Citation Nr: 18146950 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-13 386 DATE: November 2, 2018 ORDER Entitlement to an annual clothing allowance for 2015 based on use of a right knee brace is denied. FINDING OF FACT The Veteran’s right knee brace is fabric-covered and does not tend to wear or tear clothing. CONCLUSION OF LAW The criteria for establishing eligibility for clothing allowance in 2015 due to wearing of a right knee brace have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1990 to June 1991, including service in Southwest Asia; January 2003 to August 2004; and from December 2004 to December 2006. She also had a period of active duty for training (ACDUTRA) from August to December 1986. 1. Entitlement to a clothing allowance for a knee brace. The Veteran contends that her knee brace causes wear and tear on her clothing, including her sock and stockings. See the January 2016 notice of disagreement; February 2016 VA Form 9. Service connection is currently in effect for right knee total arthroplasty (previously degenerative joint disease, status post arthroscopic repair, with bone spur and baker’s cyst), rated as 10 percent disabling during 2015. A veteran who has a service-connected disability that requires the use of a prosthetic or orthopedic appliance which the Secretary determines tends to wear out or tear the clothing of the veteran or uses medication which (A) a physician has prescribed for a skin condition which is due to a service-connected disability, and (B) the Secretary determines causes irreparable damage to the veteran’s outer garments is entitled to an annual clothing allowance, payable in a lump sum. 38 U.S.C. § 1162, 38 C.F.R. § 3.810(a). A veteran is entitled to one annual clothing allowance if a VA examination or a hospital or examination report from a qualifying facility 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, 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 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). A veteran is entitled to an annual clothing allowance for each prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication satisfies the requirements of section (a)(1) and affects a distinct type of article of clothing or outer garment. 38 C.F.R. § 3.810(a)(2). A veteran is entitled to two annual clothing allowances if he or she uses more than one 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) each satisfy the requirements of section (a)(1) and together tend to wear or tear a single type of article of clothing or irreparably damage a type out outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. 38 C.F.R. § 3.810(a)(3). Certain clothing allowance claims require a determination by a Veteran’s Health Administration (VHA) Prosthetic Representative or designated physician when a review of the record is necessary. In all cases where a review is determined to be necessary, the Prosthetic Representative, and/or designated physician, must determine that: (1) Use of the device or skin medication is medically prescribed; and (2) In the case of a device, such device qualifies as a prosthetic or orthopedic appliance; (3) The device or skin medication tends to wear out, tear, or cause irreparable damage to the veteran’s clothing; and (4) The veteran actually uses the device or skin medication with sufficient consistency to wear out, tear, or cause irreparable damage to clothing. See VHA Handbook 1173.15 sec. 3(b)(c). In this case, VA treatment records indicate that the Veteran was provided with a Tri-State knee orthosis elastic hinged neoprene brace, (code L-1810) in December 2012. The brace is a wrap-around design with aluminum hinges. In September 2015, a VA Prosthetic Representative determined that a clothing allowance for 2015 was denied because the Veteran’s knee brace was completely fabric-covered and not damaging to approved articles of clothing. The January 2016 Statement of the Case (SOC), approved by the Chief of the Prosthetic and Sensory Aids Service of the Tennessee Valley VA Healthcare System, indicates that a clothing allowance for 2015 based on use of a right knee brace was denied because the Veteran’s knee brace was completely covered in fabric, with no exposed rigid metal or plastic structures. VAH Handbook 1173.15 paragraph 8 specifically lists “elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered), braces with plastic stays covered in fabric” as items that are not considered to cause wear and tear to outer clothing. In addition, socks and pantyhose are not covered items under the law, only outer garments qualify (i.e., pants and shirts). (Continued on the next page)   The Board finds that the claim must be denied. The applicable regulation clearly establishes that unless there is loss of use of a hand or foot (at the compensable rating specified in § 3.350(a), (b), (c), (d), or (f)), which is not the case here, the prosthetic or orthopedic appliance must be certified by the Under Secretary for Health, or a designee, as a device that that tends to wear or tear clothing. In this case, the designee, a Chief of the Prosthetic and Sensory Aids Service, determined the Veteran’s knee brace is not of a type of brace to cause wear, and thus does not qualify. Accordingly, the criteria for a clothing allowance based on use of a right knee brace are not shown to have been met. The Board acknowledges the Veteran’s argument that her knee braces cause actual wear on her clothing. However, the designee, a Chief of the Prosthetic and Sensory Aids Service, determined the Veteran’s knee brace was not of a type to cause wear and therefore did not qualify the Veteran for a clothing allowance, and there is no competent medical evidence to contradict his findings. See 38 C.F.R. § 3.810. As such, the Board finds the criteria for entitlement to clothing allowance for a right knee brace in 2015 are not met, and the claim is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel