Citation Nr: 18144633 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-43 686 DATE: October 25, 2018 ORDER An annual clothing allowance for the 2015 calendar year for hydrocortisone cream for use on the face and neck is granted. An annual clothing allowance for the 2015 calendar year for a back brace is denied. An annual clothing allowance for the 2015 calendar year for a right ankle brace is granted. An annual clothing allowance for the 2015 calendar year for a left ankle brace is granted. An annual clothing allowance for the 2015 calendar year for a right knee brace is granted. An annual clothing allowance for the 2015 calendar year for a left knee brace is granted. An annual clothing allowance for the 2015 calendar year for custom insoles is denied. FINDINGS OF FACT 1. The Veteran’s hydrocortisone cream for use on the face and neck, used to treat a service-connected disability, for the 2015 calendar year, caused irreparable damage to his outer garments. 2. No back brace worn by the Veteran, for the 2015 calendar year, tended to wear out or tear his clothing. 3. The Veteran’s right ankle brace, worn to treat a service-connected disability, for the 2015 calendar year, tended to wear out his shoes. 4. The Veteran’s left ankle brace, worn to treat a service-connected disability, for the 2015 calendar year, tended to wear out his shoes. 5. The Veteran’s right knee brace, worn to treat a service-connected disability, for the 2015 calendar year, tended to wear out or tear his pants. 6. The Veteran’s left knee brace, worn to treat a service-connected disability, for the 2015 calendar year, tended to wear out or tear his pants. 7. The Veteran’s custom insoles, for the calendar year 2015, have not been suggested to affect any type of clothing except the shoes. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2015 calendar year for hydrocortisone cream for use on the face and neck have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 2. The criteria for a clothing allowance for the 2015 calendar year for a back brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for the 2015 calendar year for a right ankle brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 4. The criteria for a clothing allowance for the 2015 calendar year for a left ankle brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 5. The criteria for a clothing allowance for the 2015 calendar year for a right knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 6. The criteria for a clothing allowance for the 2015 calendar year for left knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 7. The criteria for a clothing allowance for the 2015 calendar year for custom insoles have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1994 to July 1994. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2015 decision of a Department of Veterans Affairs Medical Center (VAMC). The Veteran seeks multiple clothing allowances for the 2015 calendar year for various prescribed appliances and medication for his service-connected disabilities of dermatophytosis/pseudofolliculitis barbae; back sprain; right ankle chronic ligament strain; left ankle sprain and degenerative joint disease; and bilateral pes planus with bilateral plantar fasciitis. 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 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, or that 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 outer garments. 38 C.F.R. § 3.810(a)(1)(ii). A veteran is entitled to an annual clothing allowance for each such prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication affects a distinct type of article of clothing or outergarment. 38 C.F.R. § 3.810(a)(2). A veteran is entitled to two annual clothing allowances if a veteran uses more than one such 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) together tend to wear or tear a single type of article of clothing 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. 38 C.F.R. § 3.810(a)(3). As reflected in his February 2015 claim, July 2015 notice of disagreement, and November 2015 substantive appeal, the Veteran asserts that he had previously been qualified for multiple clothing allowances for over 7 years. He has also asserted the following: His hydrocortisone cream of his dermatophytosis on the neck and face affects the neck line of his clothing. His large metal back brace comes to the middle of his chest, is uncomfortable, and wears and tears his outer garments. His hard, large ankle braces and custom insoles widen and stretch his shoes and wear them out. His metal knee braces wear at faster than six months (the soonest he can have them replaced), at about three months, so that the metal in the braces breaks through the mesh that contains them, and once exposed they wear and tear his pants in the knee area. In support of his claims, the Veteran submitted a July 2013 letter from the VAMC reflecting that he had been approved for three clothing allowances for appliances including his left ankle brace, and for face and neck hydrocortisone creams. He also submitted photographs appearing to show his worn knee braces with metal hinges and rigid parts protruding through the fabric, and his ankle braces stretching the width of his shoe to the point where his shoes remained widened and stretched when removed. In this case, clothing allowances for the calendar year 2015 should be granted for the Veteran’s hydrocortisone cream for use on the face and neck, knee braces, and ankle braces; and should be denied for his back brace and custom insoles. As reflected in the Veteran’s statements and in the July 2013 decision letter noted above, he previously had been granted clothing allowances for his hydrocortisone cream and ankle brace. As reflected in the agency of original jurisdiction’s (AOJ’s) statement of the case (SOC), it denied the claims for the cream and ankle braces on the bases that hydrocortisone cream had been determined not to cause permanent damage to clothing according to the Pharmacy and Prosthetic Workgroup, and that the Veteran’s ankle braces, ASO gauntlet style, considered a softgood orthotic, had been determined not to tear clothing according to the Orthotic and Prosthetic Field Advisory Committee. (The Board also notes that the Veteran’s hydrocortisone cream had originally been denied administratively in March 2015 as being used for the rectum, but that the record clearly appears to show that such cream is for service-connected skin disability of the face and neck). The AOJ did not provide any explanation of why the Veteran had been granted clothing allowances for his hydrocortisone cream and ankle brace as reflected in the July 2013 decision letter, but the same cream and brace would not have qualified for a clothing allowance for the 2015 calendar year. Given this, in addition to the Veteran’s statements asserting that his hydrocortisone cream affects the neck line of his clothing and ankle braces widen and stretch his shoes and wear them out, and the photographs indicating wear on his shoes, and resolving reasonable doubt in his favor, the Board finds that his skin cream for his service-connected disability caused irreparable damage his outer garments, and his ankle braces tended to wear his shoes. Regarding his right and left knee braces, the AOJ again denied the Veteran’s claims on the basis that they were determined to be hinged knee sleeves with hinges covered by material, and not to tear clothing, according to the Orthotic and Prothetic Field Advisory Committee. It did not address the Veteran’s assertions, supported by his submitted photographs, that his metal knee braces wear out faster than he can have them replaced so that the metal in the braces breaks through the mesh that contains them, and once exposed wear and tear his pants in the knee area. Given this, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the braces for his service-connected knee disabilities, for the calendar year 2015, tended to wear and tear his pants. Regarding the Veteran’s back brace, the AOJ denied a clothing allowance on the basis that such brace was considered a softgood orthotic and had been determined not to tear clothing according to the Orthotic and Prosthetic Field Advisory Committee. In this regard, many devices that contain metal or hard plastic are generally recognized by VA as not tending to wear and tear clothing. See VHA Handbook, 1173.15, “Clothing Allowance,” May 14, 2015 (“Examples of items that do not tend to tear and wear clothing include: Soft orthotics, transcutaneous electrical nerve stimulation (TENS) units, shoes, shoe inserts, non-specialized wheelchairs (sedentary/sitting purposes), scooters, canes, rollador, walkers, elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered), braces with plastic stays covered in fabric”). While the Veteran has asserted generally that his back brace wears and tears his outer garments, he has not provided additional details of how, or identified any specific way in which, it does this. Also, while he has provided photographic evidence of his knee and ankle appliances and/or the wear and tear on his clothes from these devices, he has not submitted any such evidence in support of a clothing allowance for his back brace. Given this, the evidence weighs against a finding that the Veteran’s brace for his service-connected back disability tends to wear or tear his clothing, and a clothing allowance for such must be denied. Finally, even assuming, without determining, that the Veteran’s custom insoles for his service-connected feet disability affect his shoes, in this decision he is being awarded the maximum two annual clothing allowances for the single type of article of clothing of his shoes (from his right and left ankle braces), in accordance with the provisions of 38 C.F.R. § 3.810(a)(3). Therefore, no additional clothing allowance for his custom insoles is available. Accordingly, clothing allowances are warranted for the 2015 calendar year based on the Veteran’s use of hydrocortisone cream for use on the face and neck, and right and left braces for his service-connected skin, ankle, and knee disabilities; but are not warranted for any back brace or custom insoles. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App.49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel