Citation Nr: A22001290 Decision Date: 01/26/22 Archive Date: 01/26/22 DOCKET NO. 190812-26939 DATE: January 26, 2022 ORDER Entitlement to an annual clothing allowance for the 2019 calendar year for a left knee brace is denied. FINDING OF FACT The Veteran's claimed left knee brace for his service-connected left knee disability does not tend to cause wear and tear to the Veteran's clothing. CONCLUSION OF LAW The criteria for an annual VA clothing allowance for the calendar year of 2019 for a left knee brace have not 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 served on active duty from May 1990 to May 1996. The decision on appeal was issued in July 2019 by the Department of Veterans Affairs (VA) Veterans Health Administration (VHA) and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the initial decision on appeal. 38 C.F.R. § 20.301. Entitlement to an annual clothing allowance for the 2019 calendar year for a left knee brace. In July 2019, the Veteran submitted a claim for an annual clothing allowance for the 2019 calendar year for a left knee brace, a right knee brace, and an ankle brace. He is service-connected for right knee, right ankle, and left knee disabilities. In a July 2019 decision, the VHA granted an annual clothing allowance for the 2019 calendar year for a Townsend right knee brace, and denied a clothing allowance benefit for a left knee brace and a right ankle brace. In August 2019, the Veteran filed the VA Form 10182 appealing the denial of a clothing allowance for a left knee brace. 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). 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 the July 2019 decision, the VHA denied a clothing allowance for the left knee brace because the prescribed knee orthosis device was constructed entirely from soft fabric material, padded support side stabilizers with adequate coverage on the rigid parts which would not damage clothing and is a soft good. The decision stated that soft goods are not eligible for a clothing allowance under 38 C.F.R. § 3.810. In argument submitted with the August 2019 VA Form 10182, the Veteran asserts that although the left knee brace is made of soft wrapped fabric, it has a hinged stabilizing stay that is made of metal and designed to support lateral movement. As these metal stays are rigid in design, they are able to be removed to allow the device to be washed. The Veteran asserts that because it is a soft wrap, the tears on the outer edges expose metal over time. Therefore, he argues that he is entitled to an annual clothing allowance for the left knee brace. The Veteran is service connected for a left knee disability. An August 2018 VA Orthotics Prosthetics Note reflects that the Veteran was measured for, fitted and provided with a large Corflex hinged knee brace for the left knee from stock issue. The record noted that the Veteran's right knee brace required a different type of brace, described as a Townsend Design Rebel Reliever, an unloader knee brace. An August 2018 VHA record indicates that the Veteran was issued a Corflex, large, hinged left knee brace, described as "brace, knee, hinged, wraparound, open patella, large appliance." The brace was noted to be elastic with joints, prefabricated item, trimmed, bent, molded, assembled, or otherwise customized to fit the patient by an individual with expertise. Although the Veteran has asserted that the metal part of the left knee brace becomes exposed over time, VHA has determined that the type of left knee brace prescribed to the Veteran does not tend to cause wear and tear. The VHA Handbook 1173.15, "Clothing Allowance," May 14, 2015, lists examples of items that "do not tend to tear and wear clothing." The examples include: "elastic/flexible braces, items with Velcro stays, hinged braces covered in fabric (metal stays covered), braces with plastic stays covered in fabric." The Veteran did not provide evidence in support of his assertion that the metal part of the left knee brace caused wear and tear on clothing. He argued that the metal part of the knee brace became exposed over time, but did not specifically state that he had experienced wear and tear on his clothing as a result. Moreover, as noted above, as the Veteran selected direct review, to the extent these August 2019 statements constitute evidence, rather than argument, the Board can only consider the evidence of record at the time of the initial decision in July 2019. The type of left knee brace worn by the Veteran is consistent with the type of brace that VHA has found does not tend to tear and wear clothing. VHA professionals are presumed to have expertise in determining which type of prosthetics would generally tend to tear and wear clothing. In the absence of specific evidence of wear and tear of the Veteran's clothing due to the left knee brace, and as the VHA determined that the type of brace prescribed to the Veteran does not tend to cause tear and wear, the Board finds that the weight of the evidence is persuasively against entitlement to a clothing allowance for the 2019 calendar year for a left knee brace. Accordingly, the Board finds that a clothing allowance is not warranted for the 2019 calendar year based on the Veteran's use of a left knee brace for his service-connected left knee disability. See 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.