Citation Nr: 18158137 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-64 466 DATE: December 14, 2018 ORDER An annual clothing allowance for the 2017 calendar year for a right knee brace is granted. An annual clothing allowance for the 2017 calendar year for a left knee brace is granted. An annual clothing allowance for the 2017 calendar year for use of THERA-GESIC cream is denied. FINDINGS OF FACT 1. The Veteran’s right and left knee braces, worn to treat service-connected diabetic neuropathy of the right and left lower extremities, for the 2017 calendar year, tended to wear out or tear his clothing. 2. The Veteran’s THERA-GESIC cream, for the 2017 calendar year, was not medication to treat a service-connected skin disability that caused irreparable damage to his outer garments. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2017 calendar year for a right knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 2. The criteria for a clothing allowance for the 2017 calendar year for a left knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for the 2017 calendar year for THERA-GESIC cream have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to May 2004. This appeal is before the Board of Veterans’ Appeals (Board) from July 2017 decisions 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). In this case, the Veteran is service-connected for diabetic neuropathy of the right and left lower extremities, and gout of the left and right foot. As reflected in its July 2017 decision and November 2017 statement of the case, the agency of original jurisdiction denied the Veteran’s claims for right and left knee braces issued in November 2016 on the basis that, while the Veteran is service-connected for right and left lower extremity diabetic neuropathy, he is not service-connected for a disability of either knee, and his braces were prescribed for abnormal gait balance, and not his lower extremity diabetic neuropathy. However, October 2016 VA treatment records reflect that the Veteran reported borrowing knee braces from a friend who also had diabetic neuropathy, and that the braces improved his balance problems. The VA examiner noted that all of the Veteran’s balance problems appeared to stem from his peripheral neuropathy, and advised the Veteran that assistive devices might be appropriate. The examiner gave an opinion that the Veteran perceived improvement with his balance because he was receiving different sensory inputs when wearing the knee braces that extended from the thigh to the calf and made him more aware of his balance while walking. Recommendations included physical therapy consult for potential appropriate assistive devices to help with the Veteran’s balance. The record further reflects that in November 2016, the Veteran received prescribed knee braces, specifically code L1846 knee orthoses (KO), double upright, thigh and calf, with adjustable flexion and extension joint (unicentric or polycentric), medial-lateral and rotation control, with or without varus/valgus adjustment, custom fabricated. According to VA’s guidelines, such orthoses are ones recognized as tending to cause wear, tear or damage to clothing. See “Recommended [Health Care Product Codes] eligible for Clothing Allowance,” the Orthotic and Prosthetic (O&P) Field Advisory Committee (listing devices coded L18146 KO as ones “that may indicate eligibility for clothing allowance awards”); see also VHA Handbook, 1173.15, “Clothing Allowance,” May 14, 2015. Thus, resolving reasonable doubt in the Veteran’s favor, the facts reflect that the Veteran does indeed, because of his service-connected lower extremity diabetic neuropathy, wear prescribed orthopedic appliances in the form of knee braces, which VA has determined tend to wear out or tear clothing. Regarding the Veteran’s claim for THERA-GESIC cream, the Veteran asserts, that he uses THERA-GESIC cream on his legs and feet for pain relief of his service-connected right and left foot gout. However, no clothing allowance for such cream is warranted. Initially, a November 30, 2016, VA treatment record, contained in the Veteran’s electronic claims file, states the following: “Patient is requesting to receive a refill of THERA-GESIC Maximum Strength Cream for pain due to his gout in both elbows and both shoulders.” The Veteran submitted a hard copy of this same treatment record along with his July 2017 notice of disagreement; however, on the copy submitted by the Veteran, the words “elbows and both shoulders” has been whited out, and in their place “Feet, legs” has been written in. Without making any specific determination of such, the Board notes that knowingly making or causing to be made or in any way procuring the making or presentation of a false or fraudulent statement or paper concerning any claim for benefits under any of the laws administered by VA constitutes fraud under VA regulations, which may be referred to the VA Office of Inspector General and result in adverse action against a veteran. See 38 C.F.R. § 3.901. In any case, the regulations do not provide for a clothing allowance for topical medications unless prescribed for a service-connected skin disability, which has not been asserted by the Veteran. Additionally, even if the Veteran’s cream had been prescribed for a skin disability, the record does not reflect that—and the Veteran has provided no supporting evidence that, or identified any specific way in which—any such cream has caused any irreparable damage to his outer garments. In this regard, also, THERA-GESIC (menthol/methyl salicylate) is categorized by VA as a medication that that does not stain or damage clothing. See VA’s LIST OF MEDICATIONS THAT MAY STAIN OR DAMAGE CLOTHING, revised 11/17/2016. Accordingly, a clothing allowance is warranted for the 2017 calendar year based on the Veteran’s use of right and left knee braces for his service-connected right and left lower extremity diabetic neuropathy, but is not warranted for any THERA-GESIC cream. 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