Citation Nr: 18147684 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-07 124 DATE: November 6, 2018 ORDER Entitlement to a clothing allowance for the 2014 calendar year for a back brace is denied. REMANDED Entitlement to a clothing allowance for the 2014 calendar year for a right knee brace is remanded. FINDING OF FACT The Veteran’s back brace does not tend to cause wear and tear to his clothing. CONCLUSION OF LAW The criteria for entitlement to clothing allowances for the 2014 calendar year for a back brace are not met. 38 U.S.C. §§ 1162, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1966 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 letter of determination by a Department of Veterans Affairs (VA) Medical Center. 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 following criteria are met, when (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. 38 C.F.R. § 3.810(a)(1). The Veteran is claiming a clothing allowance for a back brace; the Board reflects that service connection has been established for the Veteran’s lumbar strain with degenerative joint disease (DJD). The Board further reflects that the evidence of record demonstrates that VA has issued him a back brace in connection with that service-connected disability. On appeal, particularly in his October 2014 notice of disagreement, the Veteran indicated that he wore a back brace. The Board notes, however, that the Veteran has never asserted during the appeal that his back brace tends to wear and tear his clothing. The Agency of Original Jurisdiction (AOJ) denied an award of a clothing allowance in this case because the Veteran’s back brace was not rigid and did not qualify for a clothing allowance. Although the Board acknowledges the Veteran’s statements that he wears a back brace, that is not the sole criteria necessary for an award of a clothing allowance in this case; rather, the back brace must also tend to cause wear and tear to his clothing. The Veteran has not asserted that his back brace tended to cause wear and tear to his clothing during the 2014 calendar year during his appeal. Instead, VA’s certifying official indicated that the Veteran’s back brace was not rigid and therefore did not qualify for an award of a clothing allowance. The Board finds that the certifying official’s non-certification that the back brace tended to cause wear and tear of the Veteran’s clothing in this case to be the most probative evidence and is dispositive in this case. Accordingly, the Board must deny an award of a clothing allowance for the 2014 calendar year for a back brace based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS FOR REMAND The Board reflects that the AOJ denied a clothing allowance for a right knee brace because such was not issued for a service-connected disability and because the brace was “too old to qualify for a clothing allowance.” The Board reflects that service connection for a right knee disability was granted in an August 2014 rating decision. The Board is unaware of the provision under the law noted above that contemplates the age of the issued brace. Rather, the proper criteria are whether the issued brace—in this case, the right knee brace—has been issued by VA in connection with a service-connected disability—in this case, it has been—and whether such tends to cause wear and tear of the Veteran’s clothing. As the AOJ has not addressed whether the Veteran’s right knee brace tends to cause wear and tear of his clothing, this case must be remanded in order for the AOJ to properly develop and readjudicate the clothing allowance claim with respect to the right knee brace. The matter is REMANDED for the following action: 1. The AOJ should complete any and all development necessary to adjudicate the clothing allowance claim for the Veteran right knee brace, to include obtaining any certification regarding tendency of that brace to cause wear and tear to the Veteran’s clothing during the 2014 calendar year. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran’s claim of entitlement to a clothing allowance for the 2014 calendar year for a right knee brace. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel