Citation Nr: 18154509 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-24 688A DATE: November 30, 2018 ORDER Entitlement to an annual VA clothing allowance for the year 2016 due to the use of an L1810 right knee brace is GRANTED. Entitlement to an annual VA clothing allowance for the year 2016 due to the use of an L1810 left knee brace is GRANTED. FINDINGS OF FACT 1. The Veteran is service-connected for three disabilities relevant to the present clothing allowance appeal: a left knee strain; right knee patellofemoral syndrome with chondromalacia; and right knee instability. 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. The Veteran’s pants qualify as “clothing” that can be worn or torn or damaged by a qualifying appliance or device, such as a knee brace. 4. There is an approximate balance of favorable and unfavorable evidence (both clinical and lay evidence) on whether the Veteran’s L1810 bilateral knee braces cause wear and tear of the Veteran’s pants. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for an annual VA clothing allowance for the year 2016 due to use of an L1810 right knee brace. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for an annual VA clothing allowance for the year 2016 due to use of an L1810 left knee brace. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1992 to May 2002 in the United States Navy. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision issued by the Prosthetics & Sensory Aids Service (PSAS) of the Department of Veterans Affairs (VA) Health Care Center in El Paso, Texas. In 2017 and 2018, after certification of the Veteran’s appeal, VA secured additional, relevant VA treatment records for the claims file. However, in the September 2018 Appellant’s Brief, the Veteran waived his right to have the PSAS initially consider this evidence. Therefore, the Board accepts this additional evidence for inclusion in the record and consideration by the Board at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2017). This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). 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). The Board is granting in full the VA clothing allowance issues on appeal – for bilateral knee braces for the year 2016. Moreover, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist for the clothing allowance claim at issue. 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). Clothing Allowance for Knee Braces 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 is entitled to an annual clothing allowance for each prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication satisfies the requirements of section (a)(1) and affects a distinct type of article of clothing or outer garment. 38 C.F.R. § 3.810(a)(2). A veteran is entitled to two annual clothing allowances if he or she uses more than one 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) each satisfy the requirements of section (a)(1) and together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. 38 C.F.R. § 3.810(a)(3). In Sursely v. Peake, 551 F.3d 1351 (Fed. Cir. 2009), it was determined that the award of multiple clothing allowances to a Veteran was not prohibited. A final rule amending 38 C.F.R. § 3.810 to implement Sursely subsequently was issued by VA. See 76 Fed. Reg. 70883 (Nov. 16, 2011); see also 77 Fed. Reg. 74218 (June 11, 2012) (correcting amendment). The regulation now provides for a clothing allowance for each prosthetic or orthopedic appliance or medication that affects a distinct type of article of clothing or outer garment. 38 C.F.R. § 3.810(a)(2) (2017). It further provides for two clothing allowances if more than one prosthetic or orthopedic appliance or medication together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate. 38 C.F.R. § 3.810 (a)(3) (2017). But 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 Veterans Health Administration (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 currently service-connected for the following disabilities relevant to the present clothing allowance appeal: a left knee strain (10 percent disabling); right knee patellofemoral syndrome with chondromalacia (10 percent disabling); and right knee instability (10 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 January 23, 2014. The Veteran also a permanent and total (P&T) rating for his service-connected disabilities, effective May 19, 2016. The Veteran has claimed entitlement to two VA clothing allowances for the year 2016 because his service-connected right and left knee disabilities necessitate the use of a prosthetic or orthopedic appliance – bilateral hinged knee braces. The model type he uses is the Healthcare Common Procedure Coding System (HCPCS code) L1810 hinged knee braces. These bilateral knee braces were first issued by VHA in January 2015 for his service-connected knees. His knee braces, in turn, tend to wear or tear or damage articles of his clothing – in particular his pants. The Veteran explains that his knee braces stretch his pants at the seam, causing the seams to fail in the knee sections of his pants. He has submitted June 2016 photographs revealing stretching and creasing on his pants due to the frequent use of his knee braces. See also March 2016 Application for Annual Clothing Allowance (VA Form 21-8678); April 2016 Notice of Disagreement (NOD); June 2016 VA Form 9; and September 2018 Appellant’s Brief. Initially, both VA treatment records and lay evidence of record confirm that the Veteran “constantly” wears bilateral knee braces due to instability from his service-connected right and left knee disabilities. See January 2015 VA physical medicine rehab (PM&R) note in paper-based claims file; August 2016 VA spine examination on VBMS; and July 2017 videoconference hearing testimony (for separately appealed compensation issues) at page 7 on VBMS. In short, both clinical evidence of record and lay hearing testimony establish that his service-connected right and left knee disabilities necessitate the need for bilateral knee braces, due to instability and discomfort in both knees. The Veteran uses both knee braces on a “constant” basis. This fact is undisputed. The Veteran is therefore at least “eligible” for a clothing allowance on the basis of impact on a service-connected bilateral knee condition, 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 his service-connected disabilities as specified in 38 C.F.R. § 3.50(a) - (f); nor has he contended that he has loss of use of a foot or hand. Therefore, under 38 C.F.R. § 3.810(a)(1)(ii), the Veteran can qualify for entitlement to a clothing allowance if the bilateral knee braces are 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 decisions were appealed to the Board. The Board still requires probative clinical or lay evidence of record to support any favorable findings. But on this issue, on multiple occasions, the VAMC’s Chief of Prosthetics and Sensory Aids Service reviewed the Veteran’s claim to determine whether such a certification could be made for the Veteran’s two knee braces. See April 2016 VAMC decision on appeal; April 2016 Statement of the Case (SOC). Following review, the Chief of Prosthetics concluded that the Veteran did not meet the criteria for approval of annual VA clothing allowances in 2016 for his bilateral knee braces. The reasoning for the denial was that although the Veteran did receive his bilateral knee braces through the VA for a service-connected condition, the particular model of knee braces (L1810) was determined not to cause wear and tear or damage to clothing. A clinical opinion was secured by an April 2016 VHA prosthetics fitter examiner, who upon examination of the Veteran and the knee braces in question, observed no signs of wear and tear. Upon review, the Board finds that two annual VA clothing allowances for the year 2016 due to the use of right and left knee braces (L1810) are warranted. The two knee braces issued by VHA medical personnel for the right and left knee tend to wear or tear the veteran’s clothing – in particular his pants. On this finding, the Board disagrees with the negative conclusions reached by the Chief of Prosthetics and Sensory Aids Service at the VAMC. Notably, the evidence of record is mixed on the issue of entitlement to a VA clothing allowance for the Veteran’s knee braces. With regard to the unfavorable evidence, VA treatment records dated from 2015 to 2018 and an August 2016 VA spine examination fail to mention any damage or wear or tear to clothing due to the Veteran’s bilateral knee braces. But on this point, the Board has also considered that wear and tear to clothing is not something routinely established in VA treatment records, 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”). With regard to the unfavorable evidence, 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). Under the VHA Handbook, any damage done by Velcro stays is not to be considered as relevant for clothing allowance purposes. Thus, this evidence weighs against the Veteran’s clothing allowance claim. But with regard to the above unfavorable evidence, the Board is cognizant that the VHA Handbook also advises that the list of items provided is not dispositive, but instead is only a guide in making the ultimate determination in a clothing allowance claim. Id. at paragraph 8. In addition, the Board adds it is not bound by the VHA Handbook. See 38 C.F.R. § 19.5 (stating that “[t]he Board is not bound by Department manuals, circulars, or similar administrative issues”). With regard to the unfavorable evidence, 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 Veteran’s particular model of knee brace in 2016 – the L1810, is not listed in this guide as one of the braces that may cause wear and tear to outergarments. And similar to the VHA Handbook discussed above, 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. Therefore, this evidence weighs against the Veteran’s clothing allowance claim. With regard to the unfavorable evidence, as noted above, a clinical opinion was secured by an April 2016 VHA prosthetics fitter examiner, who upon examination of the Veteran and the knee braces, observed no signs of wear and tear. The Board now turns to the favorable evidence of record. With regard to the favorable evidence, as to what qualifies as “outergarments” for VA clothing allowance purposes that can be worn and torn under 38 C.F.R. § 3.810(a), the VHA Handbook 1173.15 paragraph 2(b) defines an outergarment as a type of garment worn over another garment (e.g., a shirt, blouse, pants, skirt, coat, jacket, blazer). Thus, the Veteran’s pants would be considered an outergarment that may be subject to wear and tear due to his bilateral knee braces. In addition, the March 2016 Application for Annual Clothing Allowance (VA Form 21-8678) advised the Veteran that “[c]lothing such as shirts, blouses, pants, skirts, shorts and similar garments permanently damaged by qualifying appliances and/or medications are considered in clothing allowance decisions.” (emphasis added). With regard to the favorable evidence, VA treatment records confirm the Veteran’s lay assertion that the Veteran wears both knee braces on a “constant” basis, due to instability from his service-connected right and left knee disabilities. See January 2015 VA physical medicine rehab (PM&R) note in paper-based claims file; August 2016 VA spine examination on VBMS; and VA prosthetic orthotic consults dated in April, May, June, and July of 2017. In short, both clinical evidence of record and lay hearing testimony establish that his service-connected right and left knee disabilities necessitate the need for bilateral knee braces, due to instability and discomfort in both knees. Thus, VA clinical records confirm the Veteran’s lay assertions in terms of the frequent, daily use of his knee braces. As noted, in 2016 and 2017, VA treatment records document prosthetic consult requests for new bilateral knee braces, due to the frequent use of his knee braces requiring refitting and replacement. In short, his bilateral knee braces are clearly being worn on a regular basis by the Veteran. With regard to the favorable lay evidence, the Veteran as a layperson is competent to report whether his bilateral knee braces result in wear and tear to his pants. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Moreover, the Board has no reason to doubt the credibility of the Veteran’s lay assertions and observations on this issue. See Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). The Veteran has competently and credibly described how his knee braces stretch his pants at the seams, causing the seams to fail in the knee sections of his pants. Of particular importance, he has submitted June 2016 photographs revealing stretching and creasing on his pants due to his knee braces. The Veteran maintains he is as competent as a VHA clinician or Prosthetist to determine whether his knee braces cause wear and tear. The Board finds the Veteran is competent and credible in his lay assertions regarding the wear and tear of his clothing by his knee braces, as these are observable circumstances. With regard to the favorable evidence, the Board adds the HCPC guide explains that if a veteran provides evidence of clothing damage, caused by a particular orthotic device which is not represented by any of the codes contained in this list (such as the Veteran’s knee braces), then “strong consideration should be given to authorizing the clothing allowance” for that orthotic device. Here, the Veteran has provided probative evidence of clothing damage by way of the photographs he has submitted of his jeans, which clearly show stretching and creasing of the fabric in the areas affected by the knee braces. With regard to the favorable evidence, it also of significance that a September 2018 VBMS Compensation and Pension Award verified that VA clothing allowances were approved by the VAMC for subsequent years from 2017 to 2019 for the Veteran’s bilateral knee braces. These approvals were for a different model of knee brace – the L1845 model. But regardless, the subsequent approvals for wear and tear caused by frequent use of his knee braces provides some evidence in support of the present 2016 claim at issue. As currently codified, VA law defines the “benefit of the doubt” doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of the positive and negative evidence as to the issue of entitlement to annual VA clothing allowances for the year 2016 due to the use of bilateral knee braces. Certain elements of both the favorable and unfavorable clinical and lay evidence in this case are probative. The clinical and lay evidence of record has its respective flaws as well. But there is no apparent basis for wholly rejecting the favorable clinical and lay evidence of record on the clothing allowance issues. In light of the contrasting, yet equally probative clinical and lay evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran’s favor. Accordingly, the criteria for the award of two VA clothing allowances for the year 2016 due to the use of right and left knee braces (the L1810 model) are met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.810(a). (On a side note, the award of multiple (two) VA clothing allowances for the year 2016 is permitted in the present case for the Veteran’s right and left knee braces. In this regard, VA regulation provides for two annual clothing allowances if the Veteran uses more than one prosthetic or orthopedic appliance (such as bilateral knee braces), and each appliance satisfies the requirements of 38 C.F.R. § 3.810(a)(1) and together tend to wear or tear a single type of article of clothing at an increased rate of damage to the clothing or outergarment due to a second appliance. 38 C.F.R. § 3.810(a)(3); Sursely v. Peake, 551 F.3d 1351 (Fed. Cir. 2009)). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel