Citation Nr: 21077475 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-31 359A DATE: December 29, 2021 ORDER Entitlement for clothing allowance for a back brace, for symptoms related to service-connected lumbosacral strain with degenerative disc disease and disc herniation (back disability), for calendar year 2015, is granted. FINDING OF FACT The Veteran is service connected for a back disability during the 2015 calendar year. CONCLUSION OF LAW The criteria for a clothing allowance for the 2015 calendar year for a back brace are met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1993 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 letter of determination issued by the Department of Veterans Affairs (VA) Prosthetics & Sensory Aids Service Department. In May 2021, the Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In the Veteran's Notice of Disagreement (NOD), the Veteran initially appealed the back brace and topical medication Biofreeze. The Veteran later withdrew his appeal for Biofreeze and confirmed this at his May 2021 Board hearing. This matter is no longer on appeal and not before the Board. At the time of the Veteran's hearing, he was represented by the Military Order of the Purple Heart. As of July 2021, Military Order of the Purple Heart is no longer recognized an accredited Veteran Service Organization. Correspondence was sent by the Board to the Veteran in August 2021 advising him of his options of representation moving forward. Unfortunately, all mail sent to the Veteran at his address of record and a secondary address that was found have been returned to the Board. As the instant decision is granting the matter on appeal, there is no prejudice to the Veteran in issuing a decision at this time. However, the Veteran must update his current address. 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 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). The Veteran contends he is entitled to a clothing allowance for his back brace, resulting from his service-connected back disability. In his substantive appeal (VA Form 9), the Veteran stated his back brace has metal bars in it that result in the constant wearing of his shirts. At his May 2021 VA hearing, the Veteran alleges the brace causes regular damage to his undergarments and shirts. He stated the brace wears the material to the point it tears. He reported he replaces his shirts approximately every three weeks. In denying the Veteran's claim for a clothing allowance for a back brace for the calendar year 2015, the agency of original jurisdiction (AOJ) concluded the device is not rigid and does not contain rigid components and therefore is not determined to cause damage to clothing. As noted above, the Veteran has stated that the back brace has caused damage to his clothing. The Veteran is competent to report that his back brace causes wear and tear to his clothing despite the lack of exposed rigid panels, as wear and tear to his own clothing is an observable phenomenon. The Veteran also contends his brace has rods in it which cause the wear and tear to his clothing. Also, given the consistency of the Veteran's statements and hearing testimony, the Board finds his reports are credible. Moreover, while the AOJ generally determined that the type of brace the Veteran wears would not tend to wear and tear clothing due to the flexibility and covering, it did not make any specific finding concerning the direct accounts of the Veteran concerning the clothing wear and tear from the back brace. Therefore, the evidence is at least in equipoise as to whether the back brace issued to treat the service-connected back disability caused wear and tear to the Veteran's clothing. Accordingly, resolving reasonable doubt in the Veteran's favor, a clothing allowance is warranted for the 2015 calendar year based on the Veteran's back brace, which caused wear and tear to his clothing. 38 C.F.R. § 3.810(a)(1)(ii)(A), (a)(2)(i-ii); see also 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.