Citation Nr: 18139901 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-42 751A DATE: October 1, 2018 ORDER Entitlement to a clothing allowance for the 2015 calendar year for a right knee brace is granted. Entitlement to an additional clothing allowance for the 2015 calendar year for a left knee brace is granted. Entitlement to an additional clothing allowance for the 2015 calendar year for a back brace is granted. FINDING OF FACT 1. The Veteran’s bilateral knee and back braces have been issued in conjunction with service-connected bilateral knee and lumbar spine disabilities. 2. The Veteran’s right knee brace tends to cause wear and tear to his pants. 3. The Veteran’s left knee brace together with his right knee brace tends irreparably damage the Veteran’s pants at an increased rate of damage to the clothing. 4. The Veteran’s back brace tends to cause wear and tear to his shirts. CONCLUSION OF LAW 1. The criteria for a clothing allowance for the 2015 calendar year for a right knee brace are met. 38 U.S.C. §§ 1162, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria for an additional clothing allowance for the 2015 calendar year for a left knee brace are met. 38 U.S.C. §§ 1162, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.810(a)(3). 3. The criteria for an additional clothing allowance for the 2015 calendar year for a back brace are met. 38 U.S.C. §§ 1162, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.810(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1997 to May 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2017. On appeal, the Veteran has indicated that he has been issued bilateral knee and back braces in conjunction with his service-connected disabilities. He additionally indicated in his statements of record, and particularly during his August 2017 hearing testimony, that his bilateral knee braces catch on, and cause wear and tear his pants. Regarding his back brace, the Veteran testified that his back brace causes wear and tear to his clothing, in particular his shirts. During the August 2017 hearing, the Veteran’s representative and the undersigned Veterans Law Judge described the braces in detail, noting that the knee braces had exposed hard plastic and metal hinges; they additionally described the back brace as heavy, bulky, and sticking out at places from the Veteran’s body into his clothing. 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 VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin condition which is due to a service-connected disability and VA determines causes irreparable damage to the veteran’s outer garments. 38 U.S.C. § 1162. The implementing regulation, 38 C.F.R. § 3.810, provides, in pertinent part, that an annual clothing allowance may be granted when the following criteria are met: (i) A VA examination or a hospital or examination report from a facility specified in § 3.326(b) 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 (ii)(A) 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. 38 C.F.R. § 3.810(a)(1). Additionally, an additional clothing allowance is available for each prosthetic or orthopedic appliance the veteran uses (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), if the appliance: (i) satisfies the requirements of 38 C.F.R. § 3.810(a)(1), above; and, (ii) affects a distinct type of article of clothing or outergarment. See 38 C.F.R. § 3.810(a)(2). Finally, a second clothing allowance is available for a single type of garment if a veteran 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)—(i) satisfies the requirements of 38 C.F.R. § 3.810(a)(1), above; and, (ii) together tend to wear or tear a single garment or irreparably damage a type of outergarment at an increased rate of damage to the clothing or outergarment due to a second appliance or medication. See 38 C.F.R. § 3.810(a)(3). The Board reflects that the certifying official in this case did not find that the Veteran’s bilateral knee and back braces were not issued in for service-connected disabilities; rather, the certifying official indicated that the Veteran was issued those braces for degenerative joint disease (DJD) of the lumbar spine and bilateral knees. Additionally, regarding the back brace, the certifying official found that “lumbosacral orthoses, in general, are excluded as they are usually off the shelf with adequate coverage on their rigid panels per Central Office guidelines. [T]here are few if any, moving parts.” The Board reflects that at the time of the September 2015 letter of determination, the Veteran was only service connected for lumbosacral spine strain and patellofemoral pain syndrome of the right knee; however, the Veteran had an ongoing and pending appeal regarding service connection for his left knee disability at that time. During the pendency of this appeal, the Veteran was awarded service connection for his residuals of a left knee including, patellofemoral pain syndrome and “arthraltia” [sic] since November 2012 in a September 2017 rating decision. The Board therefore notes that the Veteran has service-connected bilateral knee and lumbar spine disabilities throughout the appeal period. The Board further reflects that VA, as noted in the VA treatment records associated with the claims file, have issued bilateral knee braces and a back brace in conjunction with treatment for those service-connected disabilities. The Board does not find convincing evidence in the VA treatment records that the braces at issue in this case were solely issued with respect to the Veteran’s arthritis/DJD of the lumbar spine and bilateral knees, but rather were issued in conjunction with treating those joints, which are service connected, generally. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability). Accordingly, by resolving reasonable doubt in his favor, the Board finds that those orthopedic appliances have been issued in conjunction with his service-connected bilateral knee and lumbar spine disabilities. With regards to the Veteran’s bilateral knee braces, the Veteran’s lay evidence regarding the effect of that brace on his clothing to be highly competent, credible, and probative; such evidence indicated that his bilateral knee braces caused wear and tear to his clothing, including causing cuts and holes in his clothing. By resolving reasonable doubt in favor of the Veteran in this case, the Board therefore finds that the right knee brace tends to cause wear and tear to his clothing. Additionally, the Board finds that the left knee brace, together with the right knee brace, tends irreparably damage the Veteran’s pants at an increased rate of damage to the clothing. Accordingly, the Board finds entitlement to a clothing allowance for the 2015 calendar year for the right knee brace is warranted in this case based on the evidence of record. Furthermore, an additional clothing allowance for the 2015 calendar year for the Veteran’s left knee brace is warranted in this case based on the evidence of record. See 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810(a)(1), (a)(3). Finally, respecting the back brace, the Board acknowledges the Veteran’s highly competent, credible, and probative lay statements and testimony that his back brace does cause wear and tear to his clothing. Although the certifying official indicated that generally lumbosacral orthoses did not cause wear and tear to clothing, the certifying official’s statements in this case do not consider the specific nature and effect of the Veteran’s issued brace on his clothing in this case. The Board therefore must conclude that the Veteran’s lay statements are more probative than the findings of the certifying official in this case. Accordingly, the Board finds that the Veteran’s back brace tends to cause wear and tear to his clothing, and that such wear and tear affects a separate and distinct article of clothing (i.e., his shirts) in this case. Thus, entitlement to an additional clothing allowance for the 2015 calendar year for the back brace is warranted in this case based on the evidence of record. See 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810(a)(2). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel