Citation Nr: 18158915 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-47 832 DATE: December 18, 2018 ORDER Entitlement to clothing allowances for the 2015 calendar year for bilateral knee braces, and trixaicin/capsaicin, clotrimazole, and thera-gesic creams is denied. FINDING OF FACT 1. The Veteran’s bilateral knee braces do not tend to cause wear and tear to his clothing. 2. Trixaicin/capsaicin cream and thera-gesic cream have not been issued by VA in conjunction with a service-connected skin disability. 3. Clotrimazole cream does not cause irreparable damage to the Veteran’s clothing. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for the 2015 calendar year for bilateral knee braces, and trixaicin/capsaicin, clotrimazole, and thera-gesic creams 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 January 1983 to June 2003. 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 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: (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. (ii)(B) The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for one skin condition that causes irreparable damage to the veteran’s outergarments. 38 C.F.R. § 3.810(a)(1). The Veteran seeks clothing allowances for his bilateral knee braces, and his prescribed trixaicin/capsaicin, clotrimazole, and thera-gesic creams. Initially, the Board reflects that the Veteran is service-connected for bilateral knee, lumbar spine, left shoulder, and tinea pedis disabilities. On appeal, the Veteran indicated in his notice of disagreement that he had custom knee braces made by Bauerfeind. He also indicated that he disagreed that the trixaicin/capsaicin and thera-gesic creams did not ruin his clothing. Additionally, in his substantive appeal, VA Form 9, he indicated that he used clotrimazole and trixaicin/capsaicin (and menthol methyl salicylate) creams on his back, shoulder, and knees. He further stated that “it is very hard to have the smell and stains removed from [his] clothing,” and that the “creams clearly state[d] on the label that they damage clothing [and] clotrimazole cream is a cream approved for clothing allowance.” He concluded that he felt VA initially disapproved all clothing allowance claims. Initially, the Board reflects that the Veteran has indicated and the VA treatment records confirm that the Veteran uses the trixaicin/capsaicin (and menthol methyl salicylate) and thera-gesic creams in conjunction for his service-connected orthopedic disabilities and not related to his service-connected skin disability. Accordingly, as those creams were not issued and used in conjunction with his service-connected skin disability, the Board must deny a clothing allowance for the 2015 calendar year for trixaicin/capsaicin (and menthol methyl salicylate) and thera-gesic creams based on the evidence of record at this time. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board additionally notes that, while the Veteran indicated that he used clotrimazole cream for his knees, shoulders and back, the record does not show that it is prescribed for the orthopedic disabilities for which he uses it. Insofar as the Veteran would have been prescribed clotrimazole cream to use in conjunction with his orthopedic disabilities, the Board finds that a clothing allowance for clotrimazole cream would necessarily have to be denied for the same rationale as the trixaicin/capsaicin and thera-gesic creams discussed above. See Id. However, insofar as the Veteran uses the clotrimazole cream in conjunction with his service-connected tinea pedis (skin disability), the Board reflects that the Veteran has indicated that it was hard to get the smell and stains out of his clothing. The Veteran additionally, without any support for his statement, indicated that clotrimazole cream was approved for clothing allowance by VA. In contrast, however, the VA certifying official indicated in the September 2015 letter of determination does not stain or damage outergarments. Although the Board acknowledges the Veteran’s statements in this case, the Board finds the VA certifying official’s non-certification to be dispositive in this case. In addition, the Veteran’s representative cited the following website for vaginal clotrimazole in their March 2017 informal hearing presentation, noting that a sanitary napkin may be worn during treatment to protect clothing against stains. The Board reflects however that, as the Veteran is a male, the link provided appears to have no probative value in this case, as the Veteran does not use vaginal clotrimazole. Accordingly, as clotrimazole cream is not shown to cause irreparable damage to the Veteran’s outergarments, a clothing allowance for that cream must also be denied at this time based on the evidence of record. See 38 C.F.R. § 3.810. Finally, regarding the Veteran’s bilateral knee braces, the Board notes that those knee braces are issued in conjunction with the Veteran’s service-connected bilateral knee disabilities. VA’s certifying official in this case noted that the Veteran’s Bauerfeind knee supports does not have any exposed joints or significant amounts of exposed rigid materials and therefore they do not tend to wear and tear clothing. Significantly, although the Veteran says that he was issued such knee braces, he does not contend at any time during the appeal period in any of his statements of record that his knee braces cause wear and tear to his clothing. Accordingly, the Board finds that the evidence does not demonstrate that the Veteran’s bilateral knee braces tend to cause wear and tear to his clothing and the VA certifying official’s non-certification in this case is dispositive. The Veteran’s clothing allowance claims for bilateral knee braces is therefore also denied at this time based on the evidence of record. See Id. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel