BVA9505650 DOCKET NO. 93-07 347 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation for a left ankle disability, currently evaluated as 10 percent disabling. 2. Entitlement to a clothing allowance under 38 U.S.C.A. § 1162. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffrey, Counsel INTRODUCTION The veteran served on active duty from March to August 1968. An appeal has been taken from a December 1991 determination by the Department of Veterans Affairs (VA) Regional Office North Little Rock, Arkansas, denying entitlement to a clothing allowance. An appeal has also been taken from a September 1992 rating action decision confirming and continuing a 10 percent evaluation for the veteran's left ankle condition. REMAND The record reflects that the veteran submitted an application for a clothing allowance in November 1991. In an Eligibility Determination For Clothing Allowance (VA Form 21-8679) dated in December 1991, the VA Medical Center Little Rock indicated that the records for the veteran did not establish that, because of a service-connected disability, he wore a prosthetic or orthopedic appliance that tended to wear out his clothing. That form was also completed by the adjudication division of the regional office later in December 1991 and the veteran's claim was denied by the regional office in December 1991, as indicated previously. The record reflects, however, that the statement of the case regarding the question of entitlement to a clothing allowance was prepared by the VA Medical Center Little Rock and sent to the veteran in September 1992. Since the adjudication division of the regional office had responsibility to approve or deny the claim (VA Manual 21-1, Part IV, paragraphs 25.09(f),(g)(1)(b)), the statement of the case should have been prepared by the regional office. In this regard, the veteran's accredited representative has maintained that the statement of the case was not adequate since it did not provide the applicable law and regulation regarding entitlement to the clothing allowance. The Board notes further that the December 1991 eligibility determination for clothing allowance referred only to a custom molded insole required for the veteran's left ankle condition. However, an April 1992 record from the prosthetic service indicates that the veteran was provided an ankle brace and a pair of ankle stabilizers. The record further reflects that, in a May 1992 letter by the veteran's wife, it was indicated that the veteran's appliances tend to wear out his shoes and photographs of his tennis shoes were attached. However, in the veteran's substantive appeal regarding the clothing allowance claim in January 1993, he indicated that as a result of surgery for his left ankle disorder his left foot was longer than the right requiring him to buy a size 10 shoe for the left foot and a size 9 shoe for the right. Thus, the veteran's contentions regarding the need for a clothing allowance are somewhat unclear. In view of the aforementioned matters, findings of fact and conclusions of law are being deferred pending a REMAND for the following action: 1. The veteran should be contacted and asked to clarify the reason or reasons for his clothing allowance claim. That is, he should be asked whether the claim is due to wear on his shoes as a result of an ankle brace and stabilizers provided by the VA or whether the claim is on the basis that his left foot is longer than the right due to the surgery for his left ankle condition, thereby necessitating the purchase of different size shoes. 2. The veteran should then be afforded a special podiatry examination in order to determine the current nature and severity of his left ankle disorder. All indicated special studies, of the left ankle should be conducted. An opinion should be expressed by the examiner as to whether any appliance worn by the veteran due to his left ankle condition has resulted in any wear or tear of his shoes, or other articles of clothing. The claims file as well as the medical administrative records folder should be made available to the examiner for review. 3. The veteran's claim should then be reviewed by the regional office. If the denial is continued, the veteran and his representative should be sent a supplemental statement of the case and be afforded the appropriate time in which to respond. The supplemental statement of the case regarding the clothing allowance claim should be prepared by the regional office and should include the law and regulation (38 U.S.C.A. § 1162; 38 C.F.R. § 3.810) pertaining to the eligibility for the clothing allowance. When the above action has been completed, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain clarifying information and also to ensure that the requirements of due process of law are satisfied. The Board intimates no opinion as to the disposition warranted in this case pending completion of the requested action. ROBERT D. PHILIPP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).