Real property tax; exemption for disabled veterans. (HB1645)

Introduced By

Del. John O'Bannon (R-Richmond)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

Real property tax; exemption for disabled veterans. Codifies the constitutional amendment adopted by voters in November, 2010, that provides for a property tax exemption for veterans who have a 100 percent, service-related disability. The constitutional amendment requires the General Assembly to enact the exemption in general law. Read the Bill »

Outcome

Bill Has Passed

History

DateAction
01/10/2011Prefiled and ordered printed; offered 01/12/11 11100714D
01/10/2011Prefiled and ordered printed with emergency clause; offered 01/12/11
01/10/2011Committee
01/10/2011Prefiled and ordered printed with emergency clause; offered 01/12/11 11100714D
01/10/2011Referred to Committee on Finance
01/15/2011Impact statement from TAX (HB1645)
01/17/2011Assigned Finance sub: #2
01/31/2011Subcommittee recommends reporting with amendment(s) (9-Y 0-N)
02/02/2011Reported from Finance with amendment (21-Y 0-N) (see vote tally)
02/04/2011Read first time
02/07/2011Read second time
02/07/2011Committee amendment agreed to
02/07/2011Engrossed by House as amended HB1645E
02/07/2011Printed as engrossed 11100714D-E
02/08/2011Read third time and passed House BLOCK VOTE (99-Y 0-N)
02/08/2011VOTE: BLOCK VOTE PASSAGE (99-Y 0-N) (see vote tally)
02/09/2011Impact statement from TAX (HB1645E)
02/09/2011Constitutional reading dispensed
02/09/2011Referred to Committee on Finance
02/16/2011Reported from Finance with substitute (13-Y 0-N) (see vote tally)
02/16/2011Committee substitute printed 11105304D-S1
02/17/2011Constitutional reading dispensed (38-Y 0-N) (see vote tally)
02/18/2011Read third time
02/18/2011Reading of substitute waived
02/18/2011Committee substitute agreed to 11105304D-S1
02/18/2011Emergency clause added
02/18/2011Engrossed by Senate - committee substitute HB1645S1
02/18/2011Passed Senate with substitute (40-Y 0-N) (see vote tally)
02/21/2011Placed on Calendar
02/22/2011Senate substitute agreed to by House 11105304D-S1 (97-Y 0-N)
02/22/2011VOTE: ADOPTION EMERGENCY (97-Y 0-N) (see vote tally)
03/03/2011Enrolled
03/03/2011Bill text as passed House and Senate (HB1645ER)
03/03/2011Signed by Speaker
03/04/2011Impact statement from TAX (HB1645ER)
03/04/2011Signed by President
03/26/2011Governor's recommendation received by House
04/05/2011Placed on Calendar
04/06/2011House concurred in Governor's recommendation (99-Y 1-N)
04/06/2011VOTE: ADOPTION EMERGENCY (99-Y 1-N) (see vote tally)
04/06/2011Senate concurred in Governor's recommendation (40-Y 0-N) (see vote tally)
04/06/2011G Governor's recommendation adopted
04/06/2011Reenrolled
04/06/2011Reenrolled bill text (HB1645ER2)
04/06/2011Signed by Speaker as reenrolled
04/06/2011Signed by President as reenrolled
04/06/2011Enacted, Chapter 769 (effective 4/6/11)
04/06/2011G Acts of Assembly Chapter text (CHAP0769)

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 2 clips in all, totaling 2 minutes.

Duplicate Bills

The following bills are identical to this one: SB1358.

Comments

Bill Short writes:

When does this bill go in effective.

Waldo Jaquith writes:

This is an "emergency" bill, so it goes into effect as soon as the governor signs it.

maryann lumley writes:

voters spoke general assembly spoke what abt governor lets here something all the hard work seems to be done financial impact everyone is waiting

Todd Golding writes:

It is unfortunate that the regulations being proposed for this bill will not allow for ALL 100% permanent and total Disabled Veterans to receive this tax exemption.

Currently the proposed regulations as told to me by my Commissioner of Revenue is that the Disabled Veteran has to have both an Assigned 100% rating and their "Overall or combined" rating must also be 100%.

These proposed regulation eliminates those Disabled Veterans who have been assigned a 100% disability rating as a result of 38 CFR § 3.321(B) and 38 CFR § 3.340.

I doubt that this action meets the spirit and intent of the Voters who helped to pass the Constitutional Amendment last November.

Bill Short writes:

Does anybody know what the Governor's recommendation was?
Video

Waldo Jaquith writes:

You can find that on the General Assembly's site. (Unfortunately, we don't have those integrated into Richmond Sunlight.) It reads:

1. Line 13, enrolled, after Virginia,

insert

and for tax years beginning on or after January 1, 2011,

So instead of this:

Pursuant to Article X, Section 6-A of the Constitution of Virginia, the General Assembly hereby exempts from taxation the real property, including the joint real property of husband and wife, of any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service-connected, permanent, and total disability, and who occupies the real property as his principal place of residence.

He recommends this:

Pursuant to Article X, Section 6-A of the Constitution of Virginia, and for tax years beginning on or after January 1, 2011, the General Assembly hereby exempts from taxation the real property, including the joint real property of husband and wife, of any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service-connected, permanent, and total disability, and who occupies the real property as his principal place of residence.

Bill Short writes:

Thank You!

Waldo Jaquith writes:

Thank you for bringing it up, Bill—now that's on my to-do list as a feature to add to the site!

William Pete writes:

When will the governor sign this bill.

Waldo Jaquith writes:

It looks like it's a done deal, William. The governor agreed to the bill contingent on some changes, those changes were made, and it's now law. The governor is obliged to sign the bill anyhow, since it was passed as a constitutional amendment, so there was never any question about it.

Millie Ann Latham writes:

Where does it say in the law that the "combined and total rating be 100% to qualify for the tax exemption. I don't read it there myself. Is this something the local commissioner of revenues have come up as a way to not give the tax benefit. This is not what the voters voted for in November!!

Todd G. writes:

Millie-
The law DOES NOT have the requirement that the Veteran have a "Overall or combined" rating of 100%. The law states: "...any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service-connected, permanent, and total disability,..."

"Pursuant to federal law" is the key words here. Under Federal law, there are a number of ways a Disabled Veteran can be determined to be 100% Permanent and totally disabled and yet their "Overall or combined" rating is not 100%. The most common can be found in 38 CFR 4.16.

This "Overall or combined" requirement has come about because of the desire of Commissioners of the Revenue Association of Virginia, The Virginia Municipal League (VML)and the Virginia Association of Counties (VACO) Desire to limit the fiscal impact upon their localities.

Joe Horbal writes:

Todd G.
Your final statement about Commissioners wanting to limit this exemption could not be further from the truth. Over 70 Commissioners met yesterday and discussed this issue in detail. We have been provided with a great deal of information regarding how the Veteran's Administration reports the levels of disability.
Every case must be reviewed in detail. When a veteran meets the qualifications, he/she will receive the exemption. Neither VML nor VACO have contacted me personally with any opinions on the issue. In fact, a VML representative was at our meeting yesterday and made absolutely no statements that the exemption should be limited in any way.
I would be happy to discuss this issue with anyone as I did in the Times-Dispatch in yesterday's edition.
Joe Horbal
Commissioner of the Revenue
Chesterfield County

Todd G. writes:

Mr. Horbal-
i sincerely hope that is the case. Please know that I made the above statements about the Commissioners of Revenue association of Virginia specifically and not about each of the individual Commissioners. I came to that conclusion after many conversations and emails with documentation from my own Commissioner of Revenue.

You stated above that "We have been provided with a great deal of information regarding how the Veteran's Administration reports the levels of disability." May I ask you who or what entity presented this information to the Commissioners. Did they discuss Individual Unemployability (IU) specifically and did they show you federal law which defines it and grants IU?

With that in mind, how do the Commissioners plan to rule on the issue of IU if it is presented to them by a Veteran?

Thank you
Todd G.

Joe Horbal writes:

The info we've gotten is from the VA. Our discussion yesterday did not include IU. I will research that and find out how it should be ruled on.

Todd G. writes:

Mr. Horbal-
Thank you for taking the time to reply. To quickly clarify, was the information presented by an Employee of the US Department of Veterans Affairs? Also thank you for taking the time to research the IU issue. I look forward to hearing what you find out.
V/R
Todd G.

Harvey S writes:

I am a Maryland resident planning to relocate to Henrico County or the City of Richmond in 2011. As a 100% disabled veteran, as rated by the Veterans Administration, I am exempt from all property taxes on my principal residence in Maryland. What will
this bill provide for me if I relocate to Henrico County or Richmond City? My total disabilities do not equal 100%, but are equal to at least 95% which is equal to a 100% VA rating.
HS

Bill Short writes:

Mr. Horbal have you found out how the VA is going to handle the IU issue.

Todd G. writes:

Mr. Horbal-
I just received a copy of the "regulations" that the Commissioners of Revenue Association of Virginia Promulgated at their meeting in Staunton VA.

As a sitting Commissioner of Revenue, Could you explain to me how a "Professional Association" legally promulgate such information as regulations to ALL of the Commissioners of Revenue?

Thank you.

Harvey S writes:

I repeat my previous question below: can Mr. Horbal please clarify this???? I am in the house hunting process now, but that can be stopped immediately if some loophole would disqualify me from the exemption. I will not be moving to Chesterfield County, but Mr. Horbal seems to be in the middle of this legislation and is attempting to interpret it statewide, so what's the real deal here????

HS

My original post:
"Harvey S writes:
I am a Maryland resident planning to relocate to Henrico County or the City of Richmond in 2011. As a 100% disabled veteran, as rated by the Veterans Administration, I am exempt from all property taxes on my principal residence in Maryland. What will
this bill provide for me if I relocate to Henrico County or Richmond City? My total disabilities do not equal 100%, but are equal to at least 95% which is equal to a 100% VA rating.
HS"

Joe Horbal writes:

The IU issue is being considered by the Virginia Attorney General in response to a request for opinion from Delegate Scott Lingamfelter. What the Commissioner's Association has put out are guidelines based on research and what we have learned about the issue. They are not binding on any commissioner. It is an attempt to get consistent information to all commissioners. We will have more direction after the AG offers his opinion.
Harvey S., I believe we have spoken and I think your questions have been answered as best as we can at this point.
And no, I am not attempting to interpret this issue in any way other than helping me to administer a program that I am required to administer.

Todd G. writes:

Mr. Horbal-

First, if what CRAV put out is simply "guidelines", then why do so many Commissioner's of Revenue refer to it as "State Policy?"

Second, why didn't a Commissioner of Revenue ask for an Opinion? It is my understanding that one could since this issue is part of their job. Also, correct me if I am wrong, but isn't an AG opinion just that an opinion! It does not make law, correct?

Mr. Horbel, I have read the "guidelines" as you call them from CRAV and it appears that very little "research" went into them. It appears to me that the only information that is contained in them is simply to deny all veterans who have been rated under federal law as Individual Unemployable.

Here are some simple questions for you. Did anyone at the CRAV conference even take the time to show you what the applicable Federal Laws were? Did anyone show you How a Veteran is "rated, Evaluated or determined" to be Totally Disabled (38 CFR 4.15). Did anyone bother to share with you and your fellow Commissioners where 4.15 states that: "...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..."

Did anyone share with you the Federal law that the VA must follow when Granting Individual Unemployability? You can find it in 38 CFR 4.16 . I also would like to note that you can find in 38 CFR 4.16 (B) that it states: "It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. ..." That maybe prevalent to your understanding of the issue at hand!

The authority for the CFR's I mentioned above can be found in 38 USC 501. You can find the CFR at this link: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

Since you mention legal opinions, here are a couple that may interest you.

First from the AG in Arkansas. This one does a very good job describing the variouos ways a Disabled Veterans can be rated or evaluated: http://www.veterans.arkansas.gov/2009-054.pdf

Another one that is closer to home, is from the City Attorney in Winchester VA. It starts around page 44 and continues to page 55:

http://www.winchesterva.gov/documents/government/city_council_work_sessions/20110517-Agenda.pdf

Please take the time to review the CFR's mentioned above and take a look at the opinions provided.

Thank you.

Todd G.

Joe Horbal writes:

Todd G.,
First, the information has not been presented to me as "State Policy" and I cannot answer why anyone would refer to it that way.

Second, it is my understanding that the delegate showed a great deal of interest in the issue and offered to ask for the opinion. The opinion, when it comes, should hopefully provide some insight to the legislative intent of the law. The remainder of your second paragraph is correct.

Regarding the remainder of your message, I would think that the lawmakers and/or their staff would have researched the issue and would have worded the law exactly as they intended. I cannot speak to what they did or did not do regarding research. Nor can I speak to their legislative intent. Regarding the IU issue, that is one of the main questions going to the AG.

I will state again that there is no push from CRAV to find ways to deny this exemption. I cannot speak for individual commissioners, but I can say that I personally am not attempting to limit this exemption and I have not been asked to by anyone.

Dave writes:

Mr. Horbal,

Thank you for your candid responses to the questions presented. I concur with Todd G. regarding his comments and compliment him on his extensive research.

However, it appears to me that the CRAV as an organization and the Commissioners of Revenue as individuals have been given inappropriate advice by the Virginia Department of Veterans Services and those that lead that organization.

DVS, prior to the November 2nd election made it clear that, according to the U. S. Department of Veterans Affairs, Virginia (as of May, 2009) had 7,358 100% service-connected, permanent and total veterans.

That information was made public through media outlets and that was the information provided to voters prior to the election.

After the election and while the General Assembly was enacting the legislation, that same Virginia Department of Veteran Services advised the Commissioners of the Revenue and anyone else who would listen that the law DID NOT include thousands of the 7,358 veterans or their widowed spouses.

That advice was given even though the involved veterans were still rated 100% service-connected, permanent and total and owned and occupied real estate in Virginia as of January 1, 2011 or subsequent thereto.

Because some Commissioners of the Revenue have chosen to follow the advice of the Virginia Department of Veteran Services instead of the federal and state law, too many who are eligible have been summarily turned away when they had every right to apply and had appropriate documentation from the U. S. Department of Veterans Affairs.

Those veterans have been denied NOT because they do not have a rating of 100 percent service-connected, permanent and total. They are being denied because, in addition to being 100 percent service-connected, permanent and total they have a “combined service-connected evaluation” of less than 100%.

As a consequence of the ill advised leadership role of the Virginia Department of Veteran Services, hundreds if not thousands of the 7,358 eligible Virginia veterans or their spouses are being summarily rejected.

It would, in my opinion, be unconscionable if one or more of those eligible veterans or their spouse were turned away and never again attempted to apply simply because of the initial or subsequent rejection of their application.

The effort it takes for a veteran to get deserved benefits from the federal government is difficult enough without making it even more difficult when the deserving veteran or his widowed spouse makes an application for voter mandated state benefits.

The federal law as presented by Todd G. is clear.

Virginia is required by its own State Code to accept the fact that any and all of the 7,358 and any subsequent veteran who owns and occupies his or her personnel residence in Virginia; while having a rating of 100% service-connected, permanent and total, are eligible for a real estate tax exemption once the U. S. Department of Veterans Affairs certifies their rating. That is true even if the so called "combined service-connected evaluation is less than 100 per cent and they are deememe to be 100 per cent permanent and total because they are Individually Unemployable.

Harvey S writes:

As I stated in my previous post, I reside in Maryland, and wish to relocate to Henrico county, VA. I did manage to locate someone who forwarded a copy of the letter sent out from the Dept. Of Veterans Affairs Office in Roanoke, and I am convinced that in my case i qualify since I am rated as 100% service connected total and permanently disabled. For clarification, a combined 100% rating is a rating that adds up to 95% or greater based on the VA rating tables since the ratings are rounded up to the next higher or lower 10%:, it does not mean that the individual ratings must equal 100%, only the COMBINED ratings equal 95% or more which constitutes a 100% rating, that is federal law and not open to interpretation. What confuses me is why did the US Dept. Of Veterans Affairs Regional Office in Roanoke get involved? They are a federal agency and have no standing in any state law regardless of which of the fifty states in which a veteran resides. I am not a lawyer, but I would guess that if those of you who meet the criteria and have been denied would band together in a class action lawsuit against the various counties involved,or perhaps the state, the issue would come to a resolution in short order. I would like to see the CRAV guidelines; I don't know what the CRAV is, but I assume it is a committee made up of county tax assessors????? Could someone post a URL as to where these guidelines are posted? Thank you.

Roger Sullivan writes:

To Joe Horbal

I just wanted you to know that I had an 88 year old lady call me today, crying, concerned about why Chesterfield had not done anything about this Veterans Tax Relief bill. It is sad that you elected people have no initative of your own to make decisions.

Another Chesterfield veteran called me. He had sent his application along with a letter from the Department of Veterans Affairs Regional Office in Columbia, SC. His letter stated

To Whom It May Concern:

The official records of the Department of Veterans Affairs verify that Xxxx X. Xxxxxxxxxx is rated at 100% for a service connected disability, and is permanently and totally disabled.

Mr. Horbal, apparently you haven't read the text of HB 1645, because it states:

"The veteran shall also provide documentation from the U.S. Department of Veterans Affairs or its successor agency indicating that the veteran has a 100 percent service-connected, permanent, and total disability."

Now Mr. Horbal, HB 1645 didn't say that the letter had to have a certain date, come in a certain envelope, or the veteran had to wear pink shoes.

YOU WERE WRONG in denying this veteran, as have been a lot of the CORs around the state. You are waiting for the Attorney General to do your job for you. WHAT WERE YOU ELECTED FOR? Don't you have to make decisions sometime?

It is really sad to have some many incompetent elected officials, ALL OVER THE COMMONWEALTH, refusing to think for themselves.

I am just glad you weren't in my army.

USARMY RETIRED writes:

This exemption is for 100% service connected veterans not for people who just get paid at the 100% rate because they are unemployable. Read the exemption without your money colored glasses on.

HondaMan writes:

I guess who USARMY RETIRED is and hes totally correct. Peoples who haves IU do not have a 100% disability. What they haves is called greed.

Dave writes:

To: USARMY RETIRED

Sir or Madam,

Thank you for your service to our country.

You have my respect because you chose to spend twenty or more years of your life in the military.

However, you have made an extraordinary error regarding your reading of the Virginia tax exemption legislation.

I offer to you my observation that the Virginia Code does not define the phrase “100 percent service-connected, permanent and total disability.”

Instead, the statute conditions eligibility on whether the U. S. Department of Veterans Affairs, PURSUANT TO FEDERAL LAW, has “rated” the veteran 100 percent service-connected, permanent and total.

The Virginia law reads as follows:

"...the General Assembly hereby exempts from taxation the real property, including the joint real property of husband and wife, of any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service-connected, permanent, and total disability, and who occupies the real property as his principal place of residence."

The words "PURSUANT TO FEDERAL LAW" is an important condition that cannot be ignored by the Commissioners of the Revenue or anyone else who carefully reads the Virginia law.

As a military retiree, it is possible that you are not sufficiently knowledgeable regarding the federal law that the state of Virginia has relied on.

I respectively submit to you that Virginia law requires consideration of 38 C. F. R. § 4.16 and § 4.17.

As a veteran it is my position that it is improper to read the phrase “…100 percent service-connected, permanent and total disability” in the Virginia Code to exclude any Virginia veteran from the tax exemption when the veteran is determined to be 100 percent service-connected, permanent and total pursuant to 38 C. F. R. § 4.16 and § 4.17.

The U. S. Department of Veterans Affairs at the end of fiscal year 2009 recognized that 7,358 Virginia Veterans were 100 percent service-connected, permanent and total.

All of those Virginia veterans would not be eligible for a tax exemption because not all of them own and occupy real estate in Virginia. But, those who do own and occupy Virginia real estate and who are rated 100 percent service-connected, permanent and total pursuant to 38 C. F. R. § 4.16 and § 4.17 are eligible for the Virginia Real Estate tax exemption.

The reference to “...100 percent” should not be read to exclude the designation of Individual Unemployability.

Federal law (38 C. F. R. § 4.16 and § 4.17) permits a total disability rating based on a less than 100 percent disability schedule rating when the lower rating is coupled with a finding that the veteran is unable to obtain substantially gainful employment.

Dave

USARMY RETIRED writes:

@Dave:

If you are IU then you do not have a 100% service connected disability. If you had a 100% schedular rating then you wouldn't have IU. Nothing in 38 C. F. R. § 4.16 and § 4.17 changes that fact.

§ 4.16 (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

Bill writes:

Total Individual Unemployability rating = 100% rating by U. S. Department of Veterans Affairs.

*Read VA regulation Sec. 3.343 (c),(1) below.

========================================

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation

Sec. 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the
severity of the condition and not granted purely because of hospital,
surgical, or home treatment, or individual unemployability will not be
reduced, in the absence of clear error, without examination showing
material improvement in physical or mental condition. Examination
reports showing material improvement must be evaluated in conjunction
with all the facts of record, and consideration must be given
particularly to whether the veteran attained improvement under the
ordinary conditions of life, i.e., while working or actively seeking
work or whether the symptoms have been brought under control by
prolonged rest, or generally, by following a regimen which precludes
work, and, if the latter, reduction from total disability ratings will
not be considered pending reexamination after a period of employment (3
to 6 months).
(b) Tuberculosis; compensation. In service-connected cases,
evaluations for active or inactive tuberculosis will be governed by the
Schedule for Rating Disabilities (part 4 of this chapter). Where in the
opinion of the rating board the veteran at the expiration of the period
during which a total rating is provided will not be able to maintain
inactivity of the disease process under the ordinary conditions of life,
the case will be submitted under Sec. 3.321.
(c) Individual unemployability. (1) In reducing a rating of 100
percent service-connected disability based on individual
unemployability, the provisions of Sec. 3.105(e) are for application
but caution must be exercised in such a determination that actual
employability is established by clear and convincing evidence. When in
such a case the veteran is undergoing vocational rehabilitation,
education or training, the rating will not be reduced by reason thereof
unless there is received evidence of marked improvement or recovery in
physical or mental conditions or of employment progress, income earned,
and prospects of economic rehabilitation, which demonstrates
affirmatively the veteran's capacity to pursue the vocation or
occupation for which the training is intended to qualify him or her, or
unless the physical or mental demands of the course are obviously
incompatible with total disability. Neither participation in, nor the
receipt of remuneration as a result of participation in, a therapeutic
or rehabilitation

http://edocket.access.gpo.gov/cfr_2010/julqtr/38cfr3.343.htm

Todd G. writes:

@ USARMY RETIRED

As someone who was opposed to the Constitutional Amendment to begin with and its enabling legislation, I have read the law extensively and can tell you that it is poorly crafted and written.

Under both the amendment and the enabling legislation there are three things a Disabled Veteran must have in order to qualify for the exemption. They are:

1) they must be 100% Service Connected. (Not Rated 100%)

2) their disability(s) must be permanent
and
3) their disability(s)must be total.

That is the true reading of the amendment and the enabling legislation.

Now the US Department of Veterans Affairs (USDVA) only grants disability claims if the disability happened in the service. So to require that the disability to be "100% Service Connected" is absurd.

As such, in order to understand what the legislators meant one must find their intent.

After many conversations with many legislators (remember now, I was opposed to the amendment) I can say with certainty that their intent was to award this exemption to those Disabled veterans who have been awarded 100% Permanent and Total Disability evaluation as determined by the USDVA. As one Legislator put it to me, we want to help the neediest Disabled Veterans who have no chance of getting better.

Now what you are saying is that only Disabled Veterans who meet the "scheduler" requirements for a Permanent and Total Rating under 38 CFR 4.15 are eligible for the tax exemption. Well I am one such Disabled Veteran. I have a Total and Permanent Evaluation. It was NOT grant under the regulations for "Individual Unemployability".

Are you aware that under the same laws that grant me my evaluation I can still work as long as I have the ability, drive and fortitude to overcome my disability?

Now please explain to me how you can justify granting me the above referenced tax exemption when under federal law, I can still work if I can overcome my disability yet you will deny it to a Disabled Veteran who has been awarded the same evaluation and compensation because their service Connected Disabilities will NOT allow them to work any longer? Are the TDIU Veterans not the Neediest of our Totally Disabled Veterans?

To exclude those veterans goes against the intent I was told there was by many legislators (Remember now, I was against this whole thing) and is also absurd in itself.

now there are several other things I would like to bring to your attention.

Under Federal law and regulations, a “100% Disability Rating” and a VA “Total Disability Rating” are synonymous.

The regulations for awarding "Total Disability" can be found in 38 USC 4.1 et seq whose authority is found in 38 USC 501.

I also see above where you qouted 38 CFR 4.16. If you had read just a little longer you would have found 38 CFR 4.16 (B)and would have read the following:

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

Now compare that to 38 CFR 4.15 (the regulation that granted me, as a Scheduler permanent and totally Disabled Veteran can be found) that reads:

"...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;..."

Notice how they both point to the same criteria. Not able to follow a substantially gainful occupation.

Regards-

Harvey S writes:

Coupla things:
if the governor of Virginia had any cahones, he would, by executive order, compel this STATE IF VIRGINIA LAW to be enforced by all Jurisdictions within the state. The wording of the bill is simple, and there is no reason for individual counties to interpret it. A state law is to be enforced statewide, not a piecemeal enforcement by locality.

Second, the discussion of unemployability keeps popping up; the bill as it is written seems to be all inclusive if the words 100%, total and permanent are in the rating letter. Why there is any confusion about this is the most confusing issue at hand.

And finally, again with regard to unemployability, what about those of us who are in our seventies? I would guess that employability of seniors would have a bearing on employability since we are old and no one would have an interest in hiring us.

My letter simply says that I am 100% totally and permanently disabled; that should satisfy the conditions of the bill as written and passed by the general assembly; why this is an issue is beyond reason.

Jim B writes:

Simply put the initial implementation of the law by the Commisioners of Revenue did not provide for all the people whom the bill was crafted to provide tax relief for. Todd G. in his explanation above has a complete understanding of the Code of Federal Regulations. For those who think that Total Disability means anything less than 100% you are in denial.

I lay no blame or have any issues with anyone or organization. I am TDIU and believe that no one person or organization would attempt to deny TDIU disabled veterans their lawful benefits.

Liliana writes:

For anyone who has written on this site with concerns about the implementation of the disabled veterans tax exemption law, I would recommend your reading the numerous posts on the Veterans Benefits Network:

http://vets.yuku.com/topic/48932/Real-Estate-Tax-Exemption-In-Virginia-For-100-P-T-Veterans?page=24#.Td3IoEefUfU

The above link goes directly to page 24 which posts a letter written by Terrie Suit, Secretary of Veterans Affairs and Homeland Security. Ms. Suit states - in direct and confusing contradiction to some other information received from various Commissioners of Revenue in Virginia - that:

"There has been some erroneous information maliciously circulated on some veterans blog sites stating that this office and/or DVS has provided direction on what veterans are eligible for this benefit. This is completely false. Neither this office, nor DVS has the legal authority to direct local Commissioners on determining eligibility for this benefit consequently we have had to refrain from intervening on these issues."

Joe Horbal writes:

Wow! Thank you all for your comments. Especially Mr. Sullivan. I completely understand your passion for this issue. I have stated numerous times that I have no intention of denying this exemption to anyone who meets the requirements of the Constitution and the applicable law.
Unfortunately, many of you want so desperately to have this exemption apply to as many veterans as possible, that you are reading things into the law that are not expressly stated. On the surface, the law seems clear. However, everyone has their own opinion of what it says. This is illustrated in a number of previous statements on this blog even among different disabled veterans.

Mr. Sullivan, I'm sorry that you've chosen to insult me publicly instead of offer intellectual discourse on the subject. You could not be more wrong about what I have done regarding this issue. We had applications ready and were mailing them upon request before the County passed the local ordinance. You apparently know nothing about my office and how I run it. It may be instructive for you to take the initiative and visit my office where we can have a real conversation. To date, we have approved over 100 applications for this exemption. The ones we are holding are being held waiting for the AG opinion. One reason we elect an Attorney General is to assist the people responsible for applying Virginia law to do it properly. With the huge range of opinion on this issue, even among disabled veterans, I think it wise to ask a higher legal authority for an opinion. I would much rather hold these applications for a while than to approve them and have to go back later and deny the exemption.

I have talked with many veterans in Chesterfield. I am available to everyone of them that visits or calls and wants to talk with me. I've explained everything that I am doing and that a letter will go to every veteran who applies for this exemption.

Jim B writes:

Mr. Horbal, I have read your comments and if accurate you are to be commended. I have a couple of questions if you will allow me to understand.

You state "To date, we have approved over 100 applications for this exemption." Do you mean state wide, or in Chesterfield? Of those approved how many were veterans that were considered to be totally and permanently disabled due to their service connected disability? TDIU P&T?

Thank you in advance. I know this is a difficult time for you.

Harvey S writes:

Does anyone have an estimate of the time it will take for the Virginia Atty. General to render an opinion? I am curious whether or not the AG has as yet gotten into the issue and has even read the legislation. Have any of you been in contact with the AG's office about this?

As I had stated in previous posts, i am a Maryland resident who would like to relocate to Henrico County. The simple letter that I received from the Baltimore Regional VA Office stating that I am a 100% service connected, permanent and totally disabled veteran satisfies Maryland law as well as the laws in most other states; what's wrong with you guys? The legislature has passed the law, it seems simple enough, so quit fooling around and implement it without all of the dialogue, the interpretation and other words that I would like to print here, but will refrain from.

Oh well, I guess politicians just want to be politicians and stress their importance in some fashion, this seems like the fad of the present time. I would still request that someone who reads this explains what the CRAV is and where it may be accessed online, thanks.

Liliana writes:

Dear Harvey S,
The CRAV is the Commissioners of the Revenue Association of Virginia, and below is the link to its website. Unfortunately, if you click the tab for Newsletters, there is nothing newer than 2008! (I tried to find information on the veterans tax exemption law.)

http://www.vacomrev.com/web/guest/Home?p_p_state=normal

Harvey S writes:

Thank you Lillana. The website referenced is useless as you basically indicated.

I want to relocate to my childhood home in the Richmond metro area, specifically Henrico County, but I am having second thoughts with the fiasco about what appears to be a very clearly written and defined bill that would exempt me from property taxed should I relocate from Maryland where I receive the tax relief benefit and gratis license plates for my car.

I spoke to Mr. Horbal on the phone a few weeks ago, and although he was very nice, he was unable to adequately explain why each county was ruling on a state law and the verification of certification of disability from the veterans Administration.

I read the reference for Arkansas previously posted by Todd G, it provides the same tax relief as Maryland does for 100% total permanent disabled veterans.

I emailed a copy of my certification from the VA Regional Office to the Henrico County Commissioner's office, and was advised that it was insufficient. The letter is short, to the point and says, and I quote:

Dear Mr. Sxxxxxx:
This letter from the Veterans Administration certifies that Harvey J. Sxxxxx is an honorably discharged veteran of the Air Force and has service-connected disabilities evaluated at 100% permanent and total."

Signed by the counselor who wrote the letter.

This seems to me to be very clear, I do not understand why it is insufficient since it meets all three criteria of the bill to exempt me from property taxes in Virginia, that means anywhere in Virginia. Could someone actively participating in this blog please try to explain to me what is insufficient? i quoted the letter verbatim. Thanks.

Joe Horbal writes:

Jim B.,
Those approvals are for Chesterfield County only. I do not have stats for any other locality. Those are 100% combined service connected, total and permanent disability.
Harvey S.,
I have seen award letters that contradict the short letters cited above. I have seen this letter and for the same veteran either the April 18 letter or a very long version of an award letter that shows a less than 100% combined service connected disability. You may understand the caution I must use. And no, we do not know when the AG will issue his opinion. I had a veteran visit me last week whose April 18 letter showed less than 100% combined service connected. He brought a newer, more detailed, award letter dated April 22, 2011 that clearly showed 100% combined service connected and was immediately approved.
Mr. Sullivan,
I failed to mention yesterday that the veterans I have discussed this issue with were very understanding of what I explained and why I feel I must be sure of my decisions.
Thanks all.

Harvey S writes:

OK, the only other item that I have that has additional detail is the actual rating decision detailing each of the medical factors that when combined equal 100%. That is private medical information between the Veterans Administration and me, and I do not care to share it with bureaucrats in the state of Virginia or even in Maryland where i currently reside. Maryland has accepted the text of the letter that I posted previously; note that I said Maryland, not Baltimore County where I reside; this is state law and not open to interpretation by the counties in Maryland. I fail to understand why the county governments in Virginia are interpreting a law passed by the Virginia state legislature. I am somewhat surprised that there hasn't been a class action lawsuit brought by the various veterans organizations such as the American Legion, the DAV, and other service organizations whose function is to help veterans.

So, where does such a more detailed letter come from? The short letter is the standard letter sent out by the various VA office around the country when a veteran calls the 800 number. I even have one such letter from a call center in Arizona, so no one knows where his/her phone call will be directed when contacting the VA Regional Office; the 800 number goes to the next available center, not necessarily the local one.

How about telling me what you would expect the letter to say; what detail is missing that would satisfy a commissioner in Virginia? I will contact the Vets Admin. and ask for a letter with the required detail even though I think that the county officials have overstepped their authority. Harvey S.

Joe Horbal writes:

Sorry Harvey. You are off base. The law clearly states that the veteran must submit the qualifying information to the local commissioner. That puts us in the position to make the decision as to whether the veteran meets the qualifications. Someone has to do that. Thus the previous controversy about how we should make the decision.
I understand completely your hesitation to submit specific details of your disability to the local official. That is but one way for us to get to the qualification decision. As I said, that detail is frequently more helpful than the short letter you referenced.
Rest assured that all of the information you submit for this exemption is held confidential by my office (Virginia Code §58.1-3) as well as any other local commissioner. Even the fact that a veteran receives the exemption is confidential.

Harvey S writes:

Joe, thanks for the response, especially on a holiday. I don't mean to sound confrontational with you, in fact I won't even be moving to Chesterfield County, but you seem to be in the thick of this and it is highly probable that your requirements hold true for other Virginia counties. I am just frustrated by the lack of information, and I do appreciate your responses.

What I really want to know is what details are required in the letter from the Veterans Administration since the short letter is insufficient? You had said that some other veteran had submitted a more detailed letter after the short letter was deemed insufficient; I would like to know what the contents were (not his/her personal information) in order to satisfy you and the other commissioners. I do not wish to submit my medical records, and since a more detailed letter from a VA regional Office is sufficient, what does it have to contain in order for it to be sufficient?

Since I do not reside in Virginia, at least not yet, I did not receive the letter sent out by the Roanoke Regional VA Office, and I cannot call them since the 800 number reaches my local VA Regional Office or some other office anywhere in the USA. I assume that letter contained the required information. If I knew what it said that was different from the short letter, then I could request the same information relating to my situation, from the Baltimore Regional VA Office. I would probably make the request through the American Legion to ensure that it came from the Baltimore office rather than from whomever answered the 800 number in some other part of the USA since there is no guarantee that the local office would be the one to answer my phone request.

Joe, it really boils down to this, I just need to know that I am eligible for the same property tax exclusion in Virginia as i am in Maryland, and i need to know it before selling my house and spending a lot of money to replace it in Virginia plus relocation expenses, settlement costs, etc. If I just knew what information the letter that proves my 100% disability has to say, then I could request it from the VA, that's all i really want. By the way, I do not fall into the IU category, I have sufficient service-connected multiple injuries to qualify as disabled 100% permanent and total per the VA rating table.

Harvey S.

CRUISER writes:

@ Harvey....
If you are 100% SC P&T and not IU you have nothing to worry about. They are only nitpicking the letters that they get from vets who have IU. Since the VA will send a letter out that makes it appear that a IU Vet has a 100% schedular rating so they can get these benefits, they are trying to weed them out. This legislation is not for IU vets, they may get paid at the 100% rate but they do not have a 100% rating.

Harvey S. writes:

Thanks for the clarification, but I still need to be able to prove whatever it is that the county officials want. My letter from the VA was insufficient even though it stated that I was 100 % disabled, permanent and total. I just need to know what to ask the VA to say in a letter that will satisfy the interpretation of the law. I feel confident that I qualify, I just need to prove it with more detail han the VA normally says in their rating certification letter.
Harvey

Todd G. writes:

@ Cruiser -
Please feel free to back up your opinion written above with the applicable federal laws and regulations. Thanks

@ Harvey -
The problem is that the VA will not issue a letter that is specifically worded like the Virginia Constitutional Amendment or its enabling legislation.

It also does not help that the Virginia Department of Veterans Services informed the Commissioners of Revenue Association of Virginia that "only one letter will be issued by the V.A. to the veterans for use in obtaining the local real estate tax exemption."

As such it is difficult for ALL of the Commissioners of Revenue to understand all of different letters and wording they have seen.

Honestly I feel bad for the Commissioners of Revenue in Virginia over the issue of this Tax Exemption. They are catching a lot of hell for something that they had no part in creating except maybe voting for it if they chose too.

You see this tax exemption is a State Program that is adjudicated at the federal level and implemented at the local level. Sadly our own Governor is not even willing to help them and in fact his staff is actually placing a lot of the blame for the problems frustrated veterans are facing on the Commissioners of Revenue since they are implementing it.

@ Mr. Horbal -
I have no doubt that you, like many other Commissioners for Revenue want to do the best job possible. It is unfortunate that the more I speak with other Commissioners of Revenue and the more information tat I receive, the more I feel that all of you and CRAV really tried to seek out the best advice and guidance possible and from sources that in usual cases should have been able to given all of you great advice. One would thin that a State agency whose job it is to work with and help Disabled Veterans receive the Benefits they are entitled to would understand the issue. However in hindsight we now know that is not the case.

Regards,

CRUISER writes:

@ Todd
It is very simple.
If you have a 100% SC P&T disability then you cannot have IU.
If you are IU then you cannot have a 100% SC P&T disability.
One excludes the other...just like this legislation.
The legislation requires a vet with a 100% SC P&T disability. If you are IU then you do not have what is required.
I won't ask for your opinion because it doesn't matter. The exemption has already been written and you can't change the wording.

Todd G. writes:

@ Cruiser -

Thanks for the specificity, or the lack thereof. You have made your opinion known, now back it up with the pertinent laws or regulations. If you cannot, then there is nothing further to discuss with you.

CRUISER writes:

@ Todd
You said it yourself:

"As someone who was opposed to the Constitutional Amendment to begin with and its enabling legislation, I have read the law extensively and can tell you that it is poorly crafted and written.

Under both the amendment and the enabling legislation there are three things a Disabled Veteran must have in order to qualify for the exemption. They are:

1) they must be 100% Service Connected."
========================================================

I can stop at number one. Vets who are IU do not have a 100% SC disability. If they did then they wouldn't have IU.
THE END

Todd G. writes:

@ Cruiser -
"Where ignorance is bliss, 'Tis folly to be wise."

Thanks again for posting the pertinent Federal Laws and Regulations to back up your stance....much appreciated.

CRUISER writes:

@ Todd
You're welcome. Hopefully you can figure it out yourself next time. The obvious answer is often overlooked when it is not beneficial to you.

Todd G. writes:

@Cruiser -
Since you do not (well lets face it, you cannot) want to post the pertinent Federal Laws and Regulations to back up your position, then I will guess that you cannot provide such information and that your opinion is just that, an opinion that is baseless.

71Infantry writes:

I think Cruiser is right. All the regs state that IU is granted when a Vet has less than a 100% SC disability. How can you have less than a 100% SC disability and qualify for the extension? Getting paid at the same rate as someone who has a 100% disability doesn't give you a 100% rating.

71Infantry writes:

Whoops, I meant exemption not extension..........

Dave writes:

To Mr. Joe Horbal,

You and apparently other Virginia Commissioners of the Revenue are requiring a specific letter issued on or after a certain date (April 18, 2011) by the Roanoke Veterans Administration Regional Office (VARO). You are also requiring that the letter include information that is not required by the Virginia Code.

As a Virginia Commissioner of the Revenue, what is your authority for demanding specific documentation from the U. S. Department of Veterans Affairs?

All that a veteran is required to present is documentation from the U. S. Department of Veterans Affairs that “…indicates that the veteran has a 100 percent, service-connected, permanent, and total disability.”

The Virginia legislation is worded in such a way that the burden is on the Commissioner of Revenue to prove that a Veteran DOES NOT deserve the tax exemption and NOT on the Veteran to prove that they qualify for the exemption.

You as a Commissioner of the Revenue, when challenged in a Virginia court, should find that you cannot demand a specific document from the U. S. Department of Veterans Affairs be presented when a veteran presents different documentation issued by the U. S. Department of Veterans Affairs that specifically says only that the veteran is 100 percent service-connected, permanent, and totally disabled.

Under Virginia law a Commissioner of the Revenue must recognize that a Veteran has been certified by the U. S. Department of Veterans Affairs to be 100 percent service-connected, permanent and total when the Department makes such a certification and the certification is provided to the Commissioner of the Revenue.

Dave

Dave writes:

To Cruiser,

You, and others above have openly tried to make the point that "If you have a 100% SC P&T disability then you cannot have IU.

You then go on to say that "If you are IU then you cannot have a 100% SC P&T disability."

Those statements without a citation "pursuant to federal law" are incorrect assertions.

The Virginia Code uses the words "...has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law..."

The words "PURSUANT TO FEDERAL LAW" are words that a Virginia Court will determine to be of significant importance. Those words provide a condition that cannot be ignored by the Commissioners of the Revenue.

Until you can support your argument "pursuant to federal law" you do not have much credibility.

Within this Blog you have been provided relevant citations of the Code of Federal Regulations that are on point.

However, there is another way that I can provide evidence regarding the intent of the federal law.

Go to the citation provided here:

38 CFR 3.343 - Continuance of total disability ratings

LINK: http://cfr.vlex.com/vid/3-343-continuance-total-disability-ratings-19775472

Within that section of Title 38 the federal law specifically provides the following phrase at Section 3.343(c)(1):

"In reducing a rating of 100 percent service-connected disability based on individual unemployability,..."

I provide the above as evidence that their is such a thing as 100 percent service-connected disability due to Individual Unemployability.

Within that same federal law you will also see the following phrase at Section 3.343(c)(2):

"If a veteran with a total disability rating for compensation purposes based on individual unemployability..."

A reading of Section 3.343 (c)in its entirety confirms that under federal law there is an intent to recognize a "rating" of 100 percent service-connectd, permanent, and total due to Individual Unemployability.

Dave

Bill writes:

Apparently the Virginia Department of Veterans Service in there guidance letter that that they provided to the Commissioners of Revue were not very good in explaining or perhaps did not explain that a "Total disabilty" for IU (Individual Unemployability) is an Extra-Schedlar 100% rating.

As mentioned above by Dave's posting of VA's regulation Sec. 3.343 (c)(1)that reads -

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation

Sec. 3.343 Continuance of total disability ratings.

(c) Individual unemployability. (1) In reducing a rating of 100
percent service-connected disability based on individual
unemployability

**Full text of regulation can be read at this link -

http://edocket.access.gpo.gov/cfr_2010/julqtr/38cfr3.343.htm

Harvey S. writes:

So where does this leave someone like me, an out of state resident who wants to move to Virginia, and has a short letter that states that I am 100% disabled, total and permanent, but this is inadequate to satisfy the Virginia county commissioners? If the Roanoke office issued a special letter that is only available to Virginia veterans, how can I satisfy the requirement? I cannot even phone the Roanoke office because the 800 phone number, the only one listed, is not accessible from my home in Baltimore County, Maryland?

Roger Sullivan writes:

Harvey S. did you say you were interested in moving to Henrico County in Virginia? If so, try this email address tri02@co.henrico.va.us, (Mr. Trice,) or if you want the Chairman of the Henrico Board of Supervisors, try this fairfield@co.henrico.va.us, (Mr. Thornton)

Todd G. writes:

@ Harvey -
According to the CRAV "guidelines", you are to"apply" to the Roanoke VARO. Please read the following section from the "Guidelines."

" When applying for real estate tax exemption, the critical item a veteran is required to present is
their letter of disability from the U.S. Department of Veterans Affairs (VA). The VA has prepared a short letter that is intended to address the needs and requirements of over 22 different states. The veteran must request the letter; it will not automatically be provided to them.

To apply for the letter of disability, the veteran may request assistance from the local VA office or the veteran can submit VA Form 21-4138, along with a sample letter, directly to the federal VA office for processing. A VA Form 21-4138 is available in this package with the necessary statement for claim that the veteran can sign and send to the Office in Roanoke at U.S. Department of Veterans Affairs, Regional Office, 210 Franklin Rd SW, Roanoke, VA 24011.

Alternatively, the form may be transmitted via fax directly to the federal VA office for processing on the taxpayers behalf. They have asked that we not publish the fax number as it is an internal number for our use only. (see fax number in the resources section)."

oh and as for the "FAX number" that "is an internal number for our use only.....it is 540-597-1792, one of two that you can get when calling the i-800 number and asking. At least that is how I got it a number of years ago when my daughter started college and I needed to fax a few things down there.

Honestly, I would wait before I went off and faxed a request to the Roanoke VARO. Some localities want you to put make a request that specifically states that you are not IU. Newport News being one such locality that still has this requirement on their website. Other Commissioners of Revenue have REMOVED this part of the request....

Hope that helps or at least clarifies where we are at now.

Roger Sullivan writes:

Harvey S. try this

Department of
Veterans Services
Office of the Commissioner
900 E. Main Street
Richmond VA 23219
(804) 786-0286 (Phone)
(804) 786-0302 (Fax

paul.galanti@dvs.virginia.gov, terrie.suit@governor.virginia.gov, jim.hopper@governor.virginia.gov,

Roger Sullivan writes:

There is no Federal law that states that IU vets have a 100% disability. You can search forever and you won't find one. I have tried.
For those stating that this line is proof:
"In reducing a rating of 100 percent service-connected disability based on individual unemployability,..."

That is a real stretch. The bottom line is if you have been granted individual unemployability then by definition you cannot have a 100% SC rating. You can find thousands of contradictions in title 38. Grasping on to one of them won't make your dreams of no proprty tax come true.

Dave writes:

Todd G,

I have noticed that certain large veteran populated areas in Virginia are not openly following the CRAV guidelines or they recently changed their postion to a more neutral stance regarding who is 100 percent service-connected, permanent and total.

Examples include Roanoke County, VA, Virginia Beach, VA and Winchester, VA.

Link to Virginia Beach, VA position:

http://vbgov.com/vgn.aspx?vgnextoid=c85a0fe3f513f210VgnVCM100000190c640aRCRD&vgnextchannel=a90ffd67f3ad9010VgnVCM100000870b640aRCRD&vgnextfmt=default

However, as you are no doubt aware, some Veteran populated areas in Virginia that have websites for their Commissioner of the Revenue are still following the guidelines that are the result of advice provided by the Virginia Department of Veterans Affairs.

Examples of some of those jurisdictions include:

Chesapeake, VA

Link: http://www.chesapeake.va.us/services/depart/com-rev/disabled-vets-tax-exemption.shtml

Norfolk, VA (Note requirement that veteran submit an "approved and original letter of disability...")

Link: http://www.norfolk.gov/revenue/PServices/Retxr.aspx

Pittsylvania County

Link: http://www.pittgov.org/cor.htm

Dave

Dave writes:

To all who are reading this Blog:

There is at least one individual posting within this Blog that appears to have an agenda designed to confuse and manipulate the discussion.

That person, in my humble opinion, is deliberately using different names to identify him or herself to give the illusion that he is not alone in his beliefs.

That particular individual is, for whatever reason, admanatly against any argument that the new Real Estate Tax Exemption is meant to include a veteran deemed 100 percent servcice-connected, permanent and total due to Individual Unemployability.

That same individual is going out of his or her way to try to discredit other views without providing any sources to back up his or her position.

On or about Tuesday, May 24th that particular individual began posting as USARMY RETIRED.

Then on Memorial Day, May 30th the poster that originally started posting as USARMY RETIRED, I believe, started using the name Cruiser followed quickly by 71Infantry.

Folks, I submit to you that USARMY RETIRED, the person calling him or herself Cruiser, and the person calling him or herself 71Infantry are all the same individual.

He or she may come back again using a different name; but, if he or she does come back please consider the source and the possibility that the person does in fact have an agenda that is adverse to many veterans who can and should receive the benefit of the new Virginia Code mandaded tax exemption.

Dave writes:

Opps!

I just noticed that the same individual mentioned above (USARMY RETIRED; aka: Cruiser; aka: 71Infantry) posted just one hour ago as Roger Sullivan.

Folks, I can, with considerable confidence, tell you that the information posted three posts back was NOT posted by Roger Sullivan.

Roger Sullivan would, in my humble opinion, definitely NOT SAY what he has been purported to have said just one hour prior to this posting.

Mr. Sullivan would not have come to this blog and stated:

"There is no Federal law that states that IU vets have a 100% disability."

Also, Mr. Sullivan definitely would NOT have come to this blog and contradicted himself by saying:

"The bottom line is if you have been granted individual unemployability then by definition you cannot have a 100% SC rating."

Todd G. writes:

Dave-
You got to love the Pitt County webpage for one simple reason. It comes right out and contradicts what Ms. Suit has been telling many Veterans and their families who have contacted her office that "the legislation enacted by the General Assembly did not provide either the Governor’s office or the Virginia Department of Veterans Services the authority to perform an oversight role in either administering this tax benefit, or in issuing directives for administration of the tax break."

If you open the link below you will see where the instructions from Pitt County comes right out and states that: "The Virginia Department of Veterans’ Services
states that only one letter will be issued by the VA to the veterans for use in obtaining the local real estate tax exemption."

LINK: http://www.pittgov.org/documents/COR/DVE_Instructions.pdf

Makes you wonder....DID VDVS issue directives or not?

You also got to love the City of Chesapeake's "sample determination letter" found here at this link: http://www.chesapeake.va.us/services/depart/com-rev/forms/Sample-Determination-Letter.pdf

And while we are on Chesapeake, take a good look at the VA Form 21-4138 and see how they have worded it:

"I AM 100% SCD. I REQUEST TO BE ISSUED THE NECESSARY LETTER DOCUMENTING THAT I AM RATED 100% SERVICE-CONNECTED, PERMANENTLY AND TOTALLY DISABLED, AND THAT IT IS NOT DUE TO ENTITLEMENT FOR INDIVIDUAL UNEMPLOYABILITY. I REQUEST THAT YOU ISSUE A LETTER SIMILAR TO THE ATTACHED SAMPLE LETTER WHICH INCLUDES ALL NEEDED INFORMATION.

THIS LETTER WILL BE PROVIDED TO THE COMMISSIONER OF THE REVENUE IN THE CITY OF CHESAPEAKE, VIRGINIA TO APPLY FOR EXEMPTION FROM REAL ESTATE TAXES ON MY PRINCIPAL RESIDENCE.

PER VIRGINIA CODE SECTIONS 58.1-3219.5 AND 58.1-3219.6, THIS REAL ESTATE TAX EXEMPTION REQUIRES DOCUMENTATION FROM THE U.S. DEPARTMENT OF VETERANS AFFAIRS THAT THE VETERAN HAS A 100% SERVICE-CONNECTED, PERMANENT AND TOTAL DISABILITY."

Got to love the cookie cutter lets follow the "Guidelines" letters and words...

Anyways, this just goes to show that the Commissioners of Revenue received some very bad advice from the supposed "State Experts".

Todd G. writes:

You are wrong Dave. I believe it is Roger Sullivan who has made all these posts.

Waldo Jaquith writes:

I'm putting on my Guy Who Runs Richmond Sunlight hat now.

Yes, Roger Sullivan, Cruiser, and 71Infantry are all the same person. Here's the thing, "Roger": I have the flu. I have been in bed since Friday. I feel awful. I'm hot, achy all over, and my brain hurts. The doctor can't see me until tomorrow. So right now I'm pretty cranky. So do me a favor and knock it off. Stop astroturfing or just go away. I don't get paid to run this site. I built and maintain this site as a labor of love, and right now you're making it a labor of anger. There's no backup for me. No staff. Just me.

I'm going to go back to bed now. When I check on things here this evening, if I find that you're making any more trouble, I'm going to behave badly. I have no idea what that will consist of, because there's just no telling how I'll feel.

Go away. I want to sleep.

Obama writes:

The draft ended in 1973. If you volunteered you shouldn't receive any benefits. I propose an amendment......

Harvey S writes:

Hey folks, just a simple question from the above quote:

""I AM 100% SCD. I REQUEST TO BE ISSUED THE NECESSARY LETTER DOCUMENTING THAT I AM RATED 100% SERVICE-CONNECTED, PERMANENTLY AND TOTALLY DISABLED, AND THAT IT IS NOT DUE TO ENTITLEMENT FOR INDIVIDUAL UNEMPLOYABILITY. I REQUEST THAT YOU ISSUE A LETTER SIMILAR TO THE ATTACHED SAMPLE LETTER WHICH INCLUDES ALL NEEDED INFORMATION.'

What does the sample letter say? I will make a request from my local regional VA office, but apparently there is more needed than what is written in Todd G's recent post.

I read the requirements letter and how to get it from the Roanoke center; I am not a Virginia resident at this time, I just want to be sure that I can get the exemption if/when we move from Maryland to Henrico County, Virginia.

How could something so simple become such a nightmare?

Harvey S writes:

The city of Chesapeake link is dead, the page doesn't exist or was removed.

Todd G. writes:

@ Harvey S.

You can find the sample letter here at this link:

http://www.chesapeake.va.us/services/depart/com-rev/forms/Sample-Determination-Letter.pdf

I just tried this one and it worked within the past five min.

Todd G. writes:

@ Harvey S -

If the link above does not work, then try this one:

http://vets.yuku.com/sreply/443079/Real-Estate-Tax-Exemption-In-Virginia-For-100-P-T-Veterans

Harvey S writes:

Thank you both, I tried both links and they do work.

I assume that this is similar to the letter sent out from Roanoke and fulfills the requirements of the various Virginia counties.

Todd G. writes:

@ Harvey S. -

Yes. Also if yo wish to see an actual letter sent out by the Roanoke VA Regional Office please go here:

http://vets.yuku.com/sreply/447462/Real-Estate-Tax-Exemption-In-Virginia-For-100-P-T-Veterans

The first one was sent to a Disabled veteran who is IU. The second was sent to a Disabled Veteran who is not IU.

To date, neither have been granted the tax exemption due to their local Commissioner of Revenue waiting for the AG Opinion.

Harvey S writes:

I took a look at the two letters; I can understand the 70% disabled veteran being denied based on what I have been reading in this blog about being paid at 100%, but being rated at a lower percentage.

The reason that the veteran referred to in letter number 2 was denied is difficult for me to grasp. If this is the "official letter" and the veteran meets the requirements, he should not have been denied.

May I ask, do either of these veterans reside in Henrico County? If not, have you heard of any denials or approval in Henrico County? Thanks for sending the information.

I wonder when the AG will make his opinion public.

Todd G. writes:

@ Harvey S. -

No. Neither Veteran lives near Henrico County and neither Veteran has been denied yet. Their Commissioner of Revenue felt that with all the confusion over the IU issue and the various documentations that he/she would rather wait for clarification from the Attorney General's office before approving or disapproving.

Also keep in mind that the IU Veteran (the first letter) also at first presented his actual 2003 award letter that stated that the VA "assigned you a permanent 100% disability evaluation for your service connected disability/disabilities." But because his award letter did not have the "Overall or Combined Rating" it was turned down at that time because that was the standard needed then. The same Veteran also submited the following documents that were also turned down located here for the same reason, no "Overall or Combined Rating":

http://vets.yuku.com/sreply/447872/Real-Estate-Tax-Exemption-In-Virginia-For-100-P-T-Veterans

hope this doesn't confuse you further....

Todd G. writes:

Here it is now....the time of year were many residents are paying their first tax bill of the year and we still do not have an opinion from our illustrious Attorney General "clarifying" the issue.

Harvey S writes:

Well what do you expect? He is a politician, and as you know, they cannot make decisions, only promises.

Nick Lappa writes:

I am 100% service connected vet with a rating of 80% with a 100% payout. I was told by Henrico County tax office that I did not qualify for tax relief due to the 80% rating. I have been 100% service connected disabled for 4 years. I think this is another way vets get screwed by how a law is interpreted. Another disabled vet who is fed up with this kind of treatment. We have no problems sending money to other countries, but our prople get screwed. There will be a change come election day.

Dave writes:

We definitely have some great Commissioners of the Revenue(COR)who are independent thinkers and wise enough to seek appropriate legal advice. The City of Winchester has such an elected official and so does Roanoke County.

Mr. Horbal, you and other Commissioners of the Revenue throughout the state of Virginia should pay attention to what the City of Winchester and Roanoke County have done regarding the implementation of the new Virginia state law.

Roanoke County in particular has bent over backwards to make sure that the intent of Virginia voters is met regarding the Real Estate Tax Exemption for Disabled Veterans and/or their spouses.

Like many other municipalities in Virginia, Roanoke County had to re-write and ordinance or create a new ordinance and go through the process necessary to enact their ordinance that adequately covered the tax exemption.

Apparently Roanoke County has an attorney who is or has been an active member of the military with JAG responsibilities. That attorney knows the meaning of "pursuant to federal law" and that attorney is well aware of Title 38 of the Code of Federal Regulations.

Virginia Commissioners of the Revenue please note that together that Attorney and the staff of the Roanoke County Commissioner of Revenue have carefully reviewed the Virginia law and current county ordinances to make sure that all contingencies are covered.

To see for yourself how Roanoke County has handled this issue I will point you later in this posting to a link to a specific section of Roanoke County's website.

Veterans across the great Commonwealth of Virginia should applaud Roanoke County officials and Winchester City officials because they have acted independently after careful consideration instead of following ill advised guidelines from the Commissioners of the Revenue Association of Virginia (CRAV) or the Virginia Department of Veteran Services (DVS).

Those municipalities have also acted independently of the Virginia Attorney General who may or may not issue an opinion that supports the 7,358 permanent and total veterans that existed in Virginia as of the end of fiscal year 2009.

When reading the information between pages 127 and 135 at the website which provides the minutes and documents reviewed at the most recent Board of Supervisors meeting (May 24, 2011) pay close attention to the definitions provided in RED and too how carefully Roanoke County worded their ordinance to cover situations when the identified veteran or spouse may not actually be in their home or may have relied on special Estate Planning legal advice regarding their home and estate.

Be aware that the overall agenda, minutes and documents take up 269 pages at the website and can be easily read but are not easily copied using cut and paste.

Go to the top of the website and you will notice that you can insert a page number. Insert page 127 and then scroll down through page 135 to read the pertinent information.

http://weblink.roanokecountyva.gov/WebLinkBOS/DocView.aspx?id=7073&dbid=0

Sincerly,

Dave

Anonymous writes:

@Nick Lappa

I understand your frustration but if you have a 80% rating then you do not have a 100% SC disability. You have a 80% SC disability but you are getting paid at the 100% rate due to IU.

Todd G. writes:

@ Nick Lappa

Contrary to the last comment, many of us are working hard to to insure that you will get your tax exemption. So far we have at least two localities who have passed ordinances that insure veterans who have a TOTAL Evaluation due to IU receive the tax exemption.

Regards-
Todd G.

Hawk writes:

Message received from the AG's office June 8:

"Thank you for contacting the office of Attorney General Kenneth T. Cuccinelli, II, regarding the issue of property tax exemptions for disabled veterans. The attorney general appreciates you taking the time to share your thoughts on this important matter.

Recently, the General Assembly enacted a tax exemption for veterans who have a 100 percent permanent, service-related disability. As you describe in your inquiry, local government officials, veterans, and others are uncertain as to how to apply the statute in some situations. Several legislators have requested that our office provide an official legal opinion on the matter.

Issuing legal opinions is a part of the duties of the Office of Attorney General. As you may already know, official opinions do not create new law; that is the sole domain of the General Assembly. Instead, the opinions represent the attorney general’s analysis of what current law is based on his thorough review of existing law and relevant prior court decisions. The opinions are not binding either on the requester or on the courts. However, the opinions can be cited in court and courts will give them due consideration.

Many opinions can take several months to complete, especially with complex issues such as this. Every effort is made to perform the most thorough analysis to get the opinion right. As noted above, the GA passed the law and we do a legal analysis. Once the opinion is complete, we will issue it to the requestors and share it with the public via our website, www.vaag.com.

I hope that you find this information helpful. Again, we appreciate you contacting this office on this matter. Should you need anything in the future, please do not hesitate to contact us again.

Sincerely,

Eva A. Stuart

Constituent Services Administrator

Office of the Attorney General"

Liliana writes:

I would like to say BRAVO to the Commissioners of Revenue from the City of Winchester and Roanoke County!!!

I intend to send my personal thank you on behalf of all IU 100% disabled veterans to each of these commissioners ... if you would like to do the same, here are the links to these women who have so carefully and thoughtfully looked out for the best interests of our Commonwealth's disabled veterans:
Ann T. Burkholder, COR City of Winchester commrevenue@ci.winchester.va.us
Nancy Horn, COR Roanoke County nhorn@roanokecountyva.gov

Liliana writes:

@ Dave

Dave, I have taken the liberty of posting your excellent message discussing the actions of the CORS from the City of Winchester and Roanoke County on the following Veterans Benefits Network website:

http://vets.yuku.com/topic/48932/Real-Estate-Tax-Exemption-In-Virginia-For-100-P-T-Veterans?page=30#.TfONAUefUfX

You provided information that will help many other deserving disabled veterans trying to obtain their tax exemption, and I thank you for your research!

Liliana writes:

@ Nick Lappa
I know the REAl Roger Sullivan who is a hard working advocate for disabled veterans, and he asked me to tell you that he is not the one who posted the response about your "frustration." As Todd G. indicated, there are many very committed individuals involved in seeing that you DO get the tax exemption that you deserve, and Roger Sullivan is definitely one of them!

Waldo Jaquith writes:

There were two comments posted here by somebody identifying themselves as "Roger Sullivan." This after somebody else named "Roger Sullivan" had already been posting comments here. After reviewing the e-mail addresses and IP addresses, it is clear that the second Roger Sullivan is acting in bad faith. I have changed those comments to be under the name of "Anonymous," but otherwise left them unaltered.

Liliana writes:

@ Waldo
I read your post when you were sick, and I know that you take care of this site out of the goodness of your heart... thank you.

Hawk writes:

This U.S. Department of Veterans Affairs Office of General Counsel opinion (1999) does not directly address the question we want clarity on, but in the discussion of the case, it makes clear that 100 per cent Schedular P&T and 100 percent IU P&T are considered the same in their meaning. This information may be helpful to the Attorney General's Office in rendering a well researched opinion:

PREC 6-99 Consideration of Claim of Total Disability Based on Individual Unemployability Where Schedular Total-Disability Rating in Effect WITHDRAWN Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-99, VAOPGCPREC 6-99, 1999

Waldo Jaquith writes:

Thank you, Liliana. Most of the time, I really enjoy it, but when I have to deal with dopes while simultaneously sick, my tolerance goes down quite a bit. :)

Hawk writes:

Hey HondaMan, you may be correct, you may be incorrect. We'll see how it is decided by the Legal Eagles. In the meanwhile, here is the USVA OGC Opinion in 1999, that discusses 100% Schedular and TDIU in the context of a different case. Other States have given up trying to parse Total Disability IU and 100% Service-connected disability, saying if the USVA says a veteran is 100% service disabled P&T, he is.

Department of Memorandum
Veterans Affairs

Date: June 7, 1999 VAOPGCPREC 6-99

From: General Counsel (022)

Subj: Consideration of Claim of Total Disability Based on Individual Unemployability Where Schedular Total-Disability Rating in Effect

To: Chairman, Board of Veterans’ Appeals (01)

QUESTIONS PRESENTED:

a. May a claim for a total disability rating based on individual unemployability for a particular service-connected disability be considered when a schedular 100-percent rating is already in effect for another service-connected disability?

b. Would any additional benefit be available in the case of a veteran having one service-connected disability rated 100-percent disabling under the rating schedule and another, separate disability for which the veteran has been awarded a TDIU rating?

DISCUSSION:

1. These issues arise in the context of a memorandum decision issued by the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims (CAVC)) in which that court found that the Board of Veterans’ Appeals (BVA) failed to address ambiguities in the regulation governing total disability ratings based on unemployability of the individual. The BVA had denied the veteran’s claim for a rating of total disability based on individual unemployability (TDIU) due to post-traumatic stress disorder (PTSD) and determined that a TDIU rating based on all service-connected disabilities was not for consider-ation. The BVA found that the plain meaning of 38 C.F.R. § 4.16(a) dictated that, because the veteran already had a 100-percent schedular rating, it could not consider a claim for TDIU. The CAVC found, however, that “the language of the regulation is equally susceptible to a contrary interpretation” and that “[n]othing in the regulation addresses whether ‘the schedular rating’ refers to the discrete rating or rather to the combined rating.” The CAVC remanded the claim for the BVA to address the perceived ambiguity in the regulation in light of case law and to address what, if any, benefit the veteran could obtain if the veteran had a 100-percent schedular evaluation for a heart condition and a TDIU rating for PTSD.

2. The Department of Veterans Affairs’ (VA) Schedule for Rating Disabilities is based “as far as practicable” on the average impairment in earning capacity in civilian occupa-tions resulting from particular disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, VA recognizes that the rating schedule will not in all cases reflect a veteran’s true level of disability. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, 38 C.F.R. § 3.321(b)(1) provides that, while “[r]atings shall be based as far as practicable, upon the average impairments of earning capacity[,] . . . [t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate” an extra-schedular rating may be established.

3. Section 4.16(b) of title 38, Code of Federal Regulations, states VA’s “established policy . . . that all veterans who are unable to secure and follow a substant-ially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” In order to fulfill this objective, 38 C.F.R. § 4.16(a) provides that, “[t]otal disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” Section 4.16, by its terms, contemplates that all of a veteran’s disabilities will be considered together in determining whether a TDIU rating under that provision is appropriate. In particular, section 4.16(a), in establishing minimum schedular requirements which allow regional office adjudicators to award TDIU ratings without reference to the Director of the Compensation and Pension Service, contains a number of examples of situations involving multiple disabilities, the combination of which is insufficient to warrant a total disability rating under the rating schedule. Section 4.16(a) also provides that nonservice-connected disabilities or previous unemployability status will be disregarded where the
specified percentage ratings for service-connected disability or disabilities are met and “in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.” (Emphasis added.) Further, the last sentence of section 4.16(b) provides that, in referring to the Director of the Compensation and Pension Service a claim in which the minimum percentage ratings are not met, the rating board will include a statement “as to the veteran’s service-connected disabilities” and other factors having a bearing on unemployability. Also, 38 C.F.R. § 3.341(a) refers to establishment of a TDIU rating “based on a disability or combination of disabilities” and provides that it must be determined that “the service-connected disabilities” are sufficient to produce unemployability without regard to advancing age. Thus, in each instance, the regulations contemplate veterans with multiple disabilities and reference consideration of all service-connected disabilities from which a veteran may suffer in determining whether a TDIU rating should be established.

4. Section 3.340 of title 38, Code of Federal Regulations, also contemplates the assessment of the veteran’s overall degree of disability when determining entitlement to a TDIU rating and the assignment of a total disability rating for a specific individual on either a schedular or non-schedular basis. That regulation provides that, “[t]otal ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or . . . where the requirements of [section 4.16] are present.” 38 C.F.R. § 3.340(a)(2). This regulation authorizes the assignment of a total disability rating if a veteran has one or a number of disabilities which render the veteran unemployable pursuant to either the schedular criteria or 38 C.F.R. § 4.16(a). The regulation thus contemplates the assessment of the combined effects of the veteran’s service-connected disabilities to determine whether the veteran may be awarded a total disability rating. Further, as the CAVC has noted, 38 C.F.R. § 3.340(a)(2) recognizes two alternate means, e.g., the Schedule for Rating Disabilities and section 4.16, for assigning a total disability rating. Holland, 6 Vet. App. at 447. The CAVC has recognized that the Schedule for Rating Disabilities and the requirements for evaluating a TDIU rating claim complement each other and that, “a veteran may seek a
rating under the Schedule, provided that his condition manifests the symptoms listed in the appropriate diagnostic code and relevant rating, or a veteran may seek a total disability rating, provided that the condition renders it impossible to secure or follow a substantially gainful occupation.” 6 Vet. App. at 446 (emphasis added).

5. Section 4.15 of title 38, Code of Federal Regulations, provides that, “[t]otal 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.” Accordingly, a 100-percent schedular rating represents a total impairment in earning capacity in the average person, or, stated another way, unemployability. The CAVC has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally dis-abled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. As both a 100-percent schedular rating and a total-disability rating awarded pursuant to section 4.16(a) reflect unemployability, if an individual has a 100-percent schedular rating, a determination that that individual is unemployable as a result of service-connected disabilities under section 4.16(a) is unnecessary to adequately compensate the individual and superfluous. In other words, VA can find a veteran to be totally disabled either under the rating schedule or, if the veteran does not meet the criteria for a 100-percent schedular rating but is in fact unemployable, under section 4.16(a).

6. Read together, these provisions indicate that VA will first look to the rating schedule in assigning a disability rating, but will resort to other regulatory provisions such as 38 C.F.R. § 4.16(a) when the schedular ratings prove inadequate in a particular veteran’s case. Further, in order to determine whether resort to an extra-schedular rating under section 4.16(a) is necessary to adequately compensate a veteran, the veteran’s overall degree of disability, taking into account all service-connected disabilities must be considered.

7. This regulatory scheme is reflected in Veterans Benefits Administration Adjudication Procedure Manual M21-1 (M21-1), which directs adjudicators to make a decision as to whether the veteran meets the requirements for a schedular 100-percent evaluation before considering the issue of individual unemployability. M21-1, Part VI, para. 7.09a.(1) (Change 58, Jan. 31, 1997). There is no further directive to consider the issue of individual unemployability if the adjudicator finds that the veteran has met the requirements for a schedular 100-percent evaluation. The clear implication of this provision is that the adjudicator is to consider the issue of a schedular 100-percent evaluation first because, if he or she awards a schedular 100-percent evaluation based on service-connected disability, the issue of individual unemployability is moot. In other words, if the adjudicator finds the veteran to be totally disabled under the rating schedule, section 4.16(a) is not for application.

8. In Goodman v. Derwinski, 1 Vet. App. 280, 282 (1991), and Hodges v. Brown, 5 Vet. App. 375, 379 (1993), cited by the CAVC in the decision which gave rise to this request for opinion, the CAVC noted that the BVA should consider the impact of a veteran’s service-connected disability, both alone and in combination with other service-connected disabilities, on the ability of the veteran to secure and follow a substantially gainful occupation when determining entitlement to a TDIU rating. In both of these cases, the veteran had several service-connected disabilities, the combination of which was not sufficient for a total schedular disability rating. The CAVC indicated that the BVA would be required to determine whether any of these disabilities alone, or the combined effect of these disabilities, rendered the veteran unemployable under 38 C.F.R. § 4.16(a). These decisions shed no light on the question of whether a veteran already rated as totally disabled under the rating schedule can be considered for a TDIU rating. We note that in Kaiser v. Brown, 5 Vet. App. 411 (1993), also cited by the CAVC in its decision regarding the instant claim, the court remanded a claim for assignment of a TDIU rating under 38 C.F.R. § 4.16, although the court appeared to believe that the same disability which justified a TDIU rating also met the rating schedule criteria for a 100-percent disability rating. However, the court’s decision in Kaiser, which did
not address the relationship between schedular and TDIU ratings, is inconsistent with its later decision in
Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994), which stated that, “[a] claim for TDIU presupposes that the rating for the condition is less than 100%, and only asks for TDIU because of ‘subjective’ factors that the ‘objective’ rating does not consider.” In our view, Vettese makes clear that a TDIU rating is only for consideration where a schedular rating does not reflect the true degree of the veteran’s disability.

9. In the single-judge decision remanding the instant claim, the court noted what it perceived as ambiguities in 38 C.F.R. § 4.16(a) which cast into question the BVA’s reliance on the plain meaning of that regulation. (However, in a dissent from an order denying panel review in this case, another judge observed that, under the “plain meaning” of section 4.16(a), “it seems clear that a TDIU rating is for consideration only when the veteran is not already assigned a 100% schedular rating.”) The court stated two concerns in this regard. First, the court noted that the regulation’s provision that a TDIU rating may be assigned “where the schedular rating is less than total” does not address whether the schedular rating referred to is a rating for a discrete condition or a combined rating. Second, the court noted that the regulation changes from plural to singular and back to plural in referring to ratings and disabilities. For the reasons stated below, we do not consider the regulation ambiguous.

10. The regulation does state that total disability “ratings” may be assigned where the schedular “rating” is less than total when the disabled veteran is unable to follow a substantially gainful employment as a result of service-connected “disabilities.” In our view, the above discussion of the regulatory scheme of which 38 C.F.R. § 4.16(a) is a part precludes the interpretation that use of the term “ratings” suggests that more than one total disability rating could be assigned to the same veteran under section 4.16(a). See Richards v. United States, 369 U.S. 1, 11 (1962) (provision of law should not be read in isolation). Rather, use of the plural “ratings” in the opening phrase merely reflects that the regulation may apply to the claims of a number of veterans. The subsequent reference to the schedular “rating” reflects a shift to discussion of the rating assigned to the
particular veteran with respect to whose claim the generally applicable regulation is being applied. Because, as discussed above, a TDIU rating taking into account all of a veteran’s service-connected disabilities is only for consideration when a schedular rating does not reflect the particular veteran’s true degree of disability, the reference to a schedular “rating” must refer to the veteran’s combined rating, and not to the rating assigned to a particular disability. If the combined rating were not considered, it would not be possible to determine whether resort to an extra-schedular rating is necessary to adequately compensate the veteran. Finally, the reference to service-connected “disabilities” as resulting in inability to secure and follow a substantially gainful occupation merely reflects that all of a veteran’s service-connected disabilities are to be taken into account in determining whether a TDIU rating is appropriate. Accordingly, we do not find the regulation ambiguous and believe that, read in context, the regulation plainly provides that a TDIU rating is for consideration only if a veteran is not already rated totally disabled under the rating schedule.

11. The CAVC, in remanding the instant claim, also noted that the BVA failed to address the possible applicability of the doctrine stated in Brown v. Gardner, 513 U.S. 115 (1994), and Allen v. Brown, 7 Vet. App. 439 (1995), that interpretive doubt is to be resolved in favor of the veteran. However, the doctrine referenced in Gardner and Allen is, as recognized by the Supreme Court, applicable only to resolution of ambiguity. Gardner, 513 U.S.
at 117-18. Further, “[a]mbiguity is a creature not of definitional possibilities but of . . . context.” 513 U.S. at 118. Where, as here, the meaning of the provision in question, read in context, is plain, the doctrine of resolving interpretive doubt in favor of the veteran has no application. See Smith v. Brown, 35 F.3d 1516, 1525 (Fed. Cir. 1994).

12. We note that our review of the history of 38 C.F.R. § 4.16(a) has revealed nothing which sheds doubt on our reading of the regulation, i.e., that a veteran may receive a TDIU rating only if the veteran does not otherwise qualify for a schedular total disability rating on any basis. Authorization for total disability ratings such as that found in current section 4.16(a) first appeared as an
addition to the 1933 Schedule for Rating Disabilities in Extension No. 4, issued by the Administrator of Veterans Affairs on November 15, 1941. Prior to issuance of this extension, the rating schedule merely stated that total disability exists when any impairment renders it impossible for the average person to follow a substantially gainful occupation. Extension No. 4 authorized total disability ratings “without regard to the specific provisions of the rating schedule” when the disabled person was unable to secure or follow a substantially gainful occupation as a result of his disabilities, if that person met specified requirements with respect to schedular ratings. The language “without regard to the specific provisions of the rating schedule” acknowledges that if the disabled veteran could not qualify for a total rating under the rating schedule, the veteran could otherwise (without regard to the rating schedule) qualify for a total disability rating under this extension. Nothing in Extension No. 4 suggests VA intended that a veteran could obtain a total disability rating based on the inability to secure or follow a substantially gainful occupation if the veteran was already rated as totally disabled based on the rating schedule. Furthermore, nothing in Extension No. 4 suggests that VA intended the assignment of total disability ratings based on the inability to secure or follow a substantially gainful occupation for specific disabilities (unless the disabled person had only one disability and that disability was rated less than totally disabling under the rating schedule).

13. Finally, Veterans Administration Technical Bulletin
TB 8-276 (Dec. 13, 1956), “Reduction of 100 Percent Ratings,” noted that, when it was proposed to reduce a rating of 100-percent due to a change in the rating schedule, the veteran would be informed of the right to submit evidence of individual unemployability and, if the veteran submitted evidence establishing individual unemployability accepted by the rating agency as due to service-connected disabilities, and otherwise met the requirements, the rating board had the authority to grant or continue a 100-percent rating. The specification of the veteran’s right to submit evidence of unemployability when the rating board proposed to reduce a 100-percent schedular rating apparently presumed that, if the veteran previously had a 100-percent schedular rating for a disability, the veteran did not also have a separate TDIU rating, even one
based on another disability. If the veteran had had both a 100-percent schedular rating and a TDIU rating, there would have been no need to inform him or her of the right to submit evidence of unemployability when the rating agency proposed to reduce the 100-percent schedular rating. This bulletin is thus suggestive of our reading of the terms of 38 C.F.R. § 4.16(a).

14. Turning to the question of whether any additional benefit would be available in the case of a veteran having one service-connected disability rated 100-percent disabling under the rating schedule and another, separate disability rated totally disabling under 38 C.F.R. § 4.16(a), 38 U.S.C. § 1114 establishes the rates of compensation associated with specific levels of disability. Subsection (j) of this section specifies a monthly monetary benefit payable “if and while [a] disability is rated as total.” A number of subsections provide for the payment of higher amounts for specific disabilities or combinations of disabilities. However, no provision specifically provides for additional compensation in the case of a veteran with a service-connected disability rated as totally disabling and a separate TDIU rating for another, separate disability. Section 1114(s) does provide a higher rate of compensation “[i]f the veteran has a service-connected disability rated as total, and . . . has additional service-connected disability or disabilities independently ratable at 60 percent or more.” However, we do not believe this statute may be read as authorizing a higher rate of compensation where a veteran has a total disability rating under 38 C.F.R. § 4.16(a) and a schedular rating of 60 percent or more. Since, as noted above, a rating under section 4.16(a) takes into account all of a veteran’s service-connected disabilities, paying a higher rate of compensation based on a combination of a TDIU rating and a schedular rating would allow the same disability to be counted twice in determining the applicable rate and would conflict with the statutory requirement for “additional” disability. Further, TDIU ratings were established by regulation to assist veterans who did not otherwise qualify for compensation at the rate provided in 38 U.S.C. § 1114(j) for total disability. See 38 C.F.R. § 3.340(a)(2) (“[t]otal 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 [section 4.16] are present” (emphasis added)). It would represent a significant departure from the purpose of TDIU ratings to allow a veteran with a TDIU rating to combine that rating with a schedular rating to qualify for additional compensation under 38 U.S.C. § 1114(s). Therefore, in our view, no additional monetary benefit would be available in the hypothetical case of a veteran having one service-connected disability rated 100-percent disabling under the rating schedule and another, separate disability for which the veteran has been awarded a TDIU rating.

15. While no additional monetary benefit would be available to a veteran who has a 100-percent schedular rating for a service-connected disability and a TDIU rating based on a separate disability, such veteran could hypothetically obtain the benefit of the procedural protections provided in 38 C.F.R. § 3.343(c). This regulation provides that, “[i]n reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.” (Emphasis added.) See generally Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998) (recognizing that VA may reduce a total schedular rating upon a lesser evidentiary showing than would be necessary to reduce a total disability rating premised on individual unemployability). However, as the purpose of the TDIU rating is to ensure adequate compensation for a veteran’s disabilities, not additional procedural protections, the potential availability of this additional protection does not provide a basis for allowing a veteran with one service-connected disability rated 100-percent disabling under the rating schedule to receive a TDIU rating for another, separate disability.

16. In view of the foregoing, we conclude that neither the language of 38 C.F.R. § 4.16(a) or any other associated statute or regulation, nor the regulatory history associated with that provision, provides any indication that veterans who are entitled to a schedular 100-percent rating for one service-connected disability may also be entitled to a TDIU rating based on another service-connected disability.

HELD:

a. A claim for a total disability rating based on individual unemployability for a particular service-connected disability may not be considered when a schedular 100-percent rating is already in effect for another service-connected disability.

b. No additional monetary benefit would be available in the hypothetical case of a veteran having one service-connected disability rated 100-percent disabling under the rating schedule and another, separate disability rated totally disabling due to individual unemployability under 38 C.F.R. § 4.16(a). Further, the availability of additional procedural protections applicable under
38 C.F.R. § 3.343(c) in the case of a total disability rating based on individual unemployability would not provide a basis for consideration of a rating under section 4.16(a) where a veteran already has a service-connected disability rated 100-percent disabling under the rating schedule.

Leigh A. Bradley

Hawk writes:

HondaMan,
As I said, you may be correct - and these DLS Senior Attorneys I'm sure are right about what they said, but the language that the Attoney General's Office is going to have to research, understand, and apply is not what these attorneys used. The Attorney General's Office will have to decide based on the following language in the Constitutional Amendment:

" ... any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service connected, permanent, and total disability ... ."

"Pursuant to federal law" - which includes administrative law - seems to equate 100 percent service-connected Schedular with Total Disability I.U. in effect as to rating.

A service-connected veteran who is rated TDIU who asks the U.S. Department of Veterans Affairs for a letter certifying their disability rating will get the following response:

"This is to certify that XXXXX is an honorably discharged veteran of the XXXXXXX and has a service-connected disability evaluated at 100 percent. The veteran has not been scheduled for future examination."

If a future examination has been scheduled that would replace the last sentence in the quote.

We'll see how the Attorney General's opinion handles "pursuant to federal law".

Liliana writes:

@Hawk,

You're absolutely correct ... the key words that will drive the awaited opinion from the Attorney General's office are "pursuant to federal law."

Dave writes:

To: David Hathcock, Liaison, Office of Richmond City Council President Kathy Graziano

Sir, please do the citizens of Richmond a favor and make sure that the Honorable Kathy Graziano is made aware of this posting at RichmondSunlight.com.

I am addressing you on behalf of hundreds of Veterans in the great city of Richmond who did not have the ability to get to your City Council Meeting or to express themselves in person.

The City of Richmond is considering an ordinance that is NOT in keeping with the intent of the voters of Virginia.

The legal advice that Richmond City Council may have received prior to addressing the need for a change in the City ordinance apparently did not fully take into consideration the Constitutional Amendment and wording of enabling legislation that became Virginia Law on April 6, 2011.

Before the final enactment of the proposed ordinance please allow me to recommend careful consideration of the words of the Virginia Constitution and the words of the enabling legislation which are quoted with capitilization for emphasis below:

§ 58.1-3219.5. Exemption from taxes on property for disabled veterans.

A. Pursuant to Article X, Section 6-A of the Constitution of Virginia, and for tax years beginning on or after January 1, 2011, the General Assembly hereby exempts from taxation the real property, including the joint real property of husband and wife, of any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency PURSUANT TO FEDERAL LAW to have a 100 percent service-connected, permanent, and total disability, and who occupies the real property as his principal place of residence.

I realize that the Richmond City legal team has probably advised that a Veteran who has been rated 100 percent service-connected, permanent and total due to Individual Unemployability is not meant to have the Real Estate Tax burden permanently lifted as of January 1, 2011; but that is exactly what the General Assembly and the voters of Virginia intended.

Contrary to the urging of organizations such as the Virginia Department of Veterans Services (DVS) who may support the City Council proposed ordinance, the Courts of Virginia very well may inevitably find in favor any Veteran who decides to take Richmond to court.

Virginia's constitution and Virginia Code is clear on the point that you must rely on the judgment of the U. S. Department of Veterans Affairs or its successor agency PURSUANT TO FEDERAL LAW!!!!

Although Commissioners of the Revenue across this great Commonwealth have accepted the ill advised advice of the Virginia DVS and have decided to NOT grant the exemption to Veterans who have been rated 100 percent service-connected, permanent and total due to Individual Unemployability their actions are not PURSUANT TO FEDERAL LAW.

Fortunately, other cities and counties in Virginia have realized the facts as presented and have sought appropriate and QUALIFIED Legal Advice on the issue.

The City of Winchester, Virginia and the County of Roanoke, Virginia are two excellent examples where the powers that be have received sound legal advice and enacted ordinances that do NOT open them up to a legal fight that once made public could be seriously troublesome for the Richmond City Council.

It takes political courage to do what is right!

In that regard the Commissioners of the Revenue (COR) who are independent thinkers and wise enough to seek appropriate legal advice have acted courageously and correctly.

You should pay attention to what the City of Winchester and Roanoke County have done regarding the implementation of the new Virginia state law.

Roanoke County in particular has bent over backwards to make sure that the intent of Virginia voters is met regarding the Real Estate Tax Exemption for Disabled Veterans and/or their spouses.

Like many municipalities in Virginia, Roanoke County had to re-write an ordinance or create a new ordinance and go through the process necessary to enact their ordinance to adequately implement the tax exemption.

Apparently Roanoke County has an attorney who is or has been an active member of the military with JAG responsibilities. That attorney knows the meaning of "pursuant to federal law" and that attorney is well aware of Title 38 of the Code of Federal Regulations.

Richmond's City Council should note that together that Attorney for Roanoke County and the staff of the Roanoke County Commissioner of Revenue have carefully reviewed the Virginia law and current county ordinances, as well as Federal Law to make sure that all contingencies are covered.

To see for yourself how Roanoke County has handled this issue I will point you later in this e-mail to a link to a specific section of Roanoke County's website.

Veterans across the great Commonwealth of Virginia are applauding Roanoke County officials and Winchester City officials because they have acted independently after careful consideration instead of following ill advised guidelines from the Commissioners of the Revenue Association of Virginia (CRAV) or the Virginia Department of Veteran Services (DVS).

Those municipalities have also acted independently of the Virginia Attorney General who may or may not issue an opinion that supports the 7,358 permanent and total veterans that existed in Virginia as of the end of fiscal year 2009.

When reading the information between pages 127 and 135 at the website which provides the minutes and documents reviewed at the Roanoke County Board of Supervisors meeting (May 24, 2011) pay close attention to the definitions provided in RED and too how carefully Roanoke County worded their ordinance to cover situations when the identified veteran or spouse may not actually be in their home or may have relied on special Estate Planning legal advice regarding their home and estate.

When looking at Roanoke County's website, be aware that the overall agenda, minutes and documents take up 269 pages at the website and can be easily read in its entirety; but doing so is not required.

Go to the top of the website and you will notice that you can insert a page number. Insert page 127 and then scroll down through page 135 to read the pertinent information.

http://weblink.roanokecountyva.gov/WebLinkBOS/DocView.aspx?id=7073&dbid=0

Sincerely,

Dave

Liliana writes:

@ Waldo

I DID NOT POST THE MESSAGE BELOW UNDER WHICH SOMEONE ELSE USED MY NAME, and I completely DISAGREE with the statement.

Please check that address, as well as the ones for HondaMan, and you will see it is the same loser trying to disrupt this forum with his nonsense. Is there anything you can do to stop this from continuing???

Liliana writes:

Never mind. I finally read the law and I cannot find any reference, Federal or otherwise that indicates that an IU vet is considered to have a 100% disability.
Posted 27 minutes ago. #

Waldo Jaquith writes:

The offending comments have been deleted, and I will continue to delete them as they appear.

Should this individual persist, I will have to find the time to serve him with a cease-and-desist order, which will legally bar him from trespassing on this server—since it is private property—and if he persists further, at that point it is a criminal matter that I look forward to the police handling on my behalf. That'd blow the better part of a weekend for me, though, so I'm hoping the dope will just go kick over some kids' sandcastles, or do whatever it is that people like this otherwise spend their time on.

Liliana writes:

@ Waldo,

Thank you! This is a serious topic that warrants authentic discussion. (BTW, loved the comment about kicking over sandcastles ...)

Harvey S writes:

I have been following this blog for several months now as I am looking to relocate from Maryland to Virginia, my birthplace. My one paragraph letter from the Baltimore VARO stating that I was rated as 100% disabled, total and permanent, and service connected was all that was required for me to get the property tax exemption and gratis license plates for my car ANYWHERE in the State of Maryland, it is a state law enacted by the Maryland General assembly

Here it is already mid June, and this unresolved debate is still going on in Virginia. I am guessing that the issue will not be resolved until the 2012 General Assembly (or whatever it is called in Virginia) session. I imagine that is why the AG has not made his opinion public, but is instead waiting for the legislature to clarify the law and get it off his back. This blog is interesting, but probably won"t resolve anything. I wonder if anyone in a position of authority other than Joe Horbal is even reading this?

This whole issue is so simple, and yet it has become so blown out of the intent of the legislature, that it is almost like a sick joke. I still cannot comprehend why the VARO in Roanoke got involved with a specially worded letter, nor why the Virginia Dept. of Vets Affairs is involved; this seems so straight forward and not open to county interpretation; a state law is a state law, not to be tampered with by individual county officials. I wish y'all luck with this, but unless you live in those specific areas where the county officials have ruled in your favor, you will probably just go on writing on this blog, on this issue until next year.

Jim B writes:

Harvey you appear to be looking for a guarantee that you will be awarded tax relief if you move to Virginia. If I may offer you a suggestion...Drive to the city/county you wish to move to and visit the commissioner of revenue's office. Show them the documentation that you have. If you have what they need then they can tell you yea or nay. If you don't have what they require then you take the steps necessary to aquire what they need. Good Luck and welcome to Virginia. "America's most friendly Veteran's state."

I love Virginia writes:

I didn't vote this into law for every veteran who has been deemed to be unemployable. I know many who have this unemployabilty rating to to drugs and alcohol. The exemption is for 100% rated vets only. I understand that unemployable rated vets do not have a 100% rated disability. This exemption is not for them. Thank you.

Todd G. writes:

I love Virginia-
Considering Disabled Veterans come from the general population, I would suspect that the veteran population would mirror the general population when it comes to vices. As such I am sure there are a few bad apples. But just as in the regular population, very few will own real property if they are drug addicts and drunks.

Now I have no idea how many veterans you know who have a total evaluation due to Individual Unemployability. But I happen to know more than a few and thanks to this amendment and enabling legislation, I know a few more. Here is a sampling of those I know.

One is a 92 year old WWII Veteran who was wounded when his airplane was shot down over Germany in 1944. He survived in a POW camp Hospital until he was freed by advancing US Army forces. He and his wife raised three successful daughters who contribute greatly to their communities and often cite the example their father gave them for doing so. His Service related disabilities forced him to stop working at the age of 54 at which time the VA granted him a Total Evaluation.

Another is a Korean War Veteran who fought at the Chosin Reservoir Campaign with 3/31 of the US Army. He survived the carnage of his task force break out after he was separated from his unit after being wounded attacking Chinese positions and made it to safety by crossing the frozen reservoir to Marine Lines. After the war he became a Police Officer in his community until his Disabilities from cold injuries and wounds to his legs forced his early retirement from the Police Force at the age of 49. It was at this time that the VA awarded him a Total Evaluation due to Individual Unemployability.

A third is a Marine Veteran of both Enduring Freedom and Iraqi Freedom who lost his leg to an IED on his third tour. The VA granted him a Total Evaluation due to Individual Unemployability because of his wounds he suffered and his leg. He and his wife used his separation and insurance money to buy a foreclosed house in their home town. They have one elementary age child and his wife is going to college full time. When this Marine is not completing his medical treatments, he is known to volunteer as a reader at his child’s elementary school.

There are more just like these three throughout Virginia. All own real property and are considered responsible citizens and are respected in their communities.

That is the reality that I have witness in this case and these are the deserving Veterans some of our state officials want to leave behind.

Regards-

Liliana writes:

To I love Virginia,
I'd like to add that there are other elements to the Individual Employability that have to be present for this tax exemption - the disabilities must be service connected and the 100% rating has to be PERMANENT and TOTAL.

There may be veterans who are considered unemployable - perhaps some of those with drug or alcohol problems that you refer to - but they could be scheduled for follow up exams which does NOT make this rating PERMANENT.

Veterans like my husband, a Purple Heart recipient who worked full time for more than 30 years in spite of his disabilities from severe Vietnam combat injuries in 1969, did not receive the total and permanent designation until the disabilities interfered with his being able to maintain his job several years ago. Until that time, we together financed the college educations of a son who is now a licensed attorney, and a daughter who is a first grade school teacher. My husband is neither an alcoholic nor a drug addict and, I promise you, would much rather have been able to continue working!

I'm sure there are many other veterans in the Commonwealth of Virginia with similar stories that deserve to be remembered.

I love Virginia writes:

NO!
many Vets file for unemployability when they are ready to retire anyway. They use it to supplement their retirement. You can get unemployability just for being old and broke down. MOST of the vets I know that have unemployability are drunks or drug addicts.
Furthermore, you did not address my main point which is that the exemption is not for unemployable rated vets. It is for 100% rated vets. Unemployable rated vets do not have a 100% rated disability. They only get paid the same as 100% rated vets.

I love Virginia writes:

To Liliana:
The element you refer to (100% rating) does not exist for vets who have unemployability status. Individual Unemployability is for vets who have less than a 100% rated disability to get paid at the 100% rate because they cannot be employed. That is my whole point, that and individual unemployability is abused enough as it is without adding another incentive to apply for it like zero property taxes for the abusers.

Todd G. writes:

ILV-

What exactly are you saying "no" too? Are you saying that Liliana and I are lying? I doubt that we are. She is telling us about her husband with whom she has firsthand knowledge just as I am sharing my firsthand knowledge regarding the many veterans I have met and know.

Besides, the people who need to know are the Commissioners of Revenue in the various communities in Virginia. It has been my experience from talking with them that many of the COR's already know the IU Veterans because A) they are in small communities (and yes, Virginia still has them); or B) The Veterans in question already qualifies for some type of tax relief such as the elderly and disabled or personal property tax relief due to the veteran having Disabled Veteran tags on their autos. As a result the COR's know that these Veterans are not as you describe.

Now as for what you call your main point, well it is a false argument designed to separate Disabled Veterans into various classes. You see the entire Schedule for Rating Disabilities used by the US Department of Veterans Affairs is designed to compensate a Veteran as far as practical for “average impairment in earning capacity.” Since both a scheduler disability rating (38 CFR 4.15) and a rating of Individual Unemployability (38 CFR 4.16) are part of the Schedule for Rating Disabilities, they both are designed to compensate Veterans for their loss of earning potential. I also think it is important to state that a Veteran can be granted a TOTAL Evaluation under both 38 CFR 4.15 and 38 CFR 4.16.

Now what is important here is what Virginia Law states. Under both the Constitutional Amendment and its enabling legislation, a Veteran must meet certain requirements to include the following as it relates to his/her US Department of Veterans Affairs evaluation. It must be:
A)100% service connected (related to military service);
B)The Evaluation must be Permanent (Life of the disabled person)
C)The Evaluation must be TOTAL (whole)

As I have just shown in the above paragraph, a Disable Veteran can receive a Total evaluation in number of ways.

Regards-

I love Virginia writes:

Hello Todd,
You wrote:

"Now what is important here is what Virginia Law states. Under both the Constitutional Amendment and its enabling legislation, a Veteran must meet certain requirements to include the following as it relates to his/her US Department of Veterans Affairs evaluation. It must be:
A)100% service connected (related to military service);
B)The Evaluation must be Permanent (Life of the disabled person)
C)The Evaluation must be TOTAL (whole)"

I guess I have nothing to worry about then because unemployability rated vets do not have a 100% service connected disability so they will not get the exemption.
Thanks.

Liliana writes:

I love Virginia,

How do you explain, then, the following question and answer in my husband's "green envelope" VA letter, which clearly includes the necessary verbiage for Service-Connected, Total, and Permanent:

"Are you considered to be TOTALLY AND PERMANENTLY DISABLED due to your SERVICE-CONNECTED DISABILITIES: YES"

In addition, he has a Certificate from the Virginia Department of Veterans Affairs which states, and I quote:

"This is to certify that XXXXXXX is an honorably discharged veteran of the United States Army and has service-connected disability evaluated at 100 percent. The veteran has not been scheduled for future examinations."

Todd G. writes:

ILV -
I really want to help you understand, however I don’t think I am the person to do so. You stated in your last response that : “Unemployability rated vets do not have a 100% service connected disability.” I am not sure how you can come to that conclusion.

You see a person who has a Total Evaluation based upon Individual Unemployability from the US Department of Veterans Affairs (USDVA) most certainly does indeed have a “100% Service Connected” Disability.

You see “100% Service Connected” means that their disability occurred or was aggravated in military service. You can read more about “Service Connection” in 38 CFR 3.303. “100% Service connected” only tell you how the disability happened, not the level of disability.

I suggest you read the legal opinion in the following document to better understand how this all relates here in Virginia. The opinion starts on page 121. Please understand that the article cites a lot of cases and breaks everything down legally here in Virginia. http://www.winchesterva.gov/documents/government/city_council_meetings/20110614-Council-Agenda.pdf

Have a good night.

I love Virginia writes:

No, it would not be possible for a Vet to have individual unemployability and have a 100% disability rating.
Individual unemployability is to pay the 100% rate to vets that do not have a 100% disability rating.
This is very clear.

Legal opinions and case citations do not change those facts. A lot of peiople seem to be trying to distort the facts by citing this same stuff over and over. Won't work.

If you like quoting legal opinions here is one from Roanoke County Code Section 21-81 E :

"(a) Individual Unemployability is a part of VA's disability compensation program that allows VA to pay certain veterans compensation at the 100 percent rate, even though VA has not rated their service connected disabilities at the total level."

Todd G. writes:

ILV-

I will guess that your first paragraph is directed to Liliana since she has stated that her husband has a letter that states he “is an honorably discharged veteran of the United States Army and has service-connected disability evaluated at 100 percent.” The reason I say as much is that I have never mentioned 100% Disability rating” as you call it. I refer to its legal term “Total Evaluation”, which by the way is the evaluation that the Virginia Amendment and the enabling regulations refers too.

As for your second paragraph, well legal opinions and Court case citations must certainly do matter in a court of law here in Virginia, which is where this issue could still end up. I would hate to see you step into a Court of Law and tell a presiding Judge that “legal opinions and case citations do not change those facts.” I doubt that you would win your case if you did.

As for your third paragraph, what you cherry picked and quoted is not a “legal opinion”; it is only one part of an ordinance passed by Roanoke County that will grant the tax exemption to those Veterans who have a Total Evaluation due to Individual Unemployability. My understanding from talking with a public Administrator in Roanoke County is that they used a particular State Agencies definition of Individual Unemployability so that they could specifically contradict it to limit their fiscal impact. In other words, they did not want to chance inadvertently expanding the tax exemption to those that they did not intend to.

Like I stated, I wish I could help you more. However since it appears that I cannot, it doesn’t do any of us much good to continue to discuss the issue further. If you truly want to understand these complex legal issues further, I suggest that you contact the Virginia Bar Association for a reference to an attorney who can assist you.

Regards-

I love Virginia writes:

Todd:
The only thing that was cherry picked is the three references to "total disability" and "100%" that you keep posting. You seem to ignore the majority of the evidence which illustrates that individual unemployability vets are not eligible for the exemption because the never received a 100% disability rating from the VA.
I have spoken to an Attorney. The VA AG had the wisdom to lend me his ear two weeks ago. I will be sure to follow up with him in the coming days since so many people seem to be easily confused by your, and others dog and pony shows. I know the law will prevail here. His opinion hopefully will be released soon.

Bill writes:

A "total evaluation" (P&T) by the US Department of Veterans Affairs is equal to a 100% disabilty, whether the veteran is evaluated by a schedule 100% or by a extra-schedule Individual Unemployability (IU)rating.

There are a number of VA policies that address a "total Evaluation" as being a 100% service-connected disability.

VA regulation Sec. 3.343 is one example of a "total rating" for Individual Unemployability (IU)as being a 100% service-connected disabilty.

==================================

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation

Sec. 3.343 Continuance of total disability ratings.

(c) Individual unemployability. (1) In reducing a rating of 100
percent service-connected disability based on individual
unemployability

**Full text of regulation can be read at this link -

http://edocket.access.gpo.gov/cfr_2010/julqtr/38cfr3.343.htm

Dave writes:

As many of you who have been checking the website of the Attorney General may have noticed the Virginia Attorney General's staff for the last several months has been updating the Opinion portion of the website on a Friday if it is updated at all.

Until sometime today (Friday, June 24th)the website had no Opinions for the month of June, 2011. However sometime, probably after noon the website was updated to include the month of June, 2011 and three opinions were posted.

Unfortunately, however, there still is no opinion regarding the eligibility of any Virginia Veteran determined by the U. S. Department of Veterans Affairs, pursuant to federal law, to have a 100 percent service-connected, permanent and total disability due to Individual Unemployability.

Sometime in the month of May, 2011 the Division of Legislative Services,(DLS) an agency of the General Assembly of Virginia, published a Virginia Legislative Issue Brief entitled: Disabled Military Veterans' Real Property Tax Exemption.

I find it interesting that the brief, apparently written by Mark Vucci and Lisa Wallmeyer, DLS Senior Attorneys, does not provide any precedent citations of Virginia Court Decisions and provides no substantive legal reasoning to support their argument that veterans determined to be permanent and totally disabled due to Individual Unemployability are not eligible for the Virginia Real Estate tax exemption.

Instead the DLS attorneys simply say:

"The legislation mirrored the language set forth in the constitutional amendment by specifying that, in order to qualify, a veteran must have received a rating from the U. S. Department of Veterans Affairs as having a 100 percent service-connected, permanent, and total disability."

The attorneys then go on to say, without citation for their reasoning:

"As the Constitution of Virginia requires that all property tax exemptions be set forth in the Constitution of Virginia, the General Assembly - or a locality - is constrained from expanding the class of veterans who may qualify for the exemption to include veterans who may have a severe; but less than 100 percent, disability, or to include veterans who have been declared 100 percent unemployable but not 100 percent disabled."

Folks, anyone can stand up and say what these attorneys have said; but without precedent or substantive legal reasoning to back-up their conclusion it would be difficult for a Court of law to agree with them when and if their conclusions were to be tested.

Dave

Jim B writes:

Dave, I thought the DLS brief was written specifically for the City of Richmond. I still believe the AG will opine in favor of approx. 7500 totally disable veterans as advertized. I am confident that the AG, DVS, and CORA due not want to end up in a Court of law to answer to charges of denial of veterans benefits.

Dave writes:

Jim B,

I honestly do not know who requested the brief from the DLS; but the document as publicaly displayed does not provide substantive legal justification or Virginia Court precedent to back-up the statement made by its authors regarding Level of Disability.

Meanwhile, the brief provided by the attorney for the City of Winchester does provide legal justification and Virginia Court precedent.

You are probably absolutely correct when you say that any Commissioner of the Revenue does not want to end up in a Court of law to answer charges of denial of veterans benefits; but the Attorney General and the Department of Veterans Affairs probably have nothing to fear from the Courts.

The DVS and the office of the Attorney General will probably come out of all this with no Court sanctions against them; but DVS may suffer some political repercussions in the Court of Public Opinion for a perceived position they have taken.

Dave writes:

My apologies to both the DVS and the U. S. Department of Veterans Affairs.

My statement above incorrectly referred to the "Department of Veterans Affairs" when I meant to refer to the Virginia "Department of Veterans Services" which of course is also commonly referred to as the "DVS."

I love Virginia writes:

"The legislation mirrored the language set forth in the constitutional amendment by specifying that, in order to qualify, a veteran must have received a rating from the U. S. Department of Veterans Affairs as having a 100 percent service-connected, permanent, and total disability."

The attorneys then go on to say, without citation for their reasoning:

"As the Constitution of Virginia requires that all property tax exemptions be set forth in the Constitution of Virginia, the General Assembly - or a locality - is constrained from expanding the class of veterans who may qualify for the exemption to include veterans who may have a severe; but less than 100 percent, disability, or to include veterans who have been declared 100 percent unemployable but not 100 percent disabled."

Looks good! Thanks for all your help getting this clarified Dave, Todd, Jim, Bill, Liliana and everyone else. This is exactly what I voted for!

Jim B writes:

I love Virginia who actually lives in Washington State quotes from a brief written by the Dept of Legislative Services. Since the AG has published his opinion this evening, the comments from I love Virginia and DLS have no merit.

Todd G. writes:

"The tax exemption applies to veterans rated by the VA with a total disability rating on the basis of
individual unemployability due to a service-connected disability which rating revolves around the
inability to engage in substantially gainful employment;"

The above quote is from the AG Opinion tonight. This means that those Veterans who have been rated as TOTAL because of Individual Unemployability qualifies for the Tax Exemption. I am happy for our IU veterans.
Regards-

Todd G.

Liliana writes:

I love Virginia!!! The Attorney General made the correct decision, of course, and I too am delighted for all IU veterans who so deserve this tax exemption! Thank you to everyone who took time to write letters and post comments in favor of granting this exemption to ALL totally disabled veterans.

Dave writes:

Virginia Totally and Permanently Disabled Veterans Entitled to Real Estate Tax Exemption

It will be interesting to see how many newspapers and other media outlets report the opinion of the Attorney General and give credit where credit is due.

I am concerned that there will be many eligible Virginia Veterans who were initially rejected who may not learn of the opinion which has been rendered many weeks after they were summarily rejected by mis-informed clerical staff at the various offices of the Commissioners of the Revenue.

The possibility that eligible Veterans may not hear about the change is especially possible in localities like Pittsylvania County, Richmond, Chesapeake, Roanoke and New Port News where the staff and/or website made it clear that IU Veterans need not apply.

Many Commissioners of the Revenue, County Board of Supervisors and City Councils went out of there way to not grant the tax exemption because they failed to do their due diligence on the issue.

Far too many localities chose to follow the incorrect and apparently unwarranted guidance of the Virginia Department of Veteran Services.

As it turns out the VDVS had no legal authority to give guidance and the CORs that followed that guidance instead of doing their own research rejected far too many veterans who MAY NOT become aware of there eligibility simply because they do not keep up with current events.

If you are reading this and know of a veteran who may be eligible reach out to that veteran to make sure that he or she knows about the opinion of the Attorney General.

This morning The Roanoke Times published an article on page 12 of it's daily Newspaper in the section entitled Virginia (July 19th). The article was at the top of the page so hopefully many will see it and spread the word:

"Disabled veterans entitled to tax exemption

The attorney general said the new real estate tax law applies to those with 100 percent disability.

By Michael Sluss
981-3373
RICHMOND -- Military veterans who have a 100 percent disability rating with the U.S. Department of Veterans Affairs are eligible for a recently enacted real estate tax exemption, which some localities have been denying to certain veterans, Attorney General Ken Cuccinelli has concluded.

Cuccinelli issued an official, nonbinding opinion Friday in response to a request from four state legislators who had raised concerns about local implementation of the tax exemption. His office announced the opinion Monday.
Virginia voters last year approved a state constitutional amendment that provides a real estate tax exemption for veterans who have a "one hundred percent service-connected, permanent, and total disability" rating from the VA.

In some cases, veterans who do not have a 100 percent rating based on their disabilities receive the total disability rating because their injuries leave them unable to work. In those cases, some localities have been denying the tax exemption to disabled veterans.

But Cuccinelli said all veterans with a 100 percent disability rating qualify for the exemption, regardless of how the VA arrived at the rating.

"In private practice, I worked with veterans on their benefits appeals through the Pro Bono Veterans Consortium, so I am very familiar with the veterans' benefits system," Cuccinelli said in a statement. "While the laws may not be perfect, it is paramount that our veterans understand the statutes that apply to them. It is also critically important that they receive the tax exemptions they are entitled to under the law."

Roanoke County Commissioner of the Revenue Nancy Horn said she has allowed the exemption for veterans whose "unemployability" factored into their disability rating. Of the 105 disabled veterans who have received the exemption in the county this year, 15 had a 100 percent disability rating only after unemployability was considered.

"I just feel like our veterans are entitled to so much more than we give them," Horn said.

In the same opinion, Cuccinelli also underscored that the surviving spouse of a totally disabled veteran can qualify for the tax exemption only if the veteran's death occurred on or after Jan. 1, 2011.

The exemption applies to surviving spouses who don't remarry and continue to occupy the property as their main residence.

"Coming to some of these conclusions when issuing legal opinions is never easy, as was the case with the surviving spouse question," Cuccinelli said. "But the General Assembly amended the constitution to provide a specific kind of relief to veterans. We are duty bound to follow the letter of the law, regardless of whether we wish some provisions of the law to be otherwise."

http://www.roanoke.com/news/roanoke/wb/293378