Citation Nr: 18150854 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-16 824 DATE: November 16, 2018 ORDER Entitlement to a clothing allowance for the 2015 calendar year for capsaicin cream, trixaicin cream, lidocaine hydrochloride, clobetasol gel, and clotrimazole cream is denied. FINDING OF FACT 1. Capsaicin cream, trixaicin cream, and lidocaine hydrochloride have not been issued by VA in conjunction with a service-connected disability. 2. Clobetasol gel and clotrimazole cream do not cause irreparable damage to the Veteran’s clothing. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for the 2015 calendar year for capsaicin cream, trixaicin cream, lidocaine hydrochloride, clobetasol gel, and clotrimazole cream 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 May 1988 to January 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. In his initial claim form, the Veteran indicated that he was prescribed capsaicin cream, trixaicin cream, and lidocaine hydrochloride for his diabetic nerve pain. He indicated that he was prescribed the clobetasol gel and clotrimazole cream for his dermatitis/eczema. A review of the claims file documents that the Veteran’s service-connected disabilities include diabetes mellitus with associated peripheral neuropathy, chronic dyshidrotic eczema of the hands and feet, and psoriasis. Further, the Veteran’s VA treatment records confirm that VA issued the capsaicin cream, trixaicin cream, and lidocaine hydrochloride for his service-connected neurological disabilities. In his July 2015 notice of disagreement, the Veteran stated that he was continued to be issued the creams and jelly for his service-connected disabilities. He stated that he had to liberally apply them throughout the day and that they were causing “grease marks” in his jeans and on his shirt tails. In his March 2016 substantive appeal, VA Form 9, the Veteran reiterated his statements with respect to the capsaicin cream, trixaicin cream, and lidocaine hydrochloride. He further stated that he was given the clobetasol gel and clotrimazole cream by his private primary care physician for his psoriasis; he indicated at that time that those prescriptions had expired and that VA was now issuing him triamcinolone acetonide cream for his psoriasis and eczema. 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: (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)(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 outergarments. 38 C.F.R. § 3.810(a)(1). Initially, the Board reflects that the Veteran has indicated and the VA treatment records confirm that the Veteran uses the capsaicin cream, trixaicin cream, and lidocaine hydrochloride in conjunction for his service-connected neurological disabilities and not related to his service-connected skin disability. As the capsaicin cream, trixaicin cream, and lidocaine hydrochloride are not issued and used in conjunction with his service-connected skin disability, the Board must deny a clothing allowance for the 2015 calendar year for capsaicin cream, trixaicin cream, and lidocaine hydrochloride based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Turning to the clobetasol gel and clotrimazole cream, the Board acknowledges that a physician has prescribed those creams in conjunction with his service-connected skin disabilities. The Board, however, reflects that throughout the appeal period the Veteran has not asserted or alleged that either of those creams has caused irreparable damage to his clothing. In the February 2016 statement of the case, the Agency of Original Jurisdiction (AOJ) indicated that the clobetasol gel and clotrimazole cream had been determined by the certifying official not to cause permanent damage to clothing; it additionally noted that neither of those creams were listed in his medical chart. Arguably, as the creams were issued by an outside medical provider and not by VA in this case, such creams are not “qualifying” within the meaning of the regulation in this case. Nevertheless, without needing to reach the merits of that issue in this case, entitlement to clothing allowances for the clobetasol gel and clotrimazole cream is not warranted in this case as the certifying official’s finding that neither of those creams cause irreparable damage to the Veteran’s clothing is dispositive. Such finding is not refuted or contested by the Veteran at any time during the appeal period and that finding is the most probative evidence of record at this time. Accordingly, the Board must also deny an award of a clothing allowance for the 2015 calendar year for the clobetasol gel and clotrimazole cream based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel