BROWN v. UNITED STATES, 73 F.2d 309

FITZHENRY, Circuit Judge. This is an appeal from a judgment of the District Court dismissing plaintiff’s suit for want of jurisdiction, it having been agreed by stipulation of the parties that the issue as to whether the jurisdictional disagreement required by statute existed be tried by.the court without a jury.

On May 16, 1929, plaintiff applied to the regional office of the Veterans’ Bureau at Denver, Colo., for the payment of permanent total disability benefits under a contract of term insurance, claiming that his disability dated from August 26, 1919', or, in the alternative, that he recover under a policy of converted insurance in the sum of $3,000.

In the event of a disallowance of his application by the claims and rating board, claimant asked: “That my case be reviewed by the Regional Manager and that this application shall be forwarded, by you to the Central Board of Appeals having jurisdiction, and, in the event of an unfavorable decision there, then it is requested that this application be forwarded through the necessary channels provided by regulations now in force for ultimate decision by the Director of the U. S. Veterans Bureau, Frank T. Hines, Washington, D.

C.” On July 20, 1929, appellant was notified by a letter from the office of the regional manager, signed by the regional adjudication officer, that his claim of permanent and total disability had been denied. On July 26,1929, appellant mailed a notice of his appeal to the bureau. This letter reached the bureau on July 27, 1929.

In it he stated his desire to appeal his ease to the central board of appeals and requested “that in the event of an unfavorable decision there, this application shall be forwarded through the necessary channels provided by regulations “now in force, for ultimate decision by the Director of the U. S. Veterans Bureau, Frank T. Hines, at Washington, D.

C.” On July 26, 1929, the regipnal manager of the bureau had written a letter to the appellant, sent through the medical officer in charge at Edward Hines, Jr., Hospital, stating that after a review it'had been decided that appellant’s claim for permanent total disability benefits must be denied and that the letter might be regarded as evidence of a disagreement under

section 39-of the World War Veterans’ Act, 1924, as amended (38 USCA § 445). Plaintiff thereupon instituted this suit on August 5, 1929, without dismissing his appeal to the central board. Upon these facts, the trial judge properly held that the case was controlled by Hansen v. United States (C. C. A.) 67 F.(2d) 613. At the time of filing application for insurance benefits, and again upon receiving notice of the denial of his claim by a subordinate official of the bureau, appellant stated that it was his intention to appeal his case, if necessary, to the director of the bureau.

He .never notified the bureau of any change of intent. In the light of the holding of this court in Hansen v. United States, supra, the District Court properly found that it was without jurisdiction in the case. The judgment is affirmed.