UVC Identifies 2022 Veterans' State Legislative Objectives

At today's executive committee meeting of the United Veterans Coalition, leaders identified Gold Star Spouses' property tax exemption as our Number One state legislative objective for the 74th General Assembly of the Colorado legislature. 

Colorado's Total Disability for Individual Unemployability (TDIU) veterans' property tax exemption was selected as the coalition's Number Two goal going into the next legislative season!

Both objectives deal with Colorado's Constitution, Article X Section 3.5 and the small partial property tax exemption presently offered seniors, totally and permanently disabled veterans, and their survivors.

The Colorado Bar Association had already indicated its support for both objectives.

Co-chairs Shelly Shelly Kalkowski and Robbie Robinson presented their state legislative committee 2022 general goals and specific objectives, finalized just prior to this morning's executive committee gathering. 

Thank you, UVC!

COLORADO LEGISLATURE & GOVERNMENT: "TDIU VETS ARE ON THEIR OWN"

 Colorado voters approved Referendum E in 2006, not knowing that the legislature had already defined "qualified veteran" so as to exclude vets with the VA "total disability for individual unemployability," (TDIU.) 

Colorado's legislators and government officials chose to interpret the requirement for the "VA 100% rating" so as to exclude totally and permanently disabled veterans who are compensated at the 100% level...because they are in fact totally and permanently disabled. The only difference being, 

TDIU veterans have a totally disabling injury, worse than standard VA tables are meant to recognize, that is in fact totally and permanently disabling. These are the same totally and permanently disabled veterans – one honored by Colorado with a small property tax exemption and the other totally ignored. Are they less somehow than worthy in the eyes of our mostly non-veteran legislators?

Actually, to be completely correct, TDIU vets haven't been truly ignored. That's because the only attention given TDIU veterans by
Colorado's legislature and government has been opposition to extending to these vets, totally and permanently disabled in the line of duty, the small property tax exemption.

That's the extent of their efforts. Less than zero, because it was years of "absolutely not" instead of "let's find a way." That has meant years of being denied the specific constitutional benefit voters were told we approved as Article X Section 3.5 for all of Colorado's veterans with honorable service who became permanently and totally disabled in the line of duty. 

Have we abandoned thousands of Colorado's TDIU veterans?

How Colorado (mis)treats thousands of our totally and permanently disabled veterans - refuses TDIU vets Colorado's disabled veteran property tax exemption

 Colorado extends its small, partial property tax exemption only to veterans with the VA 100% disability rating, but REFUSES the exemption to every totally and permanently disabled veterans with the VA "total disability for permanent unemployability" (TDIU) rating. Same total disability in the line of duty, but TDIU vets have injuries that are WORSE than standard tables.

TDIU vs 100% Disabled Veterans & CO Property Tax Exemption. Perhaps we ALREADY approved TDIU?

A justification for inclusion of TDIU veterans can be based on what the legislature passed in 2006 with SCR06-001 to present to the voters for approval as Referendum E. That asked whether disabled veterans should be added to the original senior exemption. 

I believe voters approved Article X Section 3.5 with the plain meaning of the text's words to include TDRU. Here is the actual text of the amendment from the 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.​"​

According to DOLA, when the enabling legislation was crafted (HB07-1251, Section 39-3-203[1.5], C.R.S) "some legislators" then set up their definitions to fine-tune what voters thought we wanted.

Here's the legislators' "modification" of what the people voted for:

 "...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."

Background: It might help that we have HB16-1125 to​ align Colorado veteran-related terminology with the VA's. In 1925, the​ VA​ Schedule for Rating Disabilities provided the first definition of total disability. Total disability was defined as "an impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation". 

That's what we have today, only VA has evolved two systems of rating tables for various injuries, percentages of which reflect an impairment in the ability to work. A certain injury, or group of injuries, reflects a work impairment in percentages up to 100%, or what is typically a total inability to work. A 100% disabled vet might possibly still work and is encouraged to do so for financial and mental health.

TDIU is absolutely no different in concept – it is also a percentage based on tables for average injuries and how they cost the vet ability to work. However, TDIU is "rounded-up" to the 100% compensation step to addresses situations where an injury or group of injuries is uniquely worse than typical​, ​constituting the ​actual​ total inability to work. 

A TDIU vet who is someday able to return to work forfeits VA compensation, but the 100% vet is encouraged to work if possible and keeps the compensation. TDIU qualification is with full mental or physical disability, just as with Social Security Disability. Often the TDIU is evaluated first by state rehab agencies or a Certified Rehabilitation Counselor in addition to VA exams. 

VA's Inspector General describes TDIU as VA's solution for VA own "inadequate rating tables." Denying a totally and permanently disabled who VA determines has injuries worse than VA's "inadequate" rating is certainly not something ​voters expected to do in approving Referendum E. However, for some illogical reason, Colorado has ended up with that interpretation penalize our TDIU​ vets.

One would have to read the text and make an effort to exclude TDIU​ – and we've done that in our state.

Certainly, if an interpretation is to be made reading the referendum and its explanation, the general sense of inclusion for TDIU is far stronger than its exclusion. Because there was no further qualification or explanation​ in the amendment's text or explanation, no fine-tuning​ as to military veteran​s​totally and permanently disabled due to a service-connected disability – it includes both categories. 

​So, are we left wondering only about the difference between ​“100%” ​and​ “Total?” Did the electorate read the text to include or to exclude either, especially after reading the Blue Book analysis?​ ​Ask a lawyer​ or an English teacher (in one of my former lives, I was an English teacher with a California Community Colleges Lifetime Credential.)​ 

Colorado ​has​ put​ much​ too-fine and illogical a distinction between "100%​"​ and ​"​total" TDIU veterans with permanent awards. Colorado even has our statute, section 2-4-101, C.R.S., that supports the Plain Meaning Rule: "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." I imagine that is especially so with foundational documents such as the constitution.

A. The plain meaning of total includes 100%, complete, containing the whole, an entirety, absolute, perfect, unconditional, and pure. 

B. The plain meaning of one-hundred-percent includes total, complete, full, all, perfect, whole, all inclusive, absolute, an entirety.

Either way, Colorado has one of our citizens to care for, an honorable veteran who volunteered for service and came home totally and permanently disabled ​as well as actually unable to ever work ​due to terrible line of duty injuries, classified by VA as TDIU.

But Colorado refuses even this small tax benefit. Our legislature said our totally and permanently disabled TDIU vet isn't totally and permanently disabled enough, per its preference for one VA total disability category over another, even when VA means them to be the same in protection of the same totally and permanently veterans? Even though Colorado overwhelmingly approved the benefit when we voted for "ANY UNITED STATES MILITARY VETERAN WHO IS ONE HUNDRED PERCENT PERMANENTLY DISABLED DUE TO A SERVICE-CONNECTED DISABILITY.​"​

Here's another thought. There should be no need for a constitutional amendment to address TDIU. Two arguments for that are:

A. We already approved all totally disabled veterans in Referendum E, or

B. Because the legislature defined "qualifying disabled veteran" it can easily do so again to clarify inclusion of TDIU rather than exclusion

Here is how one law firm explains the issue: 

What are the differences between 100% and permanent total disability ratings?

The main difference is why you obtain the rating. If you receive a 100% rating, it is because your disabilities totaled this amount on the Combined Ratings table. If you receive a permanent total disability rating, it is because you received a 100% rating and your conditions are not expected to improve. Veterans can receive a 100% rating or TDIU without the permanent and total disability VA benefits rating attached to it.

“Total” means that all your disabilities equal a 100 percent veterans benefits rating. “Permanent” means the VA expects the veteran’s disability to continue throughout their life without significant improvement. 

 Are Individual Unemployability benefits considered permanent total disability ratings?

First, you should understand that Individual Unemployability benefits, 100% ratings, and permanent total disability ratings are different things. First, Individual Unemployability does not require you to obtain a 100% rating, but they pay the same. Like a 100% disability rating, Individual Unemployability is not necessarily permanent. If you return to work you lose your TDIU. However, veterans can receive a 100 percent rating while working full-time. TDIU is restrictive and an actual determination of the inability to work.

Veterans can receive permanent TDIU ratings while they receive Individual Unemployability benefits if VA determines the line-of-duty conditions preventing you from working are not expected to improve."

​Note: Both groups can ha​​ve temporary categories, but we're only concerned about ​​VA permanent ratings.
​

For reference, here's Referendum E's text from the 2006 B​lue 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.​"​

The Colorado Property Tax Reduction for Disabled Veterans Referendum, also known as Referendum E, was on the November 7, 2006 ballot in Colorado as a legislatively referred constitutional amendment, where it was approved. The measure extended a property tax exemption for qualified senior citizens to all U.S. military veterans living in Colorado who are 100% disabled due to a service-related disability​.​

Who qualifies for the tax deduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado.

Colorado Bar Association: Statement of Support for Disabled Veterans and Gold Star Wives re: Property Tax Exemption

 Colorado Bar Statement:

"The Military and Veterans Affairs Committee (MVA) of the Colorado Bar Association has affirmed its support for two state legislative objectives for 2022. Both involve the state's partial Disabled Veteran Property Tax Exemption, a constitutional benefit since 2007.

Gold Star Wives, survivors of active-duty servicemembers, are denied the exemption because the legislation (HB-14-1373) and enabling statute provides the exemption for survivors of veterans who had the benefit at the time of death. Using the text, "the surviving spouse of a qualified disabled veteran who previously received an exemption," 

Colorado legislators apparently did not consider the issue of active-duty deaths. Loss of the servicemember on active duty precludes the 'previously received an exemption' requirement. Proposed is a redefinition of a qualified recipient to include survivors of active duty servicemembers who die in the line of duty.

The second proposed legislative issue is veterans with VA Total Disability for Individual Unemployability, or 'TDIU.' Just like VA's other 100% disability veterans whose wounds or illnesses are rated totally disabling, these vets are 100% permanently and totally disabled, but currently are excluded from the exemption. 

Their disability is total, not per the VA rating schedule for the particular disability, but because their service-connected disability makes them unable to maintain employment. A TDIU veteran has been found by the VA to be physically or mentally unable to ever work again due to their service-connected disabilities. MVA will propose redefining 'disabled veteran to include TDIU veterans."

We ALL must start reading the Colorado state constitution

Otherwise, we won't know what they're doing to us, or how.

Article X Section 3.5:

"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"

 I admit to a period of unAmerican cowardice. I failed to to stand up for myself, and in that failure also failed other Colorado veterans who were in the same situation. We were about 450 totally disabled military retirees, and as you can read in the clip from the Colorado constitution above, we have a property tax exemption. My failure was when DOLA and CDMVA denied me the exemption and disregarded the state constitution. In effect, these agencies and the legislature nullified parts of Article X Section 3.5.

I pointed out the constitution but was rebuffed – "No, we follow the law," insisted DOLA. There was no argument about the law being flawed, having left out those last fifteen words that clearly included us, clearly providing us a constitutional protection and benefit. Too bad, was the state's attitude. Go talk to your legislator. They failed to uphold the constitution or do anything about it. In fact, they NEVER did anything about this obvious conflict except make sure taxes were demanded and paid. Between 2007 and 2021, the estimate is that $3.825,000 was unconstitutionally taxed from these veterans.

My cowardice was in paying the tax even without the exemption. I have no excuse because I'd read both the law and the constitution's Article X Section 3.5, so I knew better. But I caved. My failing was to politely stand up for my constitutional rights,  Not as some "oath keeper" or such, but merely as a quiet American citizen.

 

My fear? Refusing to pay might cost me more somehow, in fines or something. In the extreme I might lose my house, get something on my credit report or some kind of legal trouble even while being passively resistant. "No. It's only a few hundred dollars," I reasoned.

But that was no reason. I abused the constitution itself. No excuse. I let the state, my fellow veterans and all Colorado citizens down by my inaction. Trying to fix it after I caved is no redemption. I faced some really wild and weird stuff flying in crates ranging from the T-33 and C-47 to Fat Albert (C-5,) and 26 years of military service but never caved or soiled my trousers; this time, I folded like a baby. 

I should have paid all but the exemption value, let the state seize my home for non-payment of taxes, and then tried to defend my position in court.

The first and only constitutional I was faced with (state or federal,) I backed down. I paid my property tax in full because DOLA and CMDVA said I had to, despite our state constitution. They didn't do their sworn duty, and neither did I. My shame is the greater.

Why? I must not have truly believed what I thought about the constitution. In this instance, the state constitution but the principal is the same. Jefferson would be, probably is, ashamed of me. I am.

Public Officials take an oath to support Colorado's constitution. What does that really mean?

Why? Because it guarantees my rights and freedoms, and Colorado officials take a solemn oath of office to support my rights and freedoms guaranteed by it.

 

Apology: I have to admit writing out of seven years of mounting
frustration on this state issue. You see, in my world the oath was military; “support and defend” and we were trusted to do just that, regardless of personal hazards, difficulties, obstacles, etc. We were also carefully taught for decades that support and defense of the Constitution of the United States is our highest duty.

Lesson from the 1946-1948 Nurenberg trials? Orders from a superior that conflict are illegal. If laws, orders and regulations present a conflict, I must seek assistance from colleagues, higher authorities, the Judge Advocate General, or even resign if possible. If circumstances leave my resignation impossible, I am obliged to obey the Constitution as best I can understand it. Merely hiding behind an illegal or unconstitutional order would be no defense at all.

But what about the oath to support the constitution of the state of Colorado? State officials swear to support both the US and the state constitutions?

This essay’s question arises because of an obvious conflict between our Colorado constitution’s Article X Section 3.5 and its enabling legislation, both resulting from the 2006 Referendum E.  S.C.R. 06-001 in 2007 law left out fifteen words describing totally disabled military retirees and the guaranty therein of a disabled veteran property tax exemption: 

    "the department of homeland security, or the department of the army, navy, or air force."

Those last fifteen words in Section 3.5 and not in S.C.R. 06-001 or § 39-3-202 C.R.S. (until 2016) denied the property tax exemption to approximately 450 totally disabled military retirees, about ten percent of our entire eligible vets. Still abandoned as of June 2021 are 450 with an Army, Navy or Air Force medical retirement as totally disabled. They’re constitutionally qualified for but statutorily disqualified for the exemption. 

That is, veterans who are qualified and entitled by the constitution but denied by the law or regulations or actions of the government.

In this instance, state agencies and state officials have elected since 2007 to adhere to the law and not the constitution. Year after year, they refused the constitutional protection of Article X Section 3.5 guaranteed these 450 Colorado disabled veterans.
 

The purpose of Colorado’s oath of office, itself part of our constitution, is to remind state workers and officials is that they do not swear allegiance to a supervisor, agency, political appointee, law or regulation, or even to the governor or president. Their paramount oath is to support the Colorado and United States constitutions and faithfully execute one’s duties.  

Private citizens are not party to this reminder and have no duties under it directly. Public employees and officials most definitely do have duties they’ve sworn to fulfill. We should be able to rely on them faithfully doing so. The people of Colorado are sovereign over the courts, the executive and the legislature with all its laws. The constitution represents the will of the people – yet the people’s will has been ignored as regards the disabled veteran property tax exemption owed our 100% disabled medically retired servicemembers.

If Colorado courts wait to address the problem until it arises as a case or controversy about taxation, public trust in the fairness and legality of imposed every citizen's tax burden could be shaken.

§ 39-3-202 C.R.S is just a statute; it cannot override the Colorado Constitution. In Colorado, the only way to remove the right of disabled military retirees to the property tax exemption would be by amending the state Constitution. Unless and until there is an amendment, no statute can deprive Coloradans of their constitutional rights. DOLA, the Treasurer, and CDMVA simply skipped that process and ignored the constitution.

Fortunately, the Colorado Constitution gives the Colorado Supreme Court the authority to “give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives. . .” In other words, the governor, the state house, or the state senate can send an interrogatory to the Colorado Supreme Court, even if no case has arisen in which a taxpayer plaintiff has standing. 

For ten years, DOLA and CDMVA opted to tax 450 disabled veterans despite the constitutional protection due the vets. An estimated $3.825M has been lawfully but unconstitutionally raised in these excess taxes. DOLA writes they must assume the laws to be constitutionally correct; they have blinders on even when the laws clearly are unconstitutional.

One can assume that our fifteen missing constitutional words have long been noted for their absence. Noted, but never corrected, not by DOLA, CDMVA, LSC, the secretary of state, or the attorney general. Sworn officials dismissed this issue, telling veterans “go talk to your legislator or the supreme court. Get your constitutional rights only if you are able to and can afford to go to the supreme court.” In effect, “it is not our job to support the constitution for its benefits guaranteed you disabled veterans.”

After similar responses from DOLA, a 100% disabled military retiree sought correction of the issue in 2014; HB16-1444, a new law effect by 2017, brought the statute into agreement with the constitution. The important point: officials took the oath and should be expected to (but did not) uphold Article X Section 3.5 of Colorado above any conflicting law or regulation. 

They did nothing to support the constitution, choosing instead enforcement of the flawed, incomplete law. Sworn officials did not go to the legislature for a correction, did not go to the supreme court, did not refuse to enforce a clearly unconstitutional tax statute – they opted not to uphold their solemn oath.

Where does this bring us today? Problem solved? Nope. Not hardly!

Despite HB16-1444, special legislation back in 2016 to bring the tax statutes into compliance with the constitution, the state continues to block veterans guaranteed protection from those fifteen last words in Article X Section 3.5 –"the department of homeland security, or the department of the army, navy, or air force."

How? By still requiring these 450 vets to submit documentation from the VA. Even the forms updated since 2016 continue to inform veterans they are qualified only if they are 100% VA vets with VA documentation.

Web site after county web site, state web site after state web site, virtually every place one finds information about the Disabled Veteran Property Tax Exemption DOLA and CDMVA continue to ignore the constitution. DOLA has tried at least twice in the last five years to have counties update details about the exemption, but even the DOLA web site application and instruction forms continue to misinform veterans that a document showing VA 100% disability must be submitted. A disabled military retiree reading that simply doesn't bother going any further.

DOLA has tried, and perhaps CDMVA even more than I know, but Colorado continues to insist on unconstitutional taxes taken from disabled veteran homeowners.

   

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

REPRINT: Back in 2017 I complained that the state ignored HB16-1444 – Still little compliance with constitution!

by Wes Carter, National Chairperson, The C-123 Veterans Association

It’s damn hard to believe. Over this last decade state officials simply ignored property tax provisions spelled out in Colorado’s constitution to provide a small exemption to totally disabled troops retired by the military for line-of-duty injuries. It’s like the law simply went missing in action.

Back in 2006 voters amended our constitution, approving by a four-to-one margin to provide a small, partial property tax exemption. Only about $6000 value on average, the exemption is for two categories of injured servicemembers: Troops retired by the military as totally and permanently, and second, veterans rated 100% totally and permanently disabled by the Department of Veterans Affairs – "TDIU."

Referendum E carefully addressed both of the above categories because there are three differences between them:

1. Not all disabled military retirees also seek a VA disability rating – ratings must be applied for and, unlike military disability retirements, can take months or years to establish

2. Although based on similar laws, often military retirees face years of delays with claims and appeals to receive VA ratings, but military disability retirements are effective immediately upon leaving active duty

3. The military views a disability as medically unable, through line-of-duty illness or injury, to perform one's military specialty or be retrained in another; VA views disability as the percentage of loss of capacity to work in meaningful employment, somewhat similar to Social Security disability rules

(real example: Northern Colorado resident Vietnam-era veteran medically retired as 100% by the military in 1991 because of Gulf War injuries. Filed VA claims for numerous 100% disabling injuries and Agent Orange illnesses in 1992-1994 but not finally approved for 100% VA disability rating until 2015. Per our constitution's Article X Section 3.5, this veteran was eligible for Colorado's disabled veteran tax exemption in 2007. As of December 2017, still no state web site instructions or forms permit his application because only federal VA 100% disability ratings are mentioned, not his 100% military medical retirement.)

Problem: Through an oversight when the 2007 statute was drafted, the category of totally disabled military retirees was simply not mentioned…language about them is in the constitution, but was absent from the text of the law.

In 2015 concerned citizens discovered this missing language issue and asked the legislature to align the constitution with the statute. Both houses approved HB-1444 unanimously and it was signed into law in May 2016.

And then, generally ignored by state and local officials.

Rough Draft: Colorado Disabled Vet Property Tax Exemption for "Total Disability for Individual Unemployability" Veterans

FIRST, background on the two VA 100% disability ratings. One is straightforward – total disability rating based on one or more service-related injuries that total 100%. The other is less simple – it is "Total Disability for Individual Unemployability" – TDIU. The VA treats them equally, except the TDIU veterans are specifically rated for, and verified for, a permanent inability to work based on their totally disabling service-connected injuries.

NEXT, how will we do this?  Along with the Military and Veterans Affairs Committee of the Colorado Bar Association, we feel Colorado should include 100% totally disabled veterans awarded VA total disability for individual unemployability (TDIU) in the definition of "qualifying disabled veterans for a property tax exemption for qualifying seniors and disabled veterans." by amending 2018 Colorado Revised Statutes, Title 39 - Taxation Property Tax, Article 3 - Exemptions, Part 2 - Property Tax Exemption for Qualifying Seniors and Disabled Veterans § 39-3-201. Legislative declaration.
(Universal Citation: CO Rev Stat § 39-3-201 (2018))

I'lI refer in my writing the US Department of Veterans Affairs' terminology because Colorado took took specific steps with HB16-1125 to align our state terms with the VA. I take note of the fact the VA's official TDIU phrase is is "total disability rating for compensation based on unemployability of the individual."

VA's own Inspector General explains TDIU: 

"Individual unemployability may be established when a veteran is unable to secure or retain employment by reason of a service-connected disability or disabilities. A veteran may be unemployed or unemployable for a variety of reasons. When VARO staff deem a veteran is unemployable due to service related disabilities, the veteran is entitled to Individual Unemployability (IU) benefits. In such cases, disability compensation payments are elevated to the 100 percent rate even if the medical condition(s) are evaluated as less than 100 percent disabling. In order to continue disability payments at the 100 percent rate based on TDIU, veterans must confirm annually that he/she continued to be unemployed for service-connected medical issues.

"To be considered for TDIU P&T status, the law requires veterans to have a “total disability permanent in nature.” Veterans are considered to have total disability when they have a 100 percent disability rating due to service-connected disabilities or if their service-connected disabilities make them unemployable. For the total disability to be permanent, the law requires the disability to be “based upon an impairment reasonably certain to continue throughout the life of the veteran."

Statistics: Of all its veterans with a VA TDIU disability rating (355,000,) VA reports Colorado has approximately 4077 potential TDIU claimants under age 65. If qualified for the exemption there'd be an additional annual impact to Colorado's budget of $2,642,000. Colorado isn't being particularly generous, considering sixteen other states waive waive all property taxes for totally disabled veterans; none have TDIU restrictions – except Colorado.) Our state ranks an unimpressive 27th in the value of veterans' state benefits.

More stats: The Census Bureau reports that the veteran population declines about 2.5 million each year, thus Colorado's 4622 potential TDIU claimants can be expected to decline at about the same rate, for a small reduction in the fiscal impact each year.

• With our wars winding down, both types of VA 100% disability ratings will also decline. Using Census and VA data, we can expect new veterans with 100% disabilities to be less than 75% of what we've suffered annually since the First Gulf War.

• Not only will there be fewer exemption claimants because of the veterans' aging population and because of a smaller US military, but there will be also fewer additions to our number of totally disabled veterans than we've seen these last twenty years. This reflects moving from combat plus peacetime training to peacetime disabilities alone.

VA treats its two types of 100% VA disability groups the same, and Colorado does not. We offer veterans with a 100% permanent and total disability the state's partial Disabled Veteran Property Tax partial exemption, but someone added specific language to the program that bars all TDIU vets from the benefit that's worth, on average, only about $640 a year. While homestead exemptions for seniors will be increasing as the population ages, disabled veteran and veteran survivor exemptions will decrease slightly, unless America's overseas wars return to plague us.

(Note: 57% of TDIU vets are older than age 65. Compared to 100% schedular vets, they are somewhat younger. Older Veterans could be encouraged to chose between Disabled Veterans eligibility or the senior citizen homestead eligibility (13% qualify for both)  but there'd be no real change to the state budget.

We voters authorized the disabled vet property tax exemption by approving Referendum E back in 2006. Reading the text of the proposed constitutional amendment understandably has most of us believing that every veteran with a VA 100% permanent disability rating is qualified for the exemption:

"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.

The Blue Book expanded on this, just in case citizens couldn't fully understand we were considering 100% disabled veterans:

Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong.

 

Later, language was mysteriously added to the enabling statute and regulations by the legislature to specifically bar totally disabled vets with TDIU. DOLA explained this was "the request of some legislators:"

"VA unemployability awards do not meet the requirement for determining an applicant’s eligibility."

TDIU is a way for the Department of Veterans Affairs (VA) to compensate totally and permanently disabled veterans at the 100 percent rate who are actually unable to work solely because of their service-connected disability, although their rating according to VA’s Schedule for Rating Disabilities (Rating Schedule, or "schedular") does not reach 100 percent but is nonetheless uniquely totally disabling. Nationally, about eight percent of disabled veterans have injuries or illnesses that left them even more disabled than provided for in VA charts.  Remember: all VA ratings reflect the degree of impact an injury or illness have on the ability to work. Both 100% schedular and TDIU vets are rated precisely on that basis.

TDIU is based on a VA evaluation of the individual veteran’s capacity to engage in any substantially gainful occupation, defined as the inability to earn more than the federal poverty level. TDIU is rather than the schedular evaluation, based on the average impairment of earnings concept. TDIU takes occupation, experience and education issues as well as medical factors into account. Congress frequently reviews TDIU, and agrees that it is there "because each person is unique." VA agrees, telling Congress "Individual unemployability is necessary to overcome the inadequacies of the rating schedule" to rate a 100% totally and permanently disabled veteran. 

For Colorado to exclude TDIU vets from the property tax exemption is to penalize them for the manner in which they became totally and permanently disabled in the line of duty, just as did 100% schedular vets.

TDIU 100% disability ratings are assigned when the service-connected medical disability is even worse than VA disability tables recognize. TDIU is assigned when that disability or combination of service-connected disabilities are evaluated and the VA concludes the veteran is exactly what the initials mean – totally and permanently disabled, never expected to be able to work again and even certified as such each year after being rated TDIU. These veterans would work if they could. Most are working-age and two-thirds have dependents to care for.

100% schedular veterans have a similar arrangement because their disabilities may also surpass rating tables. For them, VA can offer "Special Monthly Compensation" and pay the vet beyond the regular 100% disability table. This addresses situations where vets may be unable to care for themselves, are homebound, etc.

TDIU does not refer to a veteran who is simply unemployed. Rather, a TDIU rating refers to military injuries or illnesses are even worse than typical (say, unsatisfactory hip replacements that are typically rated 60-90% but that are for a particular veteran in fact end up completely, totally, forever 100% disabling.) And not only factually disabling, but agencies such as Social Security or state rehabilitation services determine are so severe as to actually prevent employment.

This means that beyond military-related physical injuries that prevent them from participating in many of life's activities, they could have trouble with mental health issues such as suicidal tendencies, problems with speech, near continuous panic or depression, chronic confusion, impaired impulse control, and difficulty in adapting to stressful environments.

Perhaps Colorado's legislators added the issue of unemployability to reduce the fiscal impact on the state, or as their barrier to the property tax exemption because of a stigma tied to the word "unemployed." Because they can't work, TDIU vets aren't even eligible for unemployment insurance – while VA 100% schedular vets can get unemployment compensation when eligible! 

Such a negative attitude is misplaced as regards TDIU and it must be corrected. If Federal unemployment statistics only include in the definition of "unemployed'' those who are looking for, but can't (or won't) find work, Colorado legislators might have asked why shouldn't VA apply that same standard for TDIU benefit? Here are the facts.

 

The Department of Labor classifies persons as unemployed if they do not have a job, have actively looked for work in the prior 4 weeks, and are currently available for work. Persons counted as "unemployed'' aren't working for a variety of reason, many under their own control. TDIU disabled veterans, on the other hand, are entitled to a total disability rating because they are in actual fact unemployable, i.e., found upon careful exam by VA, Social Security or state rehab agencies to be unable to engage in gainful employment precisely because and only because– of VA-rated service-connected disabilities; disabilities that render them 100% disabled, have rendered them unable to ever work. The word unemployed does not apply. At all. In fact, 100% schedular vets can work and can also be unemployed.

VA recognized the logic of "one size does not fit all" for its volumes of standard disability ratings. This was back in the 1930's when medical experts, legislators and VA administrators established the first TDIU-type ratings. For example, not all hip replacements leave a veteran between 40 and 90% disabling as VA tables describe: Rather, some exceptions occur taking the disability up to a totality, regardless of "typical" ratings. VA and others in the veteran community realize that TDIU veterans are typically worse off financially than 100% schedular vets, because TDIU veterans cannot work; VA and Social Security monitor them, watching for any earned income.

By contrast, 100% schedular vets are encouraged to work, for better financial, mental and medical health. A vet in a wheelchair might pursue rehabilitation education and find employment, without abusing disability benefits from VA. A TDIU veteran, on the other hand, cannot work and if somehow they were to do so in something beyond sheltered workshop-type earnings would lose their VA benefits. Often TDIU veterans are referred to state rehabilitation agencies or to certified rehabilitation counselors (CRC) for verification of their physical inability to work.

I have a personal perspective of TDIU and the Colorado Disabled Veteran Property Tax Exemption. For  seventeen years I was VA 100% TDIU and denied the exemption for the years I owned a home in Colorado. I was homebound, 100% disability retired by the Air Force and unable to work, cared for by others, totally disabled, treated for cancers, numerous operations, paralyzed in a wheelchair, and also VA rated "catastrophically disabled." And I was terminally ill.

I was denied our property tax exemption only because I was "individually unemployable" and specifically ruled out of Colorado's eligibility. In 2015, however, VA finally acted on decade-old disability claims and appeals, and I was suddenly 430% VA service connected combat-related disabled (actual number, but VA "math" tops out at 100% regardless of the total of all disabilities.) My VA compensation was retroactive as was the effective date of my 100% disability, but Colorado blocks any retroactive tax exemptions. The VA corrected its error retroactively but Colorado cannot. I guess I'm still terminally ill but not much has progressed in the wrong direction lately – no complaints here!

CONCLUSION: VA has two categories of veterans who, in the line of duty, suffered injuries or illnesses leaving them 100% permanently and totally disabled for life. 

• The first group includes vets whose disabilities are, or add up to 100% per the standard charts uses for the typical severity of those disabilities. Colorado respects those veterans and offers a partial property tax exemption.

• The second group, Total Disability for Individual Unemployability (TDIU) includes also 100% disabled vets, servicemembers who have a very severe 60% disability or severe disabilities totaling 70%, but the particular severity of their illnesses or disabilities – their line of duty injuries – goes beyond the VA standard charts to total disability. They are not unemployed; they are unable to be employed! VA rates them as 100% permanently and totally disabled veterans. Colorado might respect these 100% disabled veterans who suffered severe illnesses or injuries in the line of duty, but Colorado saves money by illogically and unkindly excluding them from the partial property tax exemption we voters thought we were approving with Referendum E in 2006.

So that leads up to our solution. Let's update the statute defining "qualified veteran" to specifically include the TDIU veteran! Here's a proposed draft of such a bill.

DRAFT BILL– UVC GOALS & OBJECTIVES: ESTABLISH TDIU VETERANS' BENEFIT

First Regular Session 

Seventy-fourth General Assembly

STATE OF COLORADO

INTRODUCED

LLS xxx                            SENATE BILL 22 -xxxx

SENATE SPONSORSHIP

 HOUSE SPONSORSHIP

 _____________________________________

Senate Committees:

House Committees: 

 ___________________________________                         A BILL FOR AN ACT

CONCERNING PROPERTY TAX EXEMPTION FOR QUALIFYING DISABLED VETERANS FOR ONE-HUNDRED PERCENT DISABLED VETERANS TO INCLUDE VETERANS WITH LINE-OF-DUTY DISABILITIES GIVEN A RATING BY THE US DEPARTMENT OF VETERANS AFFAIRS FOR PERMANENT, TOTAL DISABILITY FOR COMPENSATION BASED ON UNEMPLOYABILITY OF THE INDIVIDUAL. ____________________________________                                Bill Summary

(Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)
CONCERNING THE INCLUSION OF ONE-HUNDRED PERCENT DISABLED VETERANS WITH LINE-OF-DUTY DISABILITIES THAT THE US DEPARTMENT OF VETERANS AFFAIRS HAS AWARDED A TOTAL AND PERMANENT DISABILITY RATING IN THE DEFINITION OF “QUALIFYING DISABLED VETERAN" FOR A PROPERTY TAX EXEMPTION FOR QUALIFYING SENIORS AND DISABLED VETERANS
________________________________

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, 39-3-201, amend (1)(a) as follows:

39-3-201. Legislative declaration. (1) The general assembly hereby finds and declares that:

 (a) Section 3.5 of article X of the state constitution, which was approved by the registered electors of the state at the 2000 general election and amended by the registered electors of the state at the 2006 general election, provides property tax exemptions for qualifying seniors and qualifying disabled veterans. TO MORE CLOSELY ALIGN WITH THE DESCRIPTION OF "DISABLED VETERAN" IN REFERENDUM E AS APPROVED BY THE ELECTORS IN 2006, "DISABLED VETERANS," IS DEFINED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 2-2-208, IN SECTION 39-3-202 (3.5) AS "QUALIFYING VETERANS" FOR PURPOSES OF THIS PART 2;

SECTION 2. In Colorado Revised Statutes, 39-3-202, amend (3.5) as follows:

39-3-202. Definitions. As used in this part, unless the context  otherwise requires: (1.5) "Exemption" means the property tax exemptions for qualifying seniors and qualifying disabled veterans allowed by section 39-3-203.

 (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 AND MAINTAINED A service-connected disability that has been rated by the federal department of veterans affairs as a one hundred percent permanent disability OR HAS BEEN GIVEN BY THE US DEPARTMENT OF VETERANS AFFAIRS A PERMANENT, TOTAL DISABILITY RATING FOR COMPENSATION BASED ON UNEMPLOYABILITY OF THE INDIVIDUAL through disability OR retirement benefits pursuant to a law or regulation administered by the department, the United States department of homeland security, or the department of the Army, Navy or Air Force.

SECTION 3. In Colorado Revised Statutes, 39-3-202, amend (3.5) as follows:

39-3-202. Definitions. As used in this part, unless the context otherwise requires: 

(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 AND MAINTAINED a service-connected disability that has been rated by the federal department  of veterans affairs as a one hundred percent permanent disability OR HAS BEEN GIVEN BY THE US DEPARTMENT OF VETERANS AFFAIRS A PERMANENT, TOTAL DISABILITY RATING FOR COMPENSATION BASED ON UNEMPLOYABILITY OF THE INDIVIDUAL  through disability OR retirement benefits pursuant to a law or regulation administered by the department, the United States department of homeland security, or the department of the Army, Navy or Air Force.