Citation Nr: 21015368 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-03 444 DATE: March 17, 2021 ORDER An annual clothing allowance for the 2018 calendar year for a left knee brace is granted. FINDING OF FACT The Veteran’s left 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 left knee brace are 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 1969 to November 1970. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2018 decision of a Department of Veterans Affairs Medical Center (VAMC). In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. 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). An annual clothing allowance for the 2018 calendar year for a left knee brace is granted. The Veteran has the service-connected disability of residuals of a gunshot wound to the left knee, post-operative knee replacement and shortening, for which he has been treated with knee braces for many years. As reflected in its November 2018 statement of the case, the agency of original jurisdiction (AOJ) denied a clothing allowance for the year 2018 for the Veteran’s left knee brace based on the finding that his brace, issued in September 2003, was determined to be a hinged knee sleeve, whereby the hinges were covered by material, and was considered a soft orthotic that did not tear clothing. The AOJ further determined that the Veteran had, in September 2018, been issued a new Breg HKB wrap brace, but that the issuance was after the eligibility period for a 2018 clothing allowance. In his October 2018 notice of disagreement and January 2019 substantive appeal, the Veteran asserted that he had received a clothing allowance for his left knee brace for over 20 years. He stated that he agreed that a soft brace did not wear clothes like a hard brace did, but that VA paid for a hard brace made just for him from a vendor in Texarkana, where a mold was made for his leg. He asserted that he had a hard brace he used for outdoors, and a soft brace for indoors. He also sent photographs of his braces: a large, GII hinged brace that appears to have straps and exposed hard plastic and metal; and a smaller DonJoy brace with fabric covering. During his March 2020 Board hearing, the Veteran reiterated that, before being denied in 2018, he had received annual clothing allowances for his left knee brace for 20 to 25 years. He brought his knee braces to the hearing, and testified that he continued to wear the larger, more hard and rigid brace, even though it was in need of repair and did not fit his leg as well as it used to. VA records support the Veteran’s assertions of receiving clothing allowances for his left knee brace prior to 2018. They also support his assertions of being prescribed, receiving, and using for many years a customized GII metal brace from a vendor in Texarkana, even though he has been issued softer ones such as his DonJoy brace. An April 2003 VA Eligibility Determination for Clothing Allowance is of record, which grants a clothing allowance for a left knee “metal knee brace.” VA treatment records reflect that, in August 2003, the Veteran was seen regarding his knee orthosis, and that an order for a DonJoy brace was placed; he reportedly was unhappy to find that he could not get his desired brace at the visit, and could not receive a higher grade brace so that his medial compartment knee grinding could be avoided. On November 2003 knee brace replacement evaluation, the Veteran reported that his current brace was not helping and needed an upgrade with more support; it was assessed that the Veteran needed a new type of knee brace for support and the plan was that the Veteran wanted “to go to a vendor in Texarkana for a G-2 custom hinged knee brace for the [left leg].” In March 2004, the Veteran reported having a new leg brace, which was irritating his hip. Furthermore, in addition to the Veteran’s assertions that his metal knee brace caused wear to his clothing—and VA’s apparent acknowledgement of such in granting prior clothing allowances for the brace—rigid (rather than soft) braces with exposed metal (not covered in fabric) are generally acknowledged by the VA Veterans Health Administration (VHA) as items that tend to wear and tear clothing. See VHA Handbook, 1173.15, “Clothing Allowance,” May 14, 2015, p. 5. Considering the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that his left knee brace, worn to treat his service-connected left knee gunshot wound residuals, for the 2018 calendar year, tended to wear out or tear his clothing. Accordingly, an annual clothing allowance for the 2018 calendar year for a left knee brace is granted. See 38 U.S.C. § 5107. TANYA SMITH 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.