Citation Nr: 18148612
Decision Date: 11/08/18	Archive Date: 11/07/18

DOCKET NO. 17-39 895A
DATE:	November 8, 2018
ORDER
Entitlement to a clothing allowance for the 2017 calendar year for a right foot orthopedic boot is denied.
REFERRED
The issues of entitlement for a clothing allowance for the 2017 calendar year for a shoulder brace, anti-inflammatory cream, crutches, knee walker, and neoprene sleeves were raised in the Veteran’s August 2017 notice of disagreement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication.
FINDING OF FACT
The Veteran’s right foot orthopedic boot is not prescribed by or issued by VA and therefore it is not a “qualifying orthopedic appliance.”
CONCLUSION OF LAW
The criteria for entitlement to clothing allowances for the 2017 calendar year for a right foot orthopedic boot 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 September 1983 to June 2004.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 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).
Service connection has been established for the Veteran’s right pes cavus status post surgery .  It is for this service-connected disability that he claims a clothing allowance for his right foot orthopedic boot.  
The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim in this case because the right foot orthopedic boot was not issued by VA.  Although the evidence demonstrates that the Veteran wears a right foot orthopedic boot, and the Board acknowledges the Veteran’s statements and evidence submitted demonstrating that he does wear a right foot pneumatic boot for his pes cavus disability, the Board cannot find that such is a “qualifying orthopedic appliance” in this case, as such orthopedic appliance is not shown in any VA treatment records to be prescribed by or issued to the Veteran by VA.  
In short, even though the Veteran may use such a right foot boot in this case because of his service-connected right foot pes cavus disability, a clothing allowance is not warranted because such is not a “qualifying orthopedic appliance” within the meaning of applicable law.  Accordingly, the Board must deny this claim as a matter of law.  See 38 U.S.C. § 1162; 38 C.F.R. § 3.810; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Peters, Counsel