Citation Nr: 21027537 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-24 589 DATE: May 6, 2021 ORDER Entitlement to an annual clothing allowance for the year 2016 due to the use of a back brace is denied. Entitlement to an annual clothing allowance for the year 2016 due to the use of Clotrimazole cream is denied. Entitlement to an annual clothing allowance for the year 2016 due to the use of Hydrocortisone cream is denied. Entitlement to an annual clothing allowance for the year 2016 due to the use of Lidocaine ointment is denied. Entitlement to an annual clothing allowance for the year 2018 due to the use of a back brace is denied. Entitlement to an annual clothing allowance for the year 2018 due to the use of a left knee brace is granted. FINDINGS OF FACT 1. The Veteran is not service connected for a back disability during the 2016 calendar year. 2. The skin medication (Clotrimazole cream) prescribed for the Veteran's service-connected skin disability is not reasonably shown to have caused irreparable damage to his outer garments during 2016. 3. The skin medication (Hydrocortisone cream) prescribed for the Veteran's service-connected skin disability is not reasonably shown to have caused irreparable damage to his outer garments during 2016. 4. The skin medication (Lidocaine ointment) prescribed for the Veteran's service-connected skin disability is not reasonably shown to have caused irreparable damage to his outer garments during 2016. 5. The Veteran is not service connected for a back disability during the 2018 calendar year. 6. The Veteran's left knee brace worn for his service-connected disability tended to wear out or tear his clothing. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the 2016 calendar year for a back brace are not met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 2. The criteria for a clothing allowance for the 2016 calendar year for Clotrimazole cream have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for the 2016 calendar year for Hydrocortisone cream have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. 4. The criteria for a clothing allowance for the 2016 calendar year for Lidocaine ointment have not been met. 38 U.S.C. § 1162; 38 C.F.R. § 3.810. 5. The criteria for a clothing allowance for the 2018 calendar year for a back brace are not met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. 6. The criteria for a clothing allowance for the 2018 calendar year for a left knee brace have 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 duty service from June 1981 to September 1981, and December 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 and October 2018 letters of determination by a Department of Veterans Affairs (VA) Medical Center. The Veteran requested a Board hearing in his May 2017 Form 9; however, in an October 2018 statement, the Veteran withdrew his request for a hearing. Therefore, the Board finds the Veteran's hearing has been withdrawn. 38 C.F.R. § 20.704 (e). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The AMA became effective on February 19, 2019. The Board notes that the Veteran's 2018 clothing allowance was denied in an October 2018 decision and a February 7, 2019 statement of the case (SOC). In this regard, such claim included clothing allowance claims for Hydrocortisone cream, Lidocaine ointment, Bacitracin cream, a back brace, and a left knee brace. A clothing allowance was authorized for Bacitracin cream, but the other claims were denied. The Veteran submitted a Decision Review Request: Board Appeal (VA Form 10182) in April 2019, which was accepted as a Substantive Appeal. In this regard, the law, requires that a VA Form 10182 be filed in response to a SOC that was issued after implementation of the AMA (February 19, 2019). Here, the SOC was issued on February 7, 2019; thus, the Veteran's appeal will be addressed under the Legacy System. Furthermore, the Veteran only listed the specific issues of clothing allowance for a left knee brace and a back brace. Therefore, the issues of clothing allowance for the 2018 calendar year for Hydrocortisone cream and Lidocaine ointment will not be addressed. The Board further notes that additional evidence has been associated with the record since the issuance of the March 2017 and October 2018 statement of the case; however, such evidence is unrelated to the Veteran's clothing allowance claim. Consequently, there is no prejudice to the Veteran in the Board proceeding with the adjudication of his claims at this time. Clothing Allowance 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. 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 outer garments. 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 outer garment. 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 outer garment at an increased rate of damage to the clothing or outer garment 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). 1. Entitlement to an annual clothing allowance for the year 2016 due to the use of a back brace. 2. Entitlement to an annual clothing allowance for the year 2018 due to the use of a back brace. The Veteran seeks an annual VA clothing allowance for 2016 and 2018. The Veteran filed a claim for a clothing allowance for a back brace due to his lumbar strain. See Application for Clothing Allowance, dated July 2016 and June 2018. As stated above, in relevant part, applicable 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; 38 C.F.R. § 3.810. In this case, service connection is not in effect for a lumbar spine disability during the 2016 and 2018 calendar year. See November 2020 Rating Decision Codesheet. Upon review, the Board finds an annual clothing allowance for the 2016 and 2018 calendar year due to use of a back brace is not warranted. In this regard, the claim must be denied because he does not have a service-connected disability warranting the use of a qualifying back brace. The requirements to establish entitlement to an annual clothing allowance for 2016 and 2018 have not been met. The Board is grateful to the Veteran for his honorable service and regrets that a favorable disposition cannot be granted, as the Board is bound by applicable law and regulations. The appeal is denied. 3. Entitlement to an annual clothing allowance for the year 2018 due to the use of a left knee brace. As reflected in its October 2018 decision and February 2019 statement of the case, the Veteran's claim was denied on the basis that his left knee brace (Breg Fusion unloading knee brace), issued in 2014, had been replaced with a New Option K2-U-MP knee brace in November 2015. However, the record reveals that the Veteran was awarded clothing allowance for the same knee brace in July 2016. See August 2016 decision letter. As reflected in his January 2019 notice of disagreement and April 2019 substantive appeal, the Veteran asserts that he wears the fusion knee brace all of the time. He further reported that he only wore the K2-U-MP knee brace when exercising. Additionally, May 2019 and July 2019 VA treatment records indicate that the Veteran continued to wear a left fusion unloading knee brace. Resolving reasonable doubt in the Veteran's favor, the Board finds that his left knee brace, for the year 2018, tended to wear out or tear his clothing. In this regard, the Veteran's left knee brace has been acknowledged by the AOJ as the type that would tend to wear out or tear his clothing, as reflected in the clothing allowance for such brace being awarded in 2016. Additionally, in his notice of disagreement, the Veteran stated that the knee brace he received was made of steel. While the Veteran's left knee may have been replaced in November 2015, the record shows that he continued to wear the fusion knee brace. Under these circumstances, and resolving reasonable doubt in the Veteran's favor, the Board acknowledges that the Veteran's left knee brace was replaced in November 2015; however, the record indicates that the Veteran still requires use of the brace and he was approved for clothing allowance for the same knee brace in 2016. It is for these reasons that any doubt is resolved in the Veteran's favor. Accordingly, a clothing allowance is warranted for the 2018 calendar year based on the Veteran's use of a knee brace for his service-connected genitofemoral neuropathy of the external cutaneous disability. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to an annual clothing allowance for the year 2016 due to the use of Clotrimazole cream. 5. Entitlement to an annual clothing allowance for the year 2016 due to the use of Hydrocortisone cream. 6. Entitlement to an annual clothing allowance for the year 2016 due to the use of Lidocaine ointment. The Veteran contends that the Clotrimazole cream, Hydrocortisone cream, and Lidocaine ointment caused irreparable damage to his clothing. In this case, the claims were denied because the prescribed medications for a service-connected skin condition did not cause irreparable damage to outer garments according to VA's Central Office medication list. In his April 2017 Form 9, the Veteran only addressed the Clotrimazole cream, Hydrocortisone cream, and Lidocaine ointment, which he contends caused irreparable damage to clothing. However, in the March 2017 statement of the case, the VAMC's Prosthetics Representative reviewed the Veteran's claim and determined that the Clotrimazole cream, Hydrocortisone cream, and Lidocaine ointment was considered non-staining to clothing and did not cause irreparable damage to the Veteran's outer garments, according to the VA Central Office medication list. 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 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. This document lists Clotrimazole cream, Hydrocortisone cream, and Lidocaine ointment as a medication that does not tend to cause such damage. Although the document lists Bacitracin 500/ Polymyxin 1000 as a medication that did tend to cause irreparable damage to clothing, the medication was last refilled in 2014 and discontinued in 2015. See March 2017 statement of the case. Moreover, August 2016 and December 2016 VA treatment records indicate that the Veteran was prescribed Bacitracin 500 UNT/GM ointment, which is listed as a medication that does not tend to cause irreparable damage to clothing. The Board finds that the above evidence outweighs the Veteran's description of the damage caused to his clothing. In this regard, the Board acknowledges the Veteran's argument that the medication causes irreparable damage to his clothing. However, the Veteran has not produced any supporting evidence, such as photographs or other such evidence showing irreparable damage was done to the Veteran's outer garments due to his medications. 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 to the Veteran's outer garments. However, the Veteran's particular medications are not certified to cause irreparable damage to the Veteran's outer garments. (Continued on the next page) In light of the above, the Board concludes the preponderance of the evidence is against the Veteran's claim of entitlement to an annual VA clothing allowance for the year 2016 due to use of Clotrimazole cream, Hydrocortisone cream, and Lidocaine ointment. Thus, the benefit of the doubt rule does not apply for this issue. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.