Citation Nr: 18145270 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-43 118 DATE: October 30, 2018 ORDER Entitlement to a clothing allowance for calendar year 2014 for a back brace is denied. Entitlement to a clothing allowance for calendar year 2014 for bilateral knee braces is denied. FINDINGS OF FACT 1. The Veteran’s back brace is not shown to wear and tear his clothing. 2. The Veteran’s bilateral knee braces are not shown to wear and tear his clothing. CONCLUSIONS OF LAW 1. The criteria for entitlement to clothing allowances for a back brace for calendar year 2014 have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. 2. The criteria for entitlement to clothing allowances for bilateral knee braces for calendar year 2014 have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1986 and from January 2004 to April 2005. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2016 decision of the Department of Veterans Affairs Medical Center (VAMC). In July 2018, the Board sent the Veteran a letter asking him to clarify if he wished to have a representative or if he was representing himself. In a request received on September 13, 2018, the Veteran indicated that he wished to receive a copy of the claims file. In subsequent correspondence dated September 19, 2018, the Veteran indicated that he wished to represent himself and instructed the Board to proceed to process his appeal. On September 21, 2018, the Board mailed the Veteran a copy of the claims file. As the Board has not received any further correspondence from the Veteran, it will proceed to issue a decision. 1. Entitlement to clothing allowances for back brace and bilateral knee braces for calendar year 2014. The Veteran has appealed the denial of clothing allowances for his back brace and bilateral knee brace. His service-connected disabilities include a low back disability and bilateral knee disabilities. Statutory 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. (ii)(B) The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for one skin condition that causes irreparable damage to the veteran’s outer garments. 38 C.F.R. § 3.810(a)(1). The clothing allowance section of the Veterans Health Administration (VHA) handbook includes examples of items that do not tend to tear and wear clothing. These examples include elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered) and braces with plastic stays covered in fabric. VHA Handbook 1173.15, May 15, 2015 (last accessed on October 19, 2018). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In a November 2014 statement of the case, a VAMC prosthetics representative found that the Veteran was not entitled to clothing allowances for his back and knee braces because all these appliances are fabric covered and thus, by their nature, do not tend to wear and tear clothing. For his part, the Veteran argued in his October 2014 notice of disagreement that he had been receiving clothing allowances for the past 5 years and that his service-connected back and knee conditions had not improved and in fact, had gotten worse. He also expressed frustration with the VAMC prosthetics staff for not providing him with a copy of an internal VA directive governing the processing of clothing allowance claims. Notably, he has not refuted the VAMC’s finding that his braces are fabric covered. He has also not provided any description of how his braces wear and tear clothing. (Continued on the next page)   Instead, the Veteran has indicated that he has been repeatedly awarded the clothing allowance benefit in the past. Notably, the record indicates that the Veteran was awarded clothing allowances from 2009 through 2013. However, given that clothing allowance is a benefit that is awarded on an annual basis, VA is required to conduct a de novo review to determine whether the benefit is currently warranted. Given that braces worn by the Veteran are shown to be consistent with the type that VHA prosthetics has found does not tend to wear and tear clothing (i.e. fabric covered ones); given that VHA prosthetics professionals are presumed to have expertise in determining which type of prosthetics would generally tend to wear and tear clothing; and given that the Veteran has not provided any description of how his braces specifically wear and tear his clothing, the weight of the evidence is against a finding that such wear and tear took place during calendar year 2014. Accordingly, in the absence of a showing the braces wear and tear clothing, the Board does not have a legal basis for awarding a clothing allowance for the knee and back braces. 38 C.F.R. § 3.810(a)(1)(ii)(A). The preponderance of the evidence is against these claims and they must be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel