Citation Nr: 18153810 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-41 218 DATE: November 28, 2018 ORDER Entitlement to an annual VA clothing allowance for the year 2015 due to the use of a low back brace is denied. FINDINGS OF FACT 1. The Veteran is service-connected for the following disabilities relevant to the present clothing allowance appeal: fibromyalgia with chronic fatigue syndrome (40 percent disabling); lumbar spine degenerative disc disease (10 percent disabling); radiculopathy due to sciatic nerve impairment of the right lower extremity (20 percent disabling); radiculopathy due to sciatic nerve impairment of the left lower extremity (10 percent disabling); and a low back surgical scar (0 percent disabling). 2. The Veteran does not have loss or loss of use of a hand or foot due to any of his service-connected disabilities. 3. Since the Veteran’s low back brace is “covered in fabric,” it does not produce wear and tear on “clothing” according to the Veterans Health Administration (VHA) Handbook 1173.15. Moreover, there is no probative medical or lay evidence of record describing wear and tear on “clothing” due to the Veteran’s frequent use of his low back brace. CONCLUSION OF LAW The criteria are not met for an annual VA clothing allowance for the year 2015 due to use of a low back brace. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017); VHA Handbook 1173.15 paragraph 8(b) (May 14, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 1972 to September 1999 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 decision issued by the Prosthetics & Sensory Aids Service (PSAS) of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Murfreesboro, Tennessee. This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). I. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist for the clothing allowance claim being denied. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In addition, a review of the Veteran and his representative’s submissions reflects that the Veteran was aware of the various requirements for showing entitlement to an annual clothing allowance. See e.g., Short Bear v. Nicholson, 19 Vet. App. 341, 343-45 (2005). II. Clothing Allowance for Low Back Brace A veteran who has a service-connected disability, or a disability compensable under 38 U.S.C. § 1151 as if it were service-connected, is entitled, upon application therefore, to an annual clothing allowance as specified under 38 U.S.C. § 1162 and 38 C.F.R. § 3.810. One annual clothing allowance per year is payable in a lump sum, when the following eligibility criteria are satisfied: (1) A VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such service-connected disability or disabilities and such service-connected disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d), or (f); or (2) The Undersecretary for Health or a designee certifies that, because of such service-connected disability or disabilities, a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran’s clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to the service-connected disability or disabilities, irreparable damage is done to the Veteran’s outer garments. 38 U.S.C. § 1162 (2012); 38 C.F.R. § 3.810(a) (2017) (emphasis added). Effective August 1, 1972, the initial lump-sum clothing allowance is due and payable for Veterans meeting the eligibility requirements of paragraph (a) of this section as of that date. Subsequent annual payments for those meeting the eligibility requirements of paragraph (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously-established entitlement. 38 C.F.R. § 3.810(b). A veteran may not receive more than one clothing allowance for a single appliance, even if the appliance damages more than one type of clothing. See 76 Fed. Reg. 70883 (November 16, 2011). Prosthetic / orthopedic appliances are defined as aids, parts or accessories required to replace, support, or substitute for impaired or missing anatomical parts of the body. See VHA Handbook 1173.15 paragraph 2(a) (May 14, 2015). An outergarment is defined as a type of garment worn over other garment (e.g., shirt, blouse, pants, skirt, coat, jacket, blazer). See VHA Handbook 1173.15 paragraph 2(b). In determining whether a clothing allowance is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). At the outset, the Veteran is service-connected for the following disabilities relevant to the present clothing allowance appeal: fibromyalgia with chronic fatigue syndrome (40 percent disabling); lumbar spine degenerative disc disease (10 percent disabling); radiculopathy due to sciatic nerve impairment of the right lower extremity (20 percent disabling); radiculopathy due to sciatic nerve impairment of the left lower extremity (10 percent disabling); and a low back surgical scar (0 percent disabling). The Veteran is also service-connected for various disabilities not relevant to the present clothing allowance appeal. The Veteran has a combined 100 percent schedular rating for his service-connected disabilities, effective July 20, 2017. And due to the extreme severity of his service-connected disabilities, the Veteran is in receipt of a permanent and total (P&T) rating for his service-connected disabilities. The Veteran has claimed entitlement to a VA clothing allowance for the year 2015 because his service-connected low back, fibromyalgia, and radiculopathy disabilities listed above necessitate the use of a prosthetic or orthopedic appliance – a low back brace. This low back brace was first issued by VA in August 2014 according to TRICARE records, due to his service-connected disabilities. He asserts that his low back brace, in turn, tends to wear or tear or damage articles of his clothing. However, neither the Veteran nor his representative has identified the specific article of clothing damaged by his low back brace or described the alleged wear and tear in any detail. The Veteran’s representative has emphasized the VA previously awarded a clothing allowance for previous years (2008, 2009, and 2010. At the outset, the evidence of record confirms that the Veteran uses a low back brace due to his service-connected low back, fibromyalgia, and radiculopathy disabilities listed above. See September 2016 and January 2018 VA spine examinations; August 2014 health record from TRICARE orthopedic appliance clinic. In short, these VA and TRICARE clinical records establish that his service-connected low back, fibromyalgia, and radiculopathy disabilities necessitate the need for a low back brace for the Veteran. This fact is undisputed. The Veteran is therefore at least “eligible” for a VA clothing allowance on the basis of the impact of his service-connected disabilities, but not necessarily “entitled” to the same benefit without meeting further criteria in VA regulations. The Veteran has not been adjudicated as having loss or loss of use of a foot or hand at a compensable rate due to any of her service-connected disabilities as specified in 38 C.F.R. § 3.50(a) - (f). Therefore, under 38 C.F.R. § 3.810(a)(1)(ii), the Veteran can qualify for entitlement to a clothing allowance if the low back brace is certified by the Under Secretary for Health or designee (e.g. Chief of Prosthetics or Sensory Aids Service) to cause wear and tear to articles of clothing. In the present case, the Board can serve as the designee based on the fact that the VHA Prosthetics Representative decisions were appealed to the Board. The Board still requires probative clinical or lay evidence of record to support any favorable findings. Upon review, the Board finds an annual VA clothing allowance for the year 2015 due to use of a low back brace is not warranted. First, the VA PSAS Chief of Prosthetics and Sensory Aids Service and a Prosthetics Representative have reviewed the Veteran’s claim to determine whether such a clothing allowance certification could be made for the Veteran’s low back brace. See June 2015 decision on appeal; August 2015 Statement of the Case (SOC). Following review, the Chief of Prosthetics concluded that the Veteran did not meet the criteria for approval of an annual VA clothing allowance in 2015 for his low back brace. The reasoning for the denial was that although the Veteran did receive a low back brace through TRICARE for a service-connected condition, the low back brace was “covered in fabric” and was thus determined not to damage clothing. The VHA Handbook was discussed by the Chief of Prosthetics as a pertinent factor in denying the clothing allowance claim. Importantly, the VHA Handbook provides that items with Velcro stays, hinged braces covered in fabric (metal stays covered), and braces with plastic stays covered in fabric are examples of items that do not tend to tear and wear clothing. See VHA Handbook 1173.15 paragraph 8(b) (emphasis added). Second, VA treatment records and TRICARE records and VA spine examinations dated from 2014 to 2018 fail to document any damage or wear or tear to clothing due to the Veteran’s low back brace. But on this point, the Board has also considered that wear and tear to clothing is not something routinely established in VA treatment records or VA examinations, which are instead created for purposes of documenting complaints, treatment, and diagnoses for various disabilities. See also AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). Thus, these clinical records only provide limited evidence against the clothing allowance claim. Third, the VHA Handbook references a guide and updated listing created by the Orthotic and Prosthetic (O&P) Field Advisory Committee. This guide identifies prostheses and orthotics that may cause wear and tear to outergarments. It is titled “Recommended HCPC’s eligible for Clothing Allowance.” This guide states that the “following list represents HCPC codes that may indicate eligibility for clothing allowance awards. The codes in this list are not intended to give an automatic approval, but are to be used as a guide as to when an item should be considered.” The HCPC guide states that the presence of Velcro strapping on an orthotic or prosthesis is not a factor to be considered for a clothing allowance. But most significantly, the HCPC guide advises that “[l]umbosacral orthoses, in general, are excluded as they are usually off the shelf with adequate coverage on their rigid panels. There are few, if any, moving parts.” (emphasis added). Therefore, this evidence weighs against the Veteran’s clothing allowance claim. Fourth, the Veteran’s representative in the November 2018 IHP pointed out that the Veteran was previously was awarded VA clothing allowances in 2008, 2009, and 2010. But there is no evidence or allegation these awards were related to use of a low back brace. Also, subsequent to 2010, the VHA Handbook 1173.15 was rewritten and published in May 2015, providing new guidance on which prosthetic appliances are eligible for a clothing allowance. Fifth, with regard to lay evidence, the Veteran as a layperson is competent to report whether his low back brace results in wear and tear to any clothing, as these are observable circumstances. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, neither the Veteran nor his representative has identified the specific article of clothing damaged by his low back brace or provided any specific lay description or detail as to the alleged wear and tear. Moreover, the Veteran has not submitted any photographs of any articles of clothing allegedly damaged by his low back brace. A claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the Veteran, not a duty to prove his claim while the Veteran remains passive); accord Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Sixth, and finally, the Veteran has submitted copies of June 2014 Board decisions pertaining to other veterans, which awarded VA clothing allowances due to the use of a low back brace that wore and tore clothing. Regardless, none of the clinical evidence submitted in those cases was submitted in the present case, and the submitted Board decisions pertain to different veterans. Furthermore, Board opinions are non-precedential, and the decision as to one appellant can have no precedential weight in the decision for a different veteran. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1303. The Board has considered the import of these other Board decisions, but still concludes that the Veteran in the present case has not submitted probative evidence of wear and tear of clothing due to his low back brace, when considering the particular facts of the present case. In light of the above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to annual VA clothing allowance for the year 2015 due to use of a low back brace. Thus, the benefit of the doubt rule does not apply for this issue. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel