Citation Nr: 18160263
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 16-00 001A
DATE:	December 28, 2018
REMANDED
An annual clothing allowance for the 2015 calendar year for a back brace is remanded.
REASONS FOR REMAND
The Veteran served on active duty from August 1980 to August 2000.
This appeal is before the Board of Veterans’ Appeals (Board) from an October 2015 decision 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; 38 C.F.R. § 3.810. 
The Veteran in this case seeks a clothing allowance for the 2015 calendar year for a custom stabilizer back brace.  In support of his claim he submitted VA notes containing a prosthetics request for a custom stabilizer back brace with medical justification of the Veteran’s diagnosis of cervical spine degeneration, which was noted to be service connected; the record reflects that the Veteran is service-connected for cervical strain.  
As reflected in its November 2015 statement of the case (SOC), the agency of original jurisdiction (AOJ) denied the Veteran’s clothing allowance claim on the basis that he was prescribed a back brace and issued a lumbar sacral orthosis, but was not service-connected for a lumbar spine disability.  The AOJ did not address or explain the VA notes submitted by the Veteran indicating that his back brace was being prescribed in connection with his service-connected cervical spine disability.  
Also, the record does not reflect, and the AOJ did not identify, what type or model of brace the Veteran was prescribed and received, or make any determination or indication as to whether it would be one that tended to wear or tear his clothing.  
Moreover, it is unclear when Veteran received the back brace in question.  The VA notes submitted by the Veteran indicate that the back brace was requested on July 29, 2015; they furthermore indicate that the brace may have been ordered and sent to the Veteran as late as October 2015.  Annual clothing allowance payments for those meeting the eligibility requirements become due on the August 1 date following the date on which such requirements are met, both as to initial claims and recurring payments under previously established entitlement.  38 C.F.R. § 3.810(b).  Thus, the VA notes indicate that the Veteran might not have had and used his back brace by August 1, 2015, and therefore would not have been eligible to receive a clothing allowance for the device for the 2015 calendar year. 
The matter is thus REMANDED for the following action:
1. Obtain and associate with the claims file any VA notes pertinent to the Veteran’s back brace, and specifically any describing (a.) what type of brace the Veteran was prescribed, and (b.) when he first received and began using such brace.
2. Determine whether the Veteran began using his brace by August 1, 2015, and:
(a.) If the Veteran is determined to have begun using his brace by August 1, 2015, make a determination as to whether the Veteran’s use of such brace tended to wear or tear his clothing;
(b.) If the Veteran is determined not to have begun using his brace by August 1, 2015, make a determination as to whether the Veteran’s claim should be considered a claim for an annual clothing allowance for the 2016 calendar year.
3. After completing the above and any other necessary development, readjudicate the appeal.  
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Andrew Mack, Counsel