A little history - Colorado's Disabled Veteran Property Tax Exemption

Let's look at history...

"Unemployability" is specifically cited by CMDVA and the county governments as an unacceptable VA disability rating. While nothing in the Constitution or the 2007 enabling legislation bars VA unemployability ratings for permanent and total 100% service-connected veterans, CMDVA staff reports this has resulted from casual, unofficial legislative guidance after the statute was on the books. Today, the only written basis for barring unemployability ratings are some counties' application forms (hardly a legal foundation) and the CMDVA web site. It is barred because CMDVA says so, not because of any statute or Constitutional provision.

But history tells a fuller story. Colorado's referendum measures are described in detail by the Legislature at their web site, Colorado Ballot Analysis. Amazingly, there we read that unemployability was a substantive issue specifically provided for in the various drafts, the Blue Book and the final ballot analysis given the electorate to consider:

"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. 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.
What are the fiscal implications? Referendum E affects property taxes paid beginning in 2008. The average property tax savings for those who qualify will be about $466. The total reduction in property taxes is estimated to be about $1 million in the first year. The state is required to reimburse local governments for the reduction in property tax revenue resulting from Referendum E."

When Referendum E was finally referred to the electorate to vote on, there was no unemployability language like the voter summary contained, and Article X Section 3.5 simply mentioned the specific qualifiers. The words "100% percent (1) permanently (2) and totally service-connected disabled (3)" were used. These are what the Constitution's Article X Section 3.5 requires CMDVA to require of veterans seeking the disabled veteran property tax exemption. "Unemployability" does not appear in the Constitution and that VA rating doesn't conflict at all with the Constitution's specifications.

The US Department of Veterans Affairs Veterans Benefits Administration confirmed that it has two such ratings. One is for 100% service-connected illnesses or injuries, and the other is for permanent and totally disabled 100% service-connected unemployability. VA generally refers to the latter as "TDIU" or "PDIU." Nothing in the Constitution or the subsequent statutes bars CMDVA from accepting claims of both groups but the state only accepts the first category. 

In doing this, about half of the eligible veterans are barred from the protection intended for them by the electorate who approved Referendum as Article X of the Constitution.

What the people approved should be the law of the land. If unemployability, or enlisted, or commissioned, or value of property, or age, or kind of injury, or type retired, or any other qualifier is to be applied in evaluating a veteran's application for the disabled veteran property tax exemption, that should be spelled out in law which reflects the Constitution. Only permanent, total, 100% service-connected and disabled are the words of our Constitution.

Permanent VA unemployability ratings were described by DOLA in the Blue Book for approval by the people and should not be disqualified by the state.

Email trail on Colorado Disabled Veteran Property Tax Exemption Being Withheld From Some Qualified Vets

Question to CODVA: "BY WHAT AUTHORITY DOES CODVA WITHHOLD THE DISABLED VETERAN PROPERTY TAX EXEMPTION FROM PERMANENT AND TOTALLY 100% DISABLED VA RATINGS WITH UNEMPLOYABILITY?"

SOME EMAILS:
(FROM CODVA)

Mr. Carter,
The statue is a State one and it is 39-3-202 (3.5).

I feel the reason they limited this to Veterans rated 100% was because they didn’t know the fiscal downfall of the bill. My understanding from the people who were involved were fully aware of the difference between Individual Unemployability and the 100% rating. No one in our office was involved in these decisions and I personally, being the one who approves these, would love to see the law changed. You have no idea how people can treat someone when they think the law is unjust.

If you would like to see this law changed be sure to contact the legislature about it. The Veterans groups have large voices in the State of Colorado.

I hope this helps. Have a wonderful Holiday and Happy New Year

Merry Christmas and Happy New Year 
State Service Officer 303-284-6077 Fax: 303-284-3163

(FROM VA WHEN ASKED IF VA PTIU RATINGS MET STATE REQUIREMENTS FOR PERMANENT, TOTAL AND SERVICE CONNECTED. From Mr. E. S., "Senior Management and Program Analyst at Veterans Benefits Administration, Department of Veterans Affairs - ‎Veterans Benefits Administration, Department of Veterans Affairs" )

 Wes 

We’d be happy to answer any questions Mr. Mestas and CO DVA have.  As I mentioned in my previous response, VA does consider some IU ratings, such as the one you provided as an example, to be permanent and total (P&T).  P&T IU ratings are clearly marked as such.

(FROM CODVA)

Mr. Carter-
Under the current interpretation of the law those individuals do not qualify if they are less than 100% but are awarded IU that makes them 100% regardless if it is permanent and total. When the federal VA was asked by the Colorado General Assembly  to clarify the difference while the bill was being developed, they made the distinction between the two. That distinction is  what my Division follows.
Should the General Assembly decide to amend the law to cover both, that change would have to come through legislation. 

Proudly Serving America’s Warriors.
Colorado Division of Veteran Affairs 1355 South Colorado Blvd. Suite 113

Code of Federal Regulations on Unemployability

Following is the Code of Federal Regulations governance of VA unemployability ratings. Note that VA considers Permanent and Total Unemployability awards (TDIU) to be "a rating of 100 percent service-connected disability based on individual unemployability"

§3.340   Total and permanent total ratings and unemployability.

(a) Total disability ratings—(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:

(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

(c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]

§3.341   Total disability ratings for compensation purposes.

(a) General. Subject to the limitation in paragraph (b) of this section, total-disability compensation ratings may be assigned under the provisions of §3.340. However, if the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.

(Authority: 38 U.S.C. 1155)

(b) Incarcerated veterans. A total rating for compensation purposes based on individual unemployability which would first become effective while a veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration. However, where a rating for individual unemployability exists prior to incarceration for a felony and routine review is required, the case will be reconsidered to determine if continued eligibility for such rating exists.

(Authority: 38 U.S.C. 5313(c))

(c) Program for vocational rehabilitation. Each time a veteran is rated totally disabled on the basis of individual unemployability during the period beginning after January 31, 1985, the Vocational Rehabilitation and Employment Service will be notified so that an evaluation may be offered to determine whether the achievement of a vocational goal by the veteran is reasonably feasible.

(Authority: 38 U.S.C. 1163)

[46 FR 47541, Sept. 29, 1981, as amended at 50 FR 52774, Dec. 26, 1985; 55 FR 17271, Apr. 24, 1990l; 58 FR 32445, June 10, 1993; 68 FR 34542, June 10, 2003]

VA Statement re: Permanent & Total Service-Connected Unemployability Ratings & "Unemployability"

In response to my inquiry, VA's Senior Management and Program Analyst at Veterans Benefits Administration, Department of Veterans Affairs emailed me the following confirmation that VA's details for permanent and total individual unemployability are worded the same as Colorado's constitution, at least, that's how the federal government reads their program and Colorado's statute.

The gentleman's name is obscured here but has been provided to CODVA authorities.

Readers here are reminded that the constitution holds that Colorado will go by ratings of the US Department of Veterans Affairs regarding eligibility for the property tax exemption, which reads: "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,"

Sxxxxxxx, Exxx, VBAVACO                      Feb 8
to me, Ben, David, Linda

We’d be happy to answer any questions Mr. Mestas and CO DVA have.  As I mentioned in my previous response, VA does consider some IU ratings, such as the one you provided as an example, to be permanent and total (P&T).  P&T IU ratings are clearly marked as such. 

Ex.. 

However, this VA opinion and the clear, very plain language in the law have proved immaterial to CODA officials. These unelected staffers simply inserted their own interpretation of Colorado's constitutional amendment and are determined to block many fully eligible veterans and their survivors now classified by VA as "permanent and total" via unemployability.

BTW, "unemployability" to VA is based solely on line of duty illnesses or injuries, and on VA's careful assessment only of the veteran's service-connected issues as being completely, totally, permanently disabling for life, and to total 100& in the overall appraisal of the veteran.

Colorado Division of Veterans Affairs Stumbles on Property Tax Exemption for Disabled Vets & Widows

Colorado statue on disabled veteran property tax relief: §§ 39-3-202(2) and (3) and 203(1.5) to (5), C.R.S:

"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."

Issues.

(1) Required to follow the 2007 legislation, Colorado Department of Veterans Affairs excludes recognition of US military disability retirements, despite provision in the constitution and blocks such veterans from the disabled veteran property tax exemption.

(2) Missing from the Constitution but added somehow by CODVA as their own disqualifier are veterans with “unemployability” VA ratings. US Department of Veterans Affairs ratings for permanent and total disability with unemployability (TDIU) are unacceptable to CODVA, blocking many qualified veterans, and their survivors, from any disabled veteran property tax exemption.

Generally, veterans who receive 100% VA disability compensation pension benefits are free to work and are not limited in the amount of earnings they may receive, even when their single- or combined-impairment ratings total 100%. For example, office or sedentary workers such as clerks, lawyers, telephone workers and others may be totally disabled from military line of duty illness or injury yet fully able to continue gainful and satisfying employment although rated 100% disabled by VA for loss of use of legs.

Not so a TDIU disabled vet, professionally judged by VA, Social Security or state rehabilitation agency. That veteran’s service-connected disabilities are sufficient, without regard to other factors, and so severe as to prevent performing the mental and/or physical tasks required to get or keep substantially gainful employment. TDIU recognizes only permanent and totally disabling service-connected issues via an extra-schedular construct. A TDIU veteran is even barred by VA from employment rehab services because no employment is deemed possible.

Permanent and total disability individual unemployability (TDIU) is a recognition that service connected disabilities, while not rated individually at 100%, are complete enough in their totality to equal 100% and to prohibit employment and are in total, permanent and completely disabling. Diseases and injuries of long standing that are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.

Permanence of total disability is taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Total disability is considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.

Generally, a vet qualifying for TDIU would also meet SSI requirements for disability benefits, but the same is not true regarding SSDI recipients and TDIU because TDIU is awarded only for military line of duty issues that cause complete and permanent disability. The military services infrequently award such total disability retirements for service members whose injuries or illnesses are completely disabling and considered to be unimproved for life, but all military disability ratings, even for combat, are not accepted by CODVA which recognizes only the US Department of Veterans Affairs decisions, but then, not including VA’s permanent and total service-connected unemployability disability awards. The means by which CODVA excludes military disability retirements is not known, even though its provision is clearly constitutional and blocking these veterans is clearly unconstitutional!

Generally speaking, disregard for military disability ratings and VA TDIU ratings seems unique among states providing property tax relief. For instance, Virginia’s statutes:

A veteran is considered to have a 100 percent service-connected disability if:
• The veteran's disability is rated at 100%; or
• The veteran's service-connection is rated at less than 100%, but the veteran is paid at the 100% disability rate due to unemployability.

NOTE: Under either standard, the disability must be considered total and permanent. Veterans with temporary disabilities do not qualify.