Citation Nr: 21074213 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-20 307 DATE: December 14, 2021 ORDER Entitlement to an annual clothing allowance for the 2015 calendar year, due to the use of a right knee brace, is denied. FINDING OF FACT The Veteran's right knee brace that was prescribed and worn to treat a service-connected disability, for the 2015 calendar year, did not tend to wear out or tear his clothing. CONCLUSION OF LAW The criteria for an annual clothing allowance for the 2015 calendar year, due to the use of a right knee brace, have not been met. 38 U.S.C. §§ 1162, 5103, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1976 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 decision issued by the Department of Veterans Affairs (VA) Medical Center in Fayetteville, North Carolina. The Board remanded this matter to the agency of original jurisdiction (AOJ) in October 2020 for further development which included associating all outstanding folders or paper files pertaining to the Veteran's claim and forwarding the Veteran's records to an appropriate person (Undersecretary for Health or a designee) for certain information about the right knee brace used by the Veteran in calendar year 2015. The appeal has since been returned to the Board. Upon further review, the Board observes that the documents pertaining to the issuance of the right knee brace for the 2015 calendar year were already present in the claims file prior to the remand. In addition, an adequate description of the type of knee brace issued to the Veteran and the likelihood of it causing wear and tear of the Veteran's clothing was also already in his claims file, in a document provided by a designee of the Under Secretary for Health that satisfied 38 C.F.R. § 3.810(a). Thus, while the May 2021 supplemental statement of the case informed the Veteran that 'despite extensive search of the local VA medical facility...an original claim, denial letter, or any records related to the decision date listed on the [2015 notice of disagreement]' were missing, this was an unfortunate error. The Board's review shows these documents were associated with the Veteran's claims file as of July 2020. Finally, in compliance with the remand, the AOJ invited the Veteran to submit additional evidence that his right knee brace wore or tore his clothing; a response was not received. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Board regrets any unnecessary delay in the adjudication of this matter. Entitlement to an annual clothing allowance for the 2015 calendar year due to the use of a right knee brace. The Veteran seeks an annual VA clothing allowance for the 2015 calendar year. The record reflects that service connection is in effect for right knee instability, right knee strain with meniscal tear and osteoarthritis (painful motion), and right knee strain with meniscal tear and osteoarthritis (limitation of extension). The evidence shows that he has been issued a right knee brace with hinge for his service-connected right knee disabilities. See October 2020 VA treatment records. 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; 38 C.F.R. § 3.810. As reflected in the 2015 notification letter, the Fayetteville VA Medical Center (VAMC) denied entitlement for an annual clothing allowance for the 2015 calendar year for a right knee brace because it was a brace with plastic/metal stays and covered in fabric. The letter explained that a designee of the Under Secretary for Health Devices had determined that appliances with Velcro stays and fasteners are not considered by VA, per its guidelines for clothing allowances, as appliances that tend to wear or tear clothing. The Veteran asserts that even though his right knee brace is covered in cloth, the plastic brace at the knee will wear out his long pants or clothing. See August 2015 notice of disagreement; see also March 2017 VA Form 9. Therefore, the issue before the Board is whether the right knee brace issued to the Veteran has been shown to wear or tear clothing in the 2015 calendar year to warrant an annual clothing allowance for that calendar year. Based on the evidence of record, the Board finds that a clothing allowance is not warranted for the 2015 calendar year for the reasons explained below. At the November 2014 VA examination, the Veteran was diagnosed with right knee strain, right knee meniscal tear, and right knee osteoarthritis. The examiner noted that the Veteran used a brace for his right knee condition constantly. The Fayetteville VAMC records established that the Veteran was prescribed and fitted for a right knee brace in December 2014. Specifically, he was issued a 'VAKC-64' hinge knee brace for his right knee, in an extra-large size. See October 2020 VA treatment record. Another VAMC record showed that the Veteran was issued a 'KO Elastic Tri-State...new orthosis, wrap" in December 2014. Pursuant to the Board's remand, a Fayetteville VAMC record was associated with the Veteran's claims file that showed the request was for an orthotic for the trunk and lower extremities and the request was made in December 2014. The brace was described as a 'hinged wrap-around knee brace' that was used for patients with 'mild medial or lateral instability' and noted as not helping prevent 'buckling' of the knee or with patellofemoral complaints. The item number for the knee brace was 86-1306 and an extra-large brace was ordered. See December 2020 VA treatment record. VA treatment record notes that the Veteran used his right knee brace for exercise or comfort. See October 2020 VA treatment records. Although he was invited to submit additional evidence following the remand, the Veteran has provided no supporting evidence that his right knee brace tended to wear and tear his clothing nor were details provided on how his right knee brace wore or tore his clothing in the 2015 calendar year. His claims file is silent for any observations nor complaints of wear and tear on his clothing due to his right knee brace at any point during the period on appeal. The Board has considered his general assertion that his right knee brace might cause wear and tear of his clothing. However, mere speculation that the plastic brace will wear out his clothing, without supporting evidence, is not sufficient to establish that a right knee brace, already determined by VA to not cause wear or tear, actually, in fact, has caused wear and tear of the Veteran's clothing. See VHA Handbook, 1173.15, 'Clothing Allowance,' May 14, 2015 ('Examples of items that do not tend to tear and wear clothing include: Soft orthotics, transcutaneous electrical nerve stimulation (TENS) units, shoes, shoe inserts, non-specialized wheelchairs (sedentary/sitting purposes), scooters, canes, rollador, walkers, elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered), braces with plastic stays covered in fabric'). For these reasons, entitlement to a clothing allowance for the 2015 calendar year for a right knee brace is not warranted. In short, based on the reasoning above, a clothing allowance is not warranted for the 2015 calendar year based on the Veteran's use of a right knee brace for a service-connected disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.