Karen S. McDowell v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 07-1419

KAREN S. MCDOWELL, APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 7, 2009 Decided October 13, 2009)

Douglas J. Rosinski, of Columbia, South Carolina, for the appellant.

Erika E. Liem, Esq., with whom R. Randall Campbell, Esq., Assistant General Counsel; and

Gayle E. Strommen, Esq., Deputy Assistant General Counsel, all of Washington, D.C., were on the

brief for the appellee.

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.

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 benefits 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 married 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 41-46. 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, 148-49, 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 "accept[ed] 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.

2

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 extremely 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

§ 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. The Secretary argued that the biological requirement was implicit in the

regulation, that the Court should not dismiss such powerful scientific evidence, and that lay

testimony that the appellant submitted was not helpful to the appellant's claim in light of the results

of the DNA test.

II. LAW AND ANALYSIS

A. Required Relationship

Children of a deceased veteran may qualify for DIC benefits if the veteran died from a

service-connected or compensable disability. 38 U.S.C. § 1310. "Child" is defined by the statute,

in relevant part, as a person who is unmarried, under the age of 18 years, and who is

a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's

household or was a member at the time of the veteran's death, or an illegitimate child

but, as to the alleged father, only if acknowledged in writing signed by him, or if he

has been judicially ordered to contribute to the child's support or has been, before his

death, judicially decreed to be the father of such child, or if he is otherwise shown by

evidence satisfactory to the Secretary to be the father of such child.

38 U.S.C. § 101(4)(A) (emphasis added).

The appellant has made no assertion, nor does the evidence of record demonstrate that the

appellant and the veteran were ever married, thus excluding the possibility that T.M. could be the

veteran's legitimate child or stepchild. Moreover, because the child was not born before the veteran

died, he could not have legally adopted her.

4

The Secretary has promulgated a regulation implementing the statutory definition of

"illegitimate child" of a veteran, which states:

As to the mother of an illegitimate child, proof of birth is all that is required. As to

the father, the sufficiency of evidence will be determined in accordance with the facts

in the individual case. Proof of such relationship will consist of:

(1) An acknowledgment in writing signed by him; or

(2) Evidence that he has been identified as the child's father by a judicial

decree ordering him to contribute to the child's support or for other purposes;

or

(3) Any other secondary evidence which reasonably supports a finding of

relationship, as determined by an official authorized to approve such findings,

such as:

(i) A copy of the public record of birth or church record of baptism,

showing that the veteran was the informant and was named as parent

of the child; or

(ii) Statements of persons who know that the veteran accepted the

child as his; or

(iii) Information obtained from service department or public records,

such as school or welfare agencies, which shows that with his

knowledge the veteran was named as the father of the child.

38 C.F.R. § 3.210(b) (2009).

The appellant does not contend that § 3.210(b) is not a reasonable interpretation of

section 101(4)(A). See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-

843 (1984) (setting forth principles for administrative interpretation of statutes). Rather, the question

is whether the Secretary correctly interpreted the regulation he promulgated. In the decision below,

the Secretary, by finding the results of the DNA test to be the most probative evidence for a finding

of relationship under § 3.210(b), interpreted the regulation as containing a biological element, and

the appellant argues this interpretation was incorrect. We note that we are obligated to pay

substantial deference to the Secretary's interpretation of his own regulations, and that his

interpretation is "of controlling weight unless it is plainly erroneous or inconsistent with the

regulation." Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006); see also Auer v. Robbins,

5

519 U.S. 452, 461-62 (1997) (noting that deference must be afforded to an agency's interpretation

of a regulation even where that interpretation is first advanced in a legal brief).

When interpreting regulations, we consider the standard meaning of words. "Without

standard word meanings and rules of construction, neither Congress nor the Secretary can know how

to write authorities in a way that conveys their intent and no practitioner or – more importantly –

veteran can rely on a statute or regulation to mean what it appears to say." Tropf v. Nicholson,

20 Vet.App. 317, 322 n.1 (2006). "Illegitimate" is one who is "born of parents not married to each

other." WEBSTER 'S NEW WORLD DICTIONARY (WEBSTER 'S) 672 (3d ed. 1988); see also RANDOM

HOUSE WEBSTER 'S UNABRIDGED DICTIONARY 953 (2d ed. 2001) (defining "illegitimate" as "born

of parents who are not married to each other; born out of wedlock: an illegitimate child"). "Born of

parents" indicates a biological connection between the parents and the child. As such, we are in

agreement with the Secretary that the phrase "illegitimate child," as used in § 3.210(b), encompasses

a biological relationship between parent and child.1

Importantly, in reading the regulation as a whole, we see no inconsistencies between a

prerequisite of a biological relationship and § 3.210(b)'s "sufficiency of the evidence" provision or

the evidence listed as "proof of . . . relationship," nor has the appellant demonstrated any such

conflicts. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (concluding that appellant had

the burden of demonstrating error on appeal). An acknowledgment by the father that he is the father

can easily be read as an acknowledgment by the father that he knows himself or believes himself to

be the biological father.2 See 38 C.F.R. § 3.210(b)(1). A judicial decree identifying a man as a

child's father would generally be based on a court finding that that man has been determined to be

the biological father of the child. See 38 C.F.R. § 3.210(b)(2).

1

Our dissenting colleague cites to a variety of legal and general use dictionaries in an effort to show that the term

"illegitimate child" has nothing to do with the relationship between the child and his or her biological parents. However,

even using the definitions of the term he cites to (most of which define "illegitimate child" as "a child born out of

wedlock"), it is clear that the term describes more than just the child himself or herself – it also implicitly describes the

relationship between the child and his or her biological parents. After all, the reason the child is "born out of wedlock"

is because his or her biological parents were not married to each other.

2

Such a reading is consistent with the Uniform Parentage Act, which as to "acknowledgment of paternity"

provides that "[t]he mother of a child and a man claiming to be the genetic father of the child may sign an

acknowledgment of paternity with intent to establish the man's paternity." U N IFO RM P AREN TAGE A CT (UPA) (amended

2002) § 301 (emphasis added).

6

After noting that "there is no need for any of the Secretary's requirements to be 'implied,'"

infra at __, our dissenting colleague finds that the regulation requires that the father must have

assumed parental responsibilities in order for a relationship to exist. However, no such requirement

appears in the language of the regulation and if it exists, it must be implied. Under § 3.210 (b)(1),

the father may acknowledge the child in writing. Under § 3.210 (b)(3), the father may be listed on

public records such as baptism, school, or birth records. This subsection also provides for statements

by others that know the veteran accepted the child as his. None of these provisions mention any

form of responsibility for an ongoing parental relationship. Only § 3.210(b) references a court order

of child support, which admittedly creates an ongoing financial relationship; nevertheless, it does

not necessarily demonstrate an ongoing parental relationship as envisioned by the dissent.

Unlike our dissenting colleague, our analysis is not based on the definition of "father." We

are concentrating on the statute's and regulation's use of "illegitimate child," which as stated above,

connotes a biological relationship. Although we agree with the dissent that there are many ways that

one can establish a paternal relationship with a child that is not one's biological child, and we in no

way mean to devalue those relationships, for a child to be the "illegitimate child" of the person for

purposes of § 3.210(b), the child must be "born of" and therefore biologically linked to the parent.

See WEBSTER 'S, supra. We are not holding, of course, that there are no means by which a child who

is not biologically related is eligible to receive VA benefits; rather, our holding relates only to the

"illegitimate child" provision of § 3.210(b). Indeed, it would be contradictory to both the regulation

and section 101(4)(A) if we were to hold that a biological relationship is always required for every

child seeking VA benefits. To the contrary, subsections (c) and (d) of § 3.210(b) clearly set forth

instances that allow for children who are not biologically connected to the veteran to receive VA

benefits.3

The inclusion of a biological requirement within the term "illegitimate child" as it is used in

§ 3.210 is also consistent with proposed rule changes to the regulatory scheme at issue in this case.

3

It appears as though VA has previously required a biological element under section 101(4). In Burch v.

Brown, the Court affirmed a Board decision that noted that dependent children in question were not living in the veteran's

household at the time of his death or adopted by the veteran and found that because the children were "not the biological

children of the veteran" that "they [did] not fall within the purview of the VA's definition of 'child' for the purposes of

improved death pension benefits." 6 Vet.App. 512, 513 (1994).

7

Notably, the proposed rule for establishing status as a child for VA benefit purposes attempts to

eradicate use of the terms "legitimate" and "illegitimate." See Dependents and Survivors, 71 Fed.

Reg. 55,052, 55,069 (proposed Sept. 20, 2006) ("Content of Proposed Regulations"). Rather, the

proposed rules indicate that the new regulation will use the term "natural child" to describe both

categories of children. Id. "Natural child" means "[a] child by birth, as distinguished from an

adopted child . . . [a]lso termed biological child." BLACK'S LAW DICTIONARY 232-33 (7th ed. 1999)

(hereinafter BLACK'S). Comments to the proposed rule indicate that "[t]he proposed change in

language is not intended to either diminish or enlarge the group of eligible claimants," a suggestion

that the biological requirement is a requirement in both the new and old regulation.

We note finally that requiring a biological component for establishing the necessary

relationship under § 3.210(b) not only prevents a situation where benefits must be provided in the

absence of any established relationship between a veteran and child, but also ensures that those

children who do have a biological connection with a veteran will be able to obtain benefits even in

situations where the child was unable to establish a relationship with a veteran by other means.

B. "Proof" of Relationship

Having found that the regulatory definition of "illegitimate child" inherently encompasses

a biological relationship, we next must determine whether it was appropriate for the Board to

consider the results of a DNA test. As described, § 3.210(b) sets forth a list of "proof" of the

relationship for establishing that a child is an illegitimate child.

The evidence before the Board consisted solely of (1) statements of friends and relatives of

the veteran that aver that he accepted the child as his and (2) the genetic test results obtained and

submitted by the appellant. The appellant, noting that a DNA test is not listed in § 3.210(b), asserts

that only evidence listed under the designation "proof" in § 3.210(b) may be considered when VA

is determining whether a relationship exists for purposes of the regulation. Accordingly, she

maintains that the evidence she provided satisfies the "[p]roof of [a] relationship" to establish the

necessary relationship regardless of the DNA evidence of record. We note that, at oral argument,

the appellant conceded that the DNA evidence she now argues the Board should not have considered

in making its determination was obtained and submitted by her of her own volition and not at the

behest of the Secretary.

8

"Proof" does not necessarily mean, as the appellant would have us believe, evidence that

irrefutably establishes a claim (in this case, the existence of the necessary biological relationship

between the child and the father). Rather, proof is also evidence "serving or tending to establish the

truth of something." WEBSTER 'S at 1077; see also BLACK'S at 1231 (defining "proof" as evidence

that, when persuasive, determines the judgment of the reviewing body). Examining § 3.210(b), we

are persuaded that "proof," as used in that regulation, introduces a list of evidence that merely

"tend[s] to establish the truth" of the necessary relationship. Although we generally consider the

standard meaning of words when interpreting a regulation, we will not interpret a term in a

regulation so that its reading creates an inconsistency with another part of that regulation. See

Roper v. Nicholson, 20 Vet.App. 173, 178 (2006) (VA statutory and regulatory scheme "should be

construed so that effect is given to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant, and so that one section will not destroy another unless the

provision is the result of obvious mistake or error" (quoting 2A N. SINGER , SUTHERLAND ON

STATUTORY CONSTRUCTION , § 46:05 (6th ed. 2000)). Here, the term "proof" includes "[a]ny other

secondary evidence which reasonably supports a finding of relationship." See 38 C.F.R.

§ 3.210(b)(3). If "proof" is interpreted to mean evidence that conclusively and irrefutably establishes

that relationship (as opposed to evidence that only tends to establish that relationship), the

submission of any favorable evidence indicating a relationship would necessarily mandate a finding

that an individual is a child for VA benefits purposes, a result that is inconsistent with the

regulation's requirement that is "the sufficiency of evidence will be determined in accordance with

the facts in the individual case." Id.

Moreover, the appellant's interpretation of "proof" is wholly inconsistent with this Court's

caselaw that has long held that the Board has a duty to find facts and assess the weight and credibility

of the evidence. See Owens v. Brown, 7 Vet.App. 429, 433 (1995). Thus, in order to give meaning

to the sufficiency-of-evidence provision in § 3.210(b) and in keeping with this Court's caselaw, we

hold that a claimant cannot irrefutably establish that a child is an illegitimate child of a veteran

merely by proffering any of the evidence listed under "proof" in that regulation. See King v. St.

Vincent's Hosp., 502 U.S. 215, 221 (1991) (holding that when interpreting a statute [or regulation],

the court is required to look at the context and provisions of law as a whole); Splane v. West, 216

9

F.3d 1058, 1068-69 (Fed. Cir. 2000) ("Canons of construction . . . require us to give effect to the

clear language of a [regulation] and avoid rendering any portions meaningless or superfluous.");

Owens, supra. Thus, we conclude that because an illegitimate child must be biologically related to

his parents, it was not inappropriate for the Board to consider evidence related to the question of that

biological relationship, i.e., the DNA test results.

Our dissenting colleague relies a great deal on the regulatory history of § 3.210 but fails to

acknowledge that the history he relies on is from a time when DNA was not considered as reliable

or acceptable as it is today. He maintains that the regulation was "originally founded on the basis

of parental relationship instead of biological requirement." Infra at __ (emphasis added). However,

as described, illegitimacy connotes a biological relationship, and as early as 1927, the regulation

included the provision that proving a relationship to a veteran "shall be shown by the best evidence

obtainable." VETERANS BUREAU REGULATION 178 § 33 (a)-(d) (Aug. 25, 1927). We can think of

no better way than a DNA test to establish that a biological connection is present. The results of

DNA tests are now widely recognized as a reliable and accurate method for establishing biological

paternity. See Tipps v. Metro. Life Ins. Co., 768 F.Supp. 577, 579 (S.D. Tex. 1991) ("Scientific

paternity testing . . . is now a well established and accepted method of determining whether a specific

individual is a child's biological father."); Estate of Sanders, 3 Cal. Rptr. 2d 536, 544 (Cal. Ct. App.

1992) (noting that "only the proverbial ostrich with its head in the sand would dispute" the

remarkable advances in DNA technology in removing the uncertainty of proving paternity).

"Congress itself has acknowledged that genetic testing is extremely reliable." Miller v. Christopher,

96 F.3d 1467, 1474-75 (D.C. Cir. 1996); H. REP. NO . 527, 98th Cong., 1st Sess., at 38 (1983).

Reliability has been recognized even in cases where the testing is of the genetic material of a

collateral party, such as a decedent's relative. See Tipps, 768 F.Supp. at 579-80 (finding that DNA

evidence from living relatives could be used in determining whether a biological relationship

existed). Moreover, the vast majority of cases we have reviewed indicate that courts are strongly in

favor of determining biological paternity by use of DNA tests. See id. at 580 (noting that Texas

courts have accepted DNA technology); Alexander v. Alexander, 537 N.E.2d 1310, 1314 (Franklin

County, Ohio C.P. 1988) (noting that the "accuracy and infallibility of the DNA test are nothing short

of remarkable"). Indeed, to obtain a judicial decree of paternity in Georgia, the state in which T.M.

10

was born, there is a "rebuttable presumption of paternity of a child born out of wedlock if there has

been performed scientifically credible parentage-determination genetic testing which establishes at

least a 97 percent probability of paternity." GA . CODE ANN . § 19-7-46(b) (2008).

In this instance, DNA has provided the best evidence now obtainable for establishing a

veteran is the father of an illegitimate child, and DNA evidence, where presented, can be considered

when determining the sufficiency of evidence in accordance with the facts in that individual case.

As our dissenting colleague notes, the Secretary has the authority to update regulations as he sees

fit, and perhaps he will wisely undertake to explicitly address DNA testing at some point, but that

is not necessary for our holding here today.

In summary, VA may consider the results of a DNA test when determining whether a child

is an "illegitimate child" for purposes of the regulation. We do not hold that VA must always rely

exclusively on the results of a DNA test, as the relationship may be proven by other evidence. We

also do not hold that VA can require a claimant to submit to a DNA test.

C. Reasons and Bases

When deciding a matter, the Board must include in its decision a written statement of the

reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the

precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C.

§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,

56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative

value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide

the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown,

7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.

The appellant maintains that the Board failed to provide an adequate statement of reasons or

bases for determining that the lay testimony submitted by the appellant was less probative than the

DNA test results. Appellant's Br. at 11. Contrary to the appellant's contention, the Board considered

and discussed all of the favorable evidence in the record including the lay statements submitted by

the appellant. R. at 6-7. The Board found that the evidence against the appellant's claim consisted

of T.M.'s birth certificate that did not list the veteran as her father, a VA hospital report that stated

the veteran was hospitalized from January 14, 1992, to February 18, 1992, and the DNA report

11

demonstrating the very low probability that the veteran was T.M.'s biological father. R. at 6. The

Board concluded that based on the facts in this case, the favorable lay statements were less probative

than the DNA test results, and thus, found the preponderance of the evidence was against

recognizing T.M. as the veteran's child for VA benefits purposes. R. at 7.

In this case, the appellant has not disputed the accuracy or reliability of the DNA test. As

described above, the evidentiary concerns in a paternity finding are largely eliminated by the use of

DNA testing, and thus, we hold that the Board properly considered the results of the DNA test when

weighing the sufficiency of the evidence in this case. See 38 C.F.R. § 3.210(b). Moreover, as stated

above, the Board discussed all the relevant evidence in the record and weighed it accordingly.

R. at 6-7. As such, the Board provided a statement of reasons or bases adequate to enable the

appellant to understand the precise basis for the Board's decision as well as to facilitate review in this

Court. See Allday and Gilbert, both supra. Accordingly, that decision will be affirmed.

IV. CONCLUSION

After consideration of the appellant's and the Secretary's pleadings, and a review of the

record, the Board's March 22, 2007, decision is AFFIRMED.

HAGEL, Judge, concurring in the result, dissenting in part: I concur with the majority's

ultimate conclusion that the child is not entitled to benefits. However, I write separately because I

believe that, in drafting 38 C.F.R.§ 3.210, the Secretary intentionally omitted a requirement of

biological paternity as a precondition to a child's receipt of benefits under 38 U.S.C. §§ 1313 and

1314. I would find that the regulation requires the assumption of paternal responsibility and the

establishment of a paternal relationship as the basis for the child's benefits, rather than a relationship

based on biology. Consequently, because the Board relied solely on the results of a DNA test to

establish paternity, it committed error. Because Mr. Dover did not establish a paternal relationship

with T.M. before Mr. Dover's death, however, the Board's error is harmless.

12

I. REGULATORY BASIS

Any analysis of a regulation begins with the statute upon which it is promulgated. This

analysis begins with "'the language of the statute' [a]nd where the statutory language provides a clear

answer, it ends there as well." Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (internal

citations omitted); see Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992); Conn.

Nat'l Bank v. Germain, 503 U.S. 249 (1992). The specific statute covering this issue is 38 U.S.C.

§ 101(4)(A), which states that a veteran may be proven a "father" of an "illegitimate child" if there

is an "acknowledg[ment] in writing signed by him, or if he has been judicially ordered to contribute

to the child's support or has been, before his death, judicially decreed to be the father of such child,

or if he is otherwise shown by evidence satisfactory to the Secretary to be the father of such child."

The statute distinguishes between a judicial decree for child support and a judicial decree

determining a person to be the father. 38 U.S.C. § 101(4)(A)(iii). If biological parentage was all that

was envisioned in the statute then there would be no need to differentiate between judicial decrees

determining biology and those determining legally required child support.

There is nothing in the statutory provision defining "child" that mentions or implies the

necessity of a biological relationship, a requirement that could have easily been added by the

Secretary in one of his 15 republications or revisions of this regulation.4 Consequently, a person may

be a "father" without being the biological father of a child, but merely the legal father based on an

assumption of parental responsibility.

The majority finds that there is biological requirement based on the Webster's New World

Dictionary definition of "illegitimate": "born of parents not married to each other." Ante at __ (citing |

WEBSTER 'S NEW WORLD DICTIONARY 672 (3d ed. 1988) and RANDOM HOUSE WEBSTER 'S

UNABRIDGED DICTIONARY 953 (2d ed. 2001)). The majority determines that the phrase "'[b]orn of

4

V A R U LES AN D P RO CED U RES § 1053 (May 19, 1930); VA R U LES AN D P RO CED U RES § 1040(a)-(d) (May 19,

1930); VA R U LES AN D P RO CED U RES §§ 1045(B), 1046(A)-(E) (Jan. 25, 1936); VA R U LES AN D P RO CED U RES §§ 1045(B),

1046(A)-(G) (July 10, 1940); VA R U LES AN D P RO CED U RES § 1046(A) (Jan. 12, 1943); VA R U LES AN D P RO CED U RES

§ 1041(A) (Nov. 26, 1945); VA R U LES AN D P RO CED U RES § 1046(A)-(F) (May 21, 1945); VA R U LES AN D P RO CED U RES

§ 1041(A) (Nov. 26, 1945); VA R U LES AN D P RO CED U RES § 1046(A)-(F) (May 13, 1947); VA R U LES AN D P RO CED U RES

§ 1045(B) (May 19, 1948); VA R U LES AN D P RO CED U RES § 1045(B) (Oct. 28, 1954); 38 C.F.R. § 3.210(B) (1959); 38

C.F.R. § 3.210(B) (1963); 38 C.F.R. § 3.210(b) (1987); 38 C.F.R. § 3.210(b) (1994); 38 C.F.R. § 3.210(b) (1995); 38

C.F.R. § 3.210(b) (1996); 38 C.F.R. § 3.210(b) (1997). For further discussion of the regulatory history see Part II(B)(1)

below.

13

parents' indicates a biological connection must be present." Id. However, I believe that the term

"illegitimate child" is a legal term with a unique meaning within the law and, therefore, I find

Black's, Barron's, Bouvier's, and Ballentine's Law Dictionaries more enlightening. See Sullivan v.

Stroop, 496 U.S. 478, 482-83 (1990); Marvel v. Merritt, 116 U.S. 11 (1885); Dow Chem. v.

Sumitomo Chem. Co., 257 F.3d 1364, 1372-73 (2001) (the Federal Circuit has "cautioned against

the use of non-scientific dictionaries, 'lest dictionary definitions . . . be converted into technical terms

of art having legal, not linguistic significance.'" (quoting Multiform Desiccants, Inc. v. Medzam, Ltd.,

133 F.3d 1473, 1478 (Fed. Cir. 1998))); Robinson v. City of Detroit, 613 N.W.2d 307, 316 n.13

(Mich. 2000).

The law dictionaries define "illegitimate child" as simply one "born out of wedlock."

BLACK'S LAW DICTIONARY 239 (6th ed. 1990) [hereinafter BLACK'S]; BARRON 'S LAW DICTIONARY

235 (4th ed. 1996) ("as applied to children, it means those born out of wedlock"); BOUVIER'S LAW

DICTIONARY , Volume 1, at 1491 (8th ed. 1914) ("it is usually applied to children born out of lawful

wedlock"); BALLENTINE'S LAW DICTIONARY 580 (3d ed.1969 ) ("a child born out of wedlock").

None of the law dictionaries contain the phrase "born of parents" or any other phrase implying a

biological connection.

Additionally, the U.S. Supreme Court has determined that a dictionary definition is incorrect

and therefore must be discounted when the "meaning set forth in a single dictionary (and, as we say,

its progeny) not only supplements the meaning contained in all other dictionaries, but contradicts

one of the meanings contained in virtually all other dictionaries." MCI Telecomms. Corp. v. AT&T

Co., 512 U.S. 218, 226-28 (1994). Here, the Webster's definition adds an additional requirement,

"born of parents," that is not present in the law dictionaries or even other general usage dictionaries.

OXFORD ENGLISH DICTIONARY , Volume 9 at 652 (2d ed. 1989) ("Not born in lawful wedlock; nor

recognized by law as lawful offspring"); THE AMERICAN COLLEGE DICTIONARY 601 (1962) ("born

out of wedlock: an illegitimate child"); NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE

734 (1940) ("born out of wedlock"); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE 640 (4th ed. 2000) ("Born out of wedlock."); COLLINS WEBSTER 'S DICTIONARY 240 (3d

ed. 2003) ("born out of wedlock"); THE NEW AMERICAN WEBSTER DICTIONARY 365 (4th ed. 2006)

("born out of wedlock"). The Webster's definition "supplements the meaning contained in all other

14

dictionaries" and "contradicts one of the meanings contained in virtually all other dictionaries," and

therefore is incorrect and must be discounted. MCI Telecomms. Corp., 512 U.S. at 226-28.

Further, the term "born of parents" is ambiguous, as it requires a determination of the

meaning of the word "parent." Following the majority's lead, the Webster's definition of "parent"

is "a mother or father." WEBSTER 'S NEW WORLD DICTIONARY 982 (3d ed. 1988). Again, the terms

are ambiguous and accordingly, Webster's defines "father" as "a man who has begotten a child . . .

a stepfather . . . an adoptive father . . . a father-in law . . . a person regarded as a male parent." Id.

at 493. The definitions from Webster's do not substantially clarify the terms, and certainly do not

indisputably impute a biological requirement. Therefore, further analysis is required; analysis that

the majority fails to provide. The majority makes no further arguments or justifications for its

determination that there is a biological requirement. The sole basis of their argument rests on the

Webster's New World Dictionary definition. However, I believe that every logical step the majority

makes from there is in error because, just as when building a house, it is irrelevant how well the

brickwork is done if the foundation is faulty. Hynes v. Grimes Packing Co., 337 U.S. 86, 115-16

(1949) ("[O]ne may not fully comprehend the statute's scope by extracting from it a single phrase

. . . and getting the phrase's meaning from the dictionary or even from dissimilar statutes."); Jordan

v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (describing dictionaries as "the last

resort of the baffled judge"); Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Judge Learned

Hand stating that "it is one of the surest indexes of a mature and developed jurisprudence not to

make a fortress out of the dictionary") aff'd, 326 U.S. 404 (1945) .

Black's Law Dictionary defines "parent" as "[t]he lawful father or mother of someone."

BLACK'S at 1114 (emphasis added). The Black's definition focuses on a legal requirement instead

of a biological one. Further, there is no disagreement between the parties that the child was born out

of wedlock. The disagreement arises from the question of who qualifies as a "father" under 38

C.F.R. § 3.210 and thus the person from whom VA benefits to the child flow. The primary focus

of this dissent will be on the issue of how to determine who is the father for purposes of 38 U.S.C.

§ 101(4)(A)(iii) and its implementing regulation 38 C.F.R. § 3.210. The definition of "father"

includes, "[a]s used in law, this term may include a putative as well as legal father, also a stepfather,

an adoptive father, or a grandfather." BLACK'S at 608. Additionally, the definition of "father" at

15

38 C.F.R. § 101(5), though not directly applicable to the facts of this case, likewise does not require

a biological relationship to establish that a person is a parent. The specific examples listed in

38 C.F.R.§ 101(5) illustrate that a biological requirement is not the only consideration in determining

who is the "father." 5

The statute at issue in this case allows the Secretary to determine what additional evidence |

is satisfactory to establish a paternal relationship. 38 U.S.C. § 101(4)(A)(iii). As the Supreme

Court has stated,

If Congress has explicitly left a gap for the agency to fill, there is an express

delegation of authority to the agency to elucidate a specific provision of the statute

by regulation. Such legislative regulations are given controlling weight unless they

are arbitrary, capricious, or manifestly contrary to the statute.

Chevron, U.S.A. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984). The Secretary has promulgated 38

C.F.R. § 3.210 to "fill the gap" and provide further guidance on what other evidence is satisfactory

to him to establish fatherhood under 38 U.S.C. § 101(4)(A)(iii). Chevron, 467 U.S. at 843-44; see

Morton v. Ruiz, 415 U.S. 199, 231-32 (1974); United States v. Baer, 324 F.3d 282, 286 (4th Cir.

2003); Dofasco Inc. v. United States, 28 C.I.T. 263, 274 (2004).

The text of § 3.210, the contents of which has remained unchanged since 1994,6 provides:

As to the mother of an illegitimate child, proof of birth is all that is required. As to

the father, the sufficiency of evidence will be determined in accordance with the facts

in the individual case. Proof of such relationship will consist of:

(1) An acknowledgment in writing signed by him; or

(2) Evidence that he has been identified as the child's father by a judicial

decree ordering him to contribute to the child's support or for other purposes;

or

(3) Any other secondary evidence which reasonably supports a finding of

relationship, as determined by an official authorized to approve such findings,

such as:

5

"The term 'parent' means . . . a father, mother, a father through adoption, . . . or an individual who for a period

of not less than one year stood in the relationship of a parent to a veteran at any time before the veteran's entry into

active military, naval, or air service . . . ." 38 U.S.C. § 101(5) (emphasis added).

6

Except for the removal of the words "A certified copy" before § 3.210(b)(3)(i), the regulation has remained

unchanged since 1963. For further discussion of the regulatory history, see Part II(B)(1) below.

16

(i) A copy of the public record of birth or church

record of baptism, showing that the veteran was the

informant and was named as parent of the child; or

(ii) Statements of persons who know that the veteran

accepted the child as his; or

(iii) Information obtained from service department or

public records, such as school or welfare agencies,

which shows that with his knowledge the veteran was

named as the father of the child.

38 C.F.R. § 3.210(b) (emphasis added).

The Secretary argues that there is a requirement that an illegitimate child be the biological

offspring of the veteran. Although that requirement does not appear anywhere in the text of

§ 3.210(b), the Secretary argues that the requirement is implied. Thus, at issue is the Secretary's

interpretation that there is an implied requirement in this regulation that a child must be the

biological offspring of the veteran in order to receive benefits under 38 U.S.C. §§ 1313 and 1314.

In accordance with this, the Secretary urges that his interpretation of the regulation should be given

"substantial judicial deference" and is valid unless "arbitrary, capricious, or manifestly contrary to

the statute." United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219-20 (2001);

Chevron, 467 U.S. at 843-44.

A court must give deference to an agency's interpretation of a regulation only if it is

"longstanding" and the words "are not self-explanatory, and reasonable men could easily differ as

to their construction." INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981) (noting that the statute in

question specifically delegated authority to the agency to define the statute's words); see Auer v.

Robbins, 519 U.S. 452, 462 (1997) (noting that an interpretation of a regulation provided during the

course of litigation can be treated with deference so long as it is a fair and considered interpretation

of the regulation by the official designated by statute to do so and not one developed as a response

to litigation). Thus, the next determination must be whether the Secretary's interpretation is self-

explanatory and longstanding.

17

II. REGULATORY INTERPRETATION

A. Self-Explanatory Requirement

The regulation, as quoted verbatim above, specifically states that "proof" of being a father

for an illegitimate child7 "will consist of (1) . . . or (2) . . . or (3)." 38 C.F.R. § 3.210(b) (emphasis

added). The use of the disjunctive conjunction "or" to join the alternative components in the

regulation's list of proof is exhaustive and clear.8 There is simply no room for the finding of an

implied requirement for biological paternity. The use of DNA or other biological tests for

establishing paternity have been used in the U.S. court system since 1987. DA's Office v. Osborne,

129 S. Ct. 2308, 2316 (2009); Andrews v. State, 533 So.2d 841, 842-43 (Fla. Dist. Ct. App. 1989);

Spencer v. Commonwealth, 384 S.E.2d 775 (Va. 1989); see infra Part II(B)(1) . If the Secretary

wanted to require a biological relationship, as he now argues, he certainly would have or at least

could have and possibly should have, included that requirement in the regulation with clear language,

rather than leaving it to be discovered by implication. See Cook v. Principi, 318 F.3d 1334, 1339

(Fed. Cir. 2002); Nissan Motor Mfg. Corp. v. United States, 12 C.I.T. 737, 740 (1988) ("A general

rule of statutory construction is that the expression of one thing is the exclusion of the alternative,

expressio unius est exclusio alterius."); cf. McGautha v. California, 402 U.S. 183, 206 (1970); Ward

v. Illinois, 431 U.S. 767, 781 (1977) (Brennan, J., dissenting); Mauerhan v. Principi, 16 Vet.App.

436, 442 (2002). The Secretary promulgates the regulations from authority given by Congress and

is free to write or change them as he sees fit and therefore there is no need for any of the Secretary's

requirements to be "implied."

1. Acknowledgment in Writing

The first item enumerated in § 3.210(b) that can be used as proof of a paternal relationship

is "an acknowledgment in writing." 38 C.F.R. § 3.210(b)(1). Black's Law Dictionary defines

"Paternity Acknowledgment" as an "admission that the child is one's own. Recognition of a paternal

relation, either by a written agreement, verbal declarations or statements, by the life, acts, and

7

The definition of "child" used in the regulation mirrors the definition in 38 U.S.C. § 101(4)(A).

8

"Or, conj. A disjunctive particle used to express an alternative or to give a choice of one among two or more

things. . . . The word 'or' is to be used as a function word to indicate an alternative between different or unlike things."

B LACK 'S at 1095.

18

conduct of the parties, or any other satisfactory evidence that the relation was recognized and

admitted." BLACK'S at 23. The majority states that "[a]n acknowledgment by the father that he is

the father can be read as an acknowledgment by the father that he knows himself or believes himself

to be the biological father." Ante at __ (emphasis added). However, an acknowledgment in writing

of a paternal relationship is logically based on an assumption of responsibilities rather than a

biological requirement. An adoption of a child is based on an acknowledgment of paternal

responsibilities, not on an adoptive parent's belief that there is a biological basis for paternity.

Further, even if there is a possible biological element, based on the Webster's New World Dictionary

definition used by the majority, that definition is not the final determination of an acknowledgment.

The basic premise of a signed writing implies a contractual rather than biological requirement. The

first item in the regulation is fully encompassing and self-explanatory and nowhere is there a

biological requirement.

2. Judicial Decree

The second item that can be used as proof of a paternal relationship is a "judicial decree

ordering [the father] to contribute to the child's support or for other purposes." 38 C.F.R.

§ 3.210(b)(2). The majority opinion states that "[a] judicial decree identifying the father as the

child's father would generally be based on a court finding that the father has been determined to be

the biological father of the child." Ante at __. However, the emphasis of this portion of the

regulation is on assumption of responsibilities for the child's welfare rather than on any biological

requirement. The statute delegating authority to the Secretary specifically distinguishes between a

judicial decree for child support and a judicial decree determining a person to be the father. 38

U.S.C. § 101(4)(A)(iii). That statute and the regulation both can only be interpreted to mean that a

parental relationship can be based on the assumption of parental responsibility or a judicial order

conferring parental responsibilities. If the only requirement was a biological one, then the statute

or the regulation could have listed only judicial decrees determining paternity as "proof" instead of

judicial decrees ordering child support. Thus, the second item is self-explanatory and does not

include a biological requirement.

19

3. Other Secondary Evidence

The third item that may be used to establish paternity under the regulation includes "other

secondary evidence" and lists three possibilities of such evidence. 38 C.F.R. § 3.210(b)(3). Again,

the list is exhaustive stating "(i) . . . or (ii) . . . or (iii)." 38 C.F.R. § 3.210(b)(3). The first and third

items in this list cover records that report the person as father, such as "public record of birth or

church record of baptism" and "service department or public records, such as school or welfare

agencies." 38 C.F.R. § 3.210(b)(3)(i), (iii). This list is essentially the same as that listed in 38

C.F.R. § 3.210(b)(1). These items are nothing more than evidence of an "acknowledgment" of

paternity in various types of records and, as stated above, acknowledgments that consider assumption

of responsibilities instead of biology as the basis for determining parenthood. The majority states

that "[n]one of these provisions [(38 C.F.R. § 3.210(b)(3)(i), (iii))] mention any form of

responsibility for an ongoing parental relationship." Ante at __. However, the type of evidence |

listed in 38 C.F.R. § 3.210 is designed to prove a paternal relationship by describing a man who

accepted responsibility for a child by demonstrating that he is concerned with the child's well-being

and being actively involved in the child's life; the evidences is not designated to prove the child's

genetic origins. A listing on the record of baptism shows assumption of responsibility for the child's

spiritual well-being; school records show assumption of responsibility for the child's mental well-

being; and welfare records show assumption of responsibility for the child's economic well-being.

The second item specifically states; "Statements of persons who know that the veteran

accepted the child as his." 38 C.F.R. § 3.210(b)(3)(ii). Such statements attest whether the person

demonstrated an assumption of parental responsibilities recognizable and attestable to third parties,

not whether the child was the man's biological child. As explained above, each of the items listed

in the regulation is specified by the Secretary as well as being self-explanatory. None include a

biological requirement. Instead each is based on the assumption of parental responsibility and

establishment of a paternal relationship.

After a review of the statute and regulation, I find that each item under the regulation is self-

explanatory and none include a biological requirement. Further, I would find that the satisfactory

establishment of any of these requirements would identify the male veteran as the father and would

thus entitle the child to VA benefits flowing from him.

20

B. Longstanding Requirement

1. Regulatory History

The regulatory history of 38 C.F.R.§ 3.210 begins in 1924 with the World War Veterans Act.

World War Veterans' Act § 3(d) (1924). At that time, the Veterans Bureau was invested with the

duty to promulgate regulations concerning the issue at hand. Regulation concerning veterans

benefits, including this matter, was then controlled by the Veterans Bureau. In the World War

Veterans' Act, Congress defined "child" to include illegitimate children "but, as to the father only,

if acknowledged in writing signed by him, or if he has been judicially ordered or decreed to be the

putative father of such child." WORLD WAR VETERANS' ACT § 3(d) (1924). The 1927 version of the

regulation, which remained virtually unchanged until 1930, stated that a parental relationship could

be proven through public records, statements from two or more persons who knew of the

relationship, or a statement from a physician or midwife. VETERANS BUREAU REGULATION 178 § 33

(a)-(d) (Aug. 25, 1927); see VETERANS BUREAU REGULATION 189 § 33 (a)-(d) (Aug. 4, 1928);

VETERANS BUREAU REGULATION 189 §33 (a)-(d) (May 28, 1928).

In July 1930, VA was established, incorporating the functions of the Veterans Bureau. In

May 1930, VA set forth the first regulation covering paternity for benefits purposes. VA RULES AND

PROCEDURES § 1053 (May 19, 1930). Although this regulation was written to determine who was

considered the father of a veteran for the purposes of benefits flowing from the veteran to a parent,

the key point is that the definition of the parent of the child was, as the Veterans Bureau regulation

discusses, always based upon a relationship rather than biology. There was a coinciding regulation

determining relationship for benefits flowing from the veteran to a child. However, both sets of prior

regulations determining who was a "father" of a child are applicable because the establishment of

a paternal relationship was the emphasis of each. Further, because the regulations contained almost

identical language, in 1948 they were combined into one regulation. VA RULES AND PROCEDURES

§ 1045(B) (May 19, 1948). The 1930 regulation states that "[t]he father of an illegitimate child will

be deemed to be within the meaning of the word 'father' as used in the said acts if he shows that the

family relationship usual between parent and child existed between him and the child at the time the

child entered service." VA RULES AND PROCEDURES § 1053 (May 19, 1930) (emphasis added). It

is clear that the first instance of the regulation promulgated by VA focused on paternal relationship

21

instead of a biological basis. The proof of such relationship remained virtually the same as it had

been under the Veterans Bureau, stating that a parental relationship could be proven through public

records, statements from two or more persons who knew of the relationship, or a statement from a

physician or midwife. VA RULES AND PROCEDURES § 1040(a)-(d) (May 19, 1930). The regulation

remained virtually the same until 1943. VA RULES AND PROCEDURES § 1040(a)-(d) (May 19, 1930);

VA RULES AND PROCEDURES §§ 1045(B), 1046(A)-(E) (January 25, 1936); VA RULES AND

PROCEDURES §§ 1045(B), 1046(A)-(G) (July 10, 1940).

In January 1943, additional types of evidence were added to the list of those acceptable to

prove the basis of a paternal relationship. The 1943 regulation explained that the term "public

records" included birth certificates and records of baptism as a means of proving a parental

relationship. VA RULES AND PROCEDURES § 1046(A) (Jan. 12, 1943). Further, the regulation added

that a copy of the family Bible or a census record could be used as evidence to prove a parental

relationship. VA RULES AND PROCEDURES § 1046(A) (Jan. 12, 1943). In 1945, VA specifically

stated that the "preference shall be given to such father or mother who actually exercised [a] parental

relationship." VA RULES AND PROCEDURES § 1041(A) (Nov. 26, 1945) (citing sec. 1, Public Law

No. 144, 78th Congress and sec. 1500 Public Law No. 346, 78th Congress). The regulation remained

virtually the same until 1948. VA RULES AND PROCEDURES § 1046(A)-(F) (May 21, 1945); VA

RULES AND PROCEDURES § 1041(A) (Nov. 26, 1945); VA RULES AND PROCEDURES § 1046(A)-(F)

(May 13, 1947).

In May 1948, the regulation was altered again, bearing close resemblance to the current

regulation. VA RULES AND PROCEDURES § 1045(B) (May 19, 1948). The regulation remained

virtually unchanged until 1963. VA RULES AND PROCEDURES § 1045(B) (Oct. 28, 1954); 38 C.F.R.

§ 3.210(B) (1959). The last substantive change in the regulation prior to 1963 took place in May

1959. The May 1959 regulation stated:

(B) Illegitimate Child.

(1) As to the mother of an illegitimate child, proof of birth is all that is required. As

to the father, proof of relationship of an illegitimate child will consist of:

(a) An acknowledgment in writing signed by him; or

22

(b) Evidence that he has been judicially ordered or decreed to

contribute to the child's support; or

(c) Evidence that the veteran has been, prior to his death, judicially decreed

to be the putative father of the child; or

(d) Other satisfactory evidence that the veteran is the putative father

of the child, which may include but is not limited to:

(1) A certified copy of the public record of birth

showing that the veteran was named as father of the

child; or

(2) Statements of persons who know that the veteran

accepted the child as his; or

(3) Information obtained from public records, such as

school or welfare agencies, which shows that the

veteran was reputed to be the father of the child.

(2) The sufficiency of evidence will be determined in accordance with the facts of

the individual case.

(3) When none of the evidence outlined in subdivision (1) (a), (b), or (c) of this

subparagraph has been submitted and evidence is on file which is considered

adequate to establish the reputed paternity of an illegitimate child as contemplated

by subdivision (1)(d) of this subparagraph, the determination will be made by an

official authorized to approve such determinations.

38 C.F.R. § 3.210(B) (1963).

In March 1963, the regulation was amended with an "explanation" of the amendments

provided. The March 1963 regulation stated:

(B) Illegitimate Child. As to the mother of an illegitimate child, proof of birth is all

that is required. As to the father, the sufficiency of evidence will be determined in

accordance with the facts in the individual case. Proof of such relationship will

consist of:

(1) An acknowledgment in writing signed by him; or

(2) Evidence that he has been identified as the child's father by a

judicial decree ordering him to contribute to the child's support or for

other purposes; or

23

(3) Any other secondary evidence which reasonably supports a

finding of relationship, as determined by an official authorized to

approve such findings, such as:

(a) A certified copy of the public record of birth or

church record of baptism, showing that the veteran

was the informant and was named as father of the

child; or

(b) Statements of persons who know that the veteran

accepted the child as his; or

(c) Information obtained from service department or

public records, such as school or welfare agencies,

which shows that with his knowledge the veteran was

named as the father of the child.

38 C.F.R. § 3.210(B) (1963).

The "explanation" section accompanying the March 1963 amendment states that the section

"[h]as been revised to require a higher degree of proof than was previously acceptable for

establishing the relationship of an illegitimate child to a veteran. . . . The revision requires that

paternity9 be established within a reasonable degree of certainty." Revision Explanation for 38

C.F.R. § 3.210(B) (1963). The reasons given for the revisions focus on an increase in the evidentiary

burden to prove a paternal relationship and neither the amended 1963 regulation nor the explanation

established a biological requirement as a basis for establishing paternity. The regulation remains

virtually unchanged from the 1963 revisions, as can be seen in the current regulation, quoted

verbatim above. 38 C.F.R. § 3.210(b) (1987); 38 C.F.R. § 3.210(b) (1994); 38 C.F.R. § 3.210(b)

(1995); 38 C.F.R. § 3.210(b) (1996); 38 C.F.R. § 3.210(b) (1997).

Both the majority and my dissent recognize the fact that the Secretary has, three years ago,

proposed a change to the current regulation, 38 C.F.R. § 3.210(b). Further, both the majority and

my dissent use the proposed regulation to support our position but draw different conclusions

regarding the meaning of the proposed regulation, should it ever become final in its current form.

In September 2006, VA proposed a change to 38 C.F.R. Part 3 after "reviewing, reorganizing and

9

"Paternity" is defined as "[t]he state or condition of a father; the relationship of a father." B LACK 'S at 1126.

24

redrafting the content of the regulations." Dependents and Survivors Proposed Rule, 71 Fed. Reg.

55,052 (Sept. 20, 2006). The proposed change would place the regulations under Part 3 in a new

Part 5. Id. The stated purpose of this revision is "to reorganize and rewrite in plain language general

provisions applicable to its compensation and pension regulations, including those relating to

dependent and survivors of veterans and other VA claimants and beneficiaries." Id. Although the

comments for these proposed changes were due to VA "on or before November 20, 2006," after

nearly three years the final version of this regulation, which would include changes implemented

pursuant to public comment, has not been published. Id. The current regulation 38 C.F.R.

§ 3.210(b) would fall under the proposed 38 C.F.R. §§ 5.221, 5.229. Id.

The proposed changes substitute the term "natural child" to encompass children described

in the current regulation as "legitimate" and "illegitimate." The proposed changes explain that the

difference between "legitimate" and "illegitimate" "lies in differences in evidence required to

establish a parent-child relationship. . . . We propose to use the term 'natural child' to designate a

child of either category . . . The proposed change in language is not intended to either diminish or

enlarge the group of eligible claimants." Id. (emphasis added). Thus, the proposed changes

maintain the focus that establishment of a paternal relationship is the important factor in determining

eligibility to VA benefits. Along the lines of the regulatory history described above, the proposed

changes do not include a biological requirement. The majority opinion states that the proposed usage

of the term "natural child" implies a biological relationship based on the Black's definition of the

term. Ante at __. However, the full Black's definition states that a "natural child" is

1. A child by birth, as distinguished from an adopted child. – Also termed biological

child.

2. An illegitimate child acknowledged by the father.

3. An illegitimate child.

BLACK'S at 232-33 (7th ed. 1999) (second and third emphasis added). The Black's definition clearly

encompasses more than simply a biological child. The term "illegitimate child," as explained above

in Part I and II(A), simply means a child "born out of wedlock," which does not imply a biological

requirement. BLACK'S at 239. Also, as explained above in Part II(A)(1) and further below in Part

III(A), an acknowledgment is based on assumption of parental responsibility and not a biological

basis. Further, the proposed change in terms is not intended to alter the group of eligible claimants

25

only avoid the perceived negative connotations associated with the term illegitimate. Thus, the

eligibility requirements for the proposed "natural child" are the same as those for the current

"illegitimate child."

The proposed regulation retains the same evidentiary requirements now contained in 38

C.F.R. § 3.210(b), highlighted above in Part II(A), but adds additional items that may be used as

proof of acknowledgment of a parent-child relationship. Those additions include a copy of the Bible,

family records, insurance policies, and census, hospital, employment, naturalization, or immigration

records. Id. (proposed 38 C.F.R. § 5.229(a)). Notably, the use of a biological or DNA test is not in

the proposed changes to the regulation. Lastly, even given the difference of opinion regarding the

interpretation of a regulation revised in light of public opinion and not yet published nor binding at

the time the events of this case occurred, the majority's interpretation is hardly dispositive, especially

considering the significant support by numerous other authority for the position presented in this

dissent.

Based on the above, it is clear that the regulation was originally founded on a basis of

parental relationship instead of a biological requirement and that foundation of paternal relationship

has never been changed despite the numerous opportunities to do so in updates to the regulation.

Even the 1963 amendment does not change this basis, instead it only increases the evidentiary

burden required to prove it. Further, the proposed changes to 38 C.F.R. § 3.210(b) do not include

a biological requirement. There is no biological requirement anywhere in the regulatory history.

Instead, the regulatory history clearly shows that the existence of a parental relationship is the focus

in determining paternity. Therefore, the regulatory history provides no basis to establish that a

biological requirement is longstanding.

The majority finds that I rely too heavily on a "time period in which DNA was not considered

as reliable or acceptable as it is today." Ante at __. The structure of DNA was first identified in |

1953. Lansing M. Presoctt et al., MICROBIOLOGY 193-201, 236-307 (2d ed. 1993). The acceptance

of DNA testing as competent evidence in the U.S. court system began in 1987, and "in criminal

investigations in the mid-1980s." DA's Office v. Osborne, 129 S. Ct. at 2316; Andrews, 533 So.2d

at 842-43 (1987 rape conviction based on DNA test upheld); Spencer, 384 S.E.2d at 775 (Virginia's

Supreme Court upheld a 1988 capital murder conviction based on DNA evidence); see Anna M.

26

Franceschelli, Motions for Postconviction DNA Testing: Determining the Standard of Proof

Necessary in Granting Requests 31 CAP . U.L. REV . 243 (2003) (highlighting a brief history of DNA

testing in the United States); George Bundy Smith and Janet A. Gordon, The Admission of DNA

Evidence in State and Federal Courts, 65 FORDHAM L. REV . 2465, 2466 (1997) (same). By 1996,

the only states that did not allow DNA testing were Maine, North Dakota, Rhode Island, and Utah.

Edward Connors et al., U.S. Dep't of Justice, National Institute of Justice, CONVICTED BY JURIES,

EXONERATED BY SCIENCE : CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE

AFTER TRIAL 7 (1996); see Franceschelli, supra at 246-47. Currently, 46 states, the District of

Columbia, and the Federal government have statutes that cover the usage of DNA testing in

particular areas.10 Osborne, 129 S. Ct. at 2326 n.2 (Alito, J. concurring). Additionally, three of the

four states without statutes directly covering DNA testing, have caselaw addressing the issue.11 Id.

The majority is correct that DNA testing was not available when 38 C.F.R. § 3.210 was originally

10

The relevant statutes for the Federal government, the 46 states, and District of Columbia are as follows:

FEDERAL GOVERNMENT - 18 U.S.C. § 3600; ARIZONA - A RIZ . R EV . S TAT . A N N . § 13-4240 (2001); ARKANSAS -

A RK . C O D E A N N . § 16-112-2002 (2006); CALIFORNIA - C AL. P EN AL C O D E A N N . § 1405 (2009); COLORADO - C O LO .

R EV . S TAT . A N N . § 18-1-413 (2008); CONNECTICUT - C O N N . G EN . S TAT . § 52-582 (2009); DELAWARE - D EL. C O D E

A N N . Tit. 11, § 4504 (2007); DISTRICT OF COLUMBIA - D.C. C O D E §§ 22-4133 - 22-4135 (2008 Supp.); FLORIDA -

F LA . S TAT . § 925.11 (2007); GEORGIA - G A . C O D E A N N . § 5-5-41 (Supp. 2008); HAW AII - H AW . R EV . S TAT . § 844D-

123 (2008 Cum. Supp.); IDAHO - I D AH O C O D E § 19-4902 (2004); ILLINOIS - I LL. C O M P . S TA T . 5/116-3 (2006);

INDIANA - I N D . C O DE A N N . § 35-38-7-5 (2004); IOW A - I OW A C O D E § 81-10 (2009); KANSAS - K AN . S TAT . A N N . § 21-

2512 (2007); KENTUCKY - K Y . R EV . S TAT . A N N . § 422.285 (2008); LOUISIANA - L A . C O D E C RIM . P RO C . A N N ., Art.

926-1 (2009); MAINE - M E . R EV . S TAT . A N N . Tit. 15 § 2137 (Supp. 2008); MARYLAND - M D . C RIM . P RO C . C O D E A N N .

§ 8-201 (2008); MICHIGAN - M ICH . C O M P . L AW S A N N . § 770-16 (2009); MINNESOTA - M IN N . S TAT . § 590-01 (2008);

M ISSISSIPPI - 2009 Miss. Laws 2709; MISSOURI - M O . R EV . S TAT . § 547-035 (2008 Cum. Supp.); MONTANA -

M O N T . C O D E A N N . § 46-21-110 (2007); NEBRASKA - N EB . R EV . S TAT . § 29-4120 (2008); NEVADA - N EV . R EV . S TAT .

§ 176-0918 (2007); NEW HAMPSHIRE - N. H. R EV . S TAT . A N N . § 651-D:2 (2007); NEW JERSEY - N. J. S TAT . A N N .

§ 2A:84A-32a (Supp. 2009); NEW MEXICO - N.M . S TAT . A N N . § 31-1A-2 (Supp. 2008); NEW YORK - N. Y. C RIM .

P RO C . L AW A N N . § 440-30(1-a) (2005); N ORTH CAROLINA - N. C. G EN . S TAT . A N N . § 15A-269 (2007); NORTH

DAKOTA - N. D. C EN T . C O D E A N N . § 29-32.1-15 (2006); OHIO - O H IO R EV . C O D E A N N . § 2953-72 (2009); OREGON -

O RE . R EV . S TAT . § 138.690 (2007); PENNSYLVANIA - 42 P A . C O N S . S TAT . § 9543 (2006); RHODE ISLAND - R. I.

G EN . L AW S § 10-9.1-11 (Supp. 2008); SOUTH CAROLINA - S.C. C O D E A N N . § 17-28-30 (Supp. 2008); SOUTH

DAKOTA - 2009 S.D. S ESS . L AW S 1166; TENNESSEE - T EN N . C O D E A N N . § 40-30-304 (2006); TEXAS - T EX . C O D E

C RIM . P RO C . A N N . Arts. 64.01-64.05 (Supp. 2008); UTAH - U TAH C O D E A N N . § 78B-9-300 - 78B-9-304 (2008 Supp.);

VERMONT - V T . S TAT . A N N . Tit. 13, § 5561 (Supp. 2008); VIRGINIA - V A . C O D E A N N . § 19.2-327.1 (2008);

W ASHINGTON - W ASH . R EV . C O D E § 10.73.170 (2008); W EST VIRGINIA - W . V A . C O D E A N N . § 15-2B-14 (2008);

W ISCONSIN - W IS . S TAT . § 974.07 (2005); W YOMING - W Y O . S TAT . A N N . § 7-12-303 (2008 Supp.).

11

Alabama, Alaska, Massachusetts, and Oklahoma do not have statutes covering DNA testing. However,

Alabama, Alaska, and Massachusetts all have relevant caselaw. See, e.g., Fagan v. State, 957 So. 2d 1159 (Ala. Crim.

App. 2007); Osborne v. State, 110 P. 3d 986 (Alaska App. 2005); Commonwealth v. Donald, 848 N.E.2d 447 (Mass.

App. Ct. 2006).

27

written. However, 38 C.F.R. § 3.210 has been revised or reviewed at least 4 times since 1987 when

the United States court system first began using DNA testing. To use the building analogy once

again, the foundation the regulation was built on was clearly paternal responsibility and the

establishment of a paternal relationship. The regulation, as highlighted above, has been revised

numerous times, but none of the revisions changed the foundation, only changed the pattern of the

brickwork. I fail to see how such a foundational change as adding a biological requirement, which

could have easily been added by the Secretary, is now read into the regulation by way of implication.

2. Court Precedent

My research finds only one case that has been before the Court in which the qualification of

biological paternity appears. The case is Burch v. Brown, 6 Vet.App. 512 (1994) and was not cited

(and therefore not interpreted) in either party's brief.

The majority opinion states that this Court's holding in Burch supports a need for a biological

requirement in establishing paternity. Ante at __ n.1; Burch, 6 Vet.App. at 513. In Burch, the Court

stated that "[t]he Board concluded that because the children 'are not biological children of the veteran

and they do not qualify as adopted children, they do not fall within the purview of the VA's definition

of "child" for the purposes of improved death pension benefits.'" Id. The Court determined that

"[a]lthough appellant was granted legal custody of [the two children of her niece], neither can be

considered a 'child' as the term is defined by 38 U.S.C. § 101(4)." Id. In that case, Mrs. Burch was

awarded custody of the two children of her niece in March 1991, 13 years after Mr. Burch, the

veteran, died. Id. at 512. However, the argument was never presented nor addressed by the Court

as to whether Mr. Burch assumed parental responsibilities. Id. Instead, the Court decided whether

children who became dependents of Mrs. Burch after her husband's death could qualify for benefits

based on her status as the widow of a veteran. The opinion does not address whether there is a

biological requirement to determine who qualifies as a "father." The Court's opinion merely quotes

the Board decision that states that there is no biological connection between the veteran and the

dependents. However, Board decisions are not considered precedential and are binding only with

regard to the specific case addressed in each decision. Hillyard v. Derwinski, 1 Vet.App. 349, 351

(1991). As VA's regulations specifically state, "previously issued Board decisions will be considered

28

binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. Therefore, Burch does

not provide a basis that a biological requirement is longstanding.

3. Internal Document and Additional Regulation

There is an internal VA document concerning biological testing dating back to March 1963.

VA Compensation & Pension Transmittal Sheet at 286. However, "[i]nterpretations such as those

in opinion letters . . . do not warrant Chevron-style deference." Christensen v. Harris County, 529

U.S. 576, 587 (2000); see Sursely v. Peake, 551 F.3d. 1351, 1353-55 n.2 (Fed. Cir. 2009) ("Director's

opinion letter is not the type of formal exercise of delegated authority entitled to deference under

Chevron." (citing United States v. Mead Corp., 533 U.S. 218, 233-374 (2001))). Therefore, even

if the internal document is considered in the most positive light and deemed an "opinion letter," it

is not required that the Court give substantial deference to the Secretary's interpretation based on this

document. Chevron, 467 U.S. at 843-44.

The Secretary argues that 38 C.F.R. § 17.272 contemplates the use of diagnostic tests and

supports the Secretary's contention that the interpretation is longstanding. However, 38 C.F.R.

§ 17.272 states that "[d]iagnostic tests to establish paternity of a child" are "specifically excluded

from [the] program." The program addressed in the regulation is "Medical Care for Survivors and

Dependents of Certain Veterans." 38 C.F.R. § 17.272 (2009). The regulation contemplates DNA

testing but only to state that it is not of sufficient importance to warrant VA funding. Contrary to

the Secretary's contention, this language seems to indicate that VA does not believe DNA testing is

important.

Neither the majority opinion nor the Secretary present any valid reason why this

interpretation should be considered longstanding. Indeed, the regulatory history of 38 C.F.R.

§ 3.210(b) shows that the relationship between a child and the person reputed to be the illegitimate

child's father is the key factor in determining whether the child is entitled to benefits. The Court is

not required to give substantial deference to internal opinion letters and this Court's holding in Burch

does not address, let alone establish, an interpretation that there is a biological requirement in

determining who is the father of a child seeking VA benefits.

29

C. Absurd Result Exception

A statutory or regulatory construction "that causes absurd results is to be avoided if at all

possible." Timex V.I. v. United States, 157 F.3d 879, 886 (1998) (citing Haggar Co. v. Helvering,

308 U.S. 389, 394 (1940); United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Green

v. Bock Laundry Mach. Co., 490 U.S. 504, 527-29 (1989 (Scalia, J., concurring)). The argument was

presented that an interpretation that there is no biological requirement leads to an "absurd result."

The "'absurd result' exception to the plain meaning rule is, however, narrow and limited to situations

'where it is quite impossible that Congress could have intended the result . . . and where the alleged

absurdity is so clear as to be obvious to most anyone.'" Gardner v. Derwinski, 1 Vet.App. 584, 587

(1991) (quoting Pub. Citizen v. U.S. Department of Justice, 491 U.S. 440, 470-71 (1989) (Kennedy,

J., concurring)). However, the result that someone may be found the "father" despite a lack of a

biological relationship is no more absurd than the "marital presumption" that assumes that a child

born to married parents is the child of the husband. BLACK'S at 225 (8th ed. 2004); see Angela

Chesney Herrington, For Love or Money: The Kansas Supreme Court's Problematic Acceptance of

the "Best Interests of the Child" Standard in an Intestate Claim, 47 WASHBURN L.J. 177, 182 (2007)

(stating that the Kansas Supreme Court "recognized the historical marital presumption of paternity

[a]s one of the strongest presumptions under the law"). Further, that argument disregards the

common law basis of voluntary assumption of parental responsibilities as a basis of establishing

paternity.

Instead, I find that biology as the only basis for establishing paternity leads to an absurd

result. For example, assume that a married veteran raises a child birthed by his wife. Assume that

the veteran signs as the father on the birth certificate, baptismal and school records; spends his time,

money, and energy on the child; and holds himself out to the community as the father. However,

after the veteran's death, the child is denied benefits because the veteran is determined by a DNA test

to, in fact, not be the biological father. I find this result to be far more absurd. As the Supreme

Court has stated, "Paternal rights do not spring full-blown from the biological connection between

parent and child. They require relationships more enduring." Lehr v. Robertson, 463 U.S. 248, 260

(1983) (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979), Stewart, J., dissenting); see Smith

v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977) ("[The] importance

30

of the familial relationship, to the individuals involved and to the society, stems from the emotional

attachments that derive from the intimacy of daily association, and from the role it plays in

'[promoting] a way of life' through the instruction of children . . . as well as from the fact of blood

relationship." (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972)). Based on the above

explanation I do not find the Secretary's interpretation of 38 C.F.R. § 3.210 to be self-explanatory

nor longstanding. See Jong Ha Wang, 450 U.S. at 144.

III. ADDITIONAL LEGAL SUPPORT

A. State Laws Concerning Paternity

The vast majority of statutes, case law, regulations, and legal scholarship support the premise

that paternity is based on a parental relationship and the assumption of parental responsibilities rather

than a biological basis. The various federal statutes, regulations, and departments provide for the

establishment of paternity based on a parental relationship.12 As 42 U.S.C. § 666(a)(5), which

governs entitlement to Social Security benefits, states that the "[p]rocedures concerning paternity

establishment" include genetic testing, but also include voluntary paternity acknowledgment, and

signed paternity acknowledgment. Both voluntary paternity and signed acknowledgment are

mentioned as alternatives to genetic testing, thus establishing that a non-biological relationship can

establish paternity for purposes of Social Security benefits. Further, this highlights that when

biology is the basis for establishing paternity, it must be clearly specified. Additionally the Uniform

Parentage Act of 2002, states that the definition of "father" includes: a presumed father - one who

was married to the birth mother at conception or lived with the child for the first two years of the

child's life and treated the child as his; a putative father - alleged or reputed father of a child born out

of wedlock; a man who acknowledged paternity; a man who was adjudicated the father in a paternity

12

42 U.S.C. § 666 (a)(5)(c); 45 C.F.R. § 302.70 (requiring each state to have "[p]rocedures for a simple civil

process for voluntarily acknowledging paternity."); Uniform Parentage Act § 4 (a) (4), (5) (1973); 9 U N IFO RM L AW S

A N N . (Supp. 1975, at 186); U N IFO RM P AREN TAGE A CT § 102(1) (amended 2002) (explained further "[u]nder both the

federal statute and the UPA 2002, a man may voluntarily acknowledge his paternity as long as the mother consents.

Neither Title IV-D nor the UPA 2002 requires a genetic test prior to the establishment of paternity, an indication that

the 'acknowledged father' may not always be the genetic father." Jayna Morse Cacioppo, Voluntary Acknowledgments

of Paternity: Should Biology Play a Role in Determining Who Can be a Legal Father?, 38 I N D . L. R EV . 479, 489

(2005)); U.S. Department of Health and Human Services, Office of Child Support Enforcement Guidelines, available

at www.acf.hhs.gov (explained further in Cacioppo, supra).

31

action; an adoptive father; a man who consents to assisted reproduction; and an adjudicated father

in a proceeding confining a gestational agreement.

The majority of case law concerning paternity is dealt with at a state level because the

authority to legislate family law is, in the main, delegated to the states. The majority of states, in one

fashion or another, provide for paternity to be established based on a parental relationship instead

of simply on biology.13 As the Supreme Court of Idaho stated, "[m]ere biology does not create a

13

ALABAMA - Ex parte Jenkins, 723 So. 2d 649, 652-653 (Ala. 1998) ("'Any interested party may bring an

action at any time for the purpose of determining the existence or non-existence of the father and child

relationship.'"(citing A LA . C O D E 1975; § 26-17-6(b))); ARIZONA - Ban v. Quigley, 812 P.2d 1014, 1016-17 (Ariz. Ct.

App. 1990); ARKANSAS - A RK . C O D E A N N . § 9-10-115 (2002 & Supp. 2003); CALIFORNIA - In re Marriage of

Pedregon, 107 Cal. App. 4th 1284 (Ct. App. 2003) (ruling that where the husband held out a nonbiological child as his

own, he established the paternal relationship and was required to pay child support); In re Nicholas H., 28 Cal. 4th 56,

63 (2002) ("[A] man does not lose his status as a presumed father by admitting he is not the biological father."); Adoption

of Michael H., 10 Cal. 4th 1043, 150-53 (1995); C AL. F AM . C O D E § 7570 (2009); COLORADO - People v. R.L.C., 47

P.3d 327, 333 (Colo. 2002) ("[T]he child's interests must also be considered when deciding whether to permit a legal

father to reopen a judgment of paternity. W e are not persuaded that it is in the best interests of a child to permit an

existing parent-child relationship to be subjected to endless question and challenge."); C O LO . R EV . S TAT . A N N . § 19-4-

107(1)(b); DELAW ARE - B.M.H. v. M.J.P., 2003 Del. Fam. Ct. LEXIS 111 (Del. Fam. Ct. July 24, 2003); but see Smith

v. Gordon, 968 A.2d 1 (Del. 2009); FLORIDA - Dep't of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla.

1993); G.F.C. v. S.G., 686 So. 2d 1382, 1385 (Fla. Dist. Ct. App. 1997); GEORGIA - Baker v. Baker, 582 S.E.2d 102,

104 (Ga. 2003) (citing Davis v. LaBrec, 274 Ga. 5, 7 (549 S.E.2d 76) (2001)); HAW AII - Child Support Enforcement

Agency v. Doe, 963 P.2d 1135, 1138 (Haw. Ct. App. 1998); IDAHO - Doe v. Roe (In re Doe), 142 Idaho 202, 205 (Idaho

2005) ("Mere biology does not create a father with legal rights and responsibilities to a minor child."); INDIANA - In

re Paternity of E.M.L.G., 863 N.E.2d 867, 869 (Ind. Ct. App. 2007) ("'[a] man is a child's legal father if the man executed

a paternity affidavit in accordance with Indiana Code section 16-37-2-2.1 . . . .'" (quoting Ind. Code § 16-3114-7-3

(2001))); In re Paternity of J.A.C., 734 N.E.2d 1057, 1060 (Ind. Ct. App. 2000) (Robb, J., concurring) (execution of a

paternity affidavit establishes paternity, and thus it was "completely unnecessary" for the father to have to prove his

paternity in a later paternity action), however this only applies when there is a belief that the child is the biological

offspring of the parent, even if believed incorrectly, Seger v. Seger, 780 N.E.2d 855, 857 (Ind. Ct. App. 2002); IOW A -

Callender v. Skiles, 623 N.W .2d 852, 856 (Iowa 2001); I OW A C O D E A N N . § 600B.41; KANSAS - Ferguson v. Winston,

996 P.2d 841, 844-45 (Kan. Ct. App. 2000); KENTUCKY - S.R.D. v. T.L.B. 174 S.W . 3d 502 (Ky. Ct. App. 2005);

J.N.R. v. O'Reilly, 264 S.W . 3d 587 (Ky. 2008); LOUISIANA - Leger v. Leger, 829 So. 2d 1101 (La. Ct. App. 2002)

(ruling that wife had no legal authority to rebut presumption of husband's paternity when the child was born during the

marriage or within 300 days after the divorce); Smith v. Jones, 566 So. 2d 408 (La. Ct. App. 1990) (admitting DNA

evidence presented by biological father but finding that the child may have two "fathers," i.e., "dual paternity"); but see

Faucheux v. Faucheux, 772 So. 2d 237 (2000); MAINE - Philbrook v. Theriault, 957 A.2d 74, 79 (M e. 2008); C.E.W.

v. D.E.W., 845 A.2d 1147, 1151 (Me. 2004); Stitham v. Henderson, 768 A.2d 598, 603 (Me. 2001); MARYLAND -

Evans v. Wilson, 382 Md. 614, 623 (M d. 2004); MASSACHUSETTS - In re Paternity of Cheryl, 746 N.E.2d 488, 490

(M ass. 2001); MICHIGAN - Sinicropi v. Mazurek, 273 M ich. App. 149, 161 (Mich. Ct. App. 2006); MINNESOTA -

Witso v. Overby, 609 N.W .2d 618, 623 (M inn. Ct. App. 2000); MISSOURI - Walker v. Walker, 280 S.W .3d 634, 637

(M o. Ct. App. 2009); but see Jefferson v. Jefferson, 137 S.W .3d 510 (Mo. Ct. App. 2004); MONTANA - In re Paternity

of Adam, 903 P.2d 207, 210-11 (Mont. 1995); M O N T . C O D E A N N ., § 40-6-105 (2007); NEBRASKA - State ex rel.

Hopkins v. Batt, 253 Neb. 852, 862 (Neb. 1998); NEVADA - Love v. Love, 114 Nev. 572, 578 (Nev. 1998) ("[W ]hich

presumptions are 'founded on the weightier considerations of policy and logic.'"); Russo v. Gardner, 114 Nev. 283, 284

(Nev. 1998); NEW HAMPSHIRE - Watts v. Watts, 337 A.2d 350, 351 (N.H. 1975); NEW JERSEY - F.B. v. A.L.G.,

821 A.2d 1157 (N.J. 2003) (denying motion of putative father to vacate paternity judgment several years after he waived

32

father with legal rights and responsibilities to a minor child." Doe v. Roe (In re Doe), 142 Idaho 202,

right to genetic tests and acknowledged paternity because he did not prove fraud and he had acted as the father for eight

years); NEW YORK - In re Adoption of Anonymous, 74 Misc. 2d 99 (N.Y. Sur. Ct. 1973); NORTH CAROLINA -

Ambrose v. Ambrose, 140 N.C. App. 545, 546 (N.C. Ct. App. 2000); but see Wright v. Wright, 281 N.C. 159, 172 (N.C.

1972); NORTH DAKOTA - K.E.N. v. R.C., 513 N.W .2d 892, 897 (N.D. 1994); OHIO - Poskarbiewicz v. Poskarbiewicz,

787 N.E.2d 688 (Ohio Ct. App. 2003) (ruling that, although the child and the mother's husband were not blood-related,

severing the parent-child relationship between child and mother's husband would not be in the best interest of the child);

OREGON - Sleeper & Sleeper, 982 P.2d 1126 (Or. 1999); O R . R EV . S TAT . A N N . § 109.119 (granting rights to "a person

who establishes emotional ties creating child-parent relationship or ongoing personal relationship"); PENNSYLVANIA -

Grassmyer v. Coleman, 345 Pa. Super. 358, 361 (Pa. Super. Ct. 1985) (citing Commonwealth ex rel. Hall v. Hall, 215

Pa. Super. 24, 257 A.2d 269 (Pa. Super. Ct. 1969); Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa. Super. 307, 369

A.2d 416 (1976); RHODE ISLAND - Pettinato v. Pettinato, 582 A.2d 909, 913 (R.I. 1990) ("[G]enetic blood test results

offered into evidence were not relevant because legal paternity had been established and biological paternity was not at

issue." (citing Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67, 71 (1990))); SOUTH CAROLINA - Dodge v. Dodge,

505 S.E.2d 344, 348 (S.C. Ct. App. 1998) (natural parents have superior rights in custody disputes with third parties;

superior rights "yield" where the interest and welfare of the child clearly require alternative custodial supervision);

SOUTH DAKOTA - Culhane v. Michels, 615 N.W .2d 580, 589 (S.D. 2000) (denying genetic testing where father

challenged paternity of marital children whom he had acknowledged as his own for 18 years); TENNESSEE - State ex

rel. Robinson v. Glenn, 2007 Tenn. App. LEXIS 255 (Tenn. Ct. App. Apr. 26, 2007) ("However, when a man executes

a VAP [(voluntary acknowledgment of paternity)], he acknowledges that he accepts responsibility of being a parent to

the child, and most importantly, he specifically waives his right to genetic testing."); State ex rel. Hickman v. Dodd, 2008

Tenn. App. LEXIS 699 (Tenn. Ct. App. Nov. 21, 2008); State Dep't of Human Servs. ex rel. Ellis v. Humes, 2005 Tenn.

App. LEXIS 145 (Tenn. Ct. App. Mar. 10, 2005); T EN N . C O D E A N N . § 24-7-113 (2009); TEXAS - Dreyer v. Greene,

871 S.W .2d 697, 698 (Tex. 1993); Espree v. Guillory, 753 S.W .2d 722, 724 (Tex. App. 1988); UTAH - Pearson v.

Pearson, 182 P.3d 353, 354 (Utah 2008); VERMONT - Godin v. Godin, 725 A.2d 904, 910 (Vt. 1998) (denying

husband's motion for paternity testing, citing the marital presumption of paternity and the superior interests of the state,

the family, and the child in "maintaining the continuity, financial support, and psychological security of an established

parent-child relationship"); VIRGINIA - V A . C O D E A N N . § 20-49.1 (2004); W ASHINGTON - In re Marriage of Wendy

M., 962 P.2d 130, 132 (W ash. Ct. App. 1998); W EST VIRGINIA - State ex rel. West Virginia Dep't of Health & Human

Resources v. Michael George K., 531 S.E.2d 669, 674-75 (W . Va. 2000) ("[I]f a person has held himself out as the father

of a child for such a time that disproof of paternity would result in undeniable harm to the child, blood test results may

be ruled to be inadmissible." (citing Michael K.T. v. Tina L.T., 182 W . Va. 399, 387 S.E.2d 866 (1989))); W ISCONSIN -

Randy A. J. v. Norma I. J., 677 N .W .2d 630, 637 (W is. 2004) ("[W ]hen determining the level of relationship that is

necessary before a putative father may assert parental rights of a constitutional dimension, we returned to the direction

given by the [United States] Supreme Court . . . where the Supreme Court's decisions were driven by the actual

responsibility for the child the father had assumed." (citing W.W.W. v. M.C.S., 161 W is. 2d 1015, 1331-32 (1991))); W IS .

S TAT . A N N . § 767.245 (2003) (granting rights to a person who "maintained a relationship similar to a parent-child

relationship"); contra ALASKA - Dep't of Revenue, Child Support Enforcement Div. v. Button, 7 P.3d 74 (Alaska 2000)

(allowing DNA evidence to be admitted nine years after paternity acknowledgment by nonbiological father);

CONNECTICUT - Weidenbacher v. Duclos, 234 Conn. 51, 69 (Conn. 1995); ILLINOIS - In re Marriage of Adams, 701

N.E.2d 1131 (Ill. App. Ct. 1993) (permitting disestablishment of paternity despite 10 year relationship with child, finding

best interests of the child not relevant to decision); 750 ILL. C O M P . S TAT . A N N . 45/7(b-5); MISSISSIPPI - M.A.S. v. Miss.

Dep't of Human Servs., 842 So. 2d 527 (Miss. 2003) (allowing DNA evidence to be admitted nine years after paternity

acknowledgment by minor nonbiological father because it would be "profoundly unjust" to require him to continue to

make payments); NEW MEXICO - Lane v. Lane, 121 N.M. 414, 417 (N.M. Ct. App. 1996); OKLAHOMA - Dep't of

Human Servs. v. Chisum, 85 P.3d 860 (Okla. Civ. App. 2004) (granting motion to disestablish paternity finding that

genetic testing excluding father created "material mistake of fact" and that neither equity nor the best interests of the child

applied in paternity cases where genetic testing excluded the movant); W YOMING - MAM v. State Dep't of Family

Servs., 99 P.3d 982 (Wyo. 2004) (permitting legal father to reopen paternity judgment because, among other things, the

court record did not establish that the man had been informed of his right to genetic testing).

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205 (Idaho 2005).

B. Legal Scholarship

Many legal scholars have emphasized the constitutional importance of a fully developed

relationship in determining parental rights. As one legal scholar stated, "the unwed father's interest

springs not from his biological tie with his illegitimate child, but rather, from the relationship he has

established with and the responsibility he has shouldered for his child." John T. Wright, Caban v.

Mohammed: Extending the Rights of Unwed Fathers, 46 BROOK. L. REV . 95, 115-116 (1979); see

Donald L. Swanson, The Putative Father's Parental Rights: A Focus on "Family," 58 NEB. L. REV .

610, 617 (1979) ("[A] putative father's failure to show a substantial interest in his child's welfare and

to employ methods provided by state law for solidifying his parental rights . . . will remove from him

the full constitutional protection afforded the parental rights of other classes of parents . . . ."); Mary

F. Radford, Constitutional Law - Equal Protection - Caban v. Mohammed, 29 EMORY L.J. 833, 854

(1980) ("an unwed father's rights in his child do not spring solely from the biological fact of his

parentage, but rather from his willingness to admit his paternity and express some tangible interest

in the child").14

Assumption of paternal responsibility and establishment of a paternal relationship is

tantamount to determining who is the "father." However, the next consideration is whether the

evidence presented is sufficient. 38 C.F.R. § 3.201(b) ("As to the father, the sufficiency of evidence

will be determined in accordance with the facts of the individual case.")

IV. APPLICATION TO CASE

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.

14

For further information see Anne B. Poulin, Illegitimacy and Family Privacy: A Note on Maternal

Cooperation in Paternity Suits, 70 N W . U. L. R EV . 910, 916-919 (1976); Developments in the Law - The Constitution

and the Family, 93 H ARV . L. R EV . 1156, 1275-1277 (1980); Constitutional Law - Fourteenth Amendment - Equal

Protection Clause - Rights of Putative Fathers, 18 D U Q . L. R EV . 375, 383-84 n. 73 (1980); Note, 19 J. F AM . L. 440, 460

(1980); Juliann J. Sitoski, Limiting the Boundaries of Stanley v. Illinois: Caban v. Mohammad, 57 D EN V . L. J. 671, 680-

83 (1980); Unwed Fathers: An Analytical Survey of Their Parental Rights and Obligations, 1979 W ASH . U.L.Q. 1029,

1035; Note, 12 U.C. D AVIS L. R EV . 412, 450 n.218 (1979).

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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.

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