Citation Nr: 18152569 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-16 882 DATE: November 27, 2018 ORDER Entitlement to a clothing allowance for the 2015 calendar year for capsaicin cream is denied. FINDING OF FACT The capsaicin cream is not used in conjunction with a service-connected skin condition. CONCLUSION OF LAW The criteria for entitlement to clothing allowance for the 2015 calendar year for a capsaicin 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 August 1989 to April 2011. 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. As a final initial matter, the Board reflects that the February 2016 statement of the case also denied entitlement to clothing allowances for the 2015 calendar year for bilateral ankle braces, a wrist splint, and custom insoles. However, the Veteran indicated in his April 2016 substantive appeal, VA Form 9, that he only wished to pursue an appeal related to the capsaicin cream. Accordingly, as the Veteran did not properly complete an appeal of the clothing allowance claims for bilateral ankle braces, a wrist splint, and custom insoles, the Board does not have jurisdiction over those claims at this time and they will no longer be discussed. See 38 C.F.R. §§ 20.200, 20.202, 20.1103. On appeal, the Veteran stated in his August 2015 notice of disagreement that he used the capsaicin cream for his back, hip and knee; he stated that the cream left stains on his clothing, towels, bedsheets, and comforter. He also stated that he sometimes had to change his clothing twice a day in order not to stain other things in his household. In his April 2016 substantive appeal, the Veteran indicated that he used the capsaicin cream for his peripheral neuropathy secondary to his diabetes mellitus, as well as his back and knee disabilities; he reiterated that the cream left “a stain and a[n] odor that does not come out.” He indicated that he applied the cream multiple times a day and that he had to replace multiple items of clothing due to the stains and odor that damaged them. In the March 2017 informal hearing presentation, the Veteran’s representative cited a website, noting that capsaicin/menthol/methyl salicylate lotion “may stain clothes or bedding. Allow capsaicin/menthol/methyl salicylate lotion to dry before you come in contact with clothing or any other surface.” See https://www.drugs.com/cdi/capsaicin-menthol-methyl-salicylate-lotion.html. Service connection has been established for a lumbar spine disability, and September 2014 VA treatment records document that he has been issued the capsaicin cream for that disability. The Board additionally concedes that the Veteran also uses the cream for several other service-connected disabilities, including his diabetes mellitus with associated peripheral neuropathy of the bilateral upper and lower extremities, right hip, and right knee disabilities. The Board, however, notes that the Veteran is not service connected for any skin disability other than post-surgical scars; the Veteran’s VA treatment records, as noted above, demonstrate that the capsaicin cream has not been issued with respect to those disabilities. 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).   The Veteran has indicated and the VA treatment records confirm that he uses capsaicin cream for pain from his lumbar spine disability and neurological disabilities. However, the evidence of record does not indicate that the capsaicin cream the Veteran is issued in this case is used in connection with a service-connected skin condition. Therefore, the Board must deny a clothing allowance for the 2015 calendar year for capsaicin cream 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). MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel