TDIU = actual VA TOTAL disability rating

A previous director of the Colorado Division of Military and Veterans Affairs wrote me six years ago to state that one reason Colorado denies TDIU veterans the state partial property tax exemption is that the state law requires a VA TOTAL DISABILITY RATING, and he explained that TDIU is somehow "only" compensation at the 100% rate and not an actual disability rating. 

CDMVA hasn't made any visible effort to care for TDIU veterans the same as it cares for 100% schedular. A variety of reasons have been tossed out but as for TDIU being an actual disability,VA disagrees with CDMVA.

From Title 38, Chapter 4 (§ 4.15 Total disability ratings)

"It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled"

Expert Advice on Additional Benefits Beyond VA 100%

 This is an excellent blog on various benefits veterans might consider applying for even after earning a VA 100% service connected rating. Look it over!

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.

Doesn't ANYBODY in Colorado care about TDIU Veterans?

I've found encouragement about veterans with TDIU (total disability for individual unemployability) only from the Colorado Bar Association's Military and Veterans Affairs Committee, and the United Veterans Coalition.

Outside of those two worthy organizations who "really get it"...zero interest among Colorado's citizens for the needs of the state's totally and permanently disabled veterans of honorable service who are rated "TDIU."

Not your problem, right? You're probably not a vet although perhaps the child or grandchild of one. You're probably not the father of a young man or woman in service. So...simply not your problem.

TDIU veterans make up about 30-40% of Colorado's totally disabled veterans. VA has two categories: 100% rated, for vets whose injuries are typical for the type injury suffered, and TDIU, for vets whose injuries are worse than typical for the type injury suffered.

Colorado permits the 100% rated vets our too-small partial property tax exemption, and specifically refuses it to TDIU veterans.

Are these veterans any different than each other? Yes, because the TDIU vet is specifically evaluated as having a worse-case type injury rather than "typical," and is thereby totally and permanently disabled and never able to work again.

Why do we treat them differently? Ask your legislator if they can explain...I can't. I care, but only a rare handful in the legislature seem to care.

Not their problem. They really don't care.

 

The legislature hid their cards from us with Referendum E in 2006

 In 2006 the legislature referred an issue to the public for a small property tax
exemption for totally and permanently disabled veterans. This was done via SCR06-001. But the legislature hid some of their cards, not telling us all the details, so what we approved was not what we got!

This issue reached the voters as Referendum E in 2006 and was then overwhelmingly approved. Colorado voters believe in protecting our disabled veterans with such important benefits!

The legislature then created "enabling legislation" in the form of HB07-1251 to set into our statutes the provisions of the newly-approved Referendum E.

That sums up the trouble we now have in our state's small disabled veteran property tax exemption.

You see, we were asked to vote on a straightforward text the legislature gave us in 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."

We didn't see the cards the legislature hid behind up their sleeves (or is it behind their backs?) They didn't show us anywhere in the Blue Book that SCR06-001 also had a description of the qualified disabled veteran that, in effect, eliminated almost half of Colorado's veterans who'd been totally and permanently disabled in the line of duty. They didn't tell us anything about their description in what we approved, but they certainly put their hidden cards into Article X Section 3.5 and the enabling statute HB07-1251:

(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 words in highlighted yellow cut thousands of Colorado's totally and permanently disabled veterans, injured in the line of duty and with honorable service, from the property tax exemption we thought we approved for them. We never saw and we never approved those words or anything like them!

The VA has two types of disability ratings for veterans who are totally and permanently disabled in the line of duty. One is called "100% rated" and the other is "Total Disability for Individual Unemployability," or TDIU.

Both ratings are based on the fundamental concept in the VA for compensation based the degree of an injury's impact on the veteran's ability to earn a wage after service: 

• The "100% rated" is based on standard tables for the average earning loss caused by the average injury.

• "TDIU" is based on the actual earning loss caused by a worse-than average injury. A TDIU veteran has been individually assessed by VA as having an especially worse-than-average injury rendering him/her actually unable to ever work again.

Colorado's voters thought we were voting for, as the Blue Book put it for us to better understand:

"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"

Colorado's legislators and administrators would have us accept that 100% is not the same as total. That the amendment and the statute exclude TDIU veterans with total and permanent disabilities but accept 100% veterans with total and permanent disabilities.

Folks, the legislature simply hid their cards....or did they have them up their sleeves? 

We didn't get what we voted for. We didn't protect all the veterans we thought we were protecting with Referendum E!

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.

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.

State Homestead Exemptions - Seventeen states offer 100% disabled Vets a 100% property tax exemption

State Homestead Exemptions – These states are leaders in being especially "veteran friendly." They offer 100% disabled veterans a total personal property tax exemption. In most cases, the exemption carries on to the survivor as well.

By contract, Colorado permits a meager exemption of just half of the first $100,000 in assessed value, saving the veteran about $600. 

While insisting Colorado is "veteran-friendly," we then deny the small exemption to Gold Star Widows and to nearly 40% of the state's totally disabled military retirees (TDIU, separated from their service for career-ending line-of-duty injuries.

• 
  #1. ALABAMA
• #2. ARKANSAS
• #3. FLORIDA
• #4. HAWAII
• #5. ILLINOIS
• #6. IOWA
  
• #7. MARYLAND
• #8. MICHIGAN
• #9. NEBRASKA
• #10. NEW HAMPSHIRE
• #11. NEW JERSEY
• #12. NEW MEXICO
• #13. OKLAHOMA
• #14. PENNSYLVANIA
• #15. SOUTH CAROLINA
• #16. TEXAS
• #17. VIRGINIA

Total Disability for Individual Unemployability (TDIU) Property Tax Exemption Briefer and TDIU slide show (QR Codes)

1. SCAN or CLICK to download TDIU Briefing File

2. SCAN or CLICK for TDIU Briefing Slides

 

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 Committee Crafting State Legislative Agenda for 2022. TDIU Veterans Issue Proposed to the Committee

Among many other proposals, the United Veterans Coalition state legislative affairs committee is considering vets rated by VA as 100% Total Disability for Individual Unemployability veterans (TDIU) for the Disabled Veteran Property Tax Exemption. This issue is being weighed for inclusion in the UVC 2022 legislative agenda to be firmed up this summer for the next legislative session.

The decision will be based on input from all levels of UVC organizational members. This is an issue I've advocated about for six years. I ask everyone to get behind this agenda item, voicing your support directly to the state legislative affairs committee and the executive committee as all such potential agenda issues are being weighed this summer.  

Inclusion of TDIU veterans affects about 2,000 Colorado vet homeowners and survivors, at a cost to Colorado at about $2.6M. Voters originally approved the Disabled Veteran Property Tax Exemption as Referendum E in 2006. The Blue Book described the benefit for "totally disabled veterans unable to work" due to line-of-duty injuries and illnesses. Somehow, "unemployability" was written into the enabling legislation and statue after the amendment was approved. That's not what the voters thought we were approving.

I hope the legislature to include these ignored 100% disabled veterans by exercising its authority to redefine "qualified veteran." A revised statute can include TDIU vets. 

Colorado utilizes VA definitions for management of veterans benefits, so it is very telling to see VA's own rules from VAM21-1 on TDIU. Read carefully, and compare to the language of Referendum E, the enabling statute and the Disabled Veteran Property Tax Exemption form and instructions.

As for Gold Star Wives, 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' much too small a benefit.

Gold Star Wives Are Due the Disabled Veteran Survivor Property Tax Exemption

 

Colorado proudly honors survivors of our totally disabled veterans...thousands of them,
but ignores 140 equally worthy Gold Star Wives

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.

Very kind article from the National Veterans Legal Services Project

The National Veterans Legal Services Project (NVLSP) is a wonderful organization dedicated to America's veterans and our families. They just did a nice "puff" piece and video on me. NVLSP and its co-directors are acknowledged by the entire veteran community as instrumental in forcing VA to honor many commitments to veterans.

From military sexual trauma, immunizations, toxic exposures, unfair discharges, and many other causes have found NVLSP and its volunteer attorneys, law school veterans law clinics, and associated law firms to be powerful allies. Always pro bono.

    

In my own experience, NVLSP and Bart Stitchman brought their expertise, as well as that of the Yale School of Law, into the fray our C-123 Veterans Association was having as we fought for Agent Orange exposure care and benefits from the VA. It took some years, but success was sweet, indeed, when Bob McDonald signed the regulation (38 U.S.C.§ 3.307(a)(6)(v) (the "C-123 Rule") for us on June 18, 2015.
 
NVLSP has never charged veteran clients for their service or even expenses. For example, they saved our C-123 Association over $75,000 just on fighting for FOIA responses, something the Air Force didn't seem eager to release.

NVSLP and Perkins Coie have represented us pro bono before the US District Court in Washington, successes that were noted by the Federal Bar Association in 2018, and at the USAF Board for Correction of Military Records. Bart and his colleagues are top-rated for their proper use of donations. NVLSP is one of the Combined Federal Campaign agencies. I encourage all veterans to consider helping other vets by donating here.

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.

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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

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B. Douglas, most other counties' application instruction
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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.
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D.  Treasurer of the state - him, too! Fear of having to give unconstitutionally demanded property taxes back to the
disabled military retireesQ