Ruling allows widows to sue for benefits

A U.S. Court of Federal Claims judge has given a green light to three military widows to sue the government for a combined $105,000 — the accumulated value of Survivor Benefit Plan payments that, the widows contend, have been unlawfully withheld since Dec. 16, 2003.

In a 24-page opinion denying the government’s motion to dismiss the case, Judge George Miller found that both the facts and the law favor the widows and counter every legal argument raised by government attorneys.

If they win their case, hundreds of surviving spouses in the same category could be in line for hefty repayments. That category is precise: surviving spouses who remarried at 57 or older and who have had their survivor benefits cut or wiped out by their decision to accept Dependency and Indemnity Compensation from the Department of Veterans Affairs.

The lawsuit challenges how the Department of Defense has interpreted a provision of the Veterans Benefits Act of 2003. The widows argue that Congress intended for them to be among the first small group of surviving military spouses deemed eligible for “concurrent receipt” of both payments. In other words, they were to be the first of 44,000 dual-eligible widows to be exempt from the so-called SBP-DIC offset.

Under the Survivor Benefits Plan, service members nearing retirement elect to pay a monthly premium so that, in case of their death, their surviving spouse or a dependent child continues to receive up to 55 percent of their annuity.

Dependency and Indemnity Compensation, meanwhile, is a fixed amount of monthly compensation offered to families of service members who die while on active duty or military retirees who die of their service-related disabilities.

If a surviving spouse drawing survivor qualifies also for tax-free Dependency and Indemnity Compensation, the law requires that taxable survivor payments be reduced dollar-for-dollar by dependency payments. Basic dependency compensation is now $1,067 a month, with extra amounts paid for each dependent child.

It’s important to understand that, until December 2003, compensation stopped for any surviving spouse who remarried. But the Veterans Benefits Act of 2003 modified that rule. It allowed the compensation to continue, or be restored, if the surviving spouse remarried at 57 or older. This provision made more than 12,000 widows eligible again for compensation if they knew to apply for it.

But advocates for military widows said the same provision did more than that. It was written so that it would shield these remarried widows, when their compensation was restored, from any reduction in survivor benefits. Rep. Henry Brown Jr., R-S.C., then chairman of the personnel subcommittee, said weeks after the law was enacted: “We put a special paragraph in there to, basically, get (the Defense Department) to do that. This was to get the camel’s nose under the tent, sort of like we did with concurrent receipt” for disabled retirees.

Judge Miller referred to Brown’s quote in his opinion rejecting the dismissal motion though he relied on legal arguments for his actual opinion.

Despite protests from affected widows, Defense pay officials and lawyers declined in 2004 to interpret the law to allow concurrent receipt. Like other surviving spouses, these widows saw that as their Dependency and Indemnity Compensation kicked in, their survivor benefits fell away. Last July, three of them filed their complaint with the claims court, with support from Gold Star Wives of America. Patricia Sharp, remarried widow of an Army brigadier general, said she was owed more $50,000. Margaret Haverkamp, the remarried widow of a retired Army lieutenant colonel, is owed $18,800, the complaint said. Iva Rogers, the remarried widow of an Army master sergeant, is owed $36,000.

The survivor payments she now is denied, Mrs. Rogers said, began in 1976, the year her first husband, Arlan Wilson, died just two years into his retirement after 32 years as a decorated soldier and combat tours in three wars.

“That was all I had,” said Rogers, now 82, of her early survivor benefits. “He had had a life in the Army of wars after wars where I was left alone with my two boys for month and month. So I felt like I was eligible.”

After VA determined that her husband’s brain stem cancer was service connected and qualified her for dependency compensation, the survivor benefit annuity stopped and his premiums were refunded. In 1996, when she remarried at 70, her compensation stopped. Mrs. Rogers said she went without any survivor payments for years.

When the 2003 law restored her eligibility for compensation but removed her survivor benefits again, Mrs. Rogers decided last year to join in the lawsuit, both for the money at stake and to help educate other widows to the “unfairness” of the SBP-DIC offset. It should end for any surviving spouse, she said.

The government maintains that the intent of the 2003 law is unclear. Even if Congress did want surviving spouses to draw both payments, by virtue of remarriage at 57, the language enacted is too imprecise to allow it.

Judge Miller disagreed. The 2003 law did indeed “partially repeal” the SBP-DIC offset for “those surviving spouses who receive (compensation) by virtue of their having remarried after the age of 57.”

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