18-17 770

• Court: Board of Veterans' Appeals
• Decided: July 30, 2019
• Docket: 18-17 770
• Status: Unpublished

Opinion

Citation Nr: 19158987 Decision Date: 07/30/19 Archive Date: 07/30/19

DOCKET NO. 18-17 770 DATE: July 30, 2019

ORDER

Entitlement to a clothing allowance for the 2017 calendar year due to the use of a right knee ankle foot orthosis (KAFO) is granted.

FINDING OF FACT

The Veteran’s right KAFO, which has been issued by VA in conjunction with his service-connected right knee disability, tends to wear and tear his clothing.

CONCLUSION OF LAW

The criteria for a clothing allowance for the 2017 calendar year due to the use of a right KAFO have all been met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. § 3.810 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1967 to January 1984.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 letter of determination issued by a Department of Veterans Affairs (VA) Medical Center (MC).

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.

The implementing regulation, 38 C.F.R. § 3.810, provides, in pertinent part, that an annual clothing allowance may be granted when the following criteria are met:

(i) A VA examination or a hospital or examination report from a facility specified in § 3.326(b) establishes that the veteran, because of a service-connected disability or disabilities due to loss or loss of use of a hand or foot compensable at a rate specified in § 3.350(a), (b), (c), (d), or (f), wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing; or

(ii)(A) 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.

The Veteran is claiming entitlement to a clothing allowance for a right KAFO. Service-connection has been established for a right knee disability. Evidence of record demonstrates the VA has issued him a right KAFO in connection with that service-connected disability. Therefore, this case turns on whether the right KAFO tends to wear and tear his clothing.

Initially, the Board reflects that the VA denied this case, as noted in the June 2017 letter of determination, because of the Veteran’s lack of need to repair or replace his right knee brace. The VA did not determine whether the Veteran’s KAFO brace caused wear and tear to his clothing. The Veteran provided an April 2016 note from OrthoPro services indicating that the Veteran’s brace is in good working condition and does not need to be adjusted or replaced.

In the February 2018 statement of case, the Chief of Prosthetics stated that the Veteran’s KAFO brace was issued in June 2005. She stated that when worn with enough frequency to cause damage to clothing, this device has a maximum useful lifespan of three years. As such, the useful lifespan of the Veteran’s brace ended in 2008. The Chief of Prosthetics stated that in order to be considered for an allowance, the device must be within a useful lifespan during the benefit year.

The Board finds that a clothing allowing for the 2017 calendar year is warranted. First, the Board notes that the issue in this case is whether the Veteran’s right KAFO tends to cause wear and tear to his clothing—not whether the Veteran’s right KAFO is itself worn and torn, or whether it is within the useful lifespan of the brace. In the February 2018 statement of the case, the Chief of Prosthetics stated that a KAFO can cause damage to clothing. Ultimately, the Veteran is entitled to the clothing allowance for the right knee brace based on the Chief of Prosthetics determination that the KAFO wears and tears clothing.

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Accordingly, a clothing allowance for the 2017 calendar year for a right KAFO brace is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD Norah Patrick, 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.