Citation Nr: 19132012 Decision Date: 04/25/19 Archive Date: 04/24/19 DOCKET NO. 17-05 562A DATE: April 25, 2019 ORDER Entitlement to clothing allowances for bilateral ankle/foot braces is denied. FINDING OF FACT The Veteran’s bilateral foot/ankle braces are not shown to wear and tear his clothing. CONCLUSION OF LAW The criteria for entitlement to clothing allowances for bilateral ankle/foot braces 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 July 1983 to August 1983 and from December 2003 to April 2005. This matter is on appeal before the Board of Veterans Appeals (Board) from a May 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in Houston, Texas. Entitlement to clothing allowances for bilateral ankle/foot braces. The Veteran is service connected for bilateral pes planus and bilateral ankle disability. These awards have been effective since April 2005. He seeks clothing allowances for 2015 for braces worn for these bilateral disabilities. 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 clothing allowance section of the Veterans Health Administration (VHA) Handbook includes examples of items that do not tend to wear and tear clothing that have been identified by VA prosthetics professionals. These examples include soft orthotics, elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered) and braces with plastic stays covered in fabric. VHA Handbook 1173.15, Section 8b (last accessed on April 22, 2019). 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 a February 2017 statement of the case (SOC), the VAMC Chief of Prosthetics denied entitlement to clothing allowance. The Chief of Prosthetics noted that the Veteran’s ankle brace had no exposed joints or surface, which would tend to wear and tear clothing, citing VHA Directive 1173.15. In his June 2015 notice of disagreement, the Veteran indicated that he was service connected for disabilities of both feet and ankles. He noted that not only did he have to wear braces for these disabilities, he also had to receive treatment from foot and ankle specialists. On his subsequent February 2017 Form 9, the Veteran emphasized that the braces issued to him by VA for his foot and ankle disabilities did contain metal. He also noted that the SOC only referred to him being service connected for right ankle sprain when he is also service connected for left ankle sprain, along with the bilateral feet, and his bilateral braces with metal were for his service-connected bilateral foot and ankle disabilities. A VA prosthetics record shows that the Veteran was issued bilateral custom ankle/foot orthoses (AFOs) prior to 2015, made by a company called Trulife. The above summarized evidence reasonably establishes that the Veteran is service connected for bilateral foot and ankle disabilities; that he was issued bilateral braces (i.e. AFO orthoses) for these disabilities; and that he wore these orthoses during 2015. The Veteran has also credibly reported that these braces contain metal. However, he has not made any specific assertion that these braces caused wear and tear to his clothing, nor has he asserted that the braces contained exposed metal or other material that would tend to wear and tear clothing. In contrast, the VHA Prosthetics Chief specifically found that the Veteran’s ankle brace had no exposed joints or surface, which would cause any damage and wear/tear to clothing as determined in VHA Directive 1173.15. Also, while the SOC does refer to a singular “brace” rather than “braces,” the evidence indicates that the Veteran was issued the same type of brace for each ankle/foot (i.e. AFO orthoses). Thus, the VHA Prosthetics Chiefs determination that the “brace” would not cause damage, wear or tear to clothing is clearly applicable to each brace. (Continued on the next page)   Given that the braces worn by the Veteran are consistent with the type that VHA prosthetics professionals have found do not tend to wear and tear clothing; given that VHA prosthetics professionals are presumed to have expertise in determining which type of prosthetics would generally tend to wear and tear clothing; and given that the Veteran has only generally indicated that he wears his braces for his service-connected disabilities but has not provided any description of how they specifically wear and tear his clothing, the weight of the evidence is against a finding that such wear and tear has taken place. Accordingly, in the absence of a showing that these prosthetic appliances wear and tear clothing, the Board does not have a basis for awarding a clothing allowance for any of the braces. 38 C.F.R. § 3.810(a)(1)(ii)(A). The preponderance of the evidence is against this claim and it must be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel