recertification of military services." Again she asked that her "claim for gratuitous insurance be readjudicated and paid."
On March 31, 1967 the Veterans Administration sent her a form letter with a typed notation as follows: "The enclosed letter you received from the Department of the Army does not show that your son had service with the USAFFE."
Finally about ten years after the 1958 recertification by the Department of the Army and approximately 16 years after the plaintiffs took timely exception to and asked for a review of the 1952 denial of their claim the Veterans Administration got around to consideration of the claim on the proper service record. On June 13, 1968 Mrs. Tupaz was notified of the denial of her insurance claim. The ground asserted therefor was that Mrs. Tupaz was not a dependent parent during the three month period preceding the death of the veteran.
This suit was instituted by Mrs. Tupaz on September 6, 1968. Subsequently the father of the veteran joined her as a plaintiff.
The statute of limitations provides that no suit on National Service Life Insurance shall be allowed unless the same shall have been brought within six years after the right accrued for which the claim is made. 38 U.S.C. § 784(b). As the veteran in the instant case was killed November 22, 1943 the right to bring suit for his insurance accrued to his parents on that date. Hence the statute of limitations then began to run and continued to run until November 12, 1947 when they filed their claim with the Veterans Administration.
In the law last above cited there is a provision for a suspension of limitations while consideration of such claim takes place. Accordingly the period in the instant case elapsing between November 12, 1947 (the date of the filing of the claim) and June 23, 1952 (the date the government says a denial of the claim took place) is not to be counted.
If the running of the statute of limitations resumed on June 23, 1952, then obviously the running expired long before September 6, 1968 when the instant suit was commenced, and the statute of limitations would be a bar to recovery.
On the other hand, if the suspension of limitations beginning on November 12, 1947 (the date of the filing of the claim) continued until June 13, 1968 (the date of the final rejection) then this suit would not be barred.
Under 38 U.S.C. § 784(a) dealing with suits on insurance the right to sue is granted in "the event of disagreement" between the Veterans Administration and the insurance claimant or claimants. By subdivision (h) of that section " the term 'disagreement' means a denial of the claim, after consideration on its merits * * *". (Emphasis supplied.)
When the Veterans Administration on June 23, 1952 denied the claim of plaintiffs such denial was certainly not "after consideration on its merits." On the contrary, the denial was after consideration of an erroneous report by the Department of the Army that Ernesto M. Tupaz did not have the requisite service in the military forces of the United States to qualify him for the insurance in question. Under these circumstances the denial of June 23, 1952 did not constitute "a denial of the claim, after consideration on its merits." The only denial after consideration on its merits was the denial of 1968. It is therefore the view of the Court that there was a suspension of limitations from November 12, 1947 to June 13, 1968, and hence that the bar of the statute had not fallen when the instant suit was commenced.
The evidence in the claim folder is adequate to sustain the plaintiffs' dependency claim. During the three-month period immediately preceding and including the date of death of the veteran, the plaintiffs and their six children under the age of 18 years, were dependent upon the charity of a kind friend for shelter. Their property had been looted and burned by the Japanese. Their veteran son gave them 60 pesos in guerrilla money. Their only other income was from sales of candy made by Mrs. Tupaz but these sales were insufficient for plaintiffs' reasonable support and maintenance. The conclusion reached by the Veterans Administration that dependency did not exist is without substantial support in the record.
Accordingly judgment may be rendered for plaintiffs. Counsel for plaintiffs may submit a proposed judgment.