THE BIG PROBLEM: How to pay for TDIU Vets Getting the Disabled Veteran Property Tax Exemption

 There's no getting around the biggest obstacle to any Colorado veterans benefit – just where the heck do we get the money to pay for it?

In Colorado's state house that is the Number One question on every bill. Trying to get the Disabled Veteran Property Tax Exemption to cover VA 100% permanent Total Disability for Individual Unemployability (TDIU) vets will be no different. 

I don't know the necessary procedures but will float a couple ideas here. First, the goal is to get the exemption for approximately 4622 veterans now rated 100% disabled TDIU by the VA. That's approximately $2.6 million added to the overall Homestead Exemption program costing over $159 million. 

Currently, veterans and their survivors are only 2% of that total with the exemption restricted to VA 100% schedular vets, so adding TDIU will make veterans just under 4% of the program. The number of vets that I use already considers the fact that 13.3% are also able to claim the senior exemption, and already factors in the point that 80% of all the Colorado TDIU vets own homes to exempt. Finally, the average value of each exemption is considered, leaving the goal at $2.6 million.

The Legislature needs to appreciate that voters already approved every 100% disabled veteran for the Disabled Veteran Property Tax Exemption. The wording of Referendum E in 2006 was very clear, as was the explanation in the Blue Book. It was the legislators, not the voters, who opted with the enabling legislation for Article X Section 3.5 to invent the unemployability barrier. We need to.get our tax laws back into line with the state constitution!

– POSSIBILITIES –

1. Cut the average veteran and survivor exemption benefit in half to stretch the present funding to include TDIU recipients. The Legislature already has the power to do this per Article X Section 3.5 of the state constitution

2.  Likewise, reduce the benefit to each senior homestead exemption to capture $2.6M. This would be a much less severe reduction for the recipients than #1 above, approximately 0.02 for about just $11 less per year per exemption

3. Divert a portion of the funds CDMVA now uses for grants

3.  Add an optional $5 contribution to each state income tax return

4. Divert $2.6M from Colorado Economic Development Commission

5. Ideas??

Colorado Legislature: Sponsor Needed for 100% Disabled Veteran Property Tax Exemption

 TOTAL DISABILITY for INDIVIDUAL UNEMPLOYABILITY
= Equals =
100% VA Total & Permanent Line of Duty Disability

Every Colorado 100% VA disabled veteran should be eligible for the Disabled Veteran Property Tax Exemption. It is wrong to deny TDIU vets the exemption the voters approved for ALL 100% VA disabled veterans when we approved Referendum E in 2006, Colorado Constitution Article X Section 3.5

A veteran is considered totally and permanently disabled if they have received a disability rating of 100% for service-connected disability compensation and the VA does not expect the condition to improve. Such language indicates that the rating of total disability is permanent.

By illogically and unfairly denying them a state constitutional protection, Colorado disrespects over 4000 TDIU veterans rated by the VA as 100% totally and permanently disabled in the line of duty. Colorado denies TDIU vets, totally disabled for the rest of their lives, our Disabled Veteran Property Tax Exemption. In doing so Colorado shows its disregard for their dedicated military service and their life-changing sacrifices. 

Colorado is unique among the states in denying benefits to this group of 100% VA disabled veterans.

 

Colorado Legislature: Sponsor Needed for 100% Disabled Veteran Property Tax Exemption

 

Proposed Bill to Support 100% Disabled Veterans

Colorado Legislature: Sponsor Needed for 100% Disabled Veteran Property Tax Exemption

Proposed Bill to Support 100% Disabled Veterans

Colorado Legislature: Sponsor Needed for 100% Disabled Veteran Property Tax Exemption

Colorado Legislature: Sponsor Needed for 100% Disabled Veteran Property Tax Exemption

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.

Colorado's abandoned 100% disabled veterans – those rated "Total Disability for Individual Unemployability (TDIU)"

Voters approved Referendum E in 2006. We were asked whether a partial property tax exemption should be offered totally and permanently disabled veterans. We approved. But we didn't get what we voted for, not by half.

VA has two kinds of total disability awards – "TDIU" for total disability for individual unemployability, and 100% service connected permanent and total.

VA may increase certain veterans' disability compensation to the 100 percent level, even though VA has not rated their service-connected disabilities at that level. To receive the supplement, termed an Individual Unemployability (IU) payment, disabled veterans must apply for the benefit and meet two criteria. First, veterans generally must be rated between 60 percent and 90 percent disabled. Second, VA must determine that veterans' disabilities prevent them from maintaining substantially gainful employment—for instance, if their employment earnings would keep them below the poverty threshold for one person. 

Unhappily, our legislators really tightened up qualifications and locked out every single TDIU veteran. TDIU vets are carefully evaluated by VA, have at least one 60% permanent disability and a combination of factors making it physically impossible for them to work. Ever. Both vets are referred to as 100% VA disabled, but TDIU veterans have been refused the Colorado disabled veteran property tax exemption.

Consider the leeway given the legislature in the tax code. Clearly, the legislators had/have the power to follow Referendum E "in a manner that gives its words their natural and obvious significance." Must we suppose that totally and permanently disabled aren't "natural and obvious" enough words for TDIU?

Colorado Revised Statutes 2016, Title 39-3-202

TITLE 39(c) In enacting legislation to implement section 3.5 of article X of the state constitution the general assembly has attempted to interpret the provisions of section 3.5 of article X of the state constitution in a manner that gives its words their natural and obvious significance;

VA OIG 19-00227-226, Page ii, September 10, 2020

"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 life."

"The Veterans Benefits Administration Inadequately Supported Permanent and Total Disability Decisions",

   

SAMPLE MESSGE TO COLORADO STATE LEGISLATORS FOR GOLD STAR WIVES' PROPERTY TAX EXEMPTION

Colorado residents, there's a sample letter or email below that you should send your state senator or representative (around the end of June is the best time) as we fight to get the same property tax relief for Gold Star Wives as Colorado gives survivors of disabled veterans. 

Here are the names of Colorado's 35 senators and state's 65 representatives.

"In the spirit of the Assembly of the State of Colorado Senate Joint Resolution 21-010s, issued April 5, 2021 in honor of Gold Star Families, I strongly urge in 2022 much more substantive respect be shown Gold Star Wives with your support of 150 survivors whose spouses died on active military service.

As the needs of Colorado and its citizens form the 2022 legislative agenda, please support their inclusion in the Disabled Veteran Survivor Property Tax Exemption. The only reason they are denied the benefit is that their spouses died on active military service.  Only the line-of-duty death of their military spouse disqualifies Gold Star Wives from the same modest state benefit extended to survivors of our totally disabled veterans.

Language in Article X Section 3.5 (1)(b) of the Colorado Constitution provides for survivors of totally disabled veterans and of the Senior Homestead Exemption. Illogically, the phrasing completely disqualifies survivors whose active-duty military spouses lost on active duty. Article X Section 3.5 (1)(b) reads, in part: 

 (b) The owner-occupier is the spouse or surviving spouse of an owner-occupier who previously qualified for a property tax exemption for the same residential real property under paragraph (a) of this subsection

 

In 2014, HB 14-1373 dealt more directly with homesteaders' survivors, providing for "the surviving spouse who takes possession of the qualifying residence of a deceased."  Again, active duty troops' survivors were disqualified unless the family owned a Colorado home when the military spouse died – most military families, especially the young and junior ranks, do not own homes. Personal income and the frequent necessity of their transfers often makes home ownership illogical except as they near retirement. 

The language of HB 14-1373 also worked against the hopes of survivors stationed out of Colorado but hope to return or establish residence here. 

Colorado denies the exemption to survivors of active-duty military because their spouses died. Those servicemembers will never come home as disabled veterans, alive to be "previously qualified" for the exemption for which they never had the chance to apply. 

They died instead of being injured. Benefit denied the surviving spouse.  This is a too-gruesome "Catch-22".

It is also an illogical distinction between active duty troops' survivors and veterans' survivors. Perhaps our legislators did not intend to disqualify military survivors, but did they overlook the fact that not every soldier, sailor, airman or Marine will be coming home alive? Did they overlook the fact that America has been at war for the last two decades?

LSC estimates a total only 150 widows and widowers, survivors of active duty servicemembers. The state's homestead exemption benefits over a quarter million Colorado homeowners and their survivors. 

Gold Star Wives are just 0.0006% of that population. LCS says coverage for them would under $100,000 with negligible administrative overhead. Hardly an insurmountable hurdle for Colorado!

Perhaps today's wiser Legislature needs to include the death of an active-duty servicemember in its definition of "disabled veteran."

Can a deceased active duty soldier be defined as a "totally disabled veteran" for his/her Colorado survivors' benefits?

Wouldn't that be wonderful! And – maybe – easy also?

Because our state restricts survivor benefits to those whose veterans were already in receipt of the exemption at the time of death, we lock out from all such benefits survivors of troops who die on active duty. Perhaps we can use the existing language of the law. 

Perhaps, only changing the interpretation or definition of the words "totally disabled veteran already in receipt of the exemption" to something like "or active duty death considered to be 'totally disabled and already in receipt of the exemption."

 

SITREP 24 Apr 2021: Stalled??

Stalled? Well, certainly not much interest, although everyone'a so polite. After all, how can anyone not be compassionate towards Gold Star Wives?  What about the argument "Equal taxes for Gold Star Wives?" Does it just fall flat?

Well, too often there's only mild concern about this problem with Colorado's Gold Star Wives' property tax issue. In six years I've had conversations with United Veterans Collation, chiefs of staff in Denver, legislative assistants and others. I've sent out over 500 emails with but two or three responses, including a very nice one recently from Senator Joann Ginal's staff here in Fort Collins. 

Perhaps this will be something our local senator will get behind, for which I'm grateful even for her briefest consideration of the issue. From her colleagues, from other directions, other places. Nothing.

Nothing.

"Not my problem, but perhaps you could talk to your legislator." 

"We can't do anything on survivors' benefits. That's (fill in the blank) responsibility." "Maybe next year."

"We need all possible questions answered before we can possibly discuss this." (BTW, I'm 75 years old, quite ill, sucking oxygen, worried about whether my cancer is gone, homebound and I've only got a few thousand dollars budgeted to throw at the issue. It isn't like I'm able to do this myself: Rather, I pretty much expected responsible public servants and veterans advocates to see a problem when laid out before them and discuss how it can be resolved. Yeah, right. 

Since 2016 when I first brought this to the attention of UVC, there's been ZIP, zero, nada, nothing. I thought the issue of Colorado making Gold Star Wives pay more property taxes than survivors of Colorado's 100% disabled veterans would strike many Coloradans as wrong to the core. Nope.

League of Women Voters, University Women clubs, veterans organizations, DMVA, DOLA, other state agencies – almost universally no response at all. The folks I was to speak with are disappointed to learn that Gold Star Wives whose spouses died on active duty are denied the same partial property tax exemption. granted survivors of totally disabled veterans. They're somewhat taken aback. Saddened, a little. Disbelieving that the state would do that to military widows. Disappointed.

Disappointed, but not pained enough by this gruesome distinction between the two types of military widows that anyone seems to be willing to do anything. Other issues crowd Colorado's United Veterans Coalition state legislative agenda for 2021, just as they have in 2016, 2017, 2018, 2019, and 2020. The other issues are important, of course, but so is unjust taxation of active duty widows. 

I'm puzzled: How could UVC have a (very worthy!) goal of property tax relief VA Total Disability for Individual Unemployability (TDIU) disabled veterans (wonderful – a goal I've also advocated directly and thru the UVC since 2015!) but not Gold Star Wives? Logically, conscious state leaders would balk at tens of thousands of TDIU claimants, but not at under a thousand Gold Star Wives. Logically, both issues are so tied to the same Article X Section 3.5 that they both should have been legislative objectives, either jointly or as separate issues.

I need to remind myself of Ecclesiastes 9:10: “Whatsoever thy hand findeth to do, do it." Sounds reasonable...just keep doing it as best we can.

with thy might.”I'm amazed, because this is an issue guaranteed to get a virtually unanimous vote if it could ever reach our legislators. After all, imagine the news photo of the very few politicians who would raise their hands in opposition to legislation permitting Gold Star widows the same property tax exemption granted survivors of totally disabled veterans.

There are so few Gold Star Wives. Especially few are the Gold Star Wives whose spouses died on active duty. The best guess is Colorado has fewer than one thousand men and women survivors of troops lost on active duty. The number pales against the numbers receiving the Homestead Exemption – the total disabled veterans and survivors are only 2% of the general homestead exemption category, and active duty widows/widowers a terribly smaller percentage of that.

Here's the sum of a couple thousand dollars spent trying to get some action and six years of writing, calling, visiting, emailing and glad-handing:
1. A single state senator's staff called me once and emailed me twice, and is still looking at this
2. A Zoom meeting on April 19 2021 to explain what I had on my mind, but "where is the money to come from" and "what legislators are behind this" and "we can't say anything until we see some legislation." So much for my hope of leadership from the Governor or Lieutenant Governor. It isn't that they are supposed to help, but it would help, Help a lot. I expected a genuine "that's terrible, and must be fixed because by God we don't treat war widows that way."
It never came. Instead, "thanks for your input, good bye." If there was help to be offered, or even mild encouragement, not that day. Nor any other day.
3. Two emails came back from folks directing the UVC state legislative effort. They explained GSW was represented in the coalition. It was good learn that CSW could submit the issue for next year's legislative objectives and that is was seemed "reasonable." Indeed. I thought UVC was the best place to turn for action. That's what I thought last month. That's what I thought six years ago.
4. I received an email from a wonderful state Gold Star Wife explaining that their organization is sensitive to Colorado's budget issues during 2020 and 2021, and they don't want to add to the tax burden of their fellow citizens. They are also grateful to the Colorado National Guard and feel survivors of Guard members killed on active state or federal service should be included in any property tax exemption.
They feel next year or 2023 might be a more appropriate time to seek action. I have to admire their patience and self-sacrifice, not only as Gold Star Wives but in the great caution they take to avoid a state budget impact. Willing to let my family have the small property tax exemption that rightfully should have gone to them as the first priority of the government and citizens of Colorado.

Colorado's Curious Management of its Disabled Veteran Property Tax Exemption, & the "Unemployability" Disqualification (updated May 12, 2021)

Five years ago I wrote about the curious sleight of hand employed to sell the voters on a worthy Colorado constitutional amendment but then the enabling legislation delivered a greatly watered-down statute. 

I backed off the subject after the United Veterans Committee (now United Veterans Coalition) made clear its nonsupport at that time. Understandably, it was best to avoid conflict and not mess up the carefully-crafted UVC legislative agenda. Happily, I understand that UVC has a related bill to increase the exemption as one of the 2021 objectives. Unhappily, I feel its cost of over $19M leaves no chance of success and UVC and the bill's sponsor might instead have pushed for Gold Star Wives and/or TDIU disabled veterans.

I refer here to Referendum E from back in 2006. Our legislature generously proposed a constitutional amendment (Article X Section 3.5) to provide a small partial property tax exemption to totally disabled veterans. Note the wording: "totally disabled veterans." Let's follow that bouncing ball of how definitions of  "totally disabled veterans" kept a-changing – and to finally covered as few vets as possible:

Here is the full text of Referendum E to amend the state constitution:

"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.”

This is important: Note the "one hundred percent permanently disabled" and the separate phrase, "due to a service-connected disability." Here in Colorado those words are now interpreted to be one kind of totally disabled veteran but could be read to refer to two kinds. That's right. VA has two different types of totally and permanently disabled veterans. "TDIU" for total disability for individual unemployability" and 100% service connected disabled for vets with a disability, or group of disabilities when added together, equalling 100%. 

Here is how the Legislative Council told us via the Blue Book what we were voting for:

"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."

An overwhelming 85% of Colorado voters approved this worthy benefit for those who served our state and nation. But then the lawmakers themselves got involved and took a fire hose to the benefit, watering it down quite a bit.

When Denver finally enacted legislation for the mechanics of Article X section 3.5 to work, Referendum E ended up much less broad than what we approved. The number of qualified recipients of the benefit was cut by more than half to protect budget resources for other projects.

Here is the actual text that finally delivered Referendum E to us as law:

"(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."

And next, here is the Colorado Department of Military and Veterans Affairs form for applicants, where there are two portions describing "totally disabled veterans."

"A “qualifying disabled veteran” is a person who meets each of the following requirements
- § 39-3-202(3.5), C.R.S . A “qualifying disabled veteran” is a person who meets each of the following requirements - § 39-3-202(3.5), C.R.S.• The veteran sustained a service-connected disability while serving on active duty in the Armed Forces of the United States. This includes members of the National Guard and Reserves who sustained their injury during a period in which they were called to active duty. • The veteran was honorably discharged.• The federal Department of Veterans Affairs has rated the veteran’s service-connected disability as a one hundred percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the department"

– and from the back page – 

"2. DISABLED VETERAN STATUS: To qualify, both questions must be true and you must attach a copy of your VA award letter verifying that you have been given a permanent disability rating by the VA." 

CDMVA web site:

"The Disabled Veteran Property Tax Exemption is available to applicants who sustained a service-connected disability rated by the Federal Department of Veterans Affairs as a 100 percent permanent disability through disability 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. VA unemployability awards do not meet the requirement for determining an applicant’s eligibility." 

So, after all this reading, do you see where the disabled veteran property tax exemption got watered down by more than half? It was through the disqualification of veterans rated totally and permanently disabled by VA for "unemployability." Tossed into the program are the words, "VA unemployability awards do not meet the requirement for determining an applicant’s eligibility."  Note that these TDIU people aren't veterans who are out of work, but instead vets who've been evaluated as being physically unable to ever work. And are monitored to make sure that remains the case.

Side note: the constitution included as eligible veterans those who were medically retired by their service as 100% disabled. The fourteen words describing these vets were left out of the law until 2016, when HB16-1444 brought the tax legislation into accord with the constitution.

(Here is an analysis I prepared in 2016 when I last worked on disabled veteran unemployability tax exemption issues.)

VA "unemployability" is its 100% disability rating for vets with at least one 60% service-connected issue and whose overall disabilities are so severe, so far beyond the scope for which VA assigned the 60%, that any meaningful employment is impossible. VA has other rating of "catastrophically disabled" but even when a vet is rated both unemployable and catastrophically disabled, that doesn't meet CDMVA's redefinition of Referendum E also is awarded to vets with at least a 60% service-connected disability:

"Veterans are considered to be Catastrophically Disabled when they have a severely disabling injury, disorder or disease that permanently compromises their ability to carry out the activities of daily living. The disability must be of such a degree that the Veteran requires personal or mechanical assistance to leave home or bed, or require constant supervision to avoid physical harm to themselves or others."

 Let's note that VA has two kinds of unemployability awards. The first is temporary or "IU," meant for periods of uncertainty about recovery or rehabilitation after surgery or illness, and the second is permanent (TDIU) for exactly that – permanent disability for life. TDIU veterans not only are medically determined to be unable to work, they are also carefully evaluated for that situation by the Veterans Benefit Administration before given the rating. Finally, they are carefully monitored by VA to check that they remain unable to work and both Social Security and IRS records are checked. 

Because Colorado references the VA totally disabled rating everywhere, we should look at how VA itself describes a totally disabled veteran. Read carefully and compare to Colorado's absolute disqualification of TDIU vets from the Disabled Veteran Property Tax Exemption. Here is the VA Office of Inspector General's very appropriate definition:

"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 life."

"The Veterans Benefits Administration Inadequately Supported Permanent and Total Disability Decisions",

    VA OIG 19-00227-226, Page ii, September 10, 2020

Clearly,  veterans with total disability, including TDIU, is what voters thought they were approving by votes for Referendum E back in 2006. So where did the Colorado prohibition of unemployability for the benefit come from?

I asked CDMVA and they said ask DOLA. I asked DOLA and in 2014 was told "some legislators" wanted that limitation. Legislators. Not the voters. Legislators introduced (snuck in!)  their own idea of
disqualification into what voters more broadly approved as our constitutional amendment.

My view: Veterans with a 100% disability rating, including TDIU, were provided the small tax exemption via Referendum E when we voted approval. TDIU eligibility should be corrected by legislative action. I do not favor broadening the Disabled Veteran Property Tax Exemption below the 100% disability level as the impact would be far too burdensome on taxpayers. 

Further, veterans often have disabilities common among folks their own age group, such as COPD, diabetes, hypertension and hearing loss. It would be unfair to a taxpayer with COPD to pay full property taxes while the veteran neighbor with a 50% COPD disability rating doesn't. The obvious need for tax relief is for survivors and the totally disabled veteran! Full stop.

Conclusion: A few legislators hijacked Referendum E and Article X Section 3.5 of the constitution, doing decades of harm to a large number of otherwise qualified Colorado totally disabled veterans and their survivors.

Time to set this right! What say you – Is 2022 too soon?

Colorado Disabled Veteran Property Tax: A Colorado Editorial

VA "UNEMPLOYABILITY" - How did it disqualify vets from Colorado's Disabled Veteran Property Tax Exemption?
by Wes Carter, National Chairperson, The C-123 Veterans Association for the Fort Collins Coloradoan

In 2006 Colorado voters amended our constitution to provide totally disabled military veterans a small partial property tax exemption. This is now Article X Section 3.5 of the constitution and 39-3-202 of our statutes. The Legislative Council 2006 Blue Book explained to voters that federal VA disability ratings are the standard followed by Colorado to qualify veterans for their exemption.

VA has two ratings recognizing a veteran’s total and permanent disability. One rating is for injuries VA rules consider 100% disabling. The other rating is for severe military injuries even worse than the disability percentage VA rules allow for that particular injury or illness, and which make the veteran unable to work for the remainder of his/her lifetime...that rating is termed, "Total Disability Individual Unemployability" (TDIU.) Both of these VA ratings are for total and permanent disability based solely on military illnesses or injuries. 

Nothing in the law permits denying TDIU veterans the tax exemption, yet the state refuses to honor any applications without a basis for refusal. Looking back to the Blue Book’s Referendum E explanation, voters were told it is for veterans so disabled by military illness or injury that meaningful work is impossible for their remaining lifetime. Referendum E passed by a decisive four-to-one margin.

Because voters amended the constitution addressing veterans whose permanent and totally disabling illnesses and injuries caused unemployability for life, there is no justification for agencies to invent disqualifiers for TDIU.

But that’s what happened, and it’s wrong.

As per Colorado’s constitution, federal VA ratings must be respected. Veterans rated totally and permanently disabled, including TDIU, must be afforded their lawful property tax exemption.

Other Coloradans wouldn’t tolerate being unconstitutionally taxed. 

These veterans have been patient long enough.