Citation Nr: 21009799 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-24 621A DATE: February 23, 2021 ORDER A clothing allowance due to the Veteran’s use of a left knee brace for the year 2015 is denied. A clothing allowance due to the Veteran’s use of a left ankle brace for the year 2015 is denied. FINDINGS OF FACT 1. The Veteran’s model of left knee brace does not to produce wear and tear on clothing. 2. The Veteran’s model of left ankle brace does not to produce wear and tear on clothing. CONCLUSIONS OF LAW 1. The criteria are not met for an annual VA clothing allowance for the year 2015 due to the use of a left knee brace. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria are not met for an annual VA clothing allowance for the year 2015 due to the use of a left ankle brace. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1971 to July 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 decision issued by the Department of Veterans Affairs Medical Center (VAMC). The Veteran requested a Board hearing in his September 2016 Form 9; however, in a November 2020 statement, the Veteran withdrew his request for a hearing. Therefore, the Board finds the Veteran’s hearing has been withdrawn. 38 C.F.R. § 20.704 (e). The Board further observes that, following the issuance of the most recent statement of the case in May 2016, additional evidence has been associated with the record. However, as such evidence is irrelevant to the issue on appeal, there is no prejudice to the Veteran in the proceeding with a decision at the present time. 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 (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 outergarments. 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 outergarments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810 (a). 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 determining whether a clothing allowance is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to a clothing allowance for calendar year 2015 for a left knee brace. 2. Entitlement to a clothing allowance for calendar year 2015 for a left ankle brace. The Veteran contends that a clothing allowance for the year 2015 is warranted for his use of left ankle and left knee braces. Upon review, the Board finds an annual clothing allowance for the 2015 calendar year due to use of left ankle and left knee braces is not warranted. Here, there is neither evidence of record nor an allegation from the Veteran that he has lost a foot or hand at a compensable rate due to service-connected disability as specified in 38 C.F.R. § 3.350 (a), (b), (c), (d), or (f). Thus, the Board finds the service-connected left knee and left ankle disabilities do not result in the requisite loss of use of the hands or feet. Therefore, under 38 C.F.R. § 3.810 (a), the Veteran can only qualify for entitlement to a clothing allowance if the braces are certified by the Under Secretary for Health or designee (e.g. a VHA Prosthetics Representative) to cause wear and tear to articles of clothing. In the May 2016 Statement of the Case, the Chief of Prosthetics and Sensory Aids Service noted that the Veteran’s left ankle brace was issued in June 2015 and his left knee brace was issued in April 2015. However, it was explained that both braces were covered in fabric. Therefore, in accordance with current guidelines, the Chief of Prosthetics and Sensory Aids Service disapproved the braces because it was determined that the braces did not cause wear and tear to clothing. In the Veteran’s October 2015 Notice of Disagreement, he stated that his prescribed left knee brace was the exact type of knee brace that was authorized for clothing allowance. In this regard, the Veteran submitted a September 2015 letter from R.A.N., ANP. It was noted that the Veteran wore an unloader, which was issued in 2010 and the brace was the type to cause wear and tear to clothing. However, an October 2015 VA treatment note indicates that the Veteran had recently received a hinged neoprene knee brace orthosis for support of his left knee which was replaced. The Veteran went into the appointment with an old unloader that was completely worn out, and he wanted it refurbished to wear. The VA orthotist explained that an unloader was no longer indicated once the Veteran had his knee replaced. However, the Veteran stated that his physician wanted him to wear the brace. It was further noted that the Veteran’s recently issued hinged knee orthoses looked to be fitting and operating well. A February 2016 VA treatment note reveals that the VA radiologist noted that there was no significant change in the Veteran’s left knee since October 2014. It was also noted that there was no evidence of prosthetic loosening. Additionally, the VA radiologist noted that there was no change or definite abnormality left knee prosthesis. With regards to the Veteran’s left knee medical unloader brace, the Chief of Prosthetics and Sensory Aids Service noted that the Veteran was issued an unloader in July 2010 and an unloader was no longer indicated once the Veteran had surgical knee replacement. The September 2015 letter from R.A.N., ANP was referenced, but the Chief explained that the letter was not a statement of justification. The Chief also noted the VA orthotist and VA radiologist statements and denied the Veteran’s claim. Additionally, the evidence does not show that the left ankle brace causes wear and tear to his clothing. The Board finds that the above evidence outweighs the Veteran’s descriptions to the contrary that his left knee and left ankle braces cause damage to articles of his clothing. Both braces are covered in fabric, which do not tend to tear and war clothing. Additionally, VA treatment records fail to document any mention of wear or tear or damage to clothing from wearing his braces. As stated above, under 38 C.F.R. § 3.810 (a), VA law provides that the Veteran can only qualify for entitlement to a clothing allowance if his braces are certified by the Under Secretary for Health or designee to cause wear and tear to articles of clothing. However, the Veteran’s particular model of braces were not certified to cause wear and tear. The Board acknowledges the Veteran’s argument that his braces cause actual wear and tear on his clothing. On substantive appeal in June 2016, the Veteran acknowledged receiving a soft neoprene brace, although he added that it was difficult to put on and that it doesn’t fit properly. Thus, the Veteran has the use of a fabric brace. Further, the Veteran has not produced any supporting evidence showing how his clothes are damaged due to his braces. Moreover, with regards to his left knee brace, as stated above, a knee unloader was no longer indicated once the Veteran had surgical knee replacement. There was no evidence of prosthetic loosening or definite abnormality of his left knee prosthesis. As such, the Board finds the Prosthetic Sensory Aids Service finding to be the most probative evidence of record. In light of the above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to annual VA clothing allowance for the year 2015 due to use of a left knee brace and left ankle brace. Thus, the benefit of the doubt rule does not apply for this issue. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.