Citation Nr: 20003676 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 17-28 659 DATE: January 15, 2020 ORDER Entitlement to retroactive additional dependent compensation for the Veteran’s children, T. L. and D. L., is denied. REMANDED Entitlement to an initial compensable disability rating for dry eye syndrome is remanded. FINDING OF FACT 1. The Veteran’s November 1993 application for benefits did not include Social Security numbers or addresses for T. L. and D. L. 2. The Veteran submitted VA Form 21-668c Declaration of Status of Dependent forms in February 1999 and January 2003; she included information for her husband and youngest son, but not for T. L. and D. L. 3. The Veteran did not formally request additional dependent compensation for T. L. and D. L. until November 2014. CONCLUSION OF LAW The criteria for payment of retroactive additional dependent compensation for the Veteran’s children, T. L. and D. L., are not met. 38 U.S.C. §§ 101, 1115; 38 C.F.R. §§ 3.57, 3.155, 3.503, 3.667. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from January 1989 to November 1993. In November 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. 1. Entitlement to retroactive additional dependent compensation for T. L. and D. L. Additional compensation may be paid for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2). Except as otherwise provided, the term “child” of a veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child; and, (1) who is under the age of 18 years; or, (2) who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by VA. 38 C.F.R. § 3.57. Pension or compensation may be paid from a child’s 18th birthday based on school attendance if the child was at that time pursuing a course of instruction at an approved educational institution and a claim for such benefits is filed within one year from the child’s 18th birthday. 38 C.F.R. § 3.667(a). Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child’s 18th birthday may be paid from the commencement of the course if a claim is filed within one year from that date. 38 C.F.R. § 3.667(b). The effective date of an award based on a claim for additional dependent compensation “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application.” 38 U.S.C. § 5110(a). The effective date for the award of additional compensation for a dependent is the latest date out of the following dates: (1) the date of the claim, which, in order of applicability, means either: (i) the date of the veteran’s marriage, if evidence of the event is received within one year of the event or (ii) the date notice is received of the dependent’s existence, if evidence is received within one year of VA’s request; (2) the date the dependent arises; (3) the effective date of the qualifying disability rating, provided evidence of the dependent is received within one year of notification of such rating action; or (4) the date of commencement of the veteran’s award of VA dependent compensation benefits. 38 C.F.R. § 3.401(b). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence, the Veteran first submitted a formal application for VA disability benefits in November 1993. She listed three children on the form: T. L., D. L., and R. H. She provided a Social Security number and address for her youngest child, R. H., but not for T. L. or D. L.—born in May 1985 and February 1987, respectively. Later, in multiple notification letters, VA notified the Veteran that she was entitled to additional compensation for dependents because she had a combined disability rating of at least 30 percent. Included with the letters were Declaration of Status of Dependents forms that informed her of the information necessary to claim dependents. In response, the Veteran submitted VA Forms 21-686c Declaration of Status of Dependents in February 1999 and January 2003. On both forms, she listed her spouse, G. H., and her son, R. H., but not T. L. or D. L., even though T. L. and D. L. were minor children and still eligible to be added to her award at that time. On numerous occasions, VA informed the Veteran she was being paid additional compensation for G. H. and R. H. and instructed her to notify VA immediately of any change in the number or status of her dependents. Nevertheless, the Veteran did not formally request additional dependent compensation and provide the necessary documentation for T. L. and D. L. until November 2014, when both no longer met the age requirements to be added as dependent children pursuant to 38 C.F.R. § 3.57. During an April 2016 Decision Review Officer hearing, the Veteran testified that she did not provide the information necessary to add T. L. and D. L. as dependents because she did not have it. She testified that she gave her children’s Social Security cards and birth certificates to her mother when she entered the military, and that the children lived with their father. She testified that she did not get the information until 2013, when T. L. and D. L. provided it themselves. She further testified that she had previously worked on adjudications at a VA Regional Office and believed that VA had failed in its Duty to Assist. During her November 2019 Board hearing, the Veteran reiterated that she did not submit the necessary information to add T. L. and D. L. as dependents because both children were with her ex-husband, and she did not have access to them or their Social Security cards and birth certificates. Overall, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to retroactive dependent compensation for her children, T. L. and D. L. As previously noted, VA notified the Veteran on multiple occasions that she was entitled to additional compensation for dependents and provided instruction on how to add dependents. In response, the Veteran submitted VA Forms 21-686c Declaration of Status of Dependents on two separate occasions, both times failing to list T. L. and D. L. as dependents even though they were minor children and still potentially eligible to be added to her award at that time. The record does not suggest the Veteran was unaware that she could potentially add T. L. and D. L. to her award before she formally claimed them as dependents in 2014; indeed, the Veteran indicated familiarity with VA’s dependency regulations through her previous job working on adjudications at a VA Regional Office. Rather, the Veteran has stated that she simply could not locate or access the necessary paperwork to do so. This does not warrant awarding retroactive compensation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA; in this regard, the Board notes that VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Ultimately, the record shows that the Veteran did not formally request dependent compensation for T. L. and D. L. until November 2014—long after they were eligible to be added to her award as dependent children. Accordingly, the Veteran’s claim of entitlement to additional dependent compensation for T. L. and D. L. must be denied. REASONS FOR REMAND Entitlement to an initial compensable disability rating for dry eye syndrome is remanded. Although the Board regrets the delay, the remaining issue on appeal must be remanded for additional development to ensure there is a complete record on which to decide the Veteran’s claim. In an April 2019 letter, the Veteran’s private optometrist wrote that in addition to chronic dry eye, the Veteran suffers from recurrent corneal erosion and severe ocular migraines that occur with her migraine headaches. The optometrist wrote, “the corneal involvement is 100% related to a prior injury.” During her November 2019 Board hearing, the Veteran testified that she has conjunctivitis, cysts, drainage, and inflammation in her eyes. She also testified that her dry eye syndrome necessitated use of corticosteroid drops two to three times per day, and that she has been prescribed special glasses to alleviate some of her symptoms. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran’s last VA examination was completed in August 2014. The evidence outlined above indicates her service-connected eye disability has worsened since her last VA examination. Therefore, remand is warranted to afford the Veteran a new VA examination to determine the current severity of her eye disability. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA and private medical treatment records. All efforts to obtain such records should be documented in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current severity of her service-connected dry eye syndrome. The examination must be completed by a licensed optometrist or ophthalmologist. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner should specifically identify the disease, injury, or other pathologic process responsible for ANY visual impairment found and describe in detail ALL pertinent symptomatology and findings. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should consider all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and effective from May 13, 2018). In evaluating the Veteran’s visual field, the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability. The examiner must document the results for at least 16 meridians 22 1/2 degrees apart for each eye and indicate the Goldmann equivalent used. The examiner is advised that the Veteran is competent to report symptoms, and her reports should be considered in formulating any opinions. In discussing the relevant clinical findings, the examiner should specifically note the Veteran’s current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.