran's electronic Virtual VA file reveals that the Veteran's service-connected disabilities include arthralgia of the right and left knees, and bilateral foot calluses, among others. Service connection has been in effect for the bilateral knee disabilities since 1996. A review of the VAMC appeals folder reflects that the Veteran received a clothing allowance for a hinged knee brace in 2007, 2008, and 2009, but was found not eligible in 2010. The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which the VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin disability which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C. § 1162. Under 38 C.F.R. § 3.810, a veteran who has a service-connected disability is entitled, upon application therefore, to an annual clothing allowance as specified in 38 U.S.C. § 1162. The annual clothing allowance is payable in a lump sum, and the following eligibility criteria must also be satisfied: (1) a VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such disability and such disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d) or (f); or (2) the Chief Medical Director or designee certifies that because of such disability a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition which is due to the service-connected disability, irreparable damage is done to the veteran's outer garments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810(a). In the instant case, the Veteran was denied an annual clothing allowance in June 2010 on the basis that he had been issued a knee brace in May 2007, and the brace had a life expectancy of approximately six months. There was no record that the Veteran had sought or received a replacement appliance since then. Review of the Veteran's Virtual VA file; however, shows that on VA compensation knee examination in January 2009, he reported that he wore knee braces at work. During testimony before the undersigned in April 2011, the Veteran testified that he wore a metal knee brace on each of his knees when he was working. He testified that VA provided him with knee braces in 2009 and 2010, and he was currently being fitted for knee braces. He stated that his knee braces tore his pants. He also stated that he uses a skin cream on his feet. VA outpatient treatment records dated in April 2011 reflect that the Veteran was fitted with knee braces at that time. VA medical records dated in 2010 reflect that a skin cream has been prescribed for his feet. The Veteran has not been service connected for a disability that causes loss of use of a hand or foot. As such, in order for him to be found eligible for a clothing allowance for the year 2010, a certification is needed from the Chief Medical Director or designee that the orthopedic appliance (knee brace) tends to wear or tear the Veteran's clothing, or that because of the use of a physician-prescribed medication for a service-connected skin condition, irreparable damage is done to the Veteran's outer garments. Review of the record since the May 2013 remand does not reflect substantial compliance with the directives of that remand. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that the claims on appeal must again be remanded to the AOJ in order to ensure substantial compliance with the October 2015 remand. In its October 2015 remand, the Board directed the AOJ to, in pertinent part, arrange for the claims file and VAMC appeals folder to be reviewed by the Chief Medical Director or his/her designee, who should certify whether or not the knee brace(s) worn by the Veteran or any medication utilized by the Veteran to treat his service-connected skin disorder of the feet (calluses) renders him eligible for a VA clothing allowance for the year 2010, and thereafter, readjudicate the issue on appeal. The record shows, however, that the developmental actions taken by the AOJ have not fully complied with the remand directives. Here, it appears a medical opinion was obtained in May 2016; however, the record does not reflect that the VAMC has readjudicated the issue on appeal, and if necessary, issued a supplemental statement of the case (SSOC). Accordingly, the case is REMANDED for the following action: Readjudicate the issue of clothing allowance on appeal. If the benefit sought on appeal remains denied, issue a SSOC and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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 that are 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).