(dissenting).
As stated by the majority, the question we are asked to decide is whether the Bureau letter of January 31, 1925, constituted a denial of the claim. After careful consid- ' eration of the entire transaction, including the conduct of the claimants and the Veterans’ Administration, I must answer this question in the negative. It seems to me that the claimants in this case were left without assistance in the jungle of administrative process. In these circumstances I believe the value of protecting the individual claimants, though they were uncommonly slow in attempting to discover or assert their rights, outweighs the convenience and certainty which result from a strict application of the statute of limitations.
Taking the Bureau letter of January 31, 1925, in full context we find that this information was given: (1) That the Board of Appeals had adjusted the deceased’s disability rating thus increasing the accrued and unpaid compensation — to be paid upon receipt of letters of administration. (2) That the question of dependency compensation was still under consideration. (3) That the insurance on the deceased had lapsed for non-payment of premium on July 3, 1919, and was therefore not payable. It thus tacitly admitted that the allowed increase on the accrued and unpaid compensation was sufficient under the law to have provided for the unpaid premiums on the insurance policy.
Taken in toto, this letter appears to me not responsive to the letter on behalf of the claimant. It was not addressed to the question of “reinstatement” rights as posed by the claimant’s letter. It is only by inferences which could be drawn by those familiar with the administrative practices of the Bureau that the “denial” of insurance benefits may be said to have been made after consideration of the case under the provisions of Section 305. The eifect of the Bureau’s letter was, I believe, to by-pass the “reinstatement” element and consequently leave the claim intact, as made.
The Bureau letter makes no mention of appellate procedure to be followed in case the claimant is dissatisfied with any ruling reported therein. Later communications, particularly the one of April 26, 1939, make it clear that the Administration had a fixed form for “denials” which apprised the claimant of his rights in the premises. No such information was given in the 1925 letter.
In such cases it seems little enough to ask that the Administration take some pains to tell the claimant the full story on the salient features of his case, including any further remedy if available. This is particularly important where a case has many facets, each subject to elaborate internal procedure and associated with controversial questions of law and fact. The agency has a peculiar advantage over the uninformed claimant and by reason of that advantage should be held to a high standard in promulgating its rulings before being entitled to' the “repose” afforded by a statute of limitations. I do not believe that Congress ever intended that the benefits for veterans under a highly remedial statute should be abrogated by the whim or laziness of bureaucratic officials through administrative “red tape”.
While the case of Rosario v. United States, 70 App.D.C. 323, 106 F.2d 844, 846, can be distinguished on the facts, the real issue involved was, I think, the same as that in the present case. There the letter relied on by the government said, “Under these decisions, the benefits for insurance and death compensation claimed must be denied by the United States Veterans’ Bureau.” After the issuance of this letter, the Bureau, as in this case, continued to consider the claim in response to subsequent correspondence and some five years after the first letter issued a positive “denial”.
Most appealing to me is this passage from the opinion by this court in the Rosario case: “Even if it be conceded that the *17letter of November 26, 1929, constituted a denial by the Director, we yet would be constrained to hold that this action was filed in time, in view of the negotiations occurring subsequent to that denial. In this connection, it is manifest that there is nothing in the statute or in the procedure before the Administration that prohibits the reopening and reconsideration of a claim that has been denied by the Administration.” Citing United States v. Bollman, 8 Cir., 73 F.2d 133. (Italics added.)
The majority distinguishes the present case on the ground that here the period of time elapsing between the filing of the first and second claims is substantially longer. In other words, the answer to the question of whether the letter of 1925 was a denial is made to depend in considerable measure upon the conduct of the claimants aftetr they received it. If this be the correct method of ascertaining when the bar of limitations falls I think it proper to look not only to the conduct of the claimants, but also to the conduct of the Administration when they are again approached and asked to reconsider the case. On this point 1 consider appropriate the following language from United States v. Bollman, 73 F.2d 133, 135:
“* * * So long as the bureau treats or acts in a manner which would lead the claimant reasonably to beliave that it is holding the matter open, we think it would be unjust to regard it as closed by the first order. The bureau can at any time definitely terminate such proceedings by stating that it declines to reopen and that its order is final." (Italics added.)
It does not seem to me an unreasonable standard of public service which would require the very highest degree of exactness on the part of the Veterans’ Administration in informing claimants of their rights under the remedial legislation administered by the agency.
While recognizing the need for protecting public agencies from fraudulent or unfounded or long unassorted claims, I cannot agree that in the interest of orderly administration the penalty of limitations should be rigidly applied to those who may unwittingly be caused to neglect their rights due to the paucity or ambiguous character of the information supplied by the governmental body with which they must deal.