Don’t know how to file this claim

[carlos_v]

Hello, I was diagnosed with Arthritis on my left foot and was awarded 20% disability. As time went by I needed surgery and on August 2019 I completed the surgery. During the surgery the doctor had to place a plate across my foot with seven screws. My foot has been swollen since (Can’t fit a shoe) and with a lot of pain. I cannot move my toes and have to use a cane (prescribed) to walk. My wife helps me around with bathing and dressing. I was awarded a temporary 100% until February only because of the surgery but I’m back at 20% now. I am also loosing my job because I cannot perform my duties under my current condition. I don’t know how to apply for this claim. I thought about TDIU but I have a couple of properties and collect rent so I don’t think I qualify. Nonetheless I’m reaching out to see if I can get some advise on the options I may have to file this correctly. Perhaps I can only file for an increase but I’m not sure. Any advise will be greatly appreciated, thank you.

[ShrekTheTank]

I am not 100 percent on this and I hope someone corrects me but TDIU is based on your ability to work. I hope someone can jump in here if this does count or not. 

[broncovet]

"Owning Rental Properties" does not disqualify you from tdiu.  You could own 51 percent in Chase Bank and still qualify; tdiu is not "needs based".  

Instead, what you will need is this:

1.  A letter from a doctor who states you "are unable to maintain SGE due to SC condition(s)".  And, you cant have "earned income" greater than the poverty level in the past 12 months.  

If you "actively manage" the real estate, then this could preclude tdiu if you earn over 12,000 per year (the poverty level, established by VA..for more on poverty level read here:

https://www.va.gov/pension/veterans-pension-rates/

2.  You "might" need a IMO from a Voc rehab counselor that states you are unable to do ANY job, not just your present job.  VA loves to deny because "its possible" you could be retrained in a sedentary job that does not require you to use your foot.  (likely).  

To do this, simply apply for tdiu and use this form:

https://www.vba.va.gov/pubs/forms/VBA-21-8940-ARE.pdf

   Make no mistake:  You are swimming "upstream" in a hard fight because you dont meet the percentage requirements in 38 CFR 4.16 BUT you can still qualify under 38 cfr 4.16b.  

This explains it in more detail:

https://www.law.cornell.edu/cfr/text/38/4.16   READ 4.16 B.  

   I "swam up that stream" and was awarded tdiu with "less than the percentage requirements" listed in 4.16a.  (This is called "extra schedular" TDIU).  It was a long fight, but I won and it was worth the effort.  

[GBArmy]

Good advise from Shrek and Bronc. It's going to be a tough sell but worth trying. However, I suggest you try to develope your total combined rating by claiming additional secondary disabilities, providing you have some. Are you in a lot of pain? Is there room for an increase in your foot injury rating? Does the foot injury cause your back or other area problems? If you are having issues elsewhere because of your foot disability, I suggest you work on those at the same time. It won't get you to 100%, but it may result in greater monthly comp, and more than likely, much quicker than the TDIU claim IMHO.

[carlos_v]

Thank you so much for the advise guys. I do not manage the real state, a property manager does but I do make around 20K a year from it. That’s why I wasn’t sure about taking the tdiu route. I am having complications with my left knee and my back hurts. My doctor told me is because the way I walk is creating these other issues. I will have to see the orthopedic doctor again and get a referral for a back doctor. Once again I appreciate the advise.

[ShrekTheTank]

5 minutes ago, carlos_v said:

Thank you so much for the advise guys. I do not manage the real state, a property manager does but I do make around 20K a year from it. That’s why I wasn’t sure about taking the tdiu route. I am having complications with my left knee and my back hurts. My doctor told me is because the way I walk is creating these other issues. I will have to see the orthopedic doctor again and get a referral for a back doctor. Once again I appreciate the advise.

Remember to file for secondary conditions