Citation Nr: 21015501 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-15 799 DATE: March 17, 2021 ORDER Entitlement to a clothing allowance based on the use of a back brace for 2016 is granted. REMANDED Entitlement to a clothing allowance based on the use of a back brace for 2017 is remanded. Entitlement to a clothing allowance based on the use of a back brace for 2018 is remanded. FINDING OF FACT The evidence is at least in equipoise regarding whether the back brace worn by the Veteran in 2016 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 back brace for 2016 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 January 1990 to April 1994. The Veteran testified before the undersigned Veterans Law Judge at a hearing in December 2020. A transcript is of record. The issue of entitlement to a clothing allowance based on the use of a back brace for 2019 is being adjudicated in a separate decision under the modernized appeal system due to the date of the decision on appeal. Entitlement to a clothing allowance based on the use of a back brace for 2016 The Veteran is seeking a clothing allowance for 2016 due to wearing a brace for his service-connected lumbar spine degenerative disc disease 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 a VA examination or hospital report establishes that 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). November 2016 VA orthotic prosthetic treatment records state that the Veteran was wearing a “fast lock” lumbar brace manufactured by RS Medical. The treating provider noted that the Veteran was wearing it appropriately, and that the brace appeared to fit appropriately. It was also noted that the brace did not have any exposed metal. The Veteran reported that the brace was a good fit. He reported that it wore out the belt on his pants. The Veteran wrote in November 2016 that his back brace caused wear and tear on the waistline of shirts and on the beltline area and the top of the back pockets of pants. The back brace also caused the Veteran’s belts to wear out. He had to replace his shirts, belts, and pants on a regular basis. At the December 2020 Board hearing the Veteran testified that he has had an extra hard corset belt brace that has metal hinges that loop down to the lower spine up to the middle spine. He wore it the majority of the time, but not when sleeping. The brace tore the top of his pants and wore on his shirt from friction. The Veteran showed the undersigned examples of belts and jeans that he wears and described for the record holes by the pockets of the jeans and tearing on the belts. The Veteran testified that he had been wearing the same type of back brace throughout the years and that it has continued to wear and tear at his clothing. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of a clothing allowance for the year 2016 for the Veteran’s use of a back 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, including the November 2016 VA treatment record, establishes that the back brace tended to wear or tear clothing, and the claim for a clothing allowance for 2016 based on the use of a back brace is granted.   REASONS FOR REMAND 1. Entitlement to a clothing allowance based on the use of a back brace for 2017 is remanded. 2. Entitlement to a clothing allowance based on the use of a back brace for 2018 is remanded. The records relating to the Veteran’s clothing allowance claims based on use of a back brace for 2017 and 2018 are not of record. This includes the application forms, decisions, notices of disagreement, statements of the case, and substantive appeals (VA Form 9). These records must be associated with the claims file before the claims can be decided on the merits. The matters are REMANDED for the following action: Associate with the claims file the documents relating to Veteran’s claims for clothing allowances for 2017 and 2018, including the application forms, the letters denying clothing allowances, the notices of disagreement submitted by the Veteran, the statements of the case, and the substantive appeals (VA Form 9). If the Veteran’s applications for a clothing allowance for 2017 and 2018, the denial letters, the notices of disagreement, statements of the case, and/or substantive appeals (VA Form 9) cannot be obtained and associated with the Veteran’s claims file, and further efforts to obtain these records would be futile, the VA Medical   Center must note such unavailability in a Memorandum of Unavailability and associate it with the claims file. M. SORISIO 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.