Citation Nr: 21012394 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-05 735A DATE: March 4, 2021 ORDER Entitlement to a clothing allowance based on the use of a left wrist brace for 2012 is granted. REMANDED Entitlement to a clothing allowance on a static/recurring basis from 2013 based on the use of a left wrist brace is remanded. FINDING OF FACT The evidence is at least in equipoise regarding whether the left wrist brace worn by the Veteran in 2012 for a service-connected disability tended to wear and tear his clothing. CONCLUSION OF LAW The criteria for a clothing allowance based on the use of a left wrist brace for 2012 have been 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 from July 1975 to February 1976. In February 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. Entitlement to a clothing allowance based on the use of a left wrist brace for 2012 The Veteran is seeking a clothing allowance for 2012 due to wearing a brace for his service-connected left median nerve disability that caused abnormal wear and tear on his clothing A veteran who has a service-connected disability is entitled to an annual clothing allowance upon meeting certain eligibility requirements, including if the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing. 38 C.F.R. § 3.810(a)(1). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). VA prosthetic records show that the Veteran was issued left wrist braces or splints several times, including in October 2008 and May 2012. He may have been issued devices on intervening occasions, but the prosthetic records only indicate that devices were issued on various dates without listing the type of device. An April 2012 VA examiner noted that the Veteran used a left wrist brace on a constant basis. At July 2012 VA treatment it was noted that the Veteran continued to wear a soft Velcro brace on his left wrist. The Veteran wrote in November 2012 that the brace he used has two pieces of metal and caused wear and tear to his clothing. The Veteran’s representative stated at the February 2019 Board hearing that the Veteran gets issued a new brace at least twice a year. The Veteran further testified at the February 2019 Board hearing that there is a metal piece that comes out of his left wrist brace, which had torn shirts. Furthermore, the Velcro from the brace stuck to his clothing, and the brace rubbed against his clothing. He wore the brace at all times. The Veteran submitted photographs that show that the brace has metal pieces that are inserted and can come out of an open area on the top. Furthermore, there are two large Velcro straps. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of a clothing allowance for the year 2012 for the Veteran’s use of a left wrist brace. In this regard, the Veteran is considered to be competent to describe whether the brace causes irreparable damage to his clothing, inasmuch as such effect is readily observable by a lay person. Buchanan v. Nicholson, 451 F.3d 1331,1337 (Fed. Cir. 2006). The record establishes that the left wrist brace tended to wear or tear, and the claim for a clothing allowance for 2012 based on the use of a left wrist brace is granted. REASONS FOR REMAND Entitlement to a clothing allowance on a static/recurring basis from 2013 based on the use of a left wrist brace is remanded. In the Veteran’s testimony from the February 2019 hearing, he indicates that he is seeking a clothing allowance based on the use of a right knee brace on a static/recurring basis from 2013 forward. “Static” or “recurring” clothing allowances refer to the prior practice chosen by VHA to administer automatic annual clothing allowances without the need for the recipient to reapply for such benefit once it had been granted. The Veteran filed his claim for a 2012 clothing allowance in October 2011, and previously received a clothing allowance for two years based on the use of a left wrist brace. Since he first applied for a clothing allowance prior to August 1, 2012, and does not receive more than one clothing allowance, he is potentially eligible to receive a clothing allowance on a static or recurring basis. See VHA Handbook, 1173.15, § 10 (May 14, 2015). The claim for a clothing allowance on a static/recurring basis from 2013 based on the use of a left wrist brace must be remanded in order for the Veteran’s Health Administration to adjudicate it in the first instance. In addition, any records regarding clothing allowance claims for 2013 to the present should be associated with the claims file. Currently, the record contains a clothing allowance claim for 2015 and the subsequent December 2015 decision, but does not otherwise contain records related to clothing allowance claims for 2013 to the present. The matters are REMANDED for the following action: 1. Associate any clothing allowance claim records for 2013 to the present with the claims file. The June 2015 claim and December 2015 decision do not need to be associated with the claims file again since they are already of record. If no additional records exist or further attempts to obtain them would be futile, a written notation should be made in the claims file. 2. Thereafter, adjudicate the claim for a clothing allowance on a static/recurring basis from 2013 based on the use of a left wrist brace. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.