Citation Nr: 18142453 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-35 942A DATE: October 15, 2018 ORDER Entitlement to a clothing allowance for the 2016 calendar year for a back brace is denied. FINDING OF FACT The Veteran’s back brace does not tend to cause wear and tear to his clothing. CONCLUSION OF LAW The criteria for entitlement to clothing allowances for the 2016 calendar year for a back brace are not met. 38 U.S.C. §§ 1162, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1972 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 letter of determination by a Department of Veterans Affairs (VA) Medical Center. 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, when (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). The Veteran is claiming a clothing allowance for a back brace; the Board reflects that service connection has been established for the Veteran’s intervertebral disc syndrome with a herniated disc with sacroiliitis and associated right-sided sciatica. The Board further reflects that the evidence of record demonstrates that VA has issued him a back brace in connection with that service-connected disability. On appeal, the Veteran asserts that he should be awarded a clothing allowance for his back brace as he was awarded a clothing allowance for that same brace for the 2015 calendar year. In any event, the Veteran asserts that the brace causes wear and tear to this belt and pants due to the metal stays in the brace. He submitted photographs, which the Board has reviewed, as well as several statements indicating the type of wear and tear the brace causes to his clothing. Initially, the Board reflects that a previous award of clothing allowance is not a precedential finding and is not binding on the Board. See 38 U.S.C. 7104(c); 38 C.F.R. § 19.5. Therefore, the Board finds the Veteran’s statements that he was awarded a clothing allowance in a previous year for the same braces is not probative evidence with regards to current entitlement in this case. The VA certifying official in this case has indicated that the Veteran’s back brace, which is a brace with fabric-covered metal stays, does not cause wear and tear to his clothing, as braces with either metal or plastic stays covered in fabric and devices with Velcro stays/fasteners do not cause wear and tear to clothing. Although the Board acknowledges the Veteran’s statements that his back brace does cause damage to his clothing, the Board finds the certifying official’s findings and conclusion to be more probative than the Veteran’s statements in this case; the certifying official’s non-certification is therefore dispositive in this case. Accordingly, the Board must deny an award of a clothing allowance for the 2016 calendar year for a back brace based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel