Citation Nr: 18140603 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-41 071A DATE: October 4, 2018 ORDER A clothing allowance for the year 2015 due to the Veteran’s use of bilateral knee braces is denied. FINDING OF FACT The Veteran did not file a timely application for a clothing allowance for the year 2015. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the year 2015 are not met. 38 U.S.C. § 1162 (2012); 38 C.F.R. § 3.810 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to March 1987 and from March to October 1988. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2015 determination by the Department of Veterans Affairs Medical Center (VAMC) in Mountain Home, Tennessee. Entitlement to a clothing allowance for the year 2015. A veteran who has a service-connected disability is entitled to an annual clothing allowance upon meeting certain eligibility requirements. One way is if the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing. 38 C.F.R. § 3.810(a)(1) (2017). An application for a clothing allowance must be filed within one year of the anniversary date (i.e. August 1st) for which entitlement is initially established. Otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within one year of such date. The one-year period for filing application will include the anniversary date, August 1st, and terminate on July 31st of the following year. 38 C.F.R. § 3.810(c)(1). Of note, under 38 C.F.R. § 3.810(c)(2), exceptions apply when an initial determination of service connection for the qualifying disability is made after the anniversary date. This exception does not apply to the present case given that initial determinations of the Veteran’s underlying disabilities (bilateral knee disabilities) pre-date the anniversary date (i.e. prior to August 1st, 2015). Analysis The Veteran contends that a clothing allowance due to his use of bilateral knee braces is warranted for the year 2015. Service connection for bilateral knee degenerative joint disease has been established. Upon review of the evidence, the Board finds that a clothing allowance for the year 2015 is not warranted given that the application therefor was not filed timely under 38 C.F.R. § 3.810(c)(1) (i.e. by August 1st, 2015). The record contains an application for an annual clothing allowance completed by the Veteran on September 3, 2015 (as dated by him on the application), and received by VA in September 2015. Prior to that date, the record is devoid of any correspondence from the Veteran regarding clothing allowance benefits for the year 2015. The Veteran maintains that he filed an application for a clothing allowance for the year 2015 by the August 1st due date and that he “was under the assumption that [his] application was received” by that due date. See September 2015 Notice of Disagreement. While he has argued that VA did not receive that application because “the mail system has been flawed on several occasions,” see January 2018 Appellant’s Brief, there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 71 L. Ed. 131 (1926)). To rebut the presumption, the Veteran, not VA, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. See Ashley, 2 Vet. App. at 30. Absent such clear evidence, timely delivery is assumed. See Id.; see also Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). The Veteran has not presented such evidence. In fact, the record reflects that he has been in receipt of clothing allowance benefits from the years 2012 through 2019, except for the year 2015, indicating that the Veteran has been consistently submitting timely applications for clothing allowance benefits without experiencing issues with irregular mailing practices. The Board is sympathetic to the Veteran’s claim and particular circumstances, but is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). “[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). There is no provision of law in which the Board may grant the Veteran the benefits sought. Accordingly, the claim for a clothing allowance is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel