Colorado recognizes sacrifices of our totally disabled veterans, awarding a partial property tax exemption to 100 percent totally and permanently disabled veterans. The U.S. Department of Veterans Affairs has two types of 100% disabled veterans – (1) vets with a 100% disability (2) vets with a total disability rated “Total Disability for Individual Unemployability” (TDIU.) VA benefits for the two types are identical, but Colorado’s TDIU veterans are unfairly denied the exemption
Here's a PowerPoint briefing on Colorado's Gold Star Spouses and our effort to qualify them for the state Disabled Veterans Survivor Property Tax Exemption. During the last session of the legislature, the House unanimously approved this but it died in the State Affairs Committee immediately on reaching the Senate.
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!
All hope for Gold Star Wives' property tax exemption rose suddenly during the last few days of the 2021 legislative session...and were shot down even faster! The House passed HB21-1002 unanimously but the Senate Veterans and Military Affairs Committee destroyed hopes for this legislation with just a few minutes conversation among the Democrats. Party line vote: Dems=NO, GOP-YES, but the measure failed with Dems in the majority.
| Oh, dear. I'm afraid we're back to the old drawing board. |
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.
I've been interested in advancing the Gold Star Wives property tax exemption for many years, urging action through the United Veterans Coalition. I've recently set the issue aside and for the UVC and Gold Star Wives to address the exemption for themselves – perhaps too much from me when I'm not a Gold Star spouse, only a Gold Star son.
Anyway...shot down behind closed doors. It feels like something's backwards here, as I'd have expected Democrats to have more concern than Republican. This was a vicious slap in the face to the House and to survivors of our troops who've died in the line of duty. The cost? Less than $94,000 according to Legislative Council Staff.
Here's the amendment:
BALLET TITLE
Shall there be an amendment to the Colorado constitution Article X Section 3.5 concerning the disabled veteran’s survivor property tax exemption, and, in connection therewith, provide for qualification of the surviving spouse of a servicemember of the Armed Forces of the United States who is missing in action or whose death is in the line of duty, and provide for the qualification of the surviving spouse of a servicemember of the Colorado National Guard whose death is in the line of duty while activated for a state contingency?
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.)
Under current law, 50 percent of the first $200,000 of actual value of the owner-occupied primary residence of a qualifying senior or a qualifying disabled veteran or surviving spouse of a qualifying disabled veteran who is in receipt of the exemption at the time of death, is exempt from property taxation. This wording excludes a surviving spouse of a servicemember whose death is while on active duty in the Armed Forces of the United States and excludes a surviving spouse of a servicemember of the Colorado National Guard whose death is while activated for a state contingency. The amendment expands the definition of “veteran who is in receipt of the exemption at the time of death” to include a servicemember of the Armed Forces of the United States who is missing in action or whose death is in the line of duty and to include a servicemember of the Colorado National Guard whose death is while activated for a state contingency.
SUBMITTING TO THE REGISTERED ELECTORS OF THE STATE OF COLORADO AN AMENDMENT TO SECTION 3.5 OF ARTICLE X OF THE CONSTITUTION OF THE STATE OF COLORADO, CONCERNING EXTENSION OF THE EXISTING PROPERTY TAX EXEMPTION FOR A QUALIFYING SURVIVING SPOUSE TO INCLUDE THE SURVIVING SPOUSE OF A MEMBER OF UNITED STATES MILITARY UNITED STATES WHO IS MISSING IN ACTION OR WHOSE DEATH WAS IN THE LINE OF DUTY, AND TO A SURVIVING SPOUSE OF A MEMBER OF THE COLORADO NATIONAL GUARD WHOSE DEATH WAS WHILE ACTIVATED FOR STATE CONTINGENCY.
Text of measure
Be It Resolved by the Senate of the Sixty-fifth General Assembly of the State of Colorado, the House of Representatives concurring herein:
SECTION 1. At the next election at which SENATE CONCURRENT RESOLUTION 22-xxx1 question may be submitted, there shall be submitted to the registered electors of the state of Colorado, for their approval or rejection, the following amendment to the constitution of the state of Colorado, to wit: Section 3.5 (1) (b) of article X of the constitution of the state of Colorado is amended, and the said section 3.5 is further amended BY THE ADDITION OF THE FOLLOWING NEW TEXT, to read:
Be it enacted by the people of the State of Colorado:
Article X is amended to add as follows: Add to Section 3.5 (1.5)(b)
Homestead exemption for qualifying senior citizens and disabled veterans AND SURVIVING SPOUSES.
(1) For property tax years commencing on or after January 1, 2002, fifty percent of the first two hundred thousand dollars of actual value of residential real property, as defined by law, that, as of the assessment date, is owner-occupied and is used as the primary residence of the owner-occupier shall be exempt from property taxation if:
(a) The owner-occupier is sixty-five years of age or older as of the assessment date and has owned and occupied such residential real property as his or her primary residence for the ten years immediately preceding the assessment date; or
(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 (1); OR QUALIFYING SURVIVING SPOUSE OF A UNITED STATES MILITARY MEMBER MISSING IN ACTION OR WHOSE DEATH WAS IN THE LINE OF DUTY, OR A COLORADO NATIONAL GUARD MEMBER WHOSE DEATH WAS WHILE ACTIVATED FOR A STATE CONTINGENCY.
(c) FOR PROPERTY TAX YEARS COMMENCING ON OR AFTER JANUARY 1, 2022, ONLY, the owner-occupier, as of the assessment date, is a disabled veteran. (1.3) an owner-occupier may claim only one exemption per property tax year even if the owner-occupier qualifies for an exemption under both paragraph (c) of subsection (1) of this section and either paragraph (a) or paragraph (b) of subsection (1) of this section.
(1.5) for purposes of this section, "disabled veteran" means (A) 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, OR (B) A UNITED STATES MILITARY MEMBER MISSING IN ACTION OR WHOSE DEATH WAS IN THE LINE OF DUTY, OR A COLORADO NATIONAL GUARD MEMBER WHOSE DEATH WAS WHILE ACTIVATED FOR A STATE CONTINGENCY.
SECTION 2. Each elector voting at said election and desirous of voting for or against said amendment shall cast a vote as provided by law either "Yes" or "No" on the proposition: "AN AMENDMENT TO SECTION 3.5 OF ARTICLE X OF THE CONSTITUTION OF THE STATE OF COLORADO, CONCERNING EXTENSION OF THE EXISTING PROPERTY TAX EXEMPTION FOR QUALIFYING SURVIVING SPOUSES OF ANY UNITED STATES MILITARY MEMBER MISSING IN ACTION OR WHOSE DEATH WAS IN THE LINE OF DUTY, OR OF A COLORADO NATIONAL GUARD MEMBER WHOSE DEATH WAS WHILE ACTIVATED FOR A STATE CONTINGENCY
SECTION 3. The votes cast for the adoption or rejection of said amendment shall be canvassed and the result determined in the manner provided by law for the canvassing of votes for representatives in Congress, and if a majority of the electors voting on the question shall have voted "Yes", the said amendment shall become a part of the state constitution.
For purposes of this section, the text of Section 3.5 shall be expanded, to wit “owner-occupier who previously qualified for a property tax exemption OR A SERVICEMEMBER OF THE ARMED FORCES OF THE UNITED STATES WHO IS MISSING IN ACTION OR WHOSE DEATH IS IN THE LINE OF DUTY AND TO INCLUDE A SERVICEMEMBER OF THE COLORADO NATIONAL GUARD WHOSE DEATH IS WHILE ACTIVATED FOR A STATE CONTINGENCY.
(1) For property tax years commencing on or after January 1, 2002, fifty percent of the first two hundred thousand dollars of actual value of residential real property, as defined by law, that, as of the assessment date, is owner-occupied and is used as the primary residence of the owner-occupier shall be exempt from property taxation if:
(a) The owner-occupier is sixty-five years of age or older as of the assessment date and has owned and occupied such residential real property as his or her primary residence for the ten years immediately preceding the assessment date;
(b) The owner-occupier is the spouse or surviving spouse of A SERVICEMEMBER OF THE ARMED FORCES OF THE UNITED STATES WHO IS MISSING IN ACTION OR WHOSE DEATH IS IN THE LINE OF DUTY AND TO INCLUDE A SERVICEMEMBER OF THE COLORADO NATIONAL GUARD WHOSE DEATH IS WHILE ACTIVATED FOR A STATE CONTINGENCY OR an owner-occupier who previously qualified for a property tax exemption for the same residential real property under paragraph (a) of this subsection (1); or
(c) For property tax years commencing on or after January 1, 2007, only, the owner-occupier, as of the assessment date, is a disabled veteran. (1.3) An owner-occupier may claim only one exemption per property tax year even if the owner-occupier qualifies for an exemption under both paragraph (c) of subsection (1) of this section owner-occupier who previously qualified for a property tax exemption FOR PURPOSES OF ARTICLE X SECTION 3.5 ONLY, “OWNER-OCCUPIER WHO PREVIOUSLY QUALIFIED FOR A PROPERTY TAX EXEMPTION” SHALL ALSO INCLUDE A SERVICEMEMBER OF THE ARMED FORCES OF THE UNITED STATES WHO IS MISSING IN ACTION OR WHOSE DEATH IS IN THE LINE OF DUTY AND ALSO INCLUDE A SERVICEMEMBER OF THE COLORADO NATIONAL GUARD WHOSE DEATH IS WHILE ACTIVATED FOR A STATE CONTINGENCY.
Self-executing, severability, conflicting provisions. ALL PROVISIONS OF THIS SECTION ARE SELF-EXECUTING EXCEPT AS SPECIFIED HEREIN, ARE SEVERABLE, AND, EXCEPT WHERE OTHERWISE INDICATED IN THE TEXT, ALL PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UPON OFFICIAL DECLARATION OF THE VOTE HEREON BY PROCLAMATION OF THE GOVERNOR, PURSUANT TO SECTION 1(4) OF ARTICLE V.
At the right time,, I'm hopeful these thousands of veterans will be convincing our General Assembly that Gold Star Wives should be eligible for the Disabled Veteran Survivor Property Tax Exemption.
But this just isn't the right moment for GSW property tax issues. The benefit will be sought in the near future, just not right now. And it wasn't right back in 2016 when our state legislative agenda included Gold Star survivors but no traction was found, not even a draft bill.
UVC is "the tip of the spear" for our state's veterans. Speaking as one voice, coordinating dozens of organizations state-wide. VFW, DAV, American Legion, PVA, MOAA, NCOA, ROA, AFSA, VVA, and so many others of which I'm not a member – Submarine Veterans, Gold Star Wives - if an association serves vets and their families, if an organization promotes the national defense, they're a welcome part part of UVC and their concerns are heard. The various needs and propositions are discussed by the membership, and those agreed by UVC are delivered to the decision makers, both state and federal, in the form of the annual focused UVC legislative objectives.
Legislators in Denver and Washington listen carefully, hearing those thousands of UVC voices when the United Veterans Coalition speaks. Whether addressing an individual legislator, senate or house committee, or public forum like a town hall meeting or city council, the United Veterans Coalition commands attention, and rightfully so.
I know this. On a few occasions, I was a witness before the National Academies of Science or one of the house or senate committees, and authorized to speak on behalf of the UVC. UVC was firmly behind me as I sought Agent Orange benefits for C-123 veterans. We got all of Colorado's senators and congressional representatives together to pressure the VA, even to block presidential nominations from consideration until VA acted. Finally, we won on the merit of the issue and UVC strength.
We won the four year battle and gained VA Agent Orange benefits for 2500 Air Force C-123 aircrew, maintainers and survivors. Until Congress acted on the Blue Water Navy group, this was the only time VA added a new Agent Orange exposure group, and the only expansion of Agent Orange benefits since 1991. With HB16-1444 we won property tax exemptions for Colorado 450 military retirees and their survivors who'd been medically separated from their service as 100% disabled, and in doing so we brought the legislation into agreement with our state constitution's Article X Section 3.5.
Not only does the UVC present veterans' concerns to our legislator, UVC also prioritizes the multitude of issues and forms an annual legislative agenda for both state and federal issues.
At the right time, Gold Star Wives' property tax issue is likely to be addressed by the coalition. Admirably, the GSW members are patient and understanding, with full confidence in the coalition.
The timing for GSW isn't right for 2021. Complexities of state budget, coalition priorities. Strategy and resources – all must align, and then UVC will deliver for the members of Colorado's Gold Star Wives. Let's get together for Gold Star Wives' proper place on the UVC 2022 legislative agenda!
