Citation Nr: 21013180 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 19-03 438 DATE: March 8, 2021 ORDER An annual clothing allowance for the 2018 calendar year for a right knee brace is granted. FINDING OF FACT The Veteran’s right knee brace, worn to treat a service-connected disability, for the 2018 calendar year, tended to wear out or tear his clothing. CONCLUSION OF LAW The criteria for a clothing allowance for the 2018 calendar year for a right knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to July 1991, and from February 2011 to January 2012. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2018 decision of a Department of Veterans Affairs Medical Center (VAMC), which granted one clothing allowance but denied other claims for clothing allowances, including for a right knee brace. 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. 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 2018 calendar year for a right knee brace is granted. The Veteran is service-connected for chronic right knee strain. Available VA treatment records reflect that, in December 2014, the Veteran was provided a hinged air knee sleeve for his right knee disability. In a December 2018 decision, the Board granted a clothing allowance for the Veteran’s right knee brace for the year 2015. In so doing, the Board noted the Veteran’s contention that this knee brace wore his pants to the point they tore and snagged; that the specific model knee brace provided to the Veteran includes a large, uncovered metal or hard plastic protrusion used to inflate a pneumatic buttress for patellar support; and that there was no indication that any qualified medical professional had made a specific assessment of whether the Veteran’s use of the knee brace actually resulted in wear and tear to his clothing. The Board found the evidence to be at least in equipoise as to whether the Veteran’s knee brace caused wear and tear to his clothing. As reflected in its September 2018 decision and November 2018 statement of the case (SOC), the agency of original jurisdiction (AOJ) denied a right knee brace clothing allowance for 2018 on the basis that the records indicated no replacement, adjustment, repair or evaluation since initial issuance in December 2014; the SOC further stated that recent progress notes from Physical Medicine assessed the Veteran’s knee disorder, but that there was no indication of use of knee brace. In his October 2018 notice of disagreement, the Veteran asserted that he had been issued knee braces since 2014, but that the braces had all been issued by contract through Snell Orthopedic in Little Rock. In his January 2019 substantive appeal, the Veteran reiterated that he had been sent to an outside clinic to obtain new braces since 2014, and indicated that substantive evidence was attached to his substantive appeal. Resolving reasonable doubt in the Veteran’s favor, the Board finds that a clothing allowance is warranted for the Veteran’s right knee brace. Initially, the Board notes that although the January 2019 substantive appeal indicated that evidence was attached to the appeal, no such evidence is in the claims file; and appears to be missing. Also, despite the Veteran’s assertions in his October 2018 notice of disagreement that, since 2014, he had been provided knee braces by VA that were issued by Snell Orthopedic in Little Rock, the AOJ did not respond to the assertion in its SOC or undergo any further development efforts to determine whether Veteran had received braces from Snell Orthopedic. Furthermore, while the SOC stated that recent progress notes from Physical Medicine assessed the Veteran’s knee disorder but no indication of use of knee brace, there is no indication of what progress notes the AOJ was referring to. Indeed, the file contains no VA treatment records dated after May 2017, and there is no indication in these records, or elsewhere in the file, that the Veteran stopped using his right knee brace before or during 2018. Given the above, the Board finds the evidence as to whether the Veteran used a right knee brace provided by VA for his service-connected disability in the year 2018 to be at least in relative equipoise. Considering this, along with the Board’s findings regarding the Veteran’s right knee brace in its December 2018 decision, and resolving reasonable doubt in his favor, the Board finds that his right knee brace, for the 2018 calendar year, tended to wear out or tear his clothing. Accordingly, a clothing allowance is granted for the 2018 calendar year based on the Veteran’s use of a brace for his service-connected right knee disability. See 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.