Citation Nr: 18147338 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 16-05 255 DATE: November 6, 2018 ORDER Entitlement to a clothing allowance for calendar year 2015 for a back brace is denied. Entitlement to a clothing allowance for calendar year 2015 for a left knee brace is denied. FINDINGS OF FACT 1. The Veteran’s back brace is not shown to wear and tear her clothing. 2. The Veteran’s left knee brace is not worn for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a clothing allowance for a back brace have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. 2. The criteria for entitlement to a clothing allowance for a left 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 from September 1985 to September 1988. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in Durham, North Carolina. Entitlement to clothing allowances for a back brace and left knee brace The Veteran seeks clothing allowances for calendar year 2015 for her lumbar corset (i.e. back brace), which she wears for her service-connected back disability. She also seeks a clothing allowance for the 2015 calendar year for her left knee brace. The Veteran is not service connected for any left knee disability. 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 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. See also 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). The Veteran asserts that she was granted clothing allowances for the back brace for calendar years 2013 and 2014 and thus, she should be granted the benefit for calendar year 2015. In particular, in her December 2015 notice of disagreement, she noted that the Board granted her appeal for entitlement to a clothing allowance for calendar year 2014 in a September 2015 decision. In this decision, the Board noted that the Veteran was competent to describe whether her back corset tended to wear and tear her clothing, as this was an observable circumstance. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board also found that there was no evidence of record that empirically established the accuracy of the Veteran’s contention, nor was there evidence of record in opposition to the Veteran’s claim. Thus, the Board concluded that the evidence was in equipoise concerning whether wear and tear from the back brace had occurred and granted the Veteran’s appeal by resolving reasonable doubt in her favor. Clothing allowances are generally awarded on an annual basis. As a result, the VAMC and the Board are required to conduct a de novo review to determine whether the clothing allowances claimed in this case are warranted for calendar year 2015. The September 2015 Board decision does not govern the outcome in this case because it pertains to entitlement to clothing allowance for a different calendar year. Therefore, the previous awards of clothing allowances presented by the Veteran, including the September 2015 Board decision, are properly viewed as supportive evidence toward the necessary showing that her back brace caused wear and tear to her clothing for the period covered by this appeal (i.e. calendar year 2015). This supportive evidence must be weighed against the non-supportive evidence of record. In this case, the non-supportive evidence consists of the determination by the VAMC expressed in the December 2015 statement of the case (SOC), which was prepared by a VAMC prosthetics representative and subsequently reviewed and submitted by the VAMC’s Chief of Prosthetics. In the SOC, the VAMC noted that according to regulation 1173.15, section 8(b), the Veteran’s Health Administration Orthotic and Prosthetic Field Advisory Committee has determined that appliances/devices, such as the Veteran’s lumbar corset, which include metal stays covered with fabric, plastic stays covered with fabric or Velcro stays and fasteners covered with fabric, are considered soft orthotics. Therefore, the SOC concluded that the Veteran’s lumbar corset did not qualify for a clothing allowance. The Veteran has not disputed the VAMC prosthetics representatives finding that her back brace/corset is fabric-covered and there is no other evidence of record to suggest that the corset is not fabric-covered. The Veteran has also not offered any explanation as to how the fabric-covered brace has actually caused wear and tear to her clothing. Given that the lumbar corset worn by the Veteran is reasonably shown to be consistent with the type that VHA prosthetics professionals have found does not tend to wear and tear clothing; 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 only generally cited the previous clothing allowance awards but has not provided any description of how her lumbar corset specifically wears and tears her clothing, the weight of the evidence is against a finding that such wear and tear has taken place. Accordingly, in the absence of a showing the brace wears and tears clothing, the Board does not have a basis for awarding a clothing allowance for this prosthetic appliance. 38 C.F.R. § 3.810(a)(1)(ii)(A). The preponderance of the evidence is against this claim and it must be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Regarding the left knee brace, as alluded to above, the Veteran has not been awarded service connected compensation for any left knee disability. She has also not specifically asserted that the knee brace is worn for any service-connected disability. Instead, in her December 2015 notice of disagreement, she more generally indicated that she has been awarded past clothing allowances for the left knee brace. The documentation of record indicates that the Veteran has been awarded multiple clothing allowances in the past so it is possible she was awarded a past clothing allowance in relation to a left knee brace. Nevertheless, as explained above, the Board must conduct a de novo review to determine whether such an allowance is warranted for calendar year 2015. The controlling regulation only allows for a clothing allowance for prosthetics that are specifically worn for service-connected disabilities and in this case, the medical evidence indicates that the left knee brace has been prescribed for a left knee disability, which is not subject to service-connected compensation. See e.g. December 2014 VA ortho-knee consultation report indicating that the Veteran was experiencing left knee pain secondary to early degenerative changes and recommended that she continue to wear her neoprene knee brace as needed to help treat this problem. Similarly, there is no evidence tending to indicate that the knee brace has been prescribed as a prosthetic aid to any disability other than that of the left knee, including any of the Veteran’s service-connected disabilities. Consequently, the Board does not have a basis for awarding a clothing allowance for the Veteran’s left knee brace. 38 C.F.R. § 3.810(a)(1)(ii)(A). Additionally, the weight of the evidence indicates that the left knee brace is fabric-covered. Thus, it is reasonably shown to be consistent with the type that VHA prosthetics professionals have found does not tend to wear and tear clothing. Consequently, 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 only generally cited the previous clothing allowance awards but has not provided any description of how her left knee brace specifically wears and tears her clothing, the weight of the evidence is against a finding that such wear and tear has taken place. Accordingly, even if the knee brace was being worn for a service-connected disability for the time frame in question, it would still not qualify for an award of clothing allowance. Id. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel