Citation Nr: 21002164 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-14 215A DATE: January 12, 2021 ORDER An annual clothing allowance for the year 2017 is granted. FINDING OF FACT The Veteran’s right knee brace and TENS unit used for his service-connected right knee and low back disabilities caused wear and tear to his clothing during the period on review. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for the year 2017 have been met. 38 U.S.C. § 1162; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from September 1974 to September 1978. The issue on appeal comes to the Board of Veterans' Appeals (Board) from an October 2017 denial of a clothing allowance for the year 2017. The Veteran applied for an annual clothing allowance in relation to the braces and cream he uses for his service-connected disabilities. The Veteran’s service-connected disabilities include, inter alia, degenerative disc disease (DDD) of the lumbar spine and residuals of a right knee injury. In pertinent part, 38 C.F.R. § 3.810(a) authorizes a clothing allowance if a veteran, because of a service connected disability or disabilities, wears or uses one qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing. See 38 C.F.R. § 3.810(a)(1)(ii)(A). The issue of whether the Veteran was entitled to a clothing allowance for a prior year (2014) has been addressed favorably by the Board previously, and the Veteran contends these findings should be applied to the 2017 benefit sought, as well. In the September 2016 Board decision, it was found that the Veteran’s right knee brace and TENS unit caused wear and tear to his clothing. Review of the record does not reveal any persuasive evidence showing the facts of this case are materially different than those previously addressed by the Board. Compellingly, there is no evidence of record to establish that the braces and TENS unit which qualified for benefits in 2014 are fundamentally different than those utilized by the Veteran in 2017. Although the Statement of the Case (SOC) relied on an appointment in November 2017 with a prosthetist, who noted the right knee brace and TENS units were not a qualifying type, these findings are afforded less weight than the Veteran’s assertions of record. The Board notes that the controlling regulation pertaining to clothing allowance cited above does not require that a brace have exposed metal or even exposed plastic inserts to qualify for benefits; it simply indicates that it must tend to wear and tear to clothing. 38 C.F.R. § 3.810(a). As the Veteran wears the TENS unit and right knee brace, along with his clothing, he is competent to state whether the TENS unit and right knee brace results in wear and tear to his clothes, and has so done. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the prosthetics evidence was considered, there was no specific assessment of record of whether the Veteran’s TENS unit and right knee brace resulted in wear and tear to his clothing. Thus, the evidence remains at least in equipoise concerning whether the TENS unit and right knee brace does cause wear and tear to the Veteran’s clothing. Accordingly, resolving reasonable doubt in the Veteran’s favor, the criteria for the award of a clothing allowance for the year 2017 for the Veteran’s TENS unit and right knee brace have been met. 38 C.F.R. §§ 3.102, 3.810(a)(1)(ii)(A). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. KING 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.