Citation Nr: 18101376
Decision Date: 05/04/18	Archive Date: 05/04/18

DOCKET NO. 14-38 650
DATE:	May 4, 2018
ISSUES DECIDED:	1	ISSUES REMANDED:	0
 
ORDER
Entitlement to an annual clothing allowance for the calendar year 2014 is granted.
FINDING OF FACT
The Veteran was prescribed a back brace with rigid panels for his service-connected spine disability by VA Medical Center (VAMC).
CONCLUSION OF LAW
The criteria for entitlement to a clothing allowance for the calendar year 2014 have been met.  38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017). 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the United States Army from March 1998 to March 2001; November 2001 to January 2002; September 2002 to July 2003; February 2006 to July 2007; June 2008 to July 2009; and August 2011 to October 2012.  He is a combat veteran with multiple deployments to Iraq.
The Board notes that the Veteran’s initial claim for clothing allowance listed his prescribed back brace, right ankle brace, and TENS unit.  However, on his notice of disagreement (September 2014) and his substantive appeal (September 2014), the Veteran addressed only the back brace and its damage to his clothing.  Thus, the Board will consider the Veteran’s claim for a clothing allowance for the calendar year based on the Veteran’s wearing of a prescribed back brace.

 
1. Entitlement to an annual clothing allowance for the calendar year 2014
In pertinent part, 38 C.F.R. § 3.810(a) authorizes a clothing allowance if 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 which tends to wear or tear clothing.  See 38 C.F.R. § 3.810(a)(1)(ii)(A).
The Veteran is service-connected for several disabilities and currently has a 100 percent disability rating.  The Veteran was prescribed a back brace in January 2013 for his service-connected lumbosacral strain with degenerative disc disease.  The brace is described as a lumbar-sacral orthosis, sagittal control, with rigid panels.  
The Veteran asserts in his substantive appeal that his clothes get caught in the top of the back brace, which causes holes in his clothing.  He further stated that the left side of his back brace rubs and wears on his clothing and he is “forced to replace shirts every two months due to the friction and tearing of the back brace.”
The Veteran is competent to testify whether the brace results in wear and tear to his clothes and his affirmative statements constitutes persuasive evidence in favor of his claim.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 
Reviewing the evidence, the Board observes that the VAMC’s finding stated that the Veteran’s back brace does not have exposed metal or an exposed rigid panel and does not cause irreparable damage to his outer garments.  The Board notes that the controlling regulation pertaining to clothing allowance, cited above, does not require that a brace have exposed metal or exposed plastic inserts; it simply states that the prosthetic or orthopedic device must tend to wear and tear clothing.  38 C.F.R. § 3.810(a).  Moreover, this Veteran’s back brace is described as having rigid panels. 
Thus, weighing this VAMC finding against the Veteran’s specific, credible, and competent lay assertions, as well as the pertinent regulations pertaining to clothing allowance, the evidence is at least in equipoise concerning whether the back brace causes wear and tear to the Veteran’s clothing.  
Accordingly, resolving reasonable doubt in the Veteran’s favor, the criteria for the award of a clothing allowance for the year 2014 is warranted.  

 
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Nelson, Associate Counsel