Citation Nr: 1817774 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-24 818A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an annual clothing allowance based on the use of bilateral ankle braces and orthotic shoe inserts in 2012. 2. Entitlement to an annual clothing allowance based on the use of topical medications in 2012. 3. Entitlement to travel reimbursement in connection with authorized non-VA healthcare in October 2015. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from March 1967 to October 1970. He served in the Republic of Vietnam, and his awards include the Purple Heart. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 decision of the Department of Veterans Affairs (VA) Medical Center (MC) in Fargo, North Dakota. On his July 2014 substantive appeal, the Veteran requested a Board hearing. Following a January 2015 letter that he was scheduled for a Board hearing in February 2015, the Veteran informed his representative that he would not be able to attend the hearing. His DAV representative forwarded this email to VA for inclusion in the electronic record. There is no indication that the Veteran or his representative requested that the hearing be rescheduled. Additionally, the Veteran's representative submitted evidence in September 2015, and waived AOJ (agency of original jurisdiction) review indicating their desire to have the Board continue to review the appeal. The issue(s) of entitlement to reimbursement for travel expenses is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right and left ankle braces (AFOs) and shoe inserts are non-rigid devices and have not been shown to cause wear and tear to a qualifying article of clothing for purposes of a clothing allowance. The Veteran has indicated his braces and inserts cause wear and tear to his shoes, which are not articles of clothing for the purposes of a clothing allowance. 2. The Veteran was prescribed TAC for an acute episode of poison ivy dermatitis and not for his service-connected disabilities. The Veteran is prescribed Diclofenac gel for joint pain; this gel is not prescribed to treat a skin condition that is due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing eligibility for clothing allowance due to use of prosthetic or orthopedic assistive devices in 2012 have not been met. 38 U.S.C. § 1162 (West 2014); 38 C.F.R. § 3.810 (2017). 2. The criteria for establishing eligibility for clothing allowance due to use of topical medications in 2012 have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's notification and assistance duties are not applicable in this case because the issue relates to benefits adjudicated under chapter 11 of title 38 of the United States Code, and those duties apply only to benefits adjudicated under chapter 51 of title 38. Barger v. Principi, 16 Vet. App. 132, 138 (2002). A veteran who has a service-connected disability is entitled, upon application therefore, to an annual clothing allowance, which is payable in a lump sum, as specified in 38 C.F.R. § 3.810. 38 U.S.C. § 1162, 38 C.F.R. § 3.810 (a). A veteran is entitled to one annual clothing allowance if a VA examination or a hospital or examination report from a qualifying facility 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, the Under Secretary for Health or a designee certifies that (A) 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 (B) 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). A veteran is entitled to an annual clothing allowance for each prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication satisfies the requirements of section (a)(1) and affects a distinct type of article of clothing or outer garment. 38 C.F.R. § 3.810 (a)(2). A veteran is entitled to two annual clothing allowances if he or she uses more than one 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) each satisfy the requirements of section (a)(1) and together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. 38 C.F.R. § 3.810 (a)(3). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Orthotics The Veteran contended that he is entitled to clothing allowances due to the wear and tear his ankle braces and shoe inserts/orthotics cause to his shoes. The Veteran is service connected for a number of disabilities, including the residuals of shell fragment wounds to both lower extremities and peripheral neuropathy of both lower extremities. His ankle braces and inserts are considered related to his service-connected disabilities. The Veteran has provided copies of VAMC records where he was prescribed bilateral Arizona ankle braces (AFOs). And a review of his medical records show that he has been provided a number of orthotics related to his feet, including inserts. In the September 2012 decision, the Prosthetic Program Manager at the Fargo, North Dakota VAMC reviewed the record and determined that these braces did not cause irreparable damage to clothing, and informed the Veteran that shoes were not considered an article of clothing or an outer garment. The July 2014 SOC, prepared by the Prosthetics Program Manager, noted that the shoes and orthotic inserts the Veteran had been provided did not meet the requirement for a clothing allowance because they were not qualifying appliances/devices. The SOC included citation of VHA Handbook 1173.15 (Clothing Allowance Benefit), which noted that the "clothing allowance may be authorized for veterans who wear...ankle and/or foot orthosis (AFOs)." The Board notes that the Veteran's Arizona ankle braces are listed in his VAMC records as AFOs. However, pertinent to this claim, the Veteran has specifically stated that his ankle braces and foot inserts cause wear and tear to his shoes. He has noted that the wear and tear to his shoes was worse on dress or leather shoes. See Statement Attached to his July 2014 Substantive Appeal. The Veteran did not allege during this appeal process that his ankle braces and shoe inserts resulted in wear and tear to an article of clothing. The regulation clearly establishes that, unless there is loss or loss of use of a hand or foot (at the compensable rating specified in § 3.350(a), (b), (c), (d), or (f)), the prosthetic or orthopedic appliance must be certified by the Under Secretary for Health or a designee as a device that tends to wear or tear clothing. Here, the Prosthetics Manager at the VAMC determined the Veteran's braces, shoes, and inserts were not of a type that tends to wear or tear clothing based on the VA guidelines for the clothing allowance benefit, and thus, do not qualify. The Board would generally remand this claim for the Prosthetics Program Manager to specifically comment on the Veteran's Arizona ankle braces (AFOs); however, the claim must be denied based on the Veteran's indication that his braces and inserts impact his shoes and not clothing. The Veteran was disadvantaged in filing his claim for a clothing allowance in July 2012 because he was provided an older version of the application. He indicated that the disallowance and SOC did not clarify his denials. He stated on his substantive appeal that he went to speak to the Prosthetics Manager in-person, and that she was not able to clarify the denial for him. A review of the record shows that the Veteran's claim for a clothing allowance was provided on VA Form 10-8678 (APR 2008). This claim form was updated in February 2012. The Veteran was eventually provided a copy of the updated claim form in March 2016. The old, April 2008, version of the claim form did not include information on the types of clothing that are included in a clothing allowance. The updated, February 2012, version includes the paragraph: Clothing such as shirts, blouses, pants, skirts, shorts and similar garments permanently damaged by qualifying appliances and/or medications are considered in clothing allowance decisions. Shoes, hats, scarves, underwear, socks, and similar garments are not included. The Board acknowledges the Veteran's contentions that his ankle braces and foot orthotics cause actual wear on his shoes. In addition, the old version of VA Form 10-8678, completed by the Veteran, noted that soft and flexible devices were not included in the appliances allowed. Although the Veteran did not fill out the most recent version of the form, the newer version also specifically explains that shoes and socks are not included in the qualifying articles of clothing for purposes of the clothing allowance. The Veteran has not contended that his braces affect any article of clothing besides his shoes. In other words, the Veteran's ankle braces have not been shown to wear or tear a qualifying article of clothing for purposes of the clothing allowance. Based on the foregoing, the Board concludes that the criteria for an annual clothing allowance based on use of ankle braces and shoe orthotics/inserts for the year 2012 have not been met, and the claim must be denied. The Board finds that the weight of the evidence is against the Veteran's claim, and as such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53. Topical Medication VA treatment records from August 2011 included that the Veteran was prescribed Diclofenac gel to help with bilateral foot pain from plantar fasciitis. An August 2014 list of active medications showed that Diclofenac NA 1% TOP GEL was an active medication, for use, as needed, for "joint pain." The Veteran's service-connected disabilities include "retained shell fragments" of both ankles/feet/toes, as well as to his left knee, left hand, and lumbar spine. The July 2014 SOC included the Prosthetic Program Manager's finding that TAC and Diclofenac were not considered to cause irreparable damage to clothing as per the manufacturer's specifications. The February 2018 appellate brief included the argument that TAC was a greasy ointment that left residue on clothing. The Veteran is service connected for tinea pedis with onychomycosis. However, after reviewing the record, the only indication of a prescription for TAC that the Board could find was for an acute case of poison ivy dermatitis from June 2004. The Board could not find an indication of a prescription for TAC associated with any skin condition due to the Veteran's service-connected disabilities. Additionally, to the extent that the Diclofenac gel may result in irreparable damage to the Veteran's outer garments, the medication was prescribed for foot pain/plantar fasciitis, or (as listed under active medications) for "joint pain." Unfortunately, the regulations for a clothing allowance (as well as the governing statute) are specific in that the physician-prescribed medication should be for "a skin disability due to a service-connected disability." 38 C.F.R. § 3.810 (emphasis added); see also 38 U.S.C § 1162(2) (2012). Although the analgesic gel likely provides pain relief for one of the Veteran's various service-connected shell fragment residuals, it does not appear to have been prescribed to treat a skin disability. Similarly, the 2014 active medication list includes a prescription for Lidocaine cream. This was not reviewed by the Prosthetics Program Manager, and it is not clear when it was prescribed, but it is similarly used for pain relief not related to a skin disability. The Board does not doubt the Veteran's contention that the analgesic gel tends to stain his clothing. In this case, however, the Board is bound by the applicable statute and regulation limiting the grant of a clothing allowance for medication to circumstances that differ from those presented here. Accordingly, the grant of a clothing allowance for the Veteran's use of Diclofenac (and TAC and Lidocaine cream) must be denied. ORDER Entitlement to an annual clothing allowance based on the use of bilateral shoe inserts and ankle braces in 2012 is denied. Entitlement to an annual clothing allowance based on the use of topical medications in 2012 is denied. REMAND In May 2016, the Veteran submitted a notice of disagreement with a November 2015 denial of reimbursement of travel expenses for authorized non-VA health care. A statement of the case has not been issued by the AOJ, and the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue the Veteran an SOC addressing whether he is entitled to reimbursement for travel expenses for authorized non-VA healthcare. Only if the Veteran or his representative submits a timely substantive appeal addressing this issue should it be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs