Citation Nr: 22014440 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 19-23 762 DATE: March 12, 2022 ORDER Entitlement to a clothing allowance for 2018 for use of a back brace is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's back brace, worn to treat a service-connected disability, caused wear and tear to his clothing for 2018. CONCLUSION OF LAW The criteria for entitlement to a clothing allowance for 2018 related to the use of a back brace have been 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 in the United States Air Force from October 1973 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 decision of a Department of Veterans Affairs Medical Center (VAMC). Entitlement to a clothing allowance for 2018 for a back brace is granted. 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). When such determinations are appealed to the Board, the Board can serve as the VHA designee to adjudicate whether a clothing allowance is warranted. See 38 C.F.R. § 20.104(a). 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). The record reflects that the Veteran was issued a lumbar sacral support brace by VA in October 2013 for his service-connected lumbar spondylosis with degenerative disease. The brace in question is a mid-profile LSO with anterior panel. In the September 2018 decision on appeal, the VAMC denied a clothing allowance for the back brace upon a finding that the brace was a mid-profile brace with adequate coverage with Velcro on the front and back panels, and also that the prescription expired, with the brace issued in 2013 and inspected in 2016. On his October 2018 notice of disagreement, the Veteran asserted that he uses his back brace daily, and that when he took the brace for inspection in 2018, he was told such review was no longer required. On his VA Form 9, Appeal to the Board, the Veteran asserted that the upper and lower inside metal portions of his brace cause wear and tear to his clothing, specifically, that it results in friction and the edges penetrate his shirts, causing damage and fraying of the material. The Veteran submitted photographs of the brace showing these areas on the anterior panel. The record does not demonstrate that a medical opinion has been provided following inspection of the prosthetic and interview of the Veteran. The statement of the case describes the brace, noting that the panels in front and back are covered, without exposed metal or stays on the outside, and stated that the evidence shows the back brace was visually inspected in June 2019, but that no determination was made as to the brace causing damage to the Veteran's clothing. While the Board could remand this matter in an attempt to obtain a medical examination and evaluation, the fact that four years have passed would likely render any visual inspection of the brace, to assist in determining the frequency of the Veteran's use of it in 2018, unhelpful. The Board also finds it unlikely that the Veteran would have held on to any clothing items which allegedly suffered damage from use of the back brace several years ago. It is noted that there is no specific requirement in the law that prosthetic braces must have exposed metal or rigid materials to grant the benefit sought. The Veteran's description of how his back brace interacted with his clothing appears consistent with the photographs he supplied, and there is nothing in the record to contradict his specific assertions. The Board further notes that the record reflects that the Veteran had been approved for clothing allowances for the preceding several years, according to the Veteran, also for his back brace. While contemporaneous treatment records do not document use of the brace, it is noted that a subsequent VA back examination from July 2019 indicates that the Veteran continued to make regular use of the back brace for his service-connected disability. Considering the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that his back brace, for the year 2018, tended to wear out or tear his clothing. Accordingly, a clothing allowance is warranted for the year 2018 based on the Veteran's use of the back brace for his service-connected lumbar spondylosis with degenerative disease. See 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.