Citation Nr: 18140267 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-35 180 DATE: October 2, 2018 ORDER Payment of a clothing allowance for calendar year 2014 for a metal brace used for a service-connected left knee disability is granted. Payment of a clothing allowance for calendar year 2014 for use of a cane in connection with a service-connected left knee disability is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1992 to July 1992. 2. At the time the Veteran filed her claim, service connection was in effect for post-operative left knee anterior cruciate ligament rupture with degenerative joint disease, instability of the left knee, and post-operative scars of the left knee. 3. The Veteran used a brace for her left knee disability that tended to wear and tear her clothing in calendar year 2014. 4. The Veteran’s cane is not a qualifying device for a clothing allowance and is not shown to have caused wear and tear her clothing in calendar year 2014 CONCLUSIONS OF LAW 1. The criteria for entitlement to a clothing allowance for the calendar year 2014 for a left knee brace have been met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2018). 2. The criteria for entitlement to a clothing allowance for the calendar year 2014 for a cane have not been met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran applied for a clothing allowance for 2014 for damage caused to her pants from a DonJoy brace she used for her service-connected left knee disability. According to the statement of the case, the appeal was denied on the basis that there is no documentation that she was still wearing the knee brace and if she had been using brace on a continuous basis, the straps and padding would have been replaced. The regulations pertaining to clothing allowance claims were revised in 2011 and 2012. See 76 Fed. Reg. 70,885 (Nov. 16, 2011); 77 Fed. Reg. 34,218 (Jun. 11, 2012). Pursuant to 38 C.F.R. § 3.810, except as provided for incarcerated veterans, a veteran who has a service-connected disability, or a disability compensable under 38 U.S.C. § 1151 as if it were service connected, is entitled, upon application therefore, to an annual clothing allowance, which is payable in a lump sum, as specified in this paragraph. One clothing allowance is payable if: 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 the Under Secretary for Health or a designee certifies that (A) 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 (B) 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 outergarments. At the time the Veteran filed her claim, service connection was in effect for post-operative left knee anterior cruciate ligament rupture with degenerative joint disease, instability of the left knee, and post-operative scars of the left knee. The Veteran’s VA prosthetics record shows that she was issued a DonJoy orthotic in October 2011 and February 2013, but the exact brace is not described. The prosthetics record in the claims file stops in May 2013. A review of VA treatment notes shows that the Veteran was provided a hinged knee brace in January 2013 after her left knee surgery and intended to switch to an ACL brace in three weeks. Physical therapy records from March 2013 show that she was using an ACL brace with compression sleeve. A September 2014 VA treatment note shows that she was using a knee brace, but that it no longer fit because she had lost weight. She was issued a KO brace for temporary use, and an Ossur CTi brace was ordered in September 2014. Thus, while she may not be using the same brace she was issued in 2011, she was using a knee brace of some kind in 2014. The Veteran suggests in her notice of disagreement (NOD) that she is still using a the DonJoy brace she was issued in 2011, and VA treatment records seem to contradict that assertion. Nevertheless, as noted in September 2014, a Ossur CTi brace, size small, item# B-239600112 L1835 was ordered. A common internet search for that item found a description of the brace as follows: Outfitted with anatomically-correct Accutrac® hinges and flexible subshells and d-rings, the rock-solid CTi carbon frame provides a rigid exoskeleton that stabilizes the knee joint. Breathable liners coated with bio-inert Ossur Sensil® Silicone ensure CTi OTS remains properly positioned on the leg, for optimal functional benefit. See https://www.ossur.com/library/32839/CTi%20Catalog%20page.pdf. In 2015, VHA issued VHA Handbook 1173.15, Clothing Allowance Benefit, which provides guidance on what type of appliances tend to wear and tear clothing. http://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=3112. Among these devices are rigid braces. Thus, the brace ordered for the Veteran was a rigid brace which has been identified by VHA as a device that tends to wear and tear clothing. Accordingly, and affording all benefit of the doubt to the Veteran, the Board determines that during calendar year 2014, she was issued a rigid knee brace that was a qualifying device for a clothing allowance. The claim for a clothing allowance for a left knee for calendar year 2014 is granted. With regard to the Veteran’s cane, she asserts in her VA Form 9 that she uses a cane for walking and instability of her left knee. The VHA Handbook indicates that a cane is not a qualifying device for payment of a clothing allowance in that canes do not tend to wear and tear clothing. She has not offered any evidence that establishes that her use of a cane does, in fact, cause wear and tear to her clothing such that payment of a second clothing allowance is warranted. Therefore, payment of a clothing allowance for calendar year 2014 for the Veteran’s use of a cane is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel