Citation Nr: 18145704 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-42 694A DATE: October 29, 2018 ORDER An annual clothing allowance for the 2015 calendar year for skin medication for use on the face is granted. An annual clothing allowance for the 2015 calendar year for left ankle brace is denied. An annual clothing allowance for the 2015 calendar year for right ankle brace is denied. An annual clothing allowance for the 2015 calendar year for custom insoles is denied. An annual clothing allowance for the 2015 calendar year for a right shoulder sling/elbow brace is denied. FINDINGS OF FACT 1. During the 2015 calendar year, the Veteran’s skin medication, used to treat a service-connected disability, caused irreparable damage to his outer garments. 2. No left or right ankle brace, custom insoles, or right shoulder sling/elbow brace worn by the Veteran, for the 2015 calendar year, tended to wear out or tear his clothing. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2015 calendar year for skin medication for use on the face 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 left ankle 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 not 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 custom insoles have not 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 shoulder sling/elbow brace 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 served on active duty from August 1994 to November 2001. 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 applied for clothing allowances for the calendar year 2015 for braces to treat his service-connected right and left ankle degenerative joint disease; custom insoles to treat service-connected foot calluses; a right shoulder sling/elbow brace to treat a service-connected right shoulder contusion; and skin medication for use on his face to treat service-connected pseudo-folliculitis barbae. 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). In this case, for the 2015 calendar year, a clothing allowance must be granted for the Veteran’s skin mediation for use on the face, and denied for his other claimed appliances. In both its December 2015 statement of the case (SOC) and March 2016 supplemental statement of the case (SSOC), the agency of original jurisdiction (AOJ) acknowledged that the Veteran’s mupirocin 2% ointment for use on his face for service-connected skin disability had been determined to cause permanent damage to clothing according to the Pharmacy and Prosthetic Workgroup, and that payment for such would be authorized. See VA’s LIST OF MEDICATIONS THAT MAY STAIN OR DAMAGE CLOTHING, revised 11/17/2016. However, with no explanation, the SOC and SSOC appear to continue denial of all clothing allowances, and there is no indication in the record that a clothing allowance for the Veteran’s skin medication has actually been authorized or paid. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that his skin medication, used to treat a service-connected disability, caused irreparable damage to his outer garments, and a clothing allowance for such is warranted. Regarding the Veteran’s other clothing allowance claims, as reflected in the December 2015 SOC: his left and right ankle braces, ASO gauntlet style, were considered a softgood orthotic and determined not to wear or tear clothing according to the Orthotic and Prothetic Field Advisory committee; his custom insoles were determined not to wear or tear clothing; and his right shoulder sling/elbow brace was a device with hinges covered by material, and considered a softgood orthotic, and had been determined not to tear clothing according to the Orthotic and Prosthetic Field Advisory Committee. 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”). The Veteran has not refuted these determinations or otherwise argued or explained how any such claimed appliances tended to wear or tear his clothing. Rather, in his December 2015 substantive appeal, the Veteran appears to specifically appeal and argue only the issue of a clothing allowance for his skin medication. Given the above, the evidence is against a finding that the Veteran’s claimed orthopedic appliances, for the 2015 calendar year, tended to wear out or tear his clothing. Accordingly, a clothing allowance must be granted for the 2015 calendar year based on the Veteran’s use of medication on his face for his service-connected skin disability, but must be denied for right or left ankle braces, custom insoles, and a right shoulder sling/elbow brace. 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