Citation Nr: 0002317 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-19 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to retroactive payment for clothing allowance benefits pursuant to 38 U.S.C.A. § 1162 and 38 C.F.R. § 3.810. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from December 1973 to December 1977. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 1998 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. An application for annual clothing allowance with regard to a service-connected left knee disability was first received by the RO in December 1997; payment was approved and paid for the year of 1998. 2. An application for retroactive payment of annual clothing allowance with regard to a service-connected left knee disability prior to August 1, 1998 was received by the RO in June 1998. CONCLUSION OF LAW Retroactive payment of clothing allowance prior to August 1, 1998 for a left knee disability based on applications submitted in December 1997 and June 1998 is not provided for by law. 38 U.S.C.A. §§ 1162, 5101, (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.151(a), 3.810 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background A veteran is entitled to a clothing allowance if he: (1) "because of a service-connected disability," wears or uses a prosthetic or orthopedic appliance (including a wheelchair) that tends to wear out or tear his clothing; or (2) uses medication that a physician has prescribed for a skin condition "due to a service-connected disability" that causes irreparable damage to the veteran's outergarments. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. Effective August 1, 1972, the initial lump-sum clothing allowance was due and payable for veterans meeting the eligibility requirements as of that date. Subsequent annual payments for those meeting the eligibility requirements will become due on the anniversary date thereafter (August 1), both as to the initial claims and recurring payments under previously established entitlement. 38 C.F.R. § 3.810(b). Except as provided in paragraph (c)(2) of this section, the application for clothing allowance must be filed within one year of the anniversary date (August 1) for which entitlement is initially established; otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within one year of such date. The one-year period for filing application will include the anniversary date and terminate on July 31 of the following year. 38 C.F.R. § 3.810(c)(1). Where the initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, the application for clothing allowance may be filed within one year from the date of notification to the veteran of such determination. 38 C.F.R. § 3.810(c)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C.A. § 5101; 38 C.F.R. § 3.151(a). Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law. Sabonis v Brown, 6 Vet. App. 426, 430 (1994). The record reflects that the veteran was granted entitlement to service connection for internal derangement of the left knee, rated as 10 percent disabling, in a September 1981 rating decision. The effective date of service connection was June 1981. The 10 percent rating has essentially been in effect since that time. The record further reflects that in December 1997, the RO received the veteran's claim for annual clothing allowance with regard to his left knee brace. In April 1998, the veteran was awarded an annual clothing allowance effective August 1, 1998. An application for retroactive payment of annual clothing allowance with regard to a service-connected left knee disability prior to August 1, 1998 was received by the RO in June 1998. With regard to his claim for retroactive benefits, the veteran essentially stated that, even though he first applied for the benefit in 1997, he was entitled to the benefit since 1981 and he should not be penalized because he did not find out about the law until 1997. II. Analysis The veteran did not submit his first application for the annual clothing allowance until December 1997. The veteran was paid the annual clothing allowance for the year 1998. His application for retroactive payment of annual clothing allowance prior to August 1, 1998 was received by the RO in June 1998. However, no claims were submitted within the necessary time limit for entitlement to the annual clothing allowance for the year 1997 and prior years. Thus, entitlement to the annual clothing allowance for the period from 1981 to 1997 is not warranted. Accordingly, the Board concludes that retroactive payment of clothing allowance prior to August 1, 1998 for a left knee disability based on applications submitted in December 1997 and June 1998 is not provided for by law. 38 U.S.C.A. §§ 1162, 5101 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.151(a), 3.810 (1999). The veteran has maintained that he was not advised by VA of his potential entitlement to the annual clothing allowance and is being penalized for lack of knowledge regarding the law. Although VA makes a concerted effort to notify veterans of potential entitlement to VA benefits, VA does not have the duty to provide a veteran with personal notice of potential eligibility for VA benefits. Hill v. Derwinski, 2 Vet. App. 451 (1991). Consequently, the Board concludes that it has no alternative but to find that the veteran's claim lacks legal merit and must be denied. Sabonis, supra. ORDER Entitlement to retroactive payment for clothing allowance benefits pursuant to 38 U.S.C.A. § 1162 and 38 C.F.R. § 3.810 is denied. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals