Citation Nr: 18157883 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-14 837 DATE: December 13, 2018 ORDER Entitlement to an annual VA clothing allowance for the year 2014 due to the use of a skin medication (Eucerin Lotion - generic hydrocerin topical lotion) is GRANTED. FINDINGS OF FACT 1. The Veteran is service-connected for one disability pertinent to the present appeal – type II diabetes mellitus. 2. Eucerin Lotion is prescribed by VA physicians (at least in part), for the treatment of the Veteran’s service-connected type II diabetes mellitus. 3. The Veteran’s pants and shirts are considered distinct “outergarments” that cover areas of the Veteran’s body where he uses his Eucerin Lotion. 4. There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran’s VA-prescribed skin medication (Eucerin Lotion) results in irreparable damage (staining) to distinct outergarments such as his pants and shirts. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for an annual VA clothing allowance for the year 2014 due to use of a skin medication (Eucerin Lotion). 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017); Veterans Health Administration (VHA) 1173.15 paragraph 8(c) (May 14, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service in the United States Marine Corps from June 1966 to August 1969. His awards and decorations include the Combat Action Ribbon and Purple Heart due to his participation in combat with the enemy in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 decision issued by the Prosthetics & Sensory Aids Service (PSAS) of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Durham, North Carolina. In August 2018, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. 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). The Board is granting in full the VA clothing allowance issue on appeal – for Eucerin Lotion for the year 2014. Accordingly, regardless of whether the VCAA notice and assistance requirements have been met with regard to the clothing allowance issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 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). In August 2018, this appeal was remanded by the Board to secure a VHA prosthetics opinion, and to secure a Supplemental Statement of the Case (SSOC). An October 2018 VHA opinion was secured from a VHA Chief of Prosthetics. However, no SSOC was issued upon subsequent denial of the claim by the VAMC. On this point, a remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In the present case, the VAMC has failed to substantially comply with the Board’s earlier August 2018 remand instructions. However, there is no prejudice to the Veteran given the Board’s favorable disposition of the clothing allowance appeal in the present decision. II. Clothing Allowance for Skin Medication 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 Undersecretary for Health or a designee certifies that, because of the use of a physician-prescribed medication for a skin condition that is due to a service-connected disability or disabilities, irreparable damage is done to the veteran’s outergarments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810(a)(1). An outergarment is defined as a type of garment worn over other garment (e.g., shirt, blouse, pants, skirt, coat, jacket, blazer). An undergarment is defined as a garment worn under outergarments next to the skin (e.g., stockings, panties, boxers, briefs, trunks, bra, bathing suit). A skin medication is defined as a cream, salve, ointment, lotion, or semisolid medicine that is used to treat, prevent, heal, protect and alleviate symptoms from a skin condition. See VHA Handbook 1173.15 paragraphs 2(b) and 2(c) and 2(d) (May 14, 2015). To determine that a veteran is entitled to the allowance, the Under Secretary for Health designee must find and document that the skin medication(s) causes irreparable damage (e.g., permanent irreversible staining, bleeding, or damage not removable with laundering or dry cleaning) to the Veteran’s outergarments. See VHA Handbook 1173.15 paragraph 5(c)(3). The VBA Live Manual emphasizes that “[i]rreparable damage does not include stains that are removable through regular laundering or dry cleaning.” See M21-1, IX.i.7.2.b. (September 27, 2016). The VHA handbook also provides that: A guide and updated listing created by the Prosthetic and Pharmacy workgroup identifies skin medications, ointments, or lotions that may cause irreparable staining, discoloration, bleeding, and damage not removable by laundering or dry cleaning. It is available under the Clothing Allowance folder on the Prosthetic and Sensory Aids SharePoint at: http://vaww.infoshare.va.gov/sites/prosthetics/default.aspx. NOTE: This is an internal VA Web site and is not available to the public. Skin medications not included in the guide should be reported to VHA’s Rehabilitation and Prosthetics Services (10P4R). The Prosthetic and Pharmacy workgroup will review the skin medication to determine its impact on clothing. Consultation with a local VHA Pharmacist can substitute when a prompt decision is needed. This list is updated by the Prosthetic and Pharmacy workgroup on a semi-annual basis, provided any new skin medication, ointment, or lotion may qualify for the clothing allowance. Over-the-counter skin medications, ointments and lotions that are prescribed by a VHA physician are to meet the same criteria in paragraph 5 of this Handbook. See VHA Handbook 1173.15 paragraph 8(c) (May 14, 2015). Notably, VA law states that a veteran may not receive more than one clothing allowance for a single skin medication, even if the skin medication damages more than one type of clothing. See 76 Fed. Reg. 70883 (November 16, 2011). Here, the Veteran has identified only one type of skin medication – Eucerin Lotion. 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). The Veteran is currently service-connected for one disability potentially pertinent to the present appeal – type II diabetes mellitus. The Veteran also is service-connected for various other disabilities not relevant to the current appeal. The Veteran contends that he uses a skin medication (Eucerin Lotion / hydrocerin lotion) to treat dry skin and rashes from his service-connected type II diabetes mellitus, which has caused irreparable damage to outergarment clothing. He has indicated that the outergarment clothing affected consists of his pants and shirts and socks. He says the stains are permanent. He has used this product since 2013. He indicates laundering or dry cleaning the garments does not help. He maintains he frequently must buy new clothing to replace the permanently damaged clothing. He desires an VA clothing allowance payment from VA for the year 2014 to cover the additional cost of his permanently damaged clothing. He has submitted photographs and links to internet medical treatise evidence in support of his claim. See August 2014 Application for Annual Clothing Allowance (VA Form 21-8678); February 2015 Notice of Disagreement (NOD); March 2015 Veteran statement; April 2015 VA Form 9. At the outset, as a threshold matter, there is sufficient evidence of record documenting the Veteran uses Eucerin Lotion, at least in part, to treat rashes and dry skin due to his service-connected type II diabetes mellitus. Both clinical and lay evidence of record supports this finding. In particular, VA treatment records dated from 2013 to 2017 confirm the Veteran was prescribed Eucerin Lotion for his dry skin and rashes. Moreover, a September 2013 VA telephone contact on VBMS describes the Veteran using a “diabetic lotion” per advice from a VA diabetes group. And most importantly, a June 2015 VA primary care note on VBMS, under the section “history of present illness,” documents that he uses Eucerin Lotion on his full body for his service-connected type II diabetes mellitus. Other various symptoms of his type II diabetes mellitus were listed as well. In addition, the Veteran has mentioned medical treatise evidence from the Internet recommends Eucerin Lotion to treat dry skin from type II diabetes mellitus. https://int.eucerin.com/skin-concerns/diabetic-skin/diabetic-skin-background-and-treatment. The Veteran is therefore at least “eligible” for a VA clothing allowance on the basis of the impact of his service-connected type II diabetes mellitus disability, but not necessarily “entitled” to the same benefit without meeting further criteria in VA regulations. But on this issue, on multiple occasions, the VAMC’s Chief of Prosthetics and Sensory Aids Service has reviewed the Veteran’s claim to determine whether such a certification could be made for the Veteran’s Eucerin Lotion. See August 2014 VAMC decision on appeal; February 2015 Statement of the Case (SOC). Following review, the VAMC Chief of Prosthetics concluded that the Veteran did not meet the criteria for approval of an annual VA clothing allowance in 2014 based on the use of Eucerin Lotion because it did not cause irreparable damage or staining to the Veteran’s outergarments. 38 C.F.R. § 3.810(a)(1)(ii)(B). The Chief of Prosthetics cited the Pharmacy and Prosthetic workgroup’s identification of which particular skin medications, ointments, or lotions may cause irreparable staining, discoloration, bleeding, and damage not removable by laundering or dry cleaning. The Veteran’s Eucerin Lotion was listed as not causing clothing stains. In addition, the Chief of Prosthetics determined that the Veteran’s Eucerin Lotion was not used to treat any service-connected disability per his CPRS VA treatment records. See e.g., October 2018 VHA Chief of Prosthetics clinical opinion. (But as discussed above, the Board has pointed out certain VA treatment records that do establish a connection between the use of the Veteran’s Eucerin Lotion and his service-connected type II diabetes mellitus). Upon review, the Board finds that an annual VA clothing allowance for the year 2014 due to the use of a skin medication (Eucerin Lotion) is warranted. The Eucerin Lotion prescribed by VA medical personnel causes irreparable damage to the Veteran’s pants and shirts. 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 Eucerin Lotion. With regard to the unfavorable evidence, VA treatment records dated from 2013 to 2017 fail to mention any permanent staining due to the Veteran’s Eucerin Lotion. But on this point, the Board has also considered that permanent staining 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”). But significantly, VA treatment records dated from 2013 to 2017 do confirm the Veteran uses his Eucerin Lotion on his body on a daily basis. With regard to the unfavorable evidence, the Veteran’s VA-prescribed skin medication - (Eucerin / hydrocerin Lotion), is specifically listed as a skin medication that would not stain or damage clothing, according to the list available on the VA Patient Care Services Prosthetic and Sensory Aids Service website. See http://vaww.infoshare.va.gov/sites/prosthetics/Clothing%20Allowance/Guides/MEDS%20THAT%20STAIN%20CLOTHING11172016.xls. This fact provides significant evidence against the claim. 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 irreparably damaged 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) (emphasis added). Thus, the Veteran’s shirts and pants would be considered outergarments, but not his socks or underwear. Moreover, the August 2014 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. With regard to the favorable evidence, the Board has also considered medical treatise evidence from the Internet submitted by the Veteran referencing the potential for stains to clothing due to Eucerin Lotion. Medical treatise evidence can provide probative support for a VA claim in certain instances. Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board is permitted to supplement the record with any recognized medical treatise without the necessity for a remand or referral, especially if it weighs in favor to the Veteran. See 38 C.F.R. § 19.9(d)(5). With regard to the favorable lay evidence, the Veteran is competent to describe the use of a skin medication (Eucerin Lotion) on his service-connected type II diabetes mellitus - the Court has held that a skin condition is the type of condition lending itself to lay observation. McCartt v. West, 12 Vet. App. 164, 167 (1999). What’s more, the Board finds the Veteran’s description of staining of his outergarments by his Eucerin Lotion to be credible, in light of the corroboration by medical treatise evidence on the Internet. See Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). Also, the Veteran has submitted March 2015 personal photographs of staining to various items of clothing after application of Eucerin. This serves as probative evidence in support of his claim. 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 an annual VA clothing allowance for the year 2014 due to the use of Eucerin Lotion. Certain elements of both the favorable and unfavorable clinical and lay evidence in this case, as well as the medical treatise evidence, 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 these particular clothing allowance issue. 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 one VA clothing allowance for the year 2014 due to the use of a skin medication (Eucerin Lotion) are met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.810(a). (On a side note, the Board acknowledges that the Veteran’s Eucerin Lotion may cause damage to more than one type of clothing – his pants and shirts. But VA law states that a veteran may not receive more than one clothing allowance for a single skin medication, even if the skin medication damages more than one type of clothing. See 76 Fed. Reg. 70883 (November 16, 2011). Therefore, the award of multiple clothing allowances for the year 2014 is not available here). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel