Citation Nr: 21063433 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-42 763A DATE: October 14, 2021 ORDER An annual clothing allowance for the year 2015 for a back brace is granted. An annual clothing allowance for the year 2015 for a topical steroid cream is denied. An annual clothing allowance for the year 2015 for a topical pain relief cream is denied. FINDINGS OF FACT 1. The Veteran's back brace, worn to treat a service-connected disability, for the year 2015, tended to wear out or tear his clothing. 2. Neither a topical steroid cream nor a topical pain relief cream was shown to have been used by the Veteran in the year 2015 to treat a skin condition due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the year 2015 for a back brace are met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 2. The criteria for a clothing allowance for the year 2015 for a topical steroid cream are not met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for the year 2015 for a topical pain relief cream are not met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to October 1998, and from May 2006 to February 2010. This appeal is before the Board of Veterans' Appeals (Board) from a July 2015 decision of a Department of Veterans Affairs Medical Center (VAMC). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. 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. The implementing regulation, 38 C.F.R. § 3.810, provides, in pertinent part, that an annual clothing allowance may be granted when 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, or that a veteran uses medication prescribed by a physician for one skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran's outer garments. 38 C.F.R. § 3.810(a)(1)(ii). 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 outergarment. 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 outergarment at an increased rate of damage to the clothing or outergarment due to a second appliance or medication. 38 C.F.R. § 3.810(a)(3). In his June 2015 clothing allowance application, the Veteran claimed an allowance for a back brace used for his "Degenerated Discs," issued in March 2012, impacting the area of his lower back. While the Veteran's primary contentions on appeal have been in relation to his back brace, in his June 2015 application, he also requested clothing allowances based on the use of a steroid cream used for "skin rash/hives," first issued in 2012, affecting the area of the "legs"; and an analgesic cream for relief of nerve pain from his service-connected diabetes, issued in 2014, affecting the areas of the stomach and feet. 1. An annual clothing allowance for the year 2015 for a back brace is granted. The Veteran has been service-connected for lumbar spine degenerative disc disease since 1998. A March 2012 invoice confirms purchase of a sagittal-coronal control rigid lumbar spine orthotic. As reflected in its July 2015 decision and October 2015 statement of the case, the agency of original jurisdiction (AOJ) denied the Veteran's claim on the basis that, since the orthotic had been issued in 2012, there had not been any documented maintenance or upkeep on the brace, indicating that the brace was not worn often enough to cause wear, tear, or damage to the Veteran's clothing. As reflected in his September 2015 notice of disagreement, December 2015 substantive appeal, and June 2021 testimony before the Board, the Veteran asserts that he wore his back brace regularly, despite the lack of maintenance to it by 2015, and that the braceand, specifically, the Velcro on the brace, which snagged on his shirtcaused wear and tear to his clothing. In support of his claim, the Veteran submitted a September 2015 clinical evaluation of the Veteran's back brace by the Hanger Clinic, which had supplied him the brace. The evaluation report shows that the brace was inspected and looked to be in very good condition, and that there was no need to do any type of adjustments or replacements of any sort. The Board finds the evidence as to whether the Veteran's back brace caused wear and tear to his clothing in 2015 to be at least in relative equipoise. While the record does not reflect that the Veteran sought maintenance or upkeep for his brace prior to September 2015, and that the brace was in very good condition in September 2015 and required no adjustments or replacements, neither the September 2015 evaluation report nor anything else in the medical record suggests that the condition of the brace showed that he did not regularly use it, as he testified he did. The contemporaneous medical records, moreover, do not reflect whether there was regular use of the brace or not. Given the Veteran's testimony and assertions, and resolving reasonable doubt in his favor, the Board finds that, in the year 2015, he regularly used his back brace for his service-connected lumbar spine disability. There is nothing else in the record contradicting the Veteran's testimony and written statements that this back brace caused wear and tear to his clothing, specifically from the Velcro on the brace. Considering the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that his back brace, for the year 2015, tended to wear out or tear his clothing. Accordingly, a clothing allowance is warranted for the year 2015 based on the Veteran's use of the back brace for his service-connected lumbar spine disability. See 38 U.S.C. § 5107. 2. An annual clothing allowance for the year 2015 for a topical steroid cream is denied. The Veteran, in his June 2015 application, requested a clothing allowance for use of a steroid cream used for "skin rash/hives," first issued in 2012, affecting the area of the "legs." In his September 2015 notice of disagreement, he clarified the cream as triamcinolone, which he reportedly had used for "numerous and continuous skin rashes for years," and for which he asserted he had previously received a clothing allowance. An April 2015 VA treatment record contains the Veteran's active medication list, with a pain-relieving rub being the only cream or topical medication; a subsequent medication list also contains triamcinolone ointment for external use, issued September 9, 2015. However, while the record reflects a prescription of triamcinolone ointment, it does not establish that this or any other steroid cream is used for any skin condition due to a service-connected disability, and none of the Veteran's statements explain how it might be. The Veteran is not service-connected for any skin disability. While private records of treatment of the foot, related to the Veteran's service-connected diabetes mellitus, reflect diagnoses of onychomycosis and tinea pedis, there is nothing relating rashes or hives in the leg area, requiring treatment with topical creams, to any service-connected disability. In this regard, the earliest indication of any such rash is a November 2010 VA treatment record reflecting the Veteran's reports of "having a persistent papular or nodular skin rash" to the left leg; there is no notation or evidence suggesting any connection of such rash to a service-connected disability. Therefore, the evidence is against a finding that the Veteran used any topical steroid cream in the year 2015 for a skin condition due to a service-connected disability. Accordingly, a clothing allowance is not warranted for the year 2015 based on the Veteran's use of any such topical steroid cream. See 38 U.S.C. § 5107. 3. An annual clothing allowance for the year 2015 for a topical pain relief cream is denied. Finally, the Veteran, in June 2015, also claimed a clothing allowance for an analgesic cream for relief of nerve pain from his service-connected type II diabetes, issued in 2014, affecting the areas of the stomach and feet. VA treatment records dated in 2015 confirm that the Veteran was prescribed a pain relieving rub for use on the abdominal wall. However, the law and regulations do not provide for a clothing allowance for topical medications unless prescribed for a skin condition due to service-connected disability. The Veteran has not assertedand the record does not reflectthat his claimed topical pain relief cream was for any skin condition; rather, as discussed above, it was used to treat nerve pain due to his service-connected type II diabetes. As such, there is no legal basis for entitlement to a clothing allowance for such topical medication during the 2015 calendar year, and the Veteran's claim for such must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.