Citation Nr: 21072025 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-35 953A DATE: December 2, 2021 ORDER An annual clothing allowance for the 2016 calendar year for use of a wheelchair is granted. FINDINGS OF FACT 1. On September 23, 2021, the Board was notified that the Veteran died in September 2021. 2. Although this matter was previously dismissed in an October 2021 Board decision, substitution was granted, effective November 3, 2021, and the Veteran's surviving spouse became the substitute appellant for the derivative claim of entitlement to a clothing allowance for the 2016 calendar year. 3. The evidence is at least in equipoise as to whether the Veteran's wheelchair, used to treat a service-connected disability, for the 2016 calendar year, tended to wear out or tear his clothing. CONCLUSION OF LAW The criteria for a clothing allowance for the 2016 calendar year for wear and tear associated with use of a wheelchair are met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1970 to April 1979. He died in September 2021. The appellant is the Veteran's surviving spouse, who was substituted as the claimant for the purposes of processing the Veteran's claim to completion. See 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. § 3.1010(a); see also 38 C.F.R. § 3.1000(h) (clothing allowance under 38 U.S.C. § 1162 remaining due and unpaid at the date of the veteran's death is payable as an accrued benefit). This appeal is before the Board of Veterans' Appeals (Board) from a July 2016 decision of a Department of Veterans Affairs (VA) Medical Center. The July 2016 decision denied the claim for a clothing allowance for wear and tear associated with the use of a manual wheelchair. Prior to the October 2021 dismissal of the claim for lack of jurisdiction, the Board remanded the matter on appeal for additional evidentiary development. See January 2021 Board remand. The purpose of the remand was to locate missing records pertinent to the clothing allowance claim and upload those documents to the claims file. In March 2021, the available records were associated with the claims file along with a Memorandum verifying the unavailability of the original 2016 clothing allowance claim, the VA Form 9 (substantive appeal to the Board), and the VA Form 8 (certification of the appeal to the Board). The Memorandum noted that all efforts to obtain these documents had been exhausted and that further efforts would be futile. Under these circumstances, the Board finds that the Medical Center has substantially complied with the Board's January 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 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 where the veteran 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). An annual clothing allowance for the 2016 calendar year for wear and tear associated with use of a wheelchair is granted. In the year 2016, the Veteran's service-connected disabilities included coronary artery disease (CAD); residuals of a cerebrovascular accident (stroke) with left-sided hemiparesis; major depressive disorder; right upper extremity weakness associated with residuals of a stroke; right lower extremity weakness associated with residuals of a stroke; post-traumatic headaches; hypertension; and a scar (status post cardiac surgery). He had a combined 100 percent disability rating beginning August 7, 2013, and he was in receipt of Special Monthly Compensation (SMC) on account of being so helpful as to need regular aid and attendance. The July 2016 VA Medical Center decision denied a clothing allowance for an "wheelchair" on the basis that he was not service connected for amputation of his leg requiring the Veteran to wear or use a prosthesis. Furthermore, the VA Medical Center indicated that "the use of a prosthetic appliance must be medically necessitated for a service-connected disability in accordance with VHA Handbook 1173.15, paragraph 5(b)(2)(c), to be deemed entitled to the allowance." The VA Medical Center did not provide any further explanation as to why use of a manual wheelchair would not meet the criteria for a clothing allowance (i.e., not tend to wear out or tear clothing), or why the Veteran was determined to have been prescribed a manual wheelchair in light of his specific and totally disabling service-connected disabilities (including those that likely resulted in the Veteran being wheel-chair bound). The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities necessitated use of a wheelchair and that such use resulted in wear and tear to the Veteran's clothes. Given that there is no evidence in the record demonstrating that his wheelchair did not result in wear and tear to his clothing, and resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran's use of a wheelchair, for the 2016 calendar year, tended to wear out or tear his clothing. Accordingly, a clothing allowance is warranted for the 2016 calendar year based on the Veteran's use of a wheelchair for his service-connected disabilities. See 38 U.S.C. § 5107. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.