Citation Nr: 18151829 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-15 351A DATE: November 20, 2018 ORDER An annual clothing allowance for the 2015 calendar year for a back brace denied. An annual clothing allowance for the 2015 calendar year for a right knee brace denied. An annual clothing allowance for the 2015 calendar year for a left knee brace denied. FINDING OF FACT No back, right knee, or left knee brace worn by the Veteran, for the 2015 calendar year, tended to wear out or tear his clothing. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2015 calendar year for a back brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 2. The criteria for a clothing allowance for the 2015 calendar year for a right knee brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for the 2015 calendar year for a left knee brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1982 to September 2003. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2015 decision of a Department of Veterans Affairs Medical Center (VAMC). 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 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, or that a veteran uses medication prescribed by a physician for one skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran’s outer garments. 38 C.F.R. § 3.810(a)(1)(ii). A veteran is entitled to an annual clothing allowance for each such prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication affects a distinct type of article of clothing or outergarment. 38 C.F.R. § 3.810(a)(2). A veteran is entitled to two annual clothing allowances if a veteran uses more than one such prosthetic or orthopedic appliance, (including, but not limited to, a wheelchair), medication for more than one skin condition, or an appliance and a medication, and the appliance(s) or medication(s) together tend to wear or tear a single type of article of clothing or irreparably damage a type of outergarment at an increased rate of damage to the clothing or outergarment due to a second appliance or medication. 38 C.F.R. § 3.810(a)(3). The Veteran, in June 2015, applied for clothing allowances for the 2015 calendar year for braces used to treat service-connected back and right and left knee disabilities. As reflected in its December 2015 decision and March 2016 statement of the case, the agency of original jurisdiction (AOJ) denied the Veteran’s claims on the basis that the Veteran’s braces had fabric-covered stays/hinges, and were therefore not considered by VA, per its guidelines for clothing allowances, appliances that tend to wear or tear clothing. As reflected in his November 2015 notice of disagreement and April 2016 substantive appeal, the Veteran primarily asserts that while “the new technology of the braces does not cause immediate damage to clothing it does cause an immediate financial strain,” because “[t]he new braces are covered with fabric and the fabric increases the size of the braces and makes a need for larger clothing which is a costly expense.” However, neither the statutory nor regulatory authority governing the award of clothing allowances provides for any such allowance for the need to buy larger clothing to accommodate appliances worn; it specifically limits such allowances to those appliances VA determines tend to wear out or tear the clothing of the Veteran. The Veteran has also generally asserted that, over time, his braces caused damage to his clothing because of the constant friction that occurs from his knees rubbing against his pants, and that the Velcro on his braces often comes loose and the contact of the Velcro with the article of clothing causes it to fray. He stated that, since his clothes were ruined, they were disposed of and no longer in his possession, and thus could not be submitted for evidence. However, the Veteran has provided no supporting evidence that his braces tend to wear and tear his current clothing, as asserted; this includes at any time between the initial decision denying his clothing allowance claims in September 2015 and his substantive appeal to the Board in April 2016. The Board notes his general assertions that, while not immediately apparent, his braces tend to wear his clothing over some longer period of time; however, it finds that such assertions, alone, are not sufficient to establish that such braces—determined by VA not to be the type that cause wear and tear to clothing—actually wear and tear the Veteran’s clothing in his specific case. See VHA Handbook, 1173.15, “Clothing Allowance,” May 14, 2015 (“Examples of items that do not tend to tear and wear clothing include: Soft orthotics, transcutaneous electrical nerve stimulation (TENS) units, shoes, shoe inserts, non-specialized wheelchairs (sedentary/sitting purposes), scooters, canes, rollador, walkers, elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered), braces with plastic stays covered in fabric”). Therefore, the evidence is against a finding that the Veteran’s back, right knee, or left knee brace, for the 2015 calendar year, tended to wear out or tear his clothing. Accordingly, a clothing allowance is not warranted for the 2015 calendar year based on the Veteran’s use of such braces for his service-connected disabilities. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App.49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel