Citation Nr: 18132334
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-38 993A
DATE:	September 6, 2018
ORDER
Payment of a clothing allowance for calendar year 2015 is denied.
FINDINGS OF FACT
1.  The Veteran served on active duty from April 1977 to December 1989.
2.  The Veteran’s application for a clothing allowance for 2015 was received on August 20, 2015.

REFERRED ISSUE
An application for a clothing allowance that is not timely received for the year in which it was submitted should be considered an application for the next calendar year.  Thus, the Veteran’s untimely application for 2015 should be construed as an application for 2016.  It is unclear from the record whether entitlement to a clothing allowance for 2016 was adjudicated.  Therefore, the Board refers entitlement to payment of a clothing allowance for calendar year 2016 to the agency of original jurisdiction for appropriate action.   
CONCLUSION OF LAW
The criteria for payment of a clothing allowance for calendar year 2015 have not been met.  38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R. §§ 3.102, 3.810 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Pursuant to 38 C.F.R. § 3.810, except as provided for incarcerated veterans, a veteran who has a service-connected disability, or a disability compensable under 38 U.S.C. § 1151 as if it were service connected, is entitled, upon application therefore, to an annual clothing allowance, which is payable in a lump sum, as specified in this paragraph. 
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.  38 C.F.R. § 3.810(c)(1).
The Veteran filed his clothing allowance application for 2015 in August of that year, and it was received on August 20, 2015, after the August 1 deadline.  He asserts that he had been receiving a clothing allowance for five or six years and that he submitted an application for 2015 a few months before August 2015.  He indicates that he then submitted a second one when he received no response and that he was delayed in filing the second form because he was in the hospital ICU.  Due to these facts, he asks that an exception be made.  
The Board must follow the applicable law and regulations when deciding a claim for VA benefits.  The Board has no authority to grant benefits on an equitable basis. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d, 86 F.3d 1178 (Fed. Cir. 1996); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994), 7 Vet. App. at 30. 
The law does provide for equitable relief when there has been administrative error, but such relief may only be granted at the discretion of the Secretary of VA.  38 U.S.C. § 503.  The Board offers no opinion on this matter but advises the Veteran that if he wishes to petition for equitable relief, he may file such a petition with the Secretary.  The Board is without jurisdiction to consider that which is solely committed to the Secretary’s exercise of that discretion.  See McCay v. Brown, 9 Vet. App. 183, 189 (1996).
Thus, the Veteran’s application for a clothing allowance for 2015 was not received by VA until after August 1, 2015.  Accordingly, based on the evidence of record and his contentions, there is no legal basis by which his claim for payment of a clothing allowance for calendar year 2015 can be granted. 
As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). As the Board is bound by the applicable law and regulations, the appeal is denied. 
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. M. Schaefer, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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