Citation Nr: 19188564 Decision Date: 11/22/19 Archive Date: 11/22/19 DOCKET NO. 18-42 568A DATE: November 22, 2019 ORDER Entitlement to a 2007 annual VA clothing allowance is denied. FINDING OF FACT Service connection is not in effect for a left knee disability. CONCLUSION OF LAW The criteria are not met for a 2007 annual VA clothing allowance. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to June 1992. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2017 decisional letter of a Department of Veterans Affairs Medical Center (VAMC). Entitlement to a 2007 annual VA clothing allowance. The Veteran seeks an annual VA clothing allowance for 2007. He maintains that his cane and knee brace wear out and tear his clothing. In relevant part, applicable 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. In this case, service connection is in effect for posttraumatic stress disorder, chronic kidney disease, hypertension, and erectile dysfunction. Service connection is not in effect for a left knee disability. See May 2018 Rating Decision. Upon review, the Board finds an annual clothing allowance for the 2017 calendar year due to use of a cane and left knee brace is not warranted. In this regard, the March 2017 decision indicated that there were no devices on the record. In the July 2017 notice of disagreement, the Veteran stated that he was provided a cane and knee brace through VA. The Veteran attached May 2013 VA treatment records to show that he was given a cane and knee brace due to his osteoarthritis of the knee. The VA clinician also noted that service connection had been established for his knee disorder. The June 2018 statement of the case confirmed the denial and noted that there was no service-connected condition requiring the use of a cane and a left knee brace. In the Veteran’s September 2018 substantive appeal and the October 2019 Appellate Brief, the Veteran and his representative contended that the May 2013 VA treatment notes show that he had a service-connected knee disability. The Board acknowledges that, in May 2013, a VA clinician noted that the Veteran had a service-connected knee disability. VA records do not establish such and the erroneous notation by a VA employee cannot serve to establish service connection. “Erroneous advice given by a government employee cannot be used to estop the government from denying benefits.” McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414 (1990)). While the Veteran received incorrect information from a VA employee, this also would not provide an exception to VA regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (noting that the United States Supreme Court has recognized that persons dealing with the United States Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance). Therefore, the Veteran’s claim, seeking an annual clothing allowance for use of a cane and left knee brace, must be denied because he does not have a service-connected disability warranting the use of a cane or qualifying knee brace. The requirements to establish entitlement to an annual clothing allowance have not been met. The Board is grateful to the Veteran for his honorable service and regrets that a favorable disposition cannot be granted, as the Board is bound by applicable law and regulations. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.