Citation Nr: 22018685 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-61 152 DATE: March 30, 2022 ORDER Entitlement to a clothing allowance for bilateral wrist and thumb braces, for symptoms related to service-connected bilateral wrist and hand disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. Entitlement to a clothing allowance for bilateral knee braces, for symptoms related to service-connected bilateral knee disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. Entitlement to a clothing allowance for ammonium lactate, for symptoms related to a service-connected disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. Entitlement to a clothing allowance for bilateral shoe inserts, for symptoms related to service-connected foot disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is denied. Entitlement to a clothing allowance for topical medications, for symptoms related to a service-connected disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is denied. FINDINGS OF FACT 1. The Veteran is service connected for a bilateral wrist and hand disability during the 2016 calendar year. 2. The Veteran is service connected for a bilateral knee disability during the 2016 calendar year. 3. The persuasive evidence of record reflects the topical medication ammonium lactate caused irreparable damage and stained the Veteran's outer garments in 2016. 4. The Veteran's bilateral shoe inserts do not tend to wear and tear clothing. 5. The topical medications prescribed for the Veteran's service-connected disability are not reasonably shown to have caused irreparable damage to his outer garments during 2016. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the bilateral wrist and thumb braces are met for calendar year 2016. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 2. The criteria for a clothing allowance for the bilateral knee braces are met for calendar year 2016. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 3. The criteria for a clothing allowance for ammonium lactate topical medication are met for calendar year 2016. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 4. The criteria for a clothing allowance for the bilateral shoe inserts are not met for calendar year 2016. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. § 3.810. 5. The criteria for a clothing allowance for the topical medications are not met for calendar year 2016. 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 in the United States Army from April 1996 to October 1999. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 letter of determination and a March 2016 letter of determination issued by the Department of Veterans Affairs (VA) Prosthetics Department. In the Veteran's substantive appeal (VA Form 9), the Veteran requested a hearing that was scheduled in July 2019. The Veteran did not appear for the hearing, has not asked to reschedule the hearing, and has not given cause for why she did not appear for the hearing. As such, the hearing request is considered withdrawn. 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. 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 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, which 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. 38 C.F.R. § 3.810 (a)(3). 1. Entitlement to a clothing allowance for bilateral wrist and thumb braces, for symptoms related to service-connected bilateral wrist and hand disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. 2. Entitlement to a clothing allowance for bilateral knee braces, for symptoms related to service-connected bilateral knee disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. 3. Entitlement to a clothing allowance for ammonium lactate, for symptoms related to a service-connected disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is granted. The Veteran contends her wrist and thumb braces, knee braces, and topical medication ammonium lactate cause irreparable damage to her clothing. She contends the braces cause wear and tear to her clothing. She also reports the braces are bulky underneath her clothes, also causing the wear and tear to her clothing. The denial letters for the wrist and thumb braces and knee braces reported the claims were denied because the braces are non-rigid. The denial letter for the topical medication ammonium lactate concluded the prescribed medication does not cause irreparable damage to clothes. The Veteran has consistently maintained that her braces damage her clothing and cause wear and tear. She also reported the medication damages her clothing as well. The Veteran supplied a documentation that stated a list of skin ointments that merit VA's Clothing Allowance. Included on that list is ammonium lactate. The correspondence states the Veteran could apply for continuous usage of the topical medication for a clothing allowance. The correspondence does not state who issued the document. The Board notes the AOJ determined the wrist and thumb braces, knee braces, and ammonium lactate were not considered the type of braces and topical medication to damage the Veteran's clothing. However, the Veteran is competent to report that her braces cause wear and tear to his outer garments, as wear and tear to his own clothing is an observable phenomenon. The Board notes the AOJ determined the topical medication is not the type to damage outer garments, however the Veteran supplied correspondence that states it is a type to be compensable by VA. 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. While ammonium lactate is listed as a medication that does not stain clothing, the Board finds the evidence to be in an approximate balance and the benefit of the doubt applies. Resolving reasonable doubt in the Veteran's favor, the Board finds that a clothing allowance for calendar year 2016 is warranted for the bilateral wrist and thumb braces, bilateral knee braces, and topical medication ammonium lactate. Accordingly, a clothing allowance for calendar year 2016 is granted. 4. Entitlement to a clothing allowance for bilateral shoe inserts, for symptoms related to service-connected foot disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is denied. 5. Entitlement to a clothing allowance for topical medications, for symptoms related to a service-connected disability, pursuant to 38 U.S.C. § 1162, for calendar year 2016 is denied. The Veteran contends she is entitled to a clothing allowance for her bilateral shoe inserts and for topical medications salicylic acid, fluocinonide, ketoconazole, and desonide. The Veteran contends 38 U.S.C. § 1162 states an annual clothing allowance must be paid if the Veteran has a service connected disability or a disability compensable under 38 U.S.C. § 1151 that requires a Veteran to wear or use prosthetic or orthopedic device. The Veteran alleges the topical medications cause damage to her clothing. The implementing regulation, 38 C.F.R. § 3.810, provides, in pertinent part, that an annual clothing allowance may be granted for a skin medication when the following criteria are met: The Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, uses medication prescribed by a physician for one skin condition that causes irreparable damage to the veteran's outer garments. 38 C.F.R. § 3.810 (a)(1). The February 2016 and March 2016 denial letters state the prescribed medications do not cause irreparable damage to clothes. As noted above, 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. The list also notes skin medications that it found may not cause such damage. The medications reported by the Veteran are categorized by VHA as medications that have been determined not to stain or damage clothing, and neither the Veteran nor her representative has articulated any specific way in which the medication damages the Veteran's clothing. The Veteran provided another list of medications that may damage clothing, the list does not include the Veteran's topical medications salicylic acid, fluocinonide, ketoconazole, and desonide. The medications listed by the Veteran are all on under the "NO" category on the VHA medication list for whether they stain clothing. As such, the Board concludes the Veteran's reported topical medications are not considered medications that may stain clothing. As such, there is no legal basis for entitlement to a clothing allowance for topical medication during the 2016 calendar year, and the Veteran's claim for such must be denied. Regarding the shoe inserts, the Veteran does not allege how the shoe inserts damage her clothing. The denial letter states shoe inserts were denied because they are considered a non-qualifying device. Shoe inserts do not qualify as items that wear and tear outer garments, as stated on VA Form 10-8678 (the clothing allowance claim form) and as VA regulations require. In this regard, the 2016 Application for Annual Clothing Allowance (VA Form 10-8678) advised the Veteran that "Clothing such as shirts, blouses, pants, skirts, shorts and similar garments permanently damaged by qualifying appliances and/or medications are considered in clothing allowance decisions. Shoes, hats, scarves, underwear, socks, and similar garments are not included." Further, the VHA Handbook specifically lists shoe inserts or soft orthotics as examples of items that do not tend to tear and wear clothing. See VHA Handbook 1173.15. sec. 8(b). Thus, the Veteran's shoes and socks would not be considered an outer garment. The Board reviewed the Veteran's statements but notes the Veteran did not state how or what the shoe inserts damaged. However, as indicated above, payment of a clothing allowance is not available for shoes or socks. Accordingly, as socks and shoes do not qualify as outer garments for which a clothing allowance may be paid, the appeal is denied. Accordingly, for the 2016 calendar year, a clothing allowance is not warranted based on the Veteran's use of topical medications salicylic acid, fluocinonide, ketoconazole, and desonide or for shoe inserts. The claims are denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.