Citation Nr: 21025965 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-12 001 DATE: April 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not shown to render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1979 to January 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office. These matters were previously remanded by the Board in December 2018 for additional development. Initially, the Board notes that the Veteran’s representative asserts in a March 2021 written brief presentation that VA Form 27-8940 sent by the Regional Office in September 2019 in accordance with a December 2018 Board remand directive may not have been received by the Veteran or was lost in the mail. The representative does not assert that the form was sent to the incorrect address, only that VA should have made more attempts to contact the Veteran. There is a presumption of regularity that government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to officials at the AOJ who are responsible for complying with Board remand requests. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the AOJ). A claimant may rebut the presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed. An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process. Jones v. West, 12 Vet. App. 98, 102. Here, the relevant letter and VA Form 21-8940 were sent to the Veteran’s address of record on September 13, 2019. There is no evidence in the claims file that the communications were returned as undeliverable and subsequent mail has been sent to the same address without any indication that it was returned to VA as undeliverable. The Veteran’s representative suggested that it was possible that the Veteran did not receive the letter, but he did not claim that the Veteran did not in fact receive it. An assertion of the possibility of nonreceipt on its own does not rebut the presumption of regularity in this instance. The fact that the letter was sent to the Veteran without response further counters the representative’s contention. As such, the Board finds that substantial compliance with the remand requests has been accomplished and the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). If the Veteran does not have a high enough rating to meet the schedular criteria for TDIU, but is nevertheless found unemployable by reason of his service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Veteran meets the schedular requirements for TDIU, as he has a combined rating of 90 percent prior to March 2013, and a 100 percent thereafter. The Veteran has been in receipt of special monthly compensation at the housebound rate, or a higher rate, since March 4, 2013; therefore, entitlement to a TDIU is moot for that period. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). A review VA treatment records show that the Veteran is not prevented from substantially gainful occupation due to service-connected disabilities as the evidence shows that he has been gainfully employed for the entire period on appeal. A January 2019 VA sleep apnea examination report reflects that the Veteran was employed with Lockheed Martin for the past 13 years in the field of logistics (which would go back to prior to the period on appeal). A March 2017 VA mental health examination reported that he currently worked for Lockheed Martin as program manager in logistic systems. He reported his duties consisted of participating in different meetings with various teams all day long and conducting international business travel. The Veteran did not return the VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability or otherwise provide evidence that indicates that he is not engaged in a substantially gainful occupation, or that his employment is marginal, to include work in a protected work environment. Moreover, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the claim is denied. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.