Citation Nr: 22017092 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-57 619 DATE: March 24, 2022 REMANDED The issue of entitlement to an annual clothing allowance for the 2015 calendar year due to use of a back brace is remanded. The issue of entitlement to an annual clothing allowance for the 2015 calendar year due to use of Menthol/M Salicylate topical cream is remanded. The issue of entitlement to an annual clothing allowance for the 2016 calendar year due to use of a back brace is remanded. The issue of entitlement to an annual clothing allowance for the 2016 calendar year due to use of Menthol/M Salicylate topical cream is remanded. The issue of entitlement to an annual clothing allowance for the 2017 calendar year due to use of a back brace is remanded. The issue of entitlement to an annual clothing allowance for the 2017 calendar year due to use of Menthol/M Salicylate topical cream is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1985 to September 1989 and in the United States Marine Corps from January 1991 to March 1995. This appeal to the Board of Veterans' Appeals (Board) arose from August 2015, September 2016, and September 2017 rating decisions of the Department of Veterans Affairs (VA) Medical Center in North Little Rock, Arkansas, in which the Veteran's claims for clothing allowances for calendar years 2015, 2016, and 2017 due to damage caused by a back brace and use of Menthol/M Salicylate topical cream were denied. The Veteran disagreed with those decisions, and this appeal ensued. The Board notes that on her November 2016 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran indicated her desire for a Board hearing before a Veterans Law Judge. In February 2017, however, the Veteran withdrew her hearing request. On her February 2017 and December 2017 VA Form 9s, she stated that she did not want an optional Board hearing. The Board also notes that in January 2018, the Veteran did testify at a Board hearing before a Veterans Law Judge regarding the issues of entitlement to an increased rating for a service-connected psychiatric condition and to special monthly compensation, which issues were the subject of a separate appeals stream. The Veteran specifically declined to testify regarding any issue of entitlement to a clothing allowance. Accordingly, the Board finds that there is no outstanding hearing request in connection with any of the claims currently before the Board. The Board also notes that the Veteran was previously represented by Mark Lippman, Esq. However, in correspondence received in February 2021, the Veteran indicated that she was now represented by Robert Dwyer, Esq. Via letter dated in December 2021, the Veteran was informed that a power of attorney in favor for Robert Dwyer was not of record. The Veteran was informed that if she desired to change representation, she must complete the proper paperwork. Ultimately, in December 2021, the Veteran responded that she desired to represent herself. She reiterated this desire in January 2022. Accordingly, the Board recognizes the Veteran as now proceeding pro se in this appeal. Entitlement to Various Clothing Allowances 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 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). Upon review of the evidence, the Board finds that the issues of entitlement to an annual clothing allowance for calendar years 2015, 2016, and 2017, based on wear, tear, and/or irreparable damage due to a back brace and/or use of Menthol/M Salicylate topical cream must be remanded. In the instant case, the Veteran has asserted that VA approved her clothing allowance claims in 2012, 2013, 2014, which claims were for the same back brace and topical cream that are at issue for calendar years 2015, 201, and 2017. Unfortunately, the claims file does not contain any records related to the approval or disapproval of clothing allowances prior to 2015. The Board also notes that a clothing allowance for calendar year 2018 was the subject of a July 2019 Board decision. Other than the Board decision, the record similarly does not contain any documentation relevant to the Veteran's claim for clothing allowances for calendar year 2018. Accordingly, the Board finds that the matters must be remanded for the agency of original jurisdiction (AOJ) to ensure that all records related to any approval or disapproval of clothing allowances for any calendar years other than 2015, 2016, and 2017, to specifically include calendar years 2012 through 2014 and 2018, are located and associated with the Veteran's claim file. This is so because any past approval of a clothing allowance for the same back brace and/or topical cream that are the subject of the clothing allowance claims currently before the Board may support a favorable award in this case. Moreover, the Veteran's claims for a clothing allowance due to use of a back brace were denied solely on the basis that her back brace was not considered by the Veteran's Health Administration (VHA) to be an item that caused damage to clothing, noting that the VHA Handbook provides examples of items that tend to wear and tear clothing, which examples do not include "elastic/flexible braces, items with Velco stays, hinged braces covered in fabric (metal stays covered, [and] braces with plastic stays covered in fabric." See October 2016 & January 2017 Statements of the Case (SOCs). Notably, the AOJ did not cite to any statute or regulation to support its position in this regard and the Board points out that the governing law does not limit payment of clothing allowances to only those types of braces as described by the AOJ. See 38 U.S.C. § 1162. Further, the Board cannot discern from the evidence currently before it the exact type of back brace that was prescribed, as the Veteran did not specify in her clothing applications that the back brace prescribed for her service-connected lumbar spine condition was made of soft flexible material, as indicated by the AOJ, and the VA treatment records simply indicate that she was prescribed a back brace, but no not indicate the type. Accordingly, on remand, the AOJ must seek to obtain documentation regarding the type of back brace used by the Veteran. Lastly, regarding the claims for clothing allowances due to use of Menthol/M Salicylate topical cream, the Board notes that the Veteran is service-connected for several disabilities that can be considered skin conditions. VA medical records also show that the Veteran has been prescribed Menthol/M Salicylate topical cream; however, such medication was prescribed by a non-VA clinician. Although the Veteran has indicated that she was prescribed Menthol/M Salicylate topical cream for her fibromyalgia, the medical evidence of record does not reveal what condition the Menthol/M Salicylate topical cream was prescribed to treat. Further, a VA fibromyalgia examination does not indicate the Veteran's fibromyalgia is being treated with Menthol/M Salicylate topical cream was prescribed to treat. Accordingly, on remand, the AOJ must seek to obtain documentation regarding the underlying condition for which the Veteran has been prescribed Menthol/M Salicylate topical cream. The matters are REMANDED for the following action: 1. Ensure that all documentation related to claims for payment of an annual clothing allowance for calendar years 2012, 2013, 2014, and 2018, to specifically include any decisions awarding such claims, are associated with the Veteran's electronic claims file and made available for review by the Board. 2. Send to the Veteran a letter requesting that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records, to include records from the private physician/medical provider who prescribed her Menthol/M Salicylate topical cream. Specifically, the Board is seeking documentation regarding the condition for which the topical cream has been prescribed to treat. If an appropriate authorization if provided, contact the physician/facility in question, with a request that documentation pertaining to the Veteran's prescribed use of Menthol/M Salicylate topical cream, to include the condition for which the medication has been prescribed to treat, be provided to the AOJ. (The Veteran is reminded that "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and that it is she who is ultimately responsible for submitting any private medical evidence.) 3. Obtain from the appropriate VA medical center all pertinent documentation regarding the type of back brace prescribed to treat the Veteran's service-connected lumbar spine disability during the years 2015, 2016, and 2017. The AOJ should also request information regarding whether the brace worn in 2015, 2016, and/or 2017 was the same as or different from any brace prescribed/worn during the years 2012, 2013, and 2014. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.