Citation Nr: 19132011 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 16-17 804 DATE: April 24, 2019 ORDER Entitlement to a clothing allowance for 2015 for a back brace is granted. Entitlement to a clothing allowance for 2015 for an ankle brace is granted. Entitlement to a clothing allowance for the topical pain medication, lidocaine, is denied. FINDINGS OF FACT 1. The Veteran’s back brace and ankle brace were reasonably shown to wear and tear his clothing. 2. The Veteran’s topical medication, lidocaine, was not prescribed for a skin condition; it was prescribed for pain associated with his back and ankle disabilities. CONCLUSION OF LAW 1. The criteria for entitlement to a clothing allowance for a back brace and ankle brace have been met. 38 U.S.C. §§ 1162; 38 C.F.R. § 3.810. 2. The criteria for entitlement to a clothing allowance for the topical pain medication, lidocaine, have not been met. 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 February 1972 to October 1974. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in North Little Rock, Arkansas. In December 2018, a Board hearing was held before the undersigned; a transcript of the hearing is of record. Entitlement to clothing allowances for 2015 for a back brace, ankle brace and the topical pain medication, lidocaine The Veteran has been service-connected for a low back disability since 2010 and has been service-connected for a left ankle disability since 1974. The evidence shows that he was prescribed prosthetics for his service-connected back and left ankle disabilities and wore them during 2015. See e.g. March 2016 statement of the case and the Veteran’s December 2018 hearing testimony. The Veteran seeks clothing allowances for these prosthetics for 2015, alleging that these items caused wear and tear to his clothing. He also seeks a clothing allowance for 2015 for the topical medication, lidocaine, which was prescribed to treat his low back and ankle pain, alleging that this medication damaged his outer garments. Statutory 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. (ii)(B) The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for one skin condition that causes irreparable damage to the veteran’s outer garments. 38 C.F.R. § 3.810(a)(1). The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Id., 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In the March 2016 statement of the case, the VAMC indicated that the back brace prescribed for the Veteran’s service-connected low back disability was made of soft flexible material considered to be a “softgood orthotic.” The VAMC then noted that softgood orthotics had been determined not to tear clothing according to the VA Orthotic and Prosthetic Field Advisory Committee. See Veterans Health Administration (VHA) Handbook 1173.15. Similarly, the Veteran’s left ankle brace was noted to be of the ankle stabilizing orthosis (ASO) style, which was also considered to be a softgood orthotic. Id. In contrast, at the December 2018 Board hearing, the Veteran testified that the Velcro strap from his back brace rubbed against his shirts to the point where the fabric became damaged. Also, both he and his representative asserted that the ankle brace also caused wear and tear to his clothing. The Veteran is certainly permitted to report that the back and ankle braces caused wear and tear to his clothing and has provided a specific description of how this wear and tear occurred, at least with respect to the back brace. There is also no indication from the record that the VAMC conducted an individualized assessment to determine whether the Veteran’s specific back and ankle braces, including any Velcro straps, caused clothing wear and tear. Rather, the VAMC simply made a general finding that the type of brace worn by the Veteran could not cause clothing wear and tear. Weighing the VAMC’s general, non-individualized finding against the Veteran’s competent testimony, the evidence is in equipoise as to whether the back and ankle braces caused wear and tear to the Veteran’s clothing. Consequently, affording the him the benefit of the doubt, clothing wear and tear from the Veteran’s back and left ankle braces has been established. 38 C.F.R. § 3.102. Accordingly, clothing allowance awards for the Veteran’s back brace and left ankle brace for 2015 are warranted. 38 C.F.R. § 3.810(a)(1)(ii)(A); Gilbert, 1 Vet. App. 49 (1990). Regarding the claim for clothing allowance for lidocaine cream, the evidence indicates that this medication has been prescribed for pain in the back and the ankle. As alluded to above, a clothing allowance may be awarded for a topical medication used to treat a skin condition that stems from a service-connected disability. 38 U.S.C. § 1162. However, there is no provision for awarding a clothing allowance for a topical medication, which does not treat a skin condition. Id.; 38 C.F.R. § 3.810(a)(1)(ii)(B). Thus, as it is clear that the lidocaine prescribed to the Veteran was not used to treat a skin condition stemming from a service-connected disability, but rather to treat underlying pain from musculoskeletal conditions, the Board may not award a clothing allowance for 2015 for this medication. Id. Accordingly, the claim for entitlement to a clothing allowance for the lidocaine cream must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel