Karen S. McDowell v. Eric K. Shinseki

23 Vet. App. 207, 2009 U.S. Vet. App. LEXIS 1787, 2009 WL 3262766
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 13, 2009
Docket07-1419
StatusPublished
Cited by6 cases

This text of 23 Vet. App. 207 (Karen S. McDowell v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karen S. McDowell v. Eric K. Shinseki, 23 Vet. App. 207, 2009 U.S. Vet. App. LEXIS 1787, 2009 WL 3262766 (Cal. 2009).

Opinions

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 deoxyribo-nucleic 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.

I. BACKGROUND

The veteran, Ralph R. Dover, served honorably in the U.S. Army from November 1969 to February 1972, including service in Vietnam. R. at 13. In February 1991, he was granted VA compensation [209]*209benefits for post-traumatic stress disorder (PTSD). He was hospitalized for this condition from January 14,1992, through February 18, 1992. R. at 23, 62. At the time of his hospitalization, he was also diagnosed with erectile dysfunction. Id. He died on March 8, 1992, of pneumonia complicated by dehydration. R. at 29. He was not mariied and had no dependents listed in his VA claims file at the time of his death. R. at 29, 50.

On November 19, 1992, the appellant gave birth to daughter T.M. R. at 42. In February 2003, the appellant filed a claim for VA dependency and indemnity compensation (DIC), asserting that T.M. was the veteran’s child. R. at 41^16. The appellant claimed that she had had a relationship with the veteran. R. at 91. She conceded that the veteran was not listed on T.M.’s birth certificate and acknowledged that she did not possess documentation indicating that the veteran was T.M.’s father. R. at 50.

In July 2003, a VA regional office (RO) advised the appellant of the evidence she could submit that could establish or prove that T.M. was the veteran’s daughter. R. at 95. In response, the appellant submitted statements from the veteran’s relatives (R. at 100, 105-06, 108, 148^9, 166, 175). Among these statements was a 2003 letter from the veteran’s sister, who stated that the veteran was aware of the appellant’s pregnancy, that he wanted the child, and “accepted] it to be his.” R. at 105. A 2003 letter from a friend of the veteran related that the veteran accepted responsibility as T.M.’s father and that he wanted the child. R. at 106. Another sister of the veteran’s provided a 2003 letter in which she stated that he “acknowledged this child as his” and “talked about this being his child.” R. at 166. The appellant’s roommate also submitted a 2003 letter to VA, stating that the veteran had planned to take care of the appellant and the child. R. at 175. The appellant further provided the RO with T.M.’s birth certificate bearing the veteran’s name, hand written, identifying him as the father, while all of the other information on the birth certificate had been typewritten. R. at 117. The appellant later admitted to the RO that she had written the veteran’s name on the birth certificate to demonstrate how the certificate should have been completed. R. at 148.

The appellant also sought DNA testing from an independent agency to show that T.M. was the veteran’s child. She provided the DNA results to the RO. R. at 161. That report concluded that, based on the samples provided by T.M. and the veteran’s biological sisters, there was a 0.208% probability that the veteran was T.M.’s biological father. Id. In January 2006, the RO found that the evidence of record did not establish the veteran was T.M.’s father and denied the appellant’s claim. R. at 194-201. The appellant appealed, and in its March 2007 decision, the Board examined the evidence in light of the criteria set forth in 38 C.F.R. § 3.210 (2006). The Board found that there was no legal documentation showing that the veteran was T.M.’s father. R. at 6. The Board also observed that the veteran was hospitalized “during the period in which [T.M.] was allegedly conceived” and that he had been diagnosed with erectile dysfunction, which along with the results of the DNA test, made it highly improbable that the veteran was T.M.’s father. R. at 7. The Board also found that

the statements of the appellant and others to the effect that the veteran had known that the appellant was pregnant and had accepted the child as his are of less probative value than the results of the genetics testing which make it ex[210]*210tremely unlikely that the veteran is [T.M’s father].

Id. The Board thus concluded that the preponderance of the evidence was against a finding that T.M. was the veteran’s “child” for VA benefits purposes. R. at 2, 7. This appeal followed.

On appeal, the appellant argues that the Board is prohibited from considering the February 2004 DNA test results to determine whether T.M. was the veteran’s child. She maintains that there is no requirement under 38 C.F.R. § 3.210(b) (2009) that her daughter be biologically the veteran’s “child” for VA benefits purposes. Appellant’s Brief (Br.) at 8. She also contends that the Board failed to provide an adequate statement of reasons or bases for its decision because it did not sufficiently analyze why DNA test results were deemed more probative than the other evidence purportedly establishing that T.M. was the veteran’s child, including the statements from the veteran’s family members and friends. Id. at 11.

The Secretary contends that, under § 3.210(b), determining whether a child is eligible for benefits as an illegitimate child of a veteran requires that “ ‘the sufficiency of the evidence will be determined [in] accordance with the facts of the individual case,’ ” and it was therefore permissible for the Board to consider the evidence of DNA test results. Secretary’s Br. at 8 (quoting 38 C.F.R. § 3.210(b)). The Secretary maintains that the Board has a duty to weigh all of the evidence of record, including the negative evidence. Id. He also asserts that the Board provided sufficient reasons and bases to support its decision and that the Board properly considered the statements offered to establish that the veteran had accepted that the child was his. Secretary’s Br. at 6-7.

In her reply brief, the appellant reasserts her position that the Board may not consider medical evidence in making a determination under § 3.210(b) because that regulation specifically sets forth a list of the type of evidence that “will” be considered and “medical evidence” is not included on that list. Reply Br. at 3.

At oral argument, the appellant asserted that there was no biological requirement in the regulation and therefore the results of the DNA test were irrelevant and should not have been considered by the Board.

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Bluebook (online)
23 Vet. App. 207, 2009 U.S. Vet. App. LEXIS 1787, 2009 WL 3262766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karen-s-mcdowell-v-eric-k-shinseki-cavc-2009.