Citation Nr: 21022793 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-13 731 DATE: April 19, 2021 ORDER An annual clothing allowance for calendar years 2006 through 2016 due to the use of fluorouracil cream is denied. FINDINGS OF FACT 1. The evidence of record does not reflect that the Veteran was prescribed fluorouracil cream during calendar years 2006, 2007, 2009, 2010, 2011, 2012, or 2014 for a service-connected skin condition. 2. The most probative evidence of record demonstrates that the fluorouracil cream prescribed to a treat the Veteran’s service-connected skin condition does not cause irreparable damage to outergarments. CONCLUSION OF LAW The criteria for entitlement to an annual clothing allowance for calendar years 2006 through 2016 for the use of fluorouracil cream have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to July 1969. His decorations include the Vietnam Service Medal and the Combat Infantryman Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 decision issued by the Department of Veterans Affairs (VA) Medical Center in Huntington, West Virginia. In his February 2016 substantive appeal, the Veteran indicated that he wanted to appear at a Board video-conference hearing. However, he later withdrew that request in November 2018. 38 C.F.R. § 20.704(e). Entitlement to an annual clothing allowance for calendar years 2006 through 2016 due to the use of fluorouracil cream. 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 outergarments. 38 U.S.C. § 1162. One annual clothing allowance per year is payable in a lump sum, when the following eligibility criteria are satisfied: (1) A VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326(c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such service-connected disability or disabilities and such service-connected disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350(a), (b), (c), (d), or (f); or (2) The Undersecretary for Health or a designee certifies that, because of such service-connected disability or disabilities, a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran’s clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to the service-connected disability or disabilities, irreparable damage is done to the Veteran’s outergarments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810(a). 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). In determining whether a clothing allowance is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). In a January 2016 rating decision, the Veteran was awarded service connection for melanoma with basal cell cancer and dysplastic nevus, effective October 11, 2006. He seeks clothing allowances for calendar years 2006 to 2016 for fluorouracil cream, which he asserts was prescribed during this time frame to treat the skin condition. The Veteran has asserted that this cream ruins his clothing. See February 2016 notice of disagreement; February 2016 VA Form 9. Additionally, in statements dated in September 2018, the Veteran’s spouse and babysitter reported seeing rotting and thinning of the Veteran’s clothes in the area where the cream was applied. The spouse further indicated that several pieces of clothing were ruined. While the Board acknowledges the Veteran’s assertions, as noted above, statutory law provides for payment of an annual clothing allowance for each Veteran who 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. Here, the medical evidence of record does not reflect that the Veteran was prescribed fluorouracil cream during the 2006, 2007, 2009, 2010, 2011, 2012, and 2014 calendar years. Therefore, the Board finds that entitlement to an annual clothing allowance for those calendar years is not warranted. Even assuming, arguendo, the Veteran did have an active prescription throughout the period under consideration, the Board finds that a clothing allowance for fluorouracil cream for the calendar years 2006 through 2016 must nevertheless be denied. In February 2016, the Veteran’s claim for an annual clothing allowance was reviewed by designees of the Under Secretary for Health; in this case, a VA pharmacist. Following their review, the pharmacist noted that there were multiple manufacturers of fluorouracil cream with similar drug and ointment base. The examiner concluded that that formulation would not be an issue, now or in the past, as it pertains to causing damage to clothing. Moreover, the clothing allowance section of the Veterans Health Administration (VHA) Handbook indicates that the VA Prosthetics and Pharmacy workgroup has created a list of skin medications, ointments, or lotions that it has found may cause irreparable staining, discoloration, bleeding, and damage to clothing, which is not removable by laundering or dry cleaning; and skin medications that it found may not cause such damage. Fluorouracil cream has been categorized by VA as a medication that does not stain or damage clothing. See VHA Handbook 1173.15; see also February 2016 statement of the case. The Board acknowledges the lay statements of the Veteran, his spouse, and the babysitter, who are competent to report on matters observed or within their own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the wear and tear of clothing is certainly capable of lay observation, the Board finds there is no indication in the record that the Veteran, his spouse, or their babysitter has the specialized knowledge necessary to link their observations to the use of fluorouracil cream. Furthermore, although the Veteran has generally claimed that his prescribed creams ruin his clothing, he has not submitted any evidence to support his claim. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (38 U.S.C. § 5107(a) “obligates the claimant to provide some evidentiary basis for his or her benefits claim”). He has not produced any supporting evidence, such as photographs or other such evidence showing that irreparable damage was done to his outergarments as a result of his medications. Under the circumstances, the Board finds the February 2016 determination of the VA Prosthetics Representative, which was based on reviews of the ingredients contained in the Veteran’s prescribed cream, to be significantly more probative than the general and unsubstantiated lay assertions made by the Veteran, his spouse, and the babysitter. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). As stated above, under 38 C.F.R. § 3.810(a)(1), VA law provides that the Veteran can only qualify for entitlement to a clothing allowance if his medication is certified by the Under Secretary for Health or designee to cause irreparable damage is done to the Veteran’s outergarments. The Veteran’s particular medication has not been so certified. Based on the foregoing, the Board finds that the preponderance of the probative evidence is against the Veteran’s claim for a clothing allowance. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See Gilbert, 1 Vet. App. at 56. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.