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The Veterans Consortium Pro Bono Program

McDowell v. Shinseki, 2009

  • Organization: CAVC
  • Document Type: Case law/admin decisions
  • Date Created: Tuesday, November 29, 2016
  • Submitted: Tuesday, November 29, 2016
  • Attachment(s): PDF

Before GREENE, Chief Judge, and HAGEL, and SCHOELEN, Judges.
SCHOELEN, Judge, filed the opinion of the Court.  Hagel, Judge, filed an opinion concurring in the result and dissenting in part.
SCHOELEN, Judge: The appellant, Karen S. McDowell, through counsel, appeals a
March 22, 2007, Board of Veterans' Appeals (Board) decision that her minor daughter (hereinafter referred to as T.M.) could not be recognized as a "child" of veteran Ralph R. Dover for purposes of entitlement to VA benefits.  Record (R.) at 8.  This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).  Although the Board had before it evidence suggesting that the veteran had accepted the appellant's child as his own, the Board did not err by finding the scientific deoxyribonucleic acid (DNA) test results of record more probative to conclude that T.M. was not the veteran's illegitimate child, and thus the Court will affirm the Board's decision. Despite our disagreement with the roads to travel, the fork in the road that I take leads me to the same destination as the one taken by the majority.  However, it was the application of the provisions of § 3.210(b), as I have described them above, that was my compass. 

In the case before us now, there is no signed written acknowledgment (§ 3.21(b)(1)), no
judicial decrees (§ 3.21(b)(2)), no birth certificate listing Mr. Dover as the father (§ 3.21(b)(3)(i)), and no service department or public records that show Mr. Dover was the father of the child (§ 3.21(b)(3)(iii)).  The only evidence cited to prove paternity is based on statements by the veteran's sisters, stating Mr. Dover's intentions to accept the then unborn child as his own.  38 U.S.C.§ 3.21(b)(3)(ii).  However, these statements that were made 11 years after Mr. Dover's death and, that his sisters interpreted to be their brother's expression of his intention to develop a relationship with the child at some point after the child's birth, even if accurate, can best be described as conditional.  Most important here, is the fact that this relationship, even if intended, was never actually established.  Mr. Dover died more than 8 months before the child was born, so no relationship could have existed.  Thus, in my view, the evidence is legally insufficient to establish that Mr. Dover assumed paternal responsibility or established any relationship with the child,requirements I find to be mandated by § 3.210(b).  Therefore, although the Board erred in
considering the DNA test as being dispositive, it properly determined that the remaining evidence is insufficient to establish paternity.  Thus, I concur with the majority's ultimate result but dissent with the reasoning they provide. Because the evidence of record, even viewed in the light most favorable to Ms. McDowell and T.M., fails to establish a legally recognizable paternal relationship, I find it impossible to hold that Mr. Dover is the father of T.M. for the purposes of veterans benefits. Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (holding that "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the
outcome of the decision"); see Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991).
For the reasons stated above, I respectfully dissent from my colleagues's finding that there
must be a biological connection between the veteran and the child.  For reasons different than those of the majority, however, I can find no paternal relationship between Mr. Dover and T.M. and thus concur in the result.