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GALLIGAN v. UNITED STATES

June 13, 1983

John E. GALLIGAN, Plaintiff,
v.
UNITED STATES of America, and Robert Nimmo, Administrator of Veterans Affairs, Defendants



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

 BRAMWELL, District Judge.

 Plaintiff John E. Galligan, pro se brings this action pursuant to 38 U.S.C. § 784 (1976 & Supp.1983) against the United States of America and Robert Nimmo, Administrator of Veterans Affairs. *fn1" Plaintiff seeks an order directing the Administrator to grant him a waiver of premiums, retroactive to 1973, on his National Service Life Insurance policy and on his total disability rider. Plaintiff further requests an order directing the Administrator to pay him, also retroactive to 1973, $100.00 per month in total disability income provision benefits for the remainder of his life pursuant to the rider provision.

 Plaintiff moves this court for an order granting him summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that there is no issue as to any material fact and that he is entitled to judgment as a matter of law. Defendants cross-move for an order dismissing plaintiff's complaint and granting defendants judgment pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn2"

 BACKGROUND

 Plaintiff, following his discharge from active military duty in 1953, purchased a $10,000 National Service Life Insurance (NSLI) policy, effective on May 11, 1953. This policy provided, in relevant part, for a waiver of payment of premiums should the plaintiff become totally disabled. Plaintiff subsequently had a total disability income provision (TDIP) rider added to his policy, effective in June of 1965. This rider provided for monthly income of $100.00 to plaintiff, for life, in the event he became totally disabled.

 The NSLI policy and subsequently added TDIP rider both define "total disability" as including "organic loss of speech". The insurance policy further states that the coverage is promulgated pursuant to the NSLI provisions of Title 38 of the United States Code. The policy expressly states that the insurance, ". . . is subject to the applicable provisions of that title and amendments or supplements thereto [and] regulations promulgated pursuant thereto . . ." (Insurance Policy annexed to Complaint as Exhibit A).

 On December 12, 1972 plaintiff's larynx was totally removed by surgery because of a cancerous condition. It is uncontested that this surgery qualified plaintiff as totally disabled under 38 C.F.R. § 8.43(b) (1982).

 Section 8.43(b) provides in pertinent part that,

 
Organic loss of speech will mean the loss of the ability to express oneself, both by voice and whisper through normal organs of speech, if such is caused by organic changes in such organs. Where such loss exists, the fact that some speech can be produced through the use of an artificial appliance or other organ of the body will be disregarded.

 38 C.F.R. § 8.43(b).

 Both plaintiff's policy and total disability rider required that he file an application to obtain a waiver of premiums and disability income benefits.

 Here, plaintiff made an application for waiver of premiums and total disability benefits on November 7, 1980, almost eight years after his larynx was removed. On December 3, 1980 the Veterans Administration Insurance Division notified plaintiff that he was entitled to waiver of premiums on his NSLI policy effective November 11, 1979. Plaintiff was denied benefits under the TDIP rider because plaintiff had cancelled the rider in early 1979.

 Plaintiff subsequently claimed that his failure to file a claim at an earlier date was due to circumstances beyond his control. On this basis plaintiff requested that the V.A. grant him a waiver of premiums retroactive to January 11, 1973, and total disability income benefits retroactive to June 1, 1973. Plaintiff's claim was denied by the V.A. Insurance Division, and the denial was affirmed by the Board of ...


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