Citation Nr: 22017370 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-34 760 DATE: March 24, 2022 ORDER A clothing allowance due to the Veteran's use of a back brace for the year 2014 is denied. FINDING OF FACT The Veteran's back brace for his service-connected back 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 year of 2014 have not been met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to October 1985, June 2005 to October 2006, December 2006 to June 2008, and from October 2009 to November 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision of a Department of Veterans Affairs (VA) Medical Center (VAMC). In a September 2014 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested to appear at a hearing before the Board. A subsequent February 2022 Report of Contact reflects that in a December 2021 phone conversation, the Veteran withdrew his hearing request. Clothing Allowance The Veteran has submitted a claim for an annual clothing allowance for the year of 2014 due to his service-connected back disability. 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, such as a wheelchair, which VA determines tends to wear out or tear the clothing, or uses prescribed medication for a service-connected skin disability which causes irreparable damage to the outergarments. 38 U.S.C. § 1162. Under 38 C.F.R. § 3.810, a veteran is found to be eligible for an annual clothing allowance when (i) A VA examination or VA medical report establishes that the veteran, because of a service-connected disability due to loss or loss of use of a hand or foot uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing; (ii) The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability, wears or uses a qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing; or (iii) The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability, uses medication prescribed by a physician for a skin condition that causes irreparable damage to the veteran's outergarments. 38 C.F.R. § 3.810(a)(1). When such determinations are appealed to the Board, the Board can serve as the VHA designee to adjudicate whether a clothing allowance is warranted. The Board has reviewed all of the evidence of record and finds that entitlement to an annual clothing allowance for the year of 2014 is not warranted. A May 2014 VAMC Appliance/Repair Line Item Detail record reflects that the Veteran was issued a new back brace, described as a corset, lumbar-sacral orthosis (LSO) brace with stay. The brace was noted to be a lumbar-sacral orthosis brace with sagittal control with rigid post panel post extension from sacrococcygeal junction to T-9 vertebra. Another May 2014 VA orthotics prosthetics note indicated that the provider trimmed the thermoplastic insert and fitted and issued the Veteran a size large LSO. The July 2014 Statement of the Case reflects that a prosthetic representative and the Acting Chief of the VA Prosthetic Treatment Center found that the Veteran's back brace did not have exposed rigid panels that would cause irreparable damage to clothing, as VA regulations require for entitlement to an annual clothing allowance. At the time the Veteran filed his claim, the Veteran was service-connected for lumbar spine myofascial syndrome, rated as 10 percent disabling from November 15, 2010, to November 26, 2014. The Veteran's back disability description was then changed to degenerative disc and joint disease of the lumbar spine, rated as 20 percent disabling from November 26, 2014, and as 40 percent disabling from July 2017. The Veteran has not been adjudicated as having loss or loss of use of a foot or hand due to any of his service-connected disabilities at any VA examination or evaluation. Therefore, to qualify for entitlement to a clothing allowance, there must be probative clinical or lay evidence of record demonstrating that the Veteran's prosthetic causes wear and tear to his clothing. The Board acknowledges that the Veteran, as a lay person, is aware of the effects on his clothing caused by his back brace and he is competent to report seeing wear and tear to his clothing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In a July 2014 notice of disagreement statement, the Veteran stated that he had just been issued a new back brace that was bigger, which would require him to buy bigger clothing. However, he has not asserted that the brace caused wear and tear to his clothing. The Board finds the July 2014 finding by the prosthetic representative and the Acting Chief of the VA Prosthetic Treatment Center, that the back brace was not the type that would cause irreparable damage to clothing, to be more probative in the instant matter. In this case, the evidence of record persuasively demonstrates that the Veteran's prosthetic device is not the type that would cause wear and tear to his clothing, and the Veteran has not specifically asserted that the brace has caused wear and tear to his clothing. In light of the above, the Board concludes that the evidence of record persuasively weighs against the Veteran's claim of entitlement to an annual VA clothing allowance for the year 2014 due to the use of a back brace. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). E. BLOWERS Acting 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.