Citation Nr: 21013913 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-06 984A DATE: March 10, 2021 ORDER 1. Entitlement to a clothing allowance for the year 2014 based on the use of a right knee brace is granted. 2. Entitlement to a clothing allowance for the year 2014 based on the use of a left knee brace is granted. 3. Entitlement to a clothing allowance for the year 2014 based on the use of a back brace is granted. 4. Entitlement to a clothing allowance for the year 2014 based on the use of a right wrist brace is denied. 5. Entitlement to a clothing allowance for the year 2014 based on the use of a left wrist brace is denied. 6. Entitlement to a clothing allowance for the year 2014 based on the use of a TENS unit is denied. 7. Entitlement to a clothing allowance for the year 2014 based on the use of topical medication is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise regarding whether the right knee brace worn by the Veteran in 2014 for a service-connected disability tended to wear and tear his clothing. 2. The evidence is at least in equipoise regarding whether the left knee brace worn by the Veteran in 2014 for a service-connected disability tended to wear and tear his clothing. 3. The evidence is at least in equipoise regarding whether the back brace worn by the Veteran in 2014 for a service-connected disability tended to wear and tear his clothing. 4. The right wrist brace used by the Veteran in 2014 did not tend to wear and tear his clothing. 5. The left wrist brace that the Veteran was issued at VA treatment was not for treatment of a service-connected disability. 6. The TENS unit used by the Veteran in 2014 did not tend to wear and tear his clothing. 7. The topical medication used by the Veteran in 2014 was not for treatment of a service-connected skin disability. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the year 2014 based on the use of a right knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria for a clothing allowance for the year 2014 based on the use of a left knee brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 3. The criteria for a clothing allowance for the year 2014 based on the use of a back brace have been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 4. The criteria for a clothing allowance for the year 2014 based on the use of a right wrist brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 5. The criteria for a clothing allowance for the year 2014 based on the use of a left wrist brace have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 6. The criteria for a clothing allowance for the year 2014 based on the use of a TENS unit have not been met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 7. The criteria for a clothing allowance for the year 2014 based on the use of topical medication have not been met. 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 service from October 1983 to March 2008. The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in December 2020. A transcript is of record. 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). Further, a veteran is entitled to two annual clothing allowances if he or she uses more than one prosthetic or orthopedic appliance where each use satisfies the requirements of 38 C.F.R. § 3.810(a)(1) outlined above; and together tends to wear or tear a single type of article of clothing at an increased rate of damage to the clothing due to the second appliance. 38 C.F.R. § 3.810(a)(3). 1. Entitlement to a clothing allowance for the year 2014 based on the use of a right knee brace 2. Entitlement to a clothing allowance for the year 2014 based on the use of a left knee brace 3. Entitlement to a clothing allowance for the year 2014 based on the use of a back brace Service connection is in effect for a back disability, right knee disability, and left knee disability. VA prosthetic records state that in August 2009 the Veteran was issued a back brace that was described as a post rigid panel. The Veteran was issued orthotic braces for the knees in November 2012. It was noted that the devices were elastic with joints. A December 2013 VA treatment record notes that the Veteran wore Corflex knee orthotics. It was also noted that the Veteran wore a back brace. In February 2014, the Veteran wrote that he had trouble walking and fell a lot, and he needed braces for support. In the February 2015 examination report for the back, the examiner documented that the Veteran wore a back brace and a left knee brace. The examination report does not mention whether a right knee brace was worn. The Veteran testified at the December 2020 Board hearing that the knee braces are elastic with a joint and that they tear up his pants. He wears the same type of brace on both knees and wears them over pants. He further testified that the back brace has a plate and is molded for him. The back brace can be worn under or over clothing and caused damage to clothing from the hard plastic. Giving the benefit of the doubt to the Veteran, the Board finds that the evidence supports the award of a clothing allowance for the year 2014 for the Veteran’s use of a back brace and braces on each knee. In this regard, the Veteran is considered to be competent to describe whether the braces cause 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 Board finds him credible in this regard, and finds that the materials that the braces are made out of tended to cause excess wear and tear on his clothing. Since the right and left knee braces together wear or tear a single type of article of clothing at an increased rate of damage to the clothing, an additional clothing allowance is warranted. See 38 C.F.R. § 3.810(a)(3). 4. Entitlement to a clothing allowance for the year 2014 based on the use of a right wrist brace 5. Entitlement to a clothing allowance for the year 2014 based on the use of a left wrist brace Service connection is in effect for right carpal tunnel syndrome. However, the Veteran is not in receipt of service-connected disabilities related to the left wrist or hand, including carpal tunnel syndrome. November 2012 VA orthotic treatment records indicate that the Veteran was issued orthotic supports for the wrists due to carpal tunnel syndrome. The Veteran testified at the December 2020 hearing that he has carpal tunnel gloves that include bars and Velcro. The metal bars could come out of their compartments and tear clothing. The record does not show that the left wrist brace was issued for a service-connected disability. Therefore, the claim for a clothing allowance for the year 2014 for the use a left wrist brace must be denied. See 38 C.F.R. § 3.810(a)(1). Regarding the right wrist brace, the preponderance of the evidence is against a finding that it tends to wear and tear the Veteran’s clothing. While the brace has metal bars, the record does not show that the metal bars easily come out from their compartments. Rather, the metal parts go into a compartment of the brace, and the metal bars generally stay covered. The evidence is against a finding that the Veteran's right wrist brace tended to wear out or tear the Veteran’s clothing. Accordingly, a clothing allowance is not warranted for 2014 based on the use of a brace for the Veteran’s service-connected right carpal tunnel syndrome. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 6. Entitlement to a clothing allowance for the year 2014 based on the use of a TENS unit November 2013 VA prosthetic records indicate that the Veteran was provided with a TENS unit. The Veteran testified at the December 2020 hearing that he used the TENS unit while lying down and that it does not cause damage to clothing. While the TENS unit is likely used due to service-connected disabilities, the record does not show that it causes wear and tear to clothing, as stated by the Veteran at the hearing. Accordingly, a clothing allowance is not warranted for the 2014 calendar year based on the use of a TENS unit for service-connected disabilities. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 7. Entitlement to a clothing allowance for the year 2014 based on the use of topical medication A clothing allowance may be granted for veteran who, because of a service-connected skin disability or disabilities, uses skin medication that causes irreparable damage to the Veteran’s clothing. 38 C.F.R. § 3.810(a)(1). VA treatment records show that in November 2013 the Veteran was prescribed menthol 3.5 percent/camphor 0.2 percent topical gel to use three times a day as needed for pain. The Veteran testified at the October 2020 hearing that he was prescribed menthol and camphor gel for pain relief. He used it all over his body, and it stained his clothing. Service connection is not in effect for a skin disability. A clothing allowance based on the use of topical skin medication may only be granted if the topical medication is for a skin disability. 38 C.F.R. § 3.810(a)(1). There is no provision for a clothing allowance based on the use of topical medication for service-connected disabilities other than skin disabilities. Since the Veteran does not use menthol 3.5 percent/camphor 0.2 percent topical gel for a skin disability, the claim must be denied as a matter of law. A. P. SIMPSON 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.