Colorado says thousands of our vets (TOTALLY & PERMANENTLY DISABLED IN THE LINE OF DUTY) aren't our right kind of vets (TOTALLY & PERMANENTLY DISABLED IN THE LINE OF DUTY) to deserve benefits

 I recently exchanged correspondence with a very courteous state official. The point I wanted to make is that when veterans were granted the small partial property tax exemption for totally and permanently disabled veterans via SCR06-001 that led to Referendum E in 2006, what we voted approval for clearly wasn't what ended up as the wording of the constitution's Article X Section 3.5. 

Did we get snookered? Did the legislature pull a fast one to keep from wasting too much money on disabled veterans?

The official's correspondence and expertise was very kindly offered to me and I appreciate it, but he just didn't address my point and instead stressed, the law is what the law is, and for changes visit your legislator. He wrote, "In Colorado, the factors that affect the determination as to whether a veteran is a "qualifying disabled veteran" who is eligible for the property exemption are:

"(1) the eligibility requirements set forth in the Colorado Constitution; and (2) Most significantly for the purposes of this response, the purpose for which the federal government has determined a veteran to be "totally" disabled."

I do understand. I'm not the official's client but the state government is his actual client so he steps forth in support, despite the oath of office to the national and state constitutions that one must take for public service. I tried to make the point that I agree with his second point, that "total disability for individual unemployability" (TDIU) is a VA classification for....totally and permanently disabled Colorado veterans injured in the line of duty. My point was that total and 100% are the same words, and we follow the "plain meaning" of words in our state.

Here is what the people of Colorado were told we voted for when we read the text of the referendum in the 2006 Blue Book:

"AN AMENDMENT TO SECTION 3.5 OF ARTICLE X OF THE CONSTITUTION OF THE STATE OF COLORADO, CONCERNING THE EXTENSION OF THE EXISTING PROPERTY TAX EXEMPTION FOR QUALIFYING SENIORS TO ANY UNITED STATES MILITARY VETERAN WHO IS ONE HUNDRED PERCENT PERMANENTLY DISABLED DUE TO A SERVICE-CONNECTED DISABILITY."

I've made the point already that "one-hundred-percent" and "total" as in TDIU mean the same; voters made no distinction and weren't asked to do so...we approved 100% which is the same as total. However, here's the version of what we ended up as Article X Section 3.5 of the constitution once administrators and legislators reworded what they sent us to vote on and what we voted for into what they wanted for us. We got the text of the referendum, but the legislature had in SCR 06-001 their very restrictive definition of a "qualified veteran" that we voters didn't get to see:

(1.5) For purposes of this section, "disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force.

We didn't get to see the part highlighted in yellow although it was in SCR06-001 and it also ended up in the constitution as Article X Section 3.5. We do know that the legislature wasn't all that concerned about its own wording because when they did the enabling statute for the referendum once it was approved they decided, without regard for the constitution they'd just given to us to approve, that they'd leave out the text highlighted in yellow.

"(3.5) ‘Qualifying disabled veteran’ means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department.

That's right. HB07-1251, the statute the legislature passed didn't have the part about totally disabled military retirees, so for the next fifteen years Colorado taxed these veterans, despite their constitutional entitlement to the property tax exemption:

I spotted the problem in 2014 and worked with my state senator to fix it. In May 2016 the legislature passed HB16-1444 to put those constitutional words protecting totally and permanently disabled military retires back into the statute, but Colorado has ever since ignored that law by simply not providing any form with which those qualified veterans can apply. No form = no exemption, despite the nagging minor detail of these veterans having the benefit enshrined in our hallowed constitution. I refer back to the oaths these folks take upon assuming office to support the state constitution...but it seems not of any importance if things like this aren't of interest to them.

What is VA "TDIU" and how does VA use that rating?

I've needed to go into an explanation what VA TDIU is (CLICK HERE for VA's factsheet) but I overlooked doing it until questions arose at Sunday night's United Veterans Coalition banquet in Denver. A gentleman at our table was from Arapaho County and asked me about helping his Army veteran son.

A skillful veteran’s service officer (VFW, DAV, state or county) can advise about eligibility for Total Disability for Individual Unemployability (TDIU, and sometimes just IU) and help one obtain this valuable benefit if qualified. These pros know the mysterious VA bureaucracy and the evidence required to obtain favorable benefit claim decisions for disabled veterans. Their objective for every disabled vet they assist is to get the maximum entitled benefit. And actually, that's VA's goal as well.

The VA requires veterans to prove their qualifications for disability benefits but even then, VA routinely denies legitimate TDIU claims. 

Qualifying for TDIU:

The VA’s Individual Unemployability (TDIU) benefit represents somewhat of a loophole for disabled veterans in the VA system. It allows assigning a total disability rating for compensation (100%) to to a vet when the vet’s actual disability exceeds the VA's rating chart. TDIU was established decades ago when VA appreciated that there were situations where the regular percentage allowed for a disability is inadequate and where the vet's particular disability (regardless of any rating chart) is in fact total. TDIU ratings account for situations where the line-of-duty disability has made employment impossible, making employment impractical. 

Total Disability for Individual Unemployability is based on the vet’s proven inability to maintain “substantially gainful employment” due to a service-connected illness or injury.

VA regulations usually require the vet to have at least one service-connected disability rated at 60% or more. Or, if the vet has multiple disabilities, at least one must be ratable at 40% or more, and in combination the vet’s disabilities confer a combined rating of 70% or more.

Veterans who do not meet the minimum disability percent rating requirements for IU may be considered if they can show exceptional or unusual circumstances, such as that their disabilities directly interfere with their employability or require hospitalization often enough to make steady employment impractical. Or, that a secondary issue such as pain from an SC back injury makes competitive employment painful and unwise to attempt.

The veteran’s claim must show that service-connected disability or disabilities are “sufficient, without regard to other factors, to prevent performing the mental and/or physical tasks required to get or keep "substantially gainful employment.”

“Substantially gainful employment” is defined as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.”

VA regulations also make it clear that substantially gainful employment is more than marginal employment, which is a secondary standard for evaluating a vet’s earnings. Marginal employment is defined as earning income that does not exceed the poverty threshold for one person as established by the Census Bureau. For 2021, that threshold is $13,100 for an individual under age 65. 

Vets in sheltered work environments, employed by family businesses or self-employed may earn more than marginal employment income and still be considered for IU.

Money earned by participating in the Veterans Health Administration’s (VHA’s) Compensated Work Therapy (CWT) Program is not counted as income for TDIU purposes.

A vet who has a 100% disability rating according to the VA rating schedule is permitted to maintain substantially gainful employment, but an TDIU benefit recipient is not.

TDIU benefits parallel those of 100% schedular. The compensation is the same with identical special allowances for dependents, clothing, aid and attendance, travel, and special monthly compensation. A prepaid $10,000 is available upon application. Rehab, pharmacy, audiology, prosthetics, optometry, and other VA medical care is the same. There are some situations where dental care is also provided. One of the most important benefits for both TDIU and 100% schedular is CHAMP-VA for Tricare-like family medical care. Often with age and increasing difficulties with SC issues, a TDIU-vet will transition into 100% schedular.

 VA TDIU Eligibility Requirements:

Evidence that must be part of a veteran’s disability benefits claim to obtain IU / TDIU benefits includes:

• Medical evidence of the veteran’s current physical and mental condition, e.g., results of VA examinations, hospital reports, and/or outpatient records. As in other claims, the VA may schedule a medical examination if the veteran’s medical evidence is incomplete or inconsistent.

• Employment and work history for five years prior to the date on which the veteran became too disabled to work, as well as for any work performed after this date.

• Forms completed by each employer for whom the veteran worked during the 12-month period prior to the date the veteran last worked.

• Social Security Administration reports if the vet receives Social Security Disability benefits, if the veteran’s other evidence is insufficient to award compensation

• Records from the VA’s Vocational Rehabilitation and Employment Service (VR&E) if evidence suggests rehab was undertaken but unsuccessful or was found to be medically unfeasible. VR&E testing can be requested by any vet enrolled in VA health care. Social Security Disability records are persuasive.

If the TDIU benefit is granted, the vet must complete a VA employment questionnaire each year until the age of 69 to affirm that he or she remains incapable of maintaining substantially gainful employment.

VA disability raters are trained to consider TDIU in exceptional cases, yet about 40% of all totally disabled vets get that rating and 60% or so are 100% schedular. Examiners can't consider the vet’s age or distinguish between retirement and inability due to age as opposed to a true service-connected disability resulting in unemployability.

As in other cases, VA claims examiners may request additional information at any time to supplement or clarify evidence in a veteran’s claim. This, of course, slows the process. Submit as much persuasion as can be gathered!

Good luck with your claim. NOW –  HELP OTHER VETERANS!

United Veterans Coalition Considering Agenda Item: Property Tax Exemption for Gold Star Wives

 The United Veterans Coalition state legislative affairs committee is considering addition of the Gold Star Wives Disabled Veteran Survivor Property Tax Exemption for inclusion in the 2022 legislative agenda.

The decision will be based on input from the Gold Star Wives and other primary organization members. I encourage everyone having an opinion on the issue to voice it through their primary group representatives.

The issue was unanimously approved by the Colorado House in the session just ended but killed by the Senate Military and Veterans Affairs Committee. The idea was to submit a referendum to the voters next term, amending the constitution's Article X Section 3.5 to include these active-duty troops' survivors. I believe the change could have been made via statute, a much easier path than changing the consitution.

The Legislative Support Staff calculated the cost to Colorado would be only $93,000, so it is very, very hard to understand why every Democrat voted against these 140 Gold Star Wives' small benefit.

Did Colorado OVERTAX 100% Disabled Veterans an EXTRA $3.6M in Property Taxes?

Yes. It appears that for nearly fifteen years Colorado has accidentally but unconstitutionally overcharged hundreds of our 100% disabled military veterans by $4,050,000! Nearly seven percent of the totally disabled military veterans in Colorado are involved.This is a complicated constitutional argument to follow, so have fun! (The final paragraph provides the reasoning behind the $4.1M unfairly taxed from vets.)

In 2007 voters approved Referendum E to create Article X Section 3.5, qualifying 100% disabled military veterans a partial property tax exemption similar to the senior exemption. This had been referred to the voters by the legislature for constitutional amendment as S.C.R. 06-001:

"Property tax exemption for disabled veterans. For property tax years commencing on or after January 1, 2007, extends the existing property tax exemption for qualifying seniors to any United States military veteran, including any member of the Colorado national guard who has been ordered into the active military service of the United States, who has been separated from service under honorable conditions and who is 100% permanently disabled due to a service-connected disability. Requires the state to compensate local governments for property tax revenues lost as a result of the extension of the exemption."

For following this issue today, the relevant part of Article X Section 3.5, the amendment created by Referendum E is:

"(1.5) For purposes of this section, 'disabled veteran' means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force"

The legislature then turned to provide an enabling statute to implement the new amendment, passing HB07-1251:

"(3.5) 'QUALIFYING DISABLED VETERAN' MEANS AN INDIVIDUAL WHO HAS SERVED ON ACTIVE DUTY IN THE UNITED STATES ARMED FORCES, INCLUDING A MEMBER OF THE COLORADO NATIONAL GUARD WHO HAS BEEN ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAS BEEN SEPARATED THEREFROM UNDER HONORABLE CONDITIONS, AND HAS ESTABLISHED A SERVICE-CONNECTED DISABILITY THAT HAS BEEN RATED BY THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS AS ONE HUNDRED PERCENT PERMANENT AND TOTAL DISABILITY PURSUANT TO A LAW OR REGULATION ADMINISTERED BY THE DEPARTMENT."

HB07-1251 begat the tax details in C.R.S. Section 39-3-202 which read (until 2016 with HB16-1444):

(3.5) "Qualifying disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as a one hundred percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the department.

By the plain reading of the new constitutional amendment, all a qualified vet would have to do is present a copy of their VA certification or proof of medical retirement from the armed forces as totally disabled in the line of duty. Both were specified in  Article X Section 3.5 because some military retirees never seek a VA disability – a number estimated by the state at about 450.

The problem causing vets being forced to pay extra property taxes by being denied the exemption arose when the constitutional amendment in Referendum E was implemented in tax statutes. The Legislature passed HB07-1251 and in doing so, forgot (neglected, opted against) to include the last fifteen words of Article X Section 3.5 – "the department of homeland security, or the department of the army, navy, or air force"

Do you see it? Compare the last fifteen words in Article X Section 3.5 against subsequent legislation. The lawmakers clearly did not include the referendum's provision for 100% disabled military retirees. Fifteen words left out denied the exemption to about 450 veterans.

By the plain reading of the new constitutional amendment, all a qualified vet would have to do is present a copy of their VA certification or proof of medical retirement from the armed forces as totally disabled in the line of duty. Both were specified in  Article X Section 3.5 because some military retirees never seek a VA disability – a number estimated by the state at about 450. 

Here's our problem: Colorado’s constitution is supreme, trumping statutory law in areas of conflict. Article X Section 3.5 therefore outguns HB07-1251, at least in the part where disabled military retirees are left out of the legislation.

So HB07-1251 seems unconstitutional. Only the Supreme Court can declare it so, but the plain meaning of the words (and of the words not included in the statute) is very clear. 100% disabled military retirees separated by their services should have been receiving our Disabled Veteran Property Tax Exemption since 2007.

In 2014 along came a 100% disabled military retiree who's application for the exemption was denied by CDMVA. The vet was initially rebuffed, referred back to the statute and various forms. But then he tracked the statutes back to the constitution and Article X Section 3.5. Even reading it a few times wasn't illuminating, at least not until he read it a bit more slowly and noted those missing fifteen words! Eureka!

This could have been resolved by working the issue up to the Supreme Court, but sympathetic advice from DOLA experts proved much more effective – "go to your legislators."

A couple phone calls, a few town hall meetings and many letters and emails later, Senator John Kefalas and other legislators took the bit in their teeth and got HB16-1444 enacted. That happened because the United Veterans Coalition backed the issue by making it a 2006 legislative objective. 

So, this little problem solved, thought the vet. HB16-1444 took effect in 2017 and he got his exemption, although he'd also received a VA 100% rating to replace his initial VA 100% disability rating for TDIU. Then in 2018 he noticed few of the counties updated forms or instructions to include those fifteen last words left out that got the correction.

Off went a missive to DOLA, asking them to urge counties and other state agencies to more closely adhere to the law. DOLA responded quickly, posting another reminder that circulated throughout the state. DOLA also said they'd update their own form and web site information.

Problem solved? No. Checking this month of June 2021, four years after HB16-1444 went into effect, fourteen years after the constitutional mistake was made, DOLA, Treasury, CMDVA and other agencies and most counties still fail to include 100% military disabled retirees.

How did the figure $4,050,000 get calculated?  The number of 450 affected disabled military retirees from state agency reports was multiplied by $600 for the average value of the property tax exemption denied them, then multiplied by fifteen years. Total: $4.1M.  Unconstitutional?

Here is the background paper trail on this issue.

===============================

Here are examples of state or county agencies failing to properly describe qualified veterans:

A. DOLA, CMDVA, Boulder, Douglas, Pacific, Weld, most counties's application

=========================================================

B. Douglas, most other counties' application instruction
===================================================

Property Tax

Disabled Veteran Property Tax Exemption

This program is for Disabled Veterans who:

• Are RATED by the U.S. Department of Veterans Affairs at 100%, Permanently and Totally Disabled by the U.S. Department of Veterans Affairs (Individual Unemployability does not qualify) AND

C. Even DOLA and the state Department of Military and Veterans Affairs doesn't correct inaccurate information.
====================================================

D.  Treasurer of the state - him, too! Fear of having to give unconstitutionally demanded property taxes back to the
disabled military retireesQ