Citation Nr: 1825833 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-33 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an annual clothing allowance for 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active military service from December 1976 to January 1985, and from February 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a decision of the Department of Veterans Affairs (VA) Veterans Health Care System. In an August 2013 decision, the Veterans Health Care System denied a claim for an annual clothing allowance for 2013. In August 2014, the Veteran requested a hearing before the Board. A hearing was scheduled in March 2015, but the Veteran cancelled the hearing. FINDINGS OF FACT 1. Service connection is in effect for chronic low back pain with mild degenerative disease of the lumbar spine. 2. The Veteran's service-connected lumbar spine disorder is managed with the use of a back brace and it is not shown that the brace results in wear and tear of the Veteran's clothing or causes irreparable damage to his clothing. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the 2013 calendar year have not been met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to a clothing allowance because he wears a back brace due to the service-connected lumbar spine disability. He asserts that he wears the back brace every day all day long, which destroys his clothes because he is constantly replacing them. See the November 2013 statement. Service connection is in effect for low back pain with mild degenerative disease and a 40 percent rating is assigned from March 7, 2017. The record shows that the Veteran was issued a lumbar spine corset for support, protection, and stabilization of his back in stance and ambulation. See the July 2013 VA Orthotics Prosthetics Consult. 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 the VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin disability which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C. § 1162. A clothing allowance is authorized if a VA examination or hospital report establishes that a veteran, due to the service-connected loss of a hand or foot, wears or uses a prosthetic device which tends to wear or tear clothing. See 38 C.F.R. § 3.810 (a)(1)(i). A clothing allowance is also available if the Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing, or the Veteran uses medication prescribed by a physician for a skin condition which is due to a service-connected disability, and causes irreparable damage to the Veteran's outer garments. See 38 C.F.R. § 3.810 (a)(1)(ii). Certain clothing allowance claims require a determination by a Prosthetic Representative, or designated physician when a review of the record is necessary. In all cases where a review is determined to be necessary, the Prosthetic Representative, and/or designated physician, must determine that: (1) Use of the device or skin medication is medically prescribed; and (2) In the case of a device, such device qualifies as a prosthetic or orthopedic appliance; (3) The device or skin medication tends to wear out, tear, or cause irreparable damage to the veteran's clothing; and (4) The veteran actually uses the device or skin medication with sufficient consistency to wear out, tear, or cause irreparable damage to clothing. See VHA Handbook 1173.15 sec. 3 (b)(c). In an August 2013 determination, VA held that the Veteran was not eligible for a clothing allowance and it was noted that the back brace was covered in fabric. In a June 2014 determination and statement of the case, the Chief of Prosthetic and Sensory Aids concluded that the Veteran's corset did not qualify for a clothing allowance and the type of back brace that the Veteran wore did not tend to cause wearing or tearing to clothing in accordance with 38 C.F.R. § 3.810 (a)(1)(2). Lay statements may be competent to support a claim by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). While the wear and tear of clothing is capable of lay observation, the Board finds that the Chief of the Prosthetic/Orthotic Lab's opinion that the brace that the Veteran is prescribed does not tend to wear or tear clothing outweighs the Veteran's general and unsubstantiated statements. The Chief based the determination that the braces do not tend to wear or tear clothing on visual evaluation of this particular Veteran and the specific lumbar brace. The Veteran provided general lay statements that the back brace caused wear and tear of his clothing. He did not provide any specific details or description of the wear and tear. VA treatment records are silent for any notation or statements made by the Veteran to health care professionals that the prescribed brace tended to wear out clothing, either in general or in this Veteran's specific case. There is no other evidence of record (such as photographs showing wear and tear, statements from friends or relatives describing any wear of the Veteran's clothing they have observed, etc.), beyond the Veteran's general statements, that indicate the lumbar spine brace causes wear and tear of clothing. In the August 2014 VA Form 9, the Veteran stated that he was approved for a clothing allowance due to the back brace in August 31, 2012. However, the record does not support this contention and does not establish a previous approval of a clothing allowance. Therefore, the Board finds that entitlement to an annual clothing allowance is not warranted and the claim is denied. As the preponderance of the evidence is against the above claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103 (a)-compliant notice. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim and the Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). ORDER An annual clothing allowance pursuant to 38 U.S.C. § 1162 for 2013 is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs