Citation Nr: 18158881 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-47 283 DATE: December 18, 2018 ORDER Entitlement to a clothing allowance for the 2015 calendar year for a back brace is denied. FINDING OF FACT The Veteran’s back brace does not tend to cause wear and tear to her clothing. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for the 2015 calendar year for a back brace 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 June 1988 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. The Veteran initially requested a Board hearing before a Veterans Law Judge in her January 2016 substantive appeal, VA Form 9; however, she withdrew that request for a hearing in a January 2016 statement. 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, when (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)(A) 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. 38 C.F.R. § 3.810(a)(1). The Board reflects that the Veteran is already in receipt of a clothing allowance for her knee brace for the 2015 calendar year at this time. Thus, the Veteran is only appealing her claim for a clothing allowance for a back brace. Service connection has been established for the Veteran’s degenerative disc disease of the lumbar spine, and the record shows that VA has issued her a back brace in connection with that service-connected disability. On appeal, particularly in her notice of disagreement substantive appeal, VA Form 9, and attached statements, the Veteran stated she was denied a clothing allowance and she did not know why; she asked for an explanation. She stated that she was 100 percent disabled; she stated that she did not know what proof was needed because she had been receiving two clothing allowances—one for her back brace and one for her knee brace—but that now she was only receiving one—for her knee brace. She indicated that she had trouble getting dressed due to her carpel tunnel syndrome and that she had trouble navigating stairs because of her excruciating knee pain. Although the Board acknowledges the Veteran’s statements that she wears a back brace, that is not the sole criteria necessary for an award of a clothing allowance in this case; rather, the back brace must also tend to cause wear and tear to her clothing. The Veteran has not asserted that her back brace tended to cause wear and tear to her clothing during the 2015 calendar year during her appeal. Instead, VA’s certifying official indicated that the Veteran’s back brace was an elastic free support belt with a hook and loop closure that is a soft good, and that the device had four covered removable pre-contoured stainless steel stays; the orthosis was a soft good and not eligible for a clothing allowance. The Board finds that the certifying official’s non-certification that the back brace tended to cause wear and tear of the Veteran’s clothing in this case to be the most probative evidence and is dispositive in this case. Accordingly, the Board must deny an award of a clothing allowance for the 2015 calendar year for a back brace based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel