Citation Nr: 18147512 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 14-38 730A DATE: November 6, 2018 ORDER Payment of a clothing allowance for a right ankle brace for calendar year 2014 is granted. Payment of a clothing allowance for a back brace for calendar year 2014 is denied. OTHER ISSUES ON APPEAL The issues of entitlement to ratings in excess of 10 percent for posttraumatic stress disorder (PTSD), cervical strain, tension headaches, and a right ankle disability, entitlement to a total disability rating due to individual unemployability (TDIU), and entitlement to service connection for sleep apnea will be addressed in a separate Board decision. FINDINGS OF FACT 1. Service connection is in effect for right and left shoulder disabilities, cervical strain, PTSD, degenerative joint disease of the right ankle, scar of the right ankle, surgical scars of the right shoulder, and tension headaches. 2. The evidence is in relative equipoise as to whether the Veteran’s ankle brace for his service-connected right ankle disability that tended to wear or tear distinct types of article of clothing. In calendar year 2014. 3. The Veteran did not use a back brace that tended to wear and tear his clothing for a service-connected disability in calendar year 2014. CONCLUSIONS OF LAW 1. Resolving all reasonable doubts in the Veteran’s favor, the criteria for entitlement to a clothing allowance for 2014 due to the Veteran’s use of a right ankle brace are met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810(a) (2018). 2. The criteria for entitlement to a clothing allowance for 2014 due to the Veteran’s use of a lumbar back brace are not met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2008 to October 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decision issued by the Department of Veterans Affairs Medical Center (VAMC) in Orlando, Florida. A veteran who has a service-connected disability is entitled to an annual clothing allowance upon meeting certain eligibility requirements. One way is if the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing. 38 C.F.R. § 3.810 (a)(1) (2018). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App.49, 53-56 (1990). Initially, the Board notes that the Veteran’s application for benefits is not of record. The agency of original jurisdiction was contacted regarding outstanding, relevant documents, and the application was not uploaded. It appears that all other pertinent documents are available for review. The November 2014 statement of the case (SOC) reference soft knee, ankle, and back braces, but in his May 2014 notice of disagreement, the Veteran disagreed with denials of clothing allowance for lumbarback and ankle braces. He also offered testimony pertaining to only ankle and lumbar back braces at his January 2018 hearing. Thus, whatever the Veteran may have claimed on his application, only the issues of entitlement to a clothing allowances for ankle and back braces are before the Board. Service connection is in effect for right and left shoulder disabilities, cervical strain, PTSD, degenerative joint disease of the right ankle, scar of the right ankle, surgical scars of the right shoulder, and tension headaches. Service connection has not been in effect for a lumbar spine disability at any time. Consequently, as the Veteran does not use the lumbar back brace for a service-connected disability, a clothing allowance may not be granted for the back brace. As for the right ankle brace, the Veteran testified in January 2018 that the ankle brace stretches and frays his pant leg. He described the brace as having laces and hard plastic. A June 2013 VA prosthetics note states that he was fitted with an “ASO (MEDSPEC BRAND LACEUP W/ FIG 8)” ankle brace. A common internet search of that phrase reveals that the ASO ankle braces offered by MedSpec as of the writing of this decision are fabric-covered and secured with laces and Velcro straps, and in some cases, have internal plastic pieces such as hinges and stays. See http://www.medspec.com/OnlineProductTypes.cfm?ID=136, last checked on October 30, 2018. The Veteran asserts that the nature of the use of his VA-issued right ankle brace has remained unchanged from the prior years when he received clothing allowances for the same or similar orthopedic appliances. A VETSNET Compensation and Pension Award printout generated in June 2016 confirms that the Veteran received a clothing allowance payment through calendar year 2013. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of an annual clothing allowance for calendar year 2014 for the Veteran’s use of his right ankle brace. The Veteran is competent to describe whether his orthopedic appliance causes wear, stretching, or tearing of his clothing, inasmuch as such is readily observable by a lay person. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, as noted, it appears from the record that VA has previously recognized that such use can wear or tear clothing as the Veteran received clothing allowances for the same or similar appliances for several years prior the denial for calendar year 2014. Under these circumstances, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s right ankle brace cause wear and tear to his clothing. Therefore, resolving all reasonable doubt in the Veteran’s favor, a clothing allowances for calendar year 2014 for the Veteran’s use of a right ankle brace is granted. 38 C.F.R. § 3.810 (a)(2) (2018). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel