Citation Nr: 21063296 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-54 577 DATE: October 13, 2021 ORDER A clothing allowance due to the Veteran's use of a back brace for the year 2015 is granted. A clothing allowance due to the Veteran's use of a right knee brace for the year 2015 is denied. FINDINGS OF FACT 1. The Veteran's back brace, worn to treat a service-connected disability in the 2015 calendar year, tended to wear out or tear his clothing. 2. The Veteran's model of a right knee brace does not produce wear and tear on clothing. CONCLUSIONS OF LAW 1. The criteria for an annual VA clothing allowance for the year 2015 due to the use of a back brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria for an annual VA clothing allowance for the year 2015 due to the use of a right knee brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from January 1975 to May 1997, September 2006 to February 2007, and April 2010 to August 2010. The matter is on appeal before the Board of Veterans' Appeals (Board) from an August 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in North Little Rock, Arkansas. This decision denied clothing allowances for calendar year 2015 for the Veteran's back brace and right knee brace. Clothing Allowance The 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. One annual clothing allowance per year is payable in a lump sum, when the following eligibility criteria are satisfied: (1) A VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such service-connected disability or disabilities and such service-connected disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d), or (f); or (2) The Undersecretary for Health or a designee certifies that, because of such service-connected disability or disabilities, a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to the service-connected disability or disabilities, irreparable damage is done to the Veteran's outer garments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810(a). A veteran is entitled to an annual clothing allowance for each such prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication affects a distinct type of article of clothing or outer garment. 38 C.F.R. § 3.810(a)(2). A veteran is entitled to two annual clothing allowances if a veteran uses more than one such prosthetic or orthopedic appliance, (including, but not limited to, a wheelchair), medication for more than one skin condition, or an appliance and a medication, and the appliance(s) or medication(s) together tend to wear or tear a single type of article of clothing or irreparably damage a type of outer garment at an increased rate of damage to the clothing or outer garment due to a second appliance or medication. 38 C.F.R. § 3.810(a)(3). 1. Entitlement to a clothing allowance for calendar year 2015 for a back brace. 2. Entitlement to a clothing allowance for calendar year 2015 for a right knee brace. The Veteran contends that a clothing allowance for the year 2015 is warranted for his use of a back brace and right knee brace. He is service-connected for degenerative arthritis with IVDS and right knee degenerative joint disease with chondromalacia and patellofemoral pain syndrome (limitation of flexion and impairment of the knee). The Veteran stated that his back and knee brace destroyed his clothing in his February 2016 Notice of Disagreement (NOD). Additionally, he explained that the same back brace had been approved for a clothing allowance for calendar year 2014, so a rejection for calendar year 2015 did not make sense. In an October 2016 Statement of the Case (SOC), the Little Rock/North Little Rock VAMC noted that the Veteran's right knee brace was issued in May 2014 and his back brace was issued in January 2015. The back brace was made of soft flexible fabric and considered a softgood orthotic. Although the right knee brace is hinged, the hinges are covered by fabric and is also considered a softgood orthotic. Therefore, in accordance with current guidelines, the Chief of Prosthetics and Sensory Aids Service disapproved the braces because it was determined that the braces did not cause wear and tear to clothing. With regards to the back brace, the evidence reflects that the Veteran was fitted for a back corset with two pulls in May 2014. An August 2017 VA examination and VA medical records demonstrate that the Veteran is in constant need of the back brace for support. Subsequently to the Veteran's June 2015 clothing allowance application, an August 2015 evaluation of his back and knee brace were conducted. Here, the back brace was noted as having an April 2014 issuance date and was deemed a non-eligible device. The evidence does not demonstrate that the Veteran was fitted for a new back brace on January 6, 2015, as stated in the October 2016 SOC. Furthermore, an August 2014 letter from Little Rock/North Little Rock VAMC shows that he was approved for a 2014 clothing allowance as the back brace was found to wear or tear clothing. Therefore, considering the above and resolving reasonable doubt in the Veteran's factor, the Board finds that his back brace for the 2015 calendar year tended to wear out or tear his clothing. Regarding the right knee brace, the Board finds that the evidence does not show that the right knee brace causes wear and/or tear to his clothing for calendar year 2015. VA medical records confirm that he was fitted for a right knee hinged knee sleeve in May 2014 and regular use is required due to his service-connected right knee disability. Additional VA treatment records fail to document any mention of wear, tear, and/or damage to clothing from wearing his right knee brace. VA law provides that the Veteran can only qualify for entitlement to a clothing allowance if his braces are certified by the Under Secretary for Health or designee to cause wear and tear to articles of clothing. However, the Veteran's particular model of braces were not certified to cause wear and tear as noted in the August 2015 VAMC evaluation. The Board acknowledges the Veteran's argument that his right knee brace causes wear and tear on his clothing. However, the sole contention of wear and tear is on his February 2016 NOD. As discussed above, VA treatment records fail to document any complaints or observations of such damage. Further, the Veteran hs not produced any supporting evidence showing how his clothes are damaged due to his braces. Accordingly, a clothing allowance is warranted for the year 2015 based on the Veteran's use of a back brace for his service-connected back disability. However, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to annual VA clothing allowance for the year 2015 due to use of a right knee brace. Thus, the benefit of the doubt rule does not apply for the claim regarding an annual clothing allowance for the year 2015 for the right knee brace. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.