Citation Nr: 18123738 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-14 409A DATE: August 3, 2018 ORDER Entitlement to a clothing allowance for the 2014 calendar year for a back brace is denied. FINDING OF FACT The Veteran’s custom-molded solid plastic back brace is not a “qualifying orthopedic appliance”; the Veteran’s “qualifying orthopedic appliance” in this case is a VA-issued Taylor Knight back brace, which does not tend to cause wear and tear of his clothing. CONCLUSION OF LAW The criteria for a clothing allowance for the 2014 calendar year for a back brace 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 September 1967 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 letter of determination by a Department of Veterans Affairs (VA) Medical Center (MC). The Board reflects that service connection has been established for the Veteran’s lumbar spine disability; since 2000. VA has issued him a Taylor Knight back brace for his service-connected lumbar spine disability. The Veteran has filed for a clothing allowance for this prescribed back brace. On appeal, particularly in his October 2014 notice of disagreement, the Veteran indicated that he received a chair and shoulder brace from the Temple VA Medical Center in 2006, which tears the clothes between the legs of his pants, rubs holes across the back where the pockets of his pants are located, and that his shirts receive “much wear, tear and snares from the top of the brace.” He further indicated that the brace that VA made and approved him did not work for him, as it has no support for his kidneys, where the old brace, made of a quarter-inch-thick solid plastic does help him, as it does not have metal that makes his body ache. In a separate October 2014 note by VA personnel made on the Veteran’s October 2014 notice of disagreement, the Veteran came in carrying his Taylor Knight back brace; it was noted that he was wearing a “custom-molded plastic” back brace at that time. It was noted that the Veteran reported at that time that the Taylor Knight back brace does not work for him. In the October 2014 letter of determination, it was noted that VA has determined that only braces with exposed mental hinges, exposed rigid plastic inserts, or exposed metal stays can be considered for clothing allowance. In denying a clothing allowance for the Veteran’s VA-issued Taylor Knight back brace, VA’s certifying official has determined that the back brace issued to the Veteran does not tend to wear and tear his clothing. 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. 38 C.F.R. § 3.810(a)(1). In this case, the Under Secretary for Health’s designee did not certify that the Veteran’s back brace tends to wear and tear his clothing. The Board must therefore deny a clothing allowance for the 2014 calendar year. The Board acknowledges the Veteran’s statements that his back brace causes wear and tear to his clothing. However, the back brace that the Veteran has asserted causes such wear and tear is not a back brace that has been issued to him by VA related to his service-connected disability; rather, it appears that the Veteran does not use back brace that has been issued by VA—the Taylor Knight back brace—rather he uses a different custom-molded plastic back brace. Thus, although the Veteran has been issued a back brace for his service-connected disability, the back brace issued in conjunction with that disability is not shown to cause wear and tear of the Veteran’s clothing. Furthermore, the Veteran’s statements make clear that he has obtained a non-prescribed back brace that is not issued by VA. The Board cannot find that the back brace that the Veteran claims causes wear and tear to his clothing is a “qualifying orthopedic appliance” in this case. In short, the “qualifying orthopedic appliance” in this case is the VA-issued Taylor Knight back brace, which the VA’s designated official has not certified causes wear and tear of the Veteran’s clothing. Accordingly, the Board is therefore bound by the lack of certification—as noted above—in this case and must deny this claim as a matter of law. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel