Citation NR: 9605787 Decision Date: 03/05/96 Archive Date: 03/16/96 DOCKET NO. 94-10 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to restoration of a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant and his father ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 1992 proposal to discontinue entitlement to a total rating based on individual unemployability due to service-connected disability by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had not been employed since service, nor had he been at all involved with his wife’s direct mail and newspaper delivery business, and that the VA should not have taken away his total disability benefits. He alleges that the entire situation was a conspiracy on the part of his ex-wife and her relatives during an ongoing divorce. The veteran further alleged that the field examiner was negligent in making most of his contacts by telephone to the veteran’s ex-wife’s family, who were out to destroy him. He stated that he did not understand why the field examiner had never tried to obtain his side of the story. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for a restoration of a total rating based on individual unemployability due to service- connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. In April 1972, the RO granted the veteran a total rating based on individual unemployability due to service-connected disabilities, effective from July 1972. 3. The veteran signed numerous VA employment questionnaires, dating from September 1977 to October 1991, stating that he had not been employed by the VA, others, or self-employed during each successive twelve-month period. 5. In June 1991, the VA learned that the veteran had been self-employed for approximately 15 years. 6. In January 1992, the RO retroactively terminated the veteran’s total evaluation, effective from July 1972, and denied the veteran’s request for a waiver of the indebtedness. 7. The veteran is a high school graduate who has acquired a number of college credits in business administration, but did not obtain a degree. 8. Current manifestations of the veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW A total disability rating for compensation based on individual unemployability due to service-connected disabilities is not warranted. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. I. Factual Background The initial factual background of this case is not in dispute. In March 1972, the veteran was granted service connection for traumatic amputation of the right arm above the elbow (minor), with retained foreign body at an evaluation of 80 percent; residuals of shell fragment wounds of the right leg with damaged muscle group XI, with retained foreign body, at an evaluation of 30 percent; residuals of shell fragment wounds of the abdomen with damaged muscle group XIX, with retained foreign body, at an evaluation of 10 percent; residuals of shell fragment wounds of the right chest with damaged muscle group XXI, with fracture of the right rib, with surgical absence of part of the right third rib, and with contusion to the right lung, at an evaluation of 10 percent; laceration of the liver, at a noncompensable evaluation; malaria at a noncompensable evaluation; non- disfiguring scars of the face, at a noncompensable evaluation; and scars to the donor site, the right thigh, at a noncompensable evaluation. All of these allowances were effective from July 1972, for a combined evaluation of 90 percent. The veteran was also granted entitlement to special monthly compensation on account of the anatomical loss of one hand, effective from June 1971. In March 1972, the veteran filed an Income -- Net Worth and Employment Statement, maintaining that he had had a relapse of malaria, had been ill in bed, and was unemployed and living on his wife’s earnings with help from in-laws. In April 1972, the RO granted a total rating based on individual unemployability, effective from July 1972, noting that the veteran, who had a high school education, had not been employed since his release from service and that he was considered to be unemployable by reason of his service connected disabilities. In December 1973, the RO granted service connection for a “nervous condition,” at an evaluation of 10 percent, effective from May 1973, for a combined schedular evaluation of 90 percent. In September 1984, the veteran filed claims for “back problems, along with breathing difficulties, headaches. . ., and a severed lower disc along with compression of 5 discs when hit in Vietnam.” He also claimed to have been exposed to Agent Orange. The RO requested that the veteran provide further information as to these claims. There is no evidence in the claims file that he responded to this request. The veteran filed Form VA 21-4140, Employment Questionnaires in September 1977, October 1977, July 1978, June 1979, June 1980, June 1981, June 1982, February 1985, May; 1986, August 1987, October 1988, September 1989, October 1990, and October 1991. In each of these forms he certified that he had not been employed by the Veterans Administration or by other employers, and had not been self-employed during the past twelve months. He further certified that the items completed on the form were true and correct to the best of his knowledge and belief and that he believed that his service- connected disabilities had not improved and continued to prevent him from securing or following gainful employment. In August 1987, the RO reduced the veteran’s benefits to his schedular evaluation because he had not completed and returned, the Employment Questionnaire. Upon receipt of an Employment Questionnaire form later that month, the RO reinstated the total disability evaluation. In September 1989, the veteran applied for vocational rehabilitation and for specially adapted housing. The RO denied the request for specially adapted housing in October 1989. In June 1991, the VA received an unofficial report that the veteran had been working for the past 15 years. It requested the veteran either to provide information as to, inter alia, the name and address of his employer or to state whether he was self-employed. In response, the veteran replied merely: “There has been no employer, nor have I had one since being discharged from the service. . .” Significantly, he did not respond to the inquiry as to whether he was self-employed. Based on a field examination, dated in August 1991, the RO proposed to discontinue entitlement to a total disability evaluation based on individual unemployability, informing the veteran accordingly. In January 1992, the RO did discontinue entitlement to individual unemployability, effective from July 1972. In April 1992 the veteran’s debts were discharged in bankruptcy in the United States Bankruptcy Court of the Southern District of Ohio. A June 1992 administrative decision found that the preponderance of the evidence established that the veteran had furnished false information to the VA concerning his employment in order to receive compensation at the 100 percent disability rate due to unemployability, rather than at the schedular 90 percent rate. It concluded that the veteran had been overpaid compensation benefits totaling $107,591.50 during the period from July 1, 1972, to May 31, 1992. The veteran filed a notice of disagreement in July 1992. Following a hearing before the RO in March 1993, the veteran’s claim for restoration of entitlement to a total rating due to service- connected disabilities was again denied. Evidence In July 1991, the VA was advised that the veteran had been working for approximately 15 years in newspaper distribution and direct marketing. A report of a field examination in August 1991 revealed that, although the veteran was not currently working, he had worked from shortly after his discharge from military service in 1971. He had acquired delivery routes for several newspapers and, additionally, a delivery route for a direct marketing company. All routes had been put in the name of his first wife [redacted]. According to initial statements from witnesses, the veteran would pick up the papers to be delivered and would drive the routes, hiring relatives and students for door-to-door delivery. It was stated that the veteran was physically able to load bundles of newspapers onto the delivery truck, stuff newspapers with weekly inserts, and open newspaper racks to get out the money; on days when he did not have assistance, the veteran was able to complete the routes by himself. It was generally understood by most of the witnesses that the veteran made all of the decisions related to running these businesses. Before the finalization of his divorce from his first wife in December 1991, the routes were put in the name of his fiancee [redacted], whom he later married. The veteran has consistently contended that he had not ever been able to work since service and that people had conspired against him in reporting to the field examiner that he had been self-employed. Evidence supporting the field examiner’s statements include an Affidavit of Income, Expenses, and Financial Disclosure, filed in September 1990, from the Court of Common Pleas, Division of Domestic Relations, of Hamilton County, Ohio. The veteran claimed income of $2,312 per month from VA compensation and Social Security disability. Husband and wife claimed gross joint income of $850 to $1,350 per week from self-employment. In September 1990, the veteran filed an Affidavit in Support of Temporary Restraining Order in the Court of Common Pleas, stating that the plaintiff, his wife [redacted], was about to “dispose of, transfer, convey, destroy, damage or encumber property or any part thereof, so as to defeat defendant” in obtaining an equitable division of the marital assets. Specifically [redacted] was to be restrained from selling or otherwise encumbering four direct marketing routes with the [redacted] Company that were listed in her name. An October 1990 Affidavit of Income, Expenses and Financial Disclosure reported both spouses as independent carriers for the [redacted] Direct Marketing, and specifically stated that the routes were jointly worked. Weekly income was stated to be $850.00 to $1,350.00, and it was reported that the wife had four direct mailing routes in her name and that all paychecks went to her. It was further noted that the couple had incurred loans on a motor home, an Astro van, a Wellcraft boat, a Toyota Celica, and a Cutlass. An October 1990 motion before the Court of Common Pleas revealed that the defendant (the veteran) was requesting alimony, as he had no other income and was unable to work. The veteran additionally stated that both he and his wife had operated four direct marketing routes for the [redacted] Company during their 22 year of marriage. Although a joint business, the checks had been made payable to the wife only. Since the parties’ separation in September 1990, [redacted] had refused to split the weekly earnings checks with her husband. Since these earnings totaled approximately $4,730.00 per month, and the defendant received only $2,315.00 per month in VA compensation and Social Security disability, the defendant was requesting temporary alimony in the amount of $1,207.50 per month. Several “Contractor Load Control Forms” from [redacted] [redacted] Direct Marketing, dated in October 1990, reveal that the contract was then in the name of [redacted] [redacted] (sic), the veteran’s “fiancee.” A copy of a check in the amount of $626.74 from [redacted] showed the payee as “[redacted].” A letter, dated in June 1991, from the manager of Home Lenders Financial Services, Inc., enclosed a copy of a check in the amount of $4,010.57, from an unnamed insurance company, which was applied to the veteran’s account. Interest paid on that account in 1989 was $1,832.93 and in 1990 was $4,534.07. In a letter to the VA, [redacted] stated that these sums were disability insurance benefits paid to the veteran from Union Security Life Insurance Company from April 12, 1990, to October 12, 1990, and had been used to make payments to the Northside Bank on a car registered to the veteran, but driven by his ex-wife, and payments on two other car loans incurred by the veteran, for a car driven by his daughter and a van driven by the veteran. A lengthy, undated letter from the veteran stated that the reduction of his benefits was “absolutely preposterous,” and that he had been forced to drive to Cleveland to the regional office to protest the VA decision. He stated that he was, indeed, totally disabled, that his condition was becoming worse, and that he had had severe incapacitating headaches and numerous other disabilities. He denied being employed or self-employed at any time, and railed against his ex-wife and her brother, [redacted], for maliciously fabricating stories about him, and against the Government for becoming involved in Vietnam and giving Vietnam veterans “a rotten deal” when they returned. At his March 1993 hearing before the RO, the veteran and his father testified about the veteran’s medical problems and the constant pain and discomfort he suffered. The veteran stated that he spent a great deal of time in bed and that a lot of the time he was disoriented because of the medications that he was taking. He maintained that the business in association with [redacted] was not a joint enterprise, but that he had maintained that it was in documents relating to his divorce in order that the income from the enterprise would be classified as marital property. Although his name appeared as co-operator, he stated that he had not physically or directly operated any of the businesses in question; he occasionally drove a vehicle when his wife was sick or otherwise unavailable. He maintained that he did not have the physical ability to run the businesses due to his headaches and his amputation. The veteran further testified that before he entered the service he had been a draftsman, but, with the loss of his arm, he could no longer do that work. He testified that following service, he had attended the University of Cincinnati and studied business administration, but did not get a degree. He was unable to remember how many credits he had obtained. To support his contention of not having worked since his discharge from service, the veteran compiled a booklet approximately 1/2 inch thick, consisting principally of a his own typewritten disputation of VA evidence in the claims file, testimonial letters from numerous friends and relatives, and a typewritten “List of Medical Complications,” for the purpose of showing that he had not worked in the businesses and that he was physically incapable of doing so. The veteran contended, generally, that his ex-wife and her brother, [redacted], had conspired and planned to harm him and that the information given to the VA field examiner was “fabricated and exaggerated.” He alleged that almost all the statements to the field examiner by other witnesses were either untrue, biased, or misinterpreted by the VA. The veteran’s lawyer, Nancy E. Ware, of Bass & Ware, in Cincinnati, Ohio, provided copies of the parties’ divorce decree, together with her explanation of the significance of these legal documents. In brief, it was Ms. Ware’s contention that the [redacted] routes were [redacted]’s sole business and that the veteran had obtained a temporary restraining order in order to prevent [redacted] from being able to defeat the veteran in an equitable division of marital property, i.e. the income from the [redacted] routes. Ms. Ware stated that only after the restraining order was granted were the documents drawn up to state that both husband and wife were independent carriers, operating the routes jointly, and that once the restraining order had become granted, the routes had become marital property belonging to both parties until alimony, marital debt, and moneys could be determined at a latter date by the court. Therefore, she continues, it was “only suggested” that the veteran was jointly involved in [redacted]’s business for purposes of obtaining marital assets and an equitable division of the same. “The documents in question were never intended to suggest that [redacted] actually engaged in the work or physically worked the routes at any time.” The decree of divorce, dated in December 1991, stated that the veteran was not currently employed and that therefore there would be no order to withhold child support from an employer. An attachment to the decree required the veteran to pay spousal support. Since he had no employment income or other assets from which support payments could be paid or from which a bond could be posted, it was ordered that he seek employment, unless medically unable. The veteran supplied a letter, dated in March 1993, in which he stated that he did not receive any benefits from the Union Security Life Insurance Company, as the benefit check went straight to the second mortgage company, Barclays American/Financial Services, later to become Home Lenders. He stated that during a six-month period he had been seeing a doctor for a back injury sustained in an automobile accident. He enclosed a Certificate of Insurance Schedule referring to the veteran and his wife [redacted] as insured debtors.. A letter submitted to the VA in October 1991 from the veteran’s second wife [redacted] described her “involvement” with the veteran, her moving in with the veteran, and her subsequent divorce from [redacted]. She stated that since she and the veteran had been living together, she had taken over the [redacted] routes, but that the company had dropped her contract when she had to provide too many substitutes. A March 1993 letter from [redacted] stated that the veteran’s medical condition was such that he could not possibly have performed the highly strenuous work or worked the long and grueling hours required to conduct the business. A letter dated in November 1991 from [redacted] of [redacted] Direct Marketing stated that the veteran had never been employed by [redacted] Direct Marketing. A letter dated in December 1991 from Kathy Mullen of The Cincinnati Inquirer, stated that the veteran had never been an independent carrier on record for any route for The Cincinnati Enquirer, The Cincinnati Post, or The Kentucky Post. Edward Eils, District Manager of The Cincinnati Post, wrote in March 1993 that the veteran had never been an independent carrier on record for any route for any of the newspapers in question, although [redacted] had had a route for several years. The veteran was occasionally a substitute. Mr. Eils added that the statements attributed to him in the field investigation report that the veteran “ran the show” and that the veteran drove the vehicle had been “misinterpreted.” A July 1992 statement from [redacted] retracted previous oral statements, stating that he had deliberately set out to help his sister “ruin [redacted]’s life,” and that the veteran did not and could not have worked the routes himself, although he did on occasion do some of the driving. Letters from former employees, [redacted], [redacted], [redacted] [redacted], and [redacted] all stated that the veteran would drive the routes when [redacted] was unable to, but that the veteran would not have been physically able to do the work on a regular basis. A letter from [redacted], [redacted]’s brother, stated that the VA letter to the veteran contained “inaccuracies, lies and false information” regarding the veteran’s work history. He denied making any statement that the veteran was employed outside the home or that the veteran had anything to do with the delivery routes. He believed that a man with one hand would be unable to insert advertisements into newspapers or plastic bags. Two letters, dated in December 1991 and in July 1992 from [redacted], another of [redacted]’s brothers, stated that he did not believe that the veteran had ever received a paycheck for that employment. He said that he had answered the questions truthfully in a telephone interview with the VA field examiner, but never said that the veteran was in charge of the operation. A lengthy July 1992 letter from [redacted], sister-in-law of [redacted], described a complicated family history, stating that she did not believe [redacted]’s stories of physical abuse on the part of the veteran or of the veteran’s extramarital affair with a woman who became pregnant. Relatives of the veteran, his daughter, his sister-in-law [redacted] and brother [redacted], all stated that the contract with [redacted] Direct Marketing was in [redacted]’s name and that the veteran was incapable of doing the routes himself. The veteran’s brother Wayne was critical of the VA, but provided no relevant evidence. A letter from the veteran’s father in December 1991 stated that his son had not been gainfully employed; a second letter, dated in July 1992, contained no pertinent evidence. [redacted], the veteran’s daughter’s boyfriend, wrote that he had frequently been to the veteran’s home and that the veteran was either upstairs in bed or in the basement or napping. The veteran’s sister June reported that [redacted] had had a paper route and was a constant complainer about how hard she had to work. A letter dated in July 1992, from [redacted] of [redacted] Associates, Inc., a manufacturer’s representative, stated that she had known the veteran for five years and that, during that time, he had not held a job or run his ex-wife’s paper route. A letter in March 1993 from [redacted] stated that he had been an independent carrier for the [redacted] Post for over 15 years. He had known [redacted] and would occasionally see the veteran with his wife at the location where the newspapers were picked up, but did not believe that a handicapped person could run such an operation. A March 1993 letter from [redacted], the operator of an auto service, stated that it would be quite impossible for the veteran to do the work that [redacted] did and that he found it amazing that he got around at all. A letter dated in March 1993 from Allan Brisker, M.D., the veteran’s personal physician, described the veteran’s war injuries and noted that he continued to have phantom pain and aching in his right shoulder and arm. He had a rather marked muscle and tissue loss in the right lower leg causing him to have weakness and inability to stand. Since the injury in service, he had also developed rather marked changes in his cervical and lumbosacral spine. He had spondylosis in the cervical spine with marked degenerative arthritis and similar problems in his lower back, causing chronic pain in that area. He continued to have abdominal pain related to his muscle injury. “When you add up all these disabilities, I feel that he should still be maintained on the present level of 90 percent to 100 percent disability.” As far as his employability, Dr. Brisker said that he did not see how this man could be employed. Outpatient treatment records, dating from March 1991 to January 1993, reveal treatment for disorders unrelated to his service-connected disabilities. Specifically, the veteran was treated for left elbow pain, especially after strenuous exercise, a swelling under his right eye, back pain and runny nose, problems breathing, gastritis, an upper respiratory infection and mild otitis, sore throat, and abdominal tightness with distention. A VA disability examination relative to muscles, amputation stumps, and skin in May 1993 reported that the right arm had been amputated. There were approximately two inches of the shaft of the humerus left, which was somewhat anti-flexed. The veteran stated that he had a prosthesis, but could not use it. The examiner commented that he believed that the stump was so short that it would be difficult to use a prosthesis. The veteran stated that his back bothered him considerably and that it had been injured at the time of the explosion. Physical examination noted tenderness over the lumbar spine area, but no deformity. Forward flexion was to 90 degrees, backward to 10 degrees, lateral bending to 30 degrees in each direction and rotation to 30 with the complaint of pain. On examination of the right lower extremity was noted that there had been a severe wound of the inner aspect of the right calf, with loss of approximately 50 percent of the muscle. The area had been covered by a skin graft which was adherent to the underlying remaining muscle. Examination of the amputation stump showed no breakdown. Abdominal pain was considered to be due to adhesions. This examiner provided no opinion as to whether the veteran was employable. A VA general medical examination in May 1993 noted an amputation of the right upper extremity. The veteran was left-handed. He complained of phantom feelings in his right arm still. He continued to have discomfort in the right lower extremity, which was the site of a severe injury. He had various somatic complaints, such as abdominal pains, some chest pains, some pain in the left elbow due to an injury subsequent to service. He also had back pain. He stated that his major problem was that he had been receiving compensation for unemployability and that he felt it was unjust to be deprived of this. He had no complaint about the level of his disability. The veteran complained of considerable dryness of his skin and generalized itching. Dryness was found on examination. There was a thickening of the skin of the palm, although the veteran denied doing any work at all. The abdomen showed several rounded scars, particularly one in the right upper quadrant, which was evidently the site of the shell fragment that entered the liver. There was also a lower abdominal surgical scar which was somewhat tender. It was well healed. Some metallic sutures were palpable under the scar. No other abnormalities were noted on this examination. Reports of x-rays showed spondylolysis of L5 and narrowing of disc space at L4-L5 consistent with disc degenerative changes. A VA psychological report noted evidence of severe depressive symptomatology along with some evidence of post-traumatic stress disorder. Based upon chronic depressive features, the psychologist believed that the veteran would not be able to function in a competitive work environment, although he might be able to function in a very isolated type of job, with few, if any interpersonal interactions. In particular, it would be anticipated that he would have much difficulty working in any type of subservient situation where he had to take orders. The examiner opined that the veteran’s current emotional status was directly related to his service in the military. A VA neurologic and psychiatric examination was performed in May 1993. On physical examination, the veteran was generally a well-developed man with an amputation of the right upper extremity about three inches below the axilla. There was also a loss of considerable mass in the proximal medial calf on the right with a dense tender scar at the base of the defect. The veteran was able to walk with a rather graceless gait. He was able to stand on either foot, Romberg’s position was held steadily with eyes open and shut, and there was no drift to the outstretched left upper extremity. There was a decrease of temperature sense and touch in the left upper trunk and of the right lower extremity. Strength in the intact musculature was competent. Deep tendon reflexes were active and symmetrical. Abdominal responses were present. There was a longitudinal midline abdominal scar relating to repair of a laceration at the time of the injury. Cranial nerve functions were well preserved. Funduscopic examination revealed normal anatomy. Coordination was good in the intact limbs. Speech was articulate, fluent, and coherent. Diagnoses were (1) post-traumatic stress disorder, following an episode of severe bodily injury and previous episodes of stressful situations; (2) amputation, traumatic of the right upper extremity; (3) possibility of lumbar and cervical strain without clear, sensory deficit in any modality; and (4) headaches, probably tension headaches, with post-traumatic features. The examiner noted that the veteran had experienced increasing mental strain since his compensation was reduced and that there was an element of reactive depression in his present mental situation. The examiner opined that the veteran was essentially permanently and totally disabled. If he could be stabilized and helped with the depressive aspects, he might be able to work in a situation in which he could be isolated and not required to be involved in much intense physical activity. At the present time, he felt, the veteran was not capable of gainful employment. Analysis Relative to the issue of whether the veteran fraudulently managed newspaper distribution and direct marketing businesses while collecting VA benefits for total disability based on individual unemployability, the Board concurs with the RO in its determination that the veteran during that time was self-employed. Court documents clearly show that the veteran, for whatever reason, continuously claimed that both he and [redacted] were independent contractors and that they worked the routes together. It is also clear that the veteran could and did drive motor vehicles. He had title to four vehicles and a boat, and stated to the VA that he had done at least part of the driving to Cleveland to defend his appeal. He reportedly was injured in an automobile accident for which he had collected disability payments. Moreover, in transferring contracts or obtaining new contracts with [redacted] in the name of his fiancee [redacted] in October 1990, the veteran, at the very least, agreed to maintain family involvement in direct marketing. The Board also notes that the veteran was intellectually capable of managing the paperwork involved in running a small business. He had taken business management courses at a university. His ability to compile evidence in his defense of his claim shows logical thinking and considerable organizational skill. Therefore, the Board finds from an examination of the evidence that, except possibly for his incapacitation following an automobile accident, the veteran did, in fact, participate in operating several businesses. The issue at present is whether the veteran is currently totally disabled due to service-connected disabilities. With respect to a total disability rating based on individual unemployability, compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. Multiple disabilities resulting from a common etiology or a single accident are considered as one disability. Where the percentages outlined above are met, and the veteran is determined to be unemployable due to service-connected disabilities, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. See 38 C.F.R. § 4.16(a) (1994). The Board notes that the veteran clearly meets the schedular requirements required by this regulation. It finds, however, that he is not unemployable due solely to service-connected disabilities. Evidence supporting the disallowance of this claim includes the outpatient treatment reports, which failed to show any treatment for any of the veteran’s service-connected injuries. The VA examination relative to muscles provided no opinion as to whether the examiner considered the veteran employable. A report of the general medical examination noted that the veteran had no complaint about the level of his disability, but believed that he had been unjustly deprived of a total rating. Significantly, examination showed a thickening of the skin of his left palm, suggesting to the examiner that the veteran had recently engaged in some sort of manual labor. Although psychological and psychiatric examiners found that the veteran would “probably” not be able to function in a competitive work environment, they reported that the veteran had been depressed and had experienced increasing mental strain since his compensation had been reduced. Such reactive depression bears no direct relationship to the degree of impairment caused by the veteran’s service-connected disabilities. Medical evidence in support of the veteran’s claim consists of Dr. Brisker’s letter describing the veteran’s amputation, the injury to his right lower leg, marked changes in his cervical and lumbosacral spine, and abdominal pain related to muscle injury, all of which, he felt, contributed to the veteran’s unemployability. The Board notes, however, that the veteran has not been service-connected for any spinal disorder. Thus, his condition, as noted by Dr. Brisker, is not solely due to service-connected injuries. Moreover, although the veteran has marshaled an impressive number of lay witnesses as to his inability to work, the Board does not find this evidence competent or convincing. Many of these witnesses retracted or qualified the statements that they had made earlier to the field examiner. In any event, when the question requires special experience or special knowledge, such as a medical diagnosis, a lay person is not capable of providing competent evidence. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Board thus finds that the veteran is able to secure and follow a substantially gainful occupation. See Cathell v. Brown, No. 93-1225, slip op. at 8 (U.S. Vet. App. Feb. 13, 1996). Accordingly, the Board finds that there is no basis upon which it can restore a total disability evaluation. Although the Board has also considered the applicability of the reasonable doubt doctrine, inasmuch as there is no approximate balance of positive and negative evidence with respect to any issue, that doctrine is not for application in this case. See 38 U.S.C.A. § 5107(b). ORDER Restoration of a total rating based on individual unemployability due to service-connected disability is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -