Citation Nr: 20004878 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 12-17 576A DATE: January 22, 2020 ORDER A clothing allowance for the 2011 calendar year is denied. A clothing allowance for the 2013 calendar year is denied. A clothing allowance for the 2015 calendar year is denied. A clothing allowance for the 2016 calendar year is denied. A clothing allowance for the 2018 calendar year is denied. FINDINGS OF FACT 1. The Veteran’s only service-connected conditions are athlete’s foot of both feet (also claimed as eczema), posttraumatic stress disorder, asthma, and urethral stricture. 2. The evidence does not show that the Veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for a skin condition that causes irreparable damage to his outergarments. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2011 calendar year are not met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria for a clothing allowance for the 2013 calendar year are not met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. 3. The criteria for a clothing allowance for the 2015 calendar year are not met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. 4. The criteria for a clothing allowance for the 2016 calendar year are not met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. 5. The criteria for a clothing allowance for the 2018 calendar year are not met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1990 to October 2001. This matter is on appeal before the Board of Veterans Appeals (Board) from April 2011, August 2013, June 2015, February 2016, and February 2018 determinations by the Buffalo, New York Veterans Affairs Medical Center (VAMC). The claims for clothing allowances for the 2011 and 2013 calendar years were previously before the Board in July 2015 and remanded for additional development. As noted in the July 2015 Board decision, these claims stem from the Veteran’s August 2, 2010 and March 19, 2013 annual clothing allowance applications. The April 2011 and August 2013 determinations on appeal from the Buffalo VAMC indicate that the Veteran’s claims are for a 2011 annual clothing allowance and a 2013 annual clothing allowance, respectively. Accordingly, the issues have been recharacterized as a clothing allowance for the 2011 calendar year and a clothing allowance for the 2013 calendar year, as noted above. The claims for clothing allowances for the 2015 and 2016 calendar years were previously before the Board in November 2017 and remanded for additional development. In September 2012, the Veteran contends that a clothing allowance is warranted due to the use of petroleum and/or Vaseline for his skin disorder on his arms, chest, back, legs, buttocks, and feet. He also contends that a clothing allowance is warranted for his use of Hypercare for acne on his arms, chest, back, legs, buttocks, and feet. See March 2013 application for annual clothing allowance. In the Veteran’s June 2015 application, he reports that he uses Vaseline, triamcinolone, hydrocortisone and ammonium lactate on his arms, legs, chest, and back respectively. The Veteran’s February 2016 application notes that he uses Vaseline, hydrocortisone and ammonium nitrate on his arms, legs, chest, and back. In the Veteran’s November 2017 application, he reports using Vaseline, hydrocortisone, and “others” for eczema on his chest, back, arms, and legs. The Veteran’s February 2018 application notes that he uses triamcinolone cream, urea cream, petroleum, hydrocortisone, ammonium lactate, and A&D ointment on his chest, back, arms, and legs. Throughout the appeals period, he reports that the skin medications prescribed by the Buffalo VAMC cause damage to his clothing, which he lists as pants, trousers, shirts, et cetera. See July 2015, December 2017, and March 2018 statements from the Veteran; March 2016 notice of disagreement; June 2019 Written Brief Presentation. The law provides for payment of an annual clothing allowance for a 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 outergarments. 38 C.F.R. § 3.810(a)(1). The Veteran is service-connected for athlete’s foot of both feet (also claimed as eczema); posttraumatic stress disorder, asthma, and urethral stricture. Service connection is not in effect for a skin condition (to include eczema and acne) on his arms, chest, back, legs, or buttocks. In support of his claims, the Veteran submitted a VA physician’s statement dated November 8, 2010. The VA physician noted “Pt requires a clothing allowance as he is on topical medication required by a service connected condition which causes damage to clothing.” It is unclear from this statement which outergarments had been irreparably damaged by medication and which service-connected condition the physician was referring to. To the extent that any medication prescribed for the Veteran’s service-connected athlete’s foot of both feet have caused damage to the Veteran’s socks, the Board notes that socks are not considered an outer garment under VA regulations as they are covered by shoes. The characterization of an outergarment is reserved for clothing that is not covered by other clothing or material. See Short Bear v. Nicholson, 19 Vet. App. 341 (2005) (discussing that a clothing allowance cannot be granted for irreparable damage to underwear); see also VA Form 10-8678 Application for Annual Clothing Allowance (“Shoes, hats, scarves, underwear, socks, and similar garments are not included.”) In accordance with the July 2015 remand directives, a February 2018 opinion by Dr. J.P., a VA Chief of Dermatology, was obtained in order to clarify the outergarments that have been irreparably damaged by the Veteran’s service-connected athlete’s foot from August 2010 to July 2013. Dr. J.P. considered the Veteran’s use of ammonium lactate, triamcinolone acetinide, urea cream, tolnaftate, camphor menthol, aluminum hexahydrate, Vaseline, and hypercare, and determined that there was not irreparable damage to his outergarments. She explained that when tolnaftate and urea cream are used on athlete’s foot, they do not come into contact with outergarments, i.e. shirts and trousers. In a March 2018 opinion, Dr. J.P. considered the Veteran’s use of Vaseline, triamcinolone, hydrocortisone, ammonium lactate, and ammonium nitrate in the years 2015 and 2016. She again opined that she was not able to justify irreparable damage to outergarments, excluding socks, for treatment of athlete’s foot. In the Veteran’s 2018 clothing allowance claim, he lists medications used on his chest, back, arms, and legs. He does not contend that these medications are used on his service-connected foot conditions. See Veteran’s November 2017 and February 2018 applications. In sum, the only skin condition for which the Veteran is service-connected is athlete’s foot condition (also claimed as eczema) on both feet. The Board finds that, even if these medications were used on the Veteran’s service-connected athlete’s foot, the application of cream to the Veteran’s feet would not cause irreparable damage to the Veteran’s outergarments as required under 38 C.F.R. § 3.810(a). Accordingly, the Board finds that a clothing allowance for the 2011, 2013, 2015, 2016, and 2018 calendar years must be denied. See 38 U.S.C. § 1162; 38 C.F.R. § 3.810. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.