Solution? Good hearts in CDMVA and the Legislature?

There's hope in Colorado!

Legislative leadership, CDMVA expertise and United Veterans Committee support might craft a solution to the descriptions between the Colorado Constitution's Article X Section 3.5 and the 2007 statute defining "eligible veteran."

If so, more disabled Colorado veterans can be protected by the disabled veteran property tax exemption.

Thanks to all who care about us!

Finally – A comprehensive (though disappointing) answer about the conflict between Colorado's constitution and statutes on disabled vet property tax exemption

I asked...and she answered very completely. Now I have something to work with going forward.

From: Groff - DOLA, JoAnn <j>

Dear Mr. Carter: 

Renee Bridges and Stan Gueldenzopf on the staff here at the Division of Property Taxation, Department of Local Affairs have both contacted me about your concerns. To clarify, I understand your issue is that you have a different opinion of the wording of the Colorado Constitution from how it is interpreted by Colorado Statute and subsequently applied by the Division of Veterans Affairs in the Department of Military and Veterans Affairs. Renee Bridges suggested that you contact your legislators, but perhaps didn't offer enough explanation as to the "why" you should contact them. I hope to add some clarity here.

When there is a question regarding an interpretation of the constitutionality of statute there are two governing authorities. The first is the Colorado General Assembly. The presumption is that their interpretation through law IS constitutional. Subsequently, the Administrative staff who interprets and then enforces the statutes (read Division of Veterans Affairs, Division of Property Taxation and our respective Departments) does not have the authority to question whether the law is in conflict with the Constitution, we must assume all statutes are constitutional. If there is a question of whether a statute is constitutional, the second governing authority is the Colorado Supreme Court. If the Court says it is NOT constitutional then that part of the law becomes null and void and the General Assembly starts over. 

Short of bringing a lawsuit, individual legislators do have the ability to ask Legislative Legal Services, the office that acts as the attorneys for the General Assembly, for a legal interpretation of whether a part of the statute is constitutional. The legislators also can introduce legislation, even without an opinion of their lawyers, if the legislator feels the current statutory interpretation is incorrect, OR if they feel the language of the constitution might support a more broad interpretation than that which is currently in statute. 

For your circumstances, rather than initiating a costly and protracted legal review through the courts, my staff thought the best place to start is to see if your individual legislators agree with your argument and feel a change in the statute is appropriate. The interpretation you propose cannot be enacted independently by the administrative departments responsible for the program. I hope this offers clarity to our earlier response. 

All the best. JoAnn

JoAnn Groff 

Property Tax Administrator

P 303-864-7776  I  M 303-864-7777 I  F 303-864-7799

1313 Sherman St., Suite 419, Denver, CO 80203 

  I www.dola.colorado.gov/dpt

Our Colorado Constitution – Why isn't it followed?

They all swore to uphold it.

The Colorado Constitution specifies in Article X Section 3.5 that total disability military service retirements qualify veterans for the state's disabled veteran property tax exemption. Colorado's Department of Military and Veterans Affairs has a policy against that ever since the Constitution was amended by Referendum E in 2006 and denies the benefit of the exemption to qualified disabled veterans.

Article XII Section 8.  Oath of civil officers. Every civil officer, except members of the general assembly and such inferior officers as may be by law exempted, shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the state of Colorado, and to faithfully perform the duties of the office upon which he shall be about to enter. 

Article X Section 3.5 (ignored part in red, abused part in blue)(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. 

Not only have the last fifteen words in the Constitution's definition of eligible veteran been dropped in the 2007 statute, CMDVA imperfectly follows the requirement to extend the exemption to vets "rated by the federal department of veterans affairs as one hundred percent permanent disability benefits...pursuant to a law or regulation administered by the department." 

This partial state failure is their denial of claims from veterans holding VA's 100% permanent and total service connected disability for unemployment rating. The Constitution and subsequent legislation make no mention of "unemployability" ratings being barred.

Thus, one of two VA total service-connected disability ratings is abused, even though it complies word-for-word with the Colorado Constitution.

Today - Spoke to the United Veterans Committee

Thanks to kind and skillful editing by Bill Hanna, we circulated a single-page flyer touching on the basics of Colorado's difficulty to generously administer the Constitution's Article X Section 3.5 for disabled veterans property tax exemption.

Further, we even met with two C-123 Ranch Hand veterans plus a VA lady whose husband is one of our post-Vietnam veterans and his Agent Orange claim has sailed through just fine! That unexpected piece of good news is a blessing for my entire week!

We can only hope enough veterans and our advocates raise the question – why isn't the Colorado Constitution faithfully followed in this important area?

Overview & Support Materials – Disabled Veteran Property Tax Exemption Issue

Summarizing what we've learned in a couple months of investigation, this twenty page overview provides an orientation to the issue and the various details which leave us challenging the Colorado Department of Military and Veterans Affairs for improperly constricting the definition of "qualified veteran."

Their redefinitions have blocked two qualified groups of veterans, fully qualified per the Colorado Constitution Article X Section 3.5, for disabled veteran property tax exemption.

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

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

SOME EMAILS:
(FROM CODVA)

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

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

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

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

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

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

 Wes 

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

(FROM CODVA)

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

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

Code of Federal Regulations on Unemployability

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

§3.340   Total and permanent total ratings and unemployability.

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

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

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

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

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

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

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

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

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

§3.341   Total disability ratings for compensation purposes.

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

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

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

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

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

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

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

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

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

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

Readers here are reminded that the constitution holds that Colorado will go by ratings of the US Department of Veterans Affairs regarding eligibility for the property tax exemption, which reads: "BEEN RATED BY THE FEDERAL DEPARTMENT  OF VETERANS AFFAIRS AS ONE HUNDRED PERCENT PERMANENT DISABILITY THROUGH DISABILITY RETIREMENT BENEFITS OR A PENSION PURSUANT TO A LAW OR REGULATION ADMINISTERED BY THE DEPARTMENT,"

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

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

Ex.. 

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

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

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

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

"rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force."

Issues.

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

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

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

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

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

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

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

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

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

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

Some Legislative History of the Disabled Veteran Property Tax Exemption

The problem: Colorado's voters defined "qualified disabled veteran via a Constitutional amendment (Referendum E). Presently the Colorado Division of Veterans Affairs unfairly excludes from the benefit qualified veterans with permanent "unemployability" VA awards, and also excludes veterans directly retired by the military services per permanent and total disability.

Military disability retired property tax relief for Colorado's totally disabled military veterans is based on the 2006 amendment to the state Constitution. The wording of the title of Referendum E is inclusive of any "United States Military veteran who is 100% permanently disabled due to a service-connected disability." 

Nowhere in the Constitution nor other legislation does the "unemployability"appear. It was added as an exemption only by extra-legal preference of the CDMVA, contrary to the Constitution.

Here is the full title, approved by the voters:

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 Here's the text of Referendum E's definition of "disabled veteran:"

(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 yGUARD 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, OR THE DEPARTMENT OF THE ARMY, NAVY, AIR FORCE, OR HOMELAND SECURITY. 

(note: There is a minor conflict between the referendum's pension language and its requirement that disabilities be service-connected – the VA pension program is based on low-income and need, not service-connected disabilities. There is no such thing as 100% service-connected disability pensions.)

The 2007 Legislature "fine tuned" Section 3.5 of Article X from the 2006 Constitutional amendment. It bypassed the voter-approved "any veteran," dropped the pension, but  very improperly redefined and restricted the definition of "qualifying veteran" by failure to adhere to the broad and inclusive language of the voter-approved referendum.

"(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. "

The 2007 Legislature errored in its modification of the definition of "qualifying veteran" away from that approved by the electorate and per the Constitution. This amounted to an ex post facto law depriving many formerly qualified disabled veterans from the Constitution's protection regarding property tax. Further, this violates the US Constitution by depriving the affected veterans of their property (the tax benefit) without due process. From the Colorado Constitution's Bill of Rights:

"Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly."