Citation Nr: 21069016 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-00 025A DATE: November 17, 2021 ORDER Entitlement to clothing allowance for a back brace in 2016 is denied. FINDING OF FACT The Veteran is service-connected for a disability of the lumbosacral spine, for which he wears a soft good brace that would not cause irreparable damage to clothing. CONCLUSION OF LAW The criteria for establishing eligibility for a clothing allowance due to wearing of a back brace in 2016 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 in the Marine Corps from September 1989 to July 1992 and the Army from November 2003 to April 2005. In the January 2017 Appeal to the Board, the Veteran requested a hearing before a Veterans Law Judge. In September 2021, the Veteran informed a VA representative that he no longer wishes to have a hearing. Therefore, the hearing request is withdrawn. Entitlement to clothing allowance for a back brace in 2016 The Veteran contends that he is entitled to a clothing allowance due to being prescribed a back brace. Legal Criteria 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) establishes that the veteran wears or uses one qualifying prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such service-connected disability or disabilities due to 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 qualifying 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)(1)(i)(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 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). Analysis The Veteran's service-connected disabilities include, in part, a lumbar spine disability. In February 2016, the Veteran submitted a claim for a clothing allowance for a back brace. The claim was denied in July 2016 based on a determination that the wrap-around back brace was a soft good orthotic which would not cause irreparable damage to clothing, and accordingly not eligible. The claim was again denied in September 2016 by the Chief of Prosthetics and Sensory Aids Service at the local VA Healthcare System. The Chief explained that the Veteran's back brace, specifically a lumbar sacral orthosis (LSO), is a flexible soft good orthotic and has been determined to not tear or wear out clothing. The evidence of record does not show that the Veteran's back brace has exposed metal stays or exposed rigid inserts of the type that would cause damage to clothing. As the brace the Veteran has been prescribed for his service-connected back disability is not one that tends to wear or tear clothing, a clothing allowance for the back brace must be denied. The Board acknowledges the Veteran's argument that his back brace causes wear on his clothing. The regulation, however, clearly establishes that unless there is loss of use of a foot, the prosthetic or orthopedic appliance must be certified by the Under Secretary for Health, or a designee, as a device that that tends to wear or tear clothing. In this case, the designee, the Chief of Prosthetics and Sensory Aids Service, determined the Veteran's back brace is not of a type to cause wear and thus does not qualify. The Board also acknowledges the Veteran's contention that he is entitled to a clothing allowance because the reviewing VA official awarded such an allowance to her friends. However, those claims are not currently before the Board and the Board can only make a determination in this case based on the facts of this case. Based on the evidence and analysis above, the Board finds the requirements to establish entitlement to clothing allowance for a back brace in 2016 are not met and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. The Board finds, however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.