Citation Nr: 0308319 Decision Date: 05/01/03 Archive Date: 05/15/03 DOCKET NO. 98-06 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than January 22, 2001 for the assignment of a 100 percent disability rating for bronchiectasis. 2. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran had verified active duty service from October 1944 until August 1946 and from August 1948 until June 1949. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a May 1997 and later rating decisions of the Winston-Salem, North Carolina Regional Office (RO) which granted service connection for atrial fibrillation, and denied an increased rating for bronchiectasis, a total rating based on individual unemployability, and service connection for retinal detachment of the left eye as secondary to bronchiectasis. By a decision entered in July 2000, the Board denied a rating in excess of 30 percent for atrial fibrillation, and remanded the case as to the issues of service connection for postoperative residuals of retinal detachment, an increased rating for bronchiectasis, and a total disability based on individual unemployability. By rating action dated in December 2002, service connection was granted for retinal detachment of the left eye associated with bronchiectasis, and the service-connected bronchiectasis was increased to 100 percent, effective from January 22, 2001. The record reflects that in correspondence to the RO dated in January 2003, the veteran stated that his appeal was satisfied with respect to the issues of service connection for retinal detachment, and an increased rating for bronchiectasis. These issues are therefore withdrawn from appellate consideration. It is shown, however, that the issue of a total rating for unemployability based on service- connected disability was not clearly withdrawn in the appellant's January 2003 statement. The Board thus retains this issue for further appellate consideration. The appellant was afforded a personal hearing at the RO in January 1999 and before a Member of the Board sitting at Winston-Salem North Carolina in December 1999; the transcripts of which are of record. FINDINGS OF FACT 1. All relevant evidence necessary for disposition of the veteran's appeal has been obtained by the RO. 2. Prior to January 22, 2001, the service-connected bronchiectasis was manifested by symptoms which included progressive respiratory symptoms including sputum production, frequent colds, coughing attacks, shortness of breath and wheezing, and necessity for antibiotic and inhalation therapy; there is no showing that symptomatology attributable to the respiratory disorder was consistent with incapacitating episodes of infection of at least six weeks total duration per year. 3. Pulmonary functioning testing prior to January 22, 2001 did not reveal FEV- 1 of less than 40-percent predicted value, or; FEV-1/FVC less than 40 percent, or DLCO (SB) less than 40- percent predicted, or a maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or right ventricular hypertrophy, o; pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or necessity for outpatient oxygen therapy. 3. Beginning July 23, 1997, service connection was in effect for bronchiectasis, atrial fibrillation, and retinal detachment of the left eye, each rated 30 percent disabling, with a combined disability evaluation of 70 percent; atrial fibrillation and retinal detachment of the left eye resulted from a common etiology and may be considered a single disability rated as 50 percent disabling. 4. The appellant completed three years of high school, has employment experience in construction as a homebuilder, and reports that he last worked on a regular basis in April 1994. 5. The appellant's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational background as of July 23, 1997. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 22, 2001 for the assignment of a 100 percent disability rating for bronchiectasis have not been met. 38 U.S.C.A. §§ 5110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.400 (2002). 2. The criteria for a total disability rating based on unemployability are met, effective from July 23, 1997. 38 U.S.C.A. §§ 5110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.155, 3.160, 3. 340, 3.341, 4.16, 4.25, 4.19, 3.400 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to an effective date earlier than January 22, 2001 for the assignment of a 100 percent disability rating for bronchiectasis, which should date back to a claim he filed for a total rating based on unemployability in January 1997. He also maintains that he has been totally disabled and unable to secure or engage in any gainful employment due to service-connected disability since the claim filed in January 1997. Preliminary Matters: Duty to Assist Initially, the Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The Act and implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a) (West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001 (codified as amended at 38 C.F.R. § 3.102). They also include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.159(b) (2002)). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.159(c) (2002)). For the reasons explained in more detail below, the Board finds that the passage of the VCAA and the implementing regulations do not prevent the Board from rendering a decision on these issues. Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims has been accomplished. As evidenced by the September 1997 and September 1998 statements of the case and the May 1999, August 1999 and December 2002 supplemental statements of the case, the appellant has been furnished the pertinent laws and regulations governing the claims and the reasons for the denials. He has been given notice of the information and evidence needed to substantiate the claims, and has been afforded opportunities to submit information and evidence. The Board finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate the claims currently under consideration, to include scheduling personal hearings in January 1999 and December 1999. Further development of the claims was undertaken by the Board in July 2000. The Board also finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the VA, has been met. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). In a letters to the appellant dated in June 2001 and February 2002, the RO informed the appellant of what the evidence had to show to establish entitlement to the benefits he sought, what medical and other evidence the RO needed from him, what information or evidence the appellant could provide in support of the claim, what evidence VA would try to obtain for him, and what evidence the RO had received in support of the claim. Therefore, the duty to notify has been met. Under these circumstances, the Board finds that adjudication of the claim on appeal poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Pertinent Law and Regulations The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2) (West 2002), and 38 C.F.R. § 3.400(o) (2002). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A.§ 5110(b)(2) (West 1991). See 38 C.F.R. § 3.400(o)(2). The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155 (2002). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides as follows: (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . may be considered an informal claim. Such informal claim must identify the benefit sought. Id. Further, under 38 C.F.R. § 3.157(b)(1) (2002), an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. Id. The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA. 38 C.F.R. § 3.1(r) (2002). In order to evaluate the veteran's claim under the objective standard, the Board has evaluated the veteran's service- connected disabilities under the VA's Schedule for Rating Disabilities (VA Rating Schedule). 38 C.F.R. Part 4 (2002). Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a) (2002). VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such disease and injuries as their residual conditions in civil occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2002). The veteran's service-connected bronchiectasis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6601 which provides that a 30 percent evaluation requires incapacitating episodes of infection of two to four weeks total duration per year, or; daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting four to six weeks) antibiotic usage more than twice a year. A 60 percent evaluation incapacitating episodes of infection of four to six weeks total duration per year, or; near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously. A 100 percent evaluation requires incapacitating episodes of infection of at least six weeks total duration per year. NOTE: An incapacitating episode is one which requires bedrest and treatment by a physician. Bronchiectasis may also be rated according to pulmonary impairment as for chronic bronchitis (DC 6600). Under the pertinent version of Diagnostic Code 6600 for chronic bronchitis, a 30 percent rating requires FEV-1 of 56- to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65- percent predicted. A 60 percent rating requires FEV-1 of 40- to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55- percent predicted, or; a maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating requires FEV- 1 less than 40-percent predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40- percent predicted, or; a maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The governing regulations provide that a total disability rating based on individual unemployability due to service- connected disability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2002). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2002). In other words, "unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating." 38 C.F.R. § 4.19. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2002). It is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2002). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra- schedular rating is for consideration where the veteran is unemployable due the to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, the Board must evaluate whether there are circumstances in the veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is, in itself, a recognition that the impairment makes it difficult to obtain and keep employment. Therefore, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, supra. In Hatlestad v. Derwinski, 3 Vet. App. 213 (1992) and Hatlestad v. Brown, 5 Vet. App. 529 (1995), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need for discussion as to whether the standard needed in the controlling regulations was an "objective" one based on average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent decision, the General Counsel concluded that the controlling VA regulations generally provide that a veteran who, in light of his individual circumstances, but without regard to age, is unable to secure or follow a substantial gainful occupation as a result of a service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with an inability to secure and follow a substantial gainful occupation. VA O.G.C. Prec. Op. No. 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The Board is bound in its decision by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. § 7104(c) (West 1991). Factual Background Service connection for bronchiectasis was granted by rating action dated in December 1955 and a 30 percent disability evaluation was established. A claim for an increased rating for the service-connected respiratory disorder was received on January 31, 1997. The veteran stated that medical evidence submitted at that time showed that bronchiectasis caused him to be unemployable and individual unemployability was requested. Private clinical records dated in December 1996 reflected that the appellant had a history of bronchiectasis, which would sometimes lead to a persistent dry cough in winter, or if exposed to a lot of damp, cold conditions. It was noted that he had chronic respiratory problems. However, such symptoms were not delineated. Private clinic notes dating from 1993 were received reflecting that the veteran was primarily treated for disability other than respiratory disability, including atrial fibrillation and amaurosis fugax of the right eye. In November 1996, it was recorded that he had seasonal coughing, and frequent colds, with cough associated with a tight feeling in his chest at times. An application for Increased Compensation Based on Unemployability was received in February 1997 in which the veteran indicated that he completed three years of high school. He stated that he had been self-employed in construction and as homebuilder, and most recently had worked as a stock clerk one day a week for a month in 1996. He indicated that he last worked full-time in April 1994. A statement dated in February 1997 was received from Ritz Camera Center in which it was reported that the appellant had been hired in August 1996 as a stock clerk for one day a week. It was noted that due to respiratory bronchiectasis, he was not able to perform the job or any other type of work for the company, and was terminated in December 1996. The veteran underwent a VA examination in March 1997 where he was evaluated for cardiac disability diagnosed as atrial fibrillation which was felt to very likely be secondary to chronic obstructive pulmonary disease. Pulmonary function studies were obtained on the same date which were interpreted as showing moderate obstruction, as well as low vital capacity, possibly from a concomitant restrictive defect, prior to administration of medication. By rating action dated in May 1997, service connection was granted for atrial fibrillation and a 30 percent disability evaluation was assigned from November 11, 1996. The 30 percent disability rating for bronchiectasis was continued. A statement from R. F. Sloop, Jr., M.D., dated in July 1997, indicates the veteran was treated for left eye vision loss in February 1997 diagnosed as superior temporal rhegmatogenous retinal detachment, which occurred after a severe coughing episode. It was noted that the veteran was only able to see the 20/400 letter and only a part of that one. By rating action dated in May 1997, service connection was granted for atrial fibrillation, rated 30 percent disabling from November 11, 1996. S. O. Schrader of the Employment Security Commission of North Carolina wrote in correspondence received in July 1997 that the veteran was unemployable as a result of pulmonary function loss and heart problems. A letter dated in July 1997 was received from R. C. Morgan, Jr. of Levit Builders who stated that the veteran had been superintendent on several construction sites in the past, but that in recent months, his physical capacity had been significantly reduced. It was noted the appellant could not undergo even brief periods in warm to cool, or cool to cold weather conditions without having to rest frequently. It was observed that within the year, he had had such a chronic coughing attack that it appeared he was near death, and was totally exhausted and worn out from the spell. It was added that he could not recommend the appellant in any work capacity which required physical labor, or for extended periods of time in varying climate conditions. L. D. Krabil, M.D., wrote in July 1997 that the over the past few years, the veteran had developed significant atrial fibrillation, a history of bronchiectasis with related chronic obstructive pulmonary disease, as well as retinal hemorrhage with distortion of left eye vision. It was summarized that the combination of problems caused the veteran to be incapable of performing any type of manual labor or any work that required even mild exertion on a consistent basis. A claim for service connection for retinal hemorrhage with distortion of left eye vision due to severe coughing associated with bronchiectasis was received on July 21, 1997. Letters dated between February and April 1998 were received from several of the veteran's private physicians advancing the opinion that that right eye disability was related to symptoms related to service-connected bronchiectasis. The veteran underwent a compensation examination for the VA in June 1998. His primary complaints were noted to be cough, shortness of breath, tachycardia and hypertension. The appellant stated that he had a history of coughing spells, colds, sputum production and intermittent coughs and fever. He stated that he became tired at times and had to lie down to rest. The veteran reported that he had blood in his sputum at times. He related that his symptoms had become very severe the previous year for about two months, and that he was coughing day and night. He said that most of the time he was on antibiotics and was currently taking sulfamethoxazole once a day, as well as using an Albuterol inhaler on an as needed basis. The appellant stated that he used his Ventolin inhaler more in the winter, and that this had been going on for at least one year. An X-ray of the chest was interpreted as showing increased pulmonary markings of both lungs and left basal bronchiectasis. Spirometry studies revealed FEV-1 of 76.9 percent predicted, and FEV1/FVC was 95.3 percent predicted. Following examination, it was noted that the veteran was not working anymore, that he could not walk fast, lift heavy things, became tired easily and felt weak. It was noted that an exercise test was not performed because of dyspnea. The veteran presented testimony at the RO in January 1999 and before a Member of the Board sitting at Winston-Salem, North Carolina in December 1999 attesting to a more severe degree of bronchiectasis, as well as his being unable to engage in any gainful employment as a result thereof. The veteran underwent VA examinations of the eye in June 1998 and January 2001. It was essentially opined on both occasions that the service-connected bronchiectasis might well have precipitated or aggravated a left eye retinal tear resulting in surgery, and ultimately reduced the veteran's vision to 20/200. The appellant was afforded a VA examination of the service- connected bronchiectasis on January 22, 2001. The appellant had complaints of frequent intermittent episodes of shortness of breath and wheezing spells. He said that the most severe of such had occurred in February 1999 and February 2000, and that he had been admitted for emergency treatment. Upon examination of the lungs, there were scattered rhonchi with expiratory wheezes in both fields. Pulmonary function studies were interpreted as showing an FEV-1 of 17 percent predicted. It was recorded that the veteran's effort was poor. A note from the examining facility dated in October 2001 indicated that the appellant was contacted in order to schedule him for a DLCO(SB) test, but that he stated he had just gotten out of the hospital, was very ill and housebound, and would not be able to attend any further appointments. By rating action dated in December 2002, service connection was granted for retinal detachment of the left eye secondary to bronchiectasis. A 30 percent disability evaluation was established, effective from the date of the claim received on July 23, 1997. Legal Analysis 1. Earlier effective date for 100 percent rating for bronchiectasis. The Board observes in this instance that while the veteran now asserts that he was entitled to a 100 percent disability evaluation for the service-connected bronchiectasis prior to January 22, 2001, the evidence of record does not support clinical findings consistent with a total disability rating in this regard prior to that date. A careful review of the clinical evidence during the appeal period indicates that the appellant complained of progressive respiratory symptoms over the years including sputum production, frequent colds, coughing attacks and eventually, shortness of breath and wheezing, as well as the need for antibiotic and inhalation therapy. However, there was no clinical evidence showing that such symptoms rose to the level of incapacitating episodes of infection of at least six weeks total duration per year necessary for a 100 percent disability rating in this regard under 38 C.F.R. § 4.97, Diagnostic Code 6601. Moreover, the results of pulmonary function tests during this time frame did not approximate the criteria for a total disability rating. The record reflects that it was not until the VA examination of January 22, 2001 that the criteria for a 100 percent disability were met when pulmonary function tests showed that the veteran had an FEV-1 of 17 percent predicted, which is well below the parameters for a 100 percent disability rating for bronchiectasis evaluated as chronic bronchitis under 38 C.F.R. § 4.97, Diagnostic Code 6600. The Board points out that previous clinical findings and assessment of the appellant's respiratory disorder were clearly consistent with no more than a 30 percent disability evaluation under Diagnostic Codes 6600 and 6601, which contemplate the complaints that included daily productive cough with sputum that was at times purulent or blood-tinged, and prolonged antibiotic usage more than twice a year. As such, it was not factually ascertainable that the criteria for a 100 percent disability were met prior to January 22, 2001, when evidence of pulmonary function testing results reflected an FEV-1 of 17 percent predicted. The Board thus finds that the appellant was properly rated as 30 percent disabled for his service-connected respiratory disability prior to January 22, 2001, and an earlier effective date is denied in this regard. In reaching the conclusion above, the Board has also considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Total rating based on unemployability due to service- connected disability. The record in this instance reflects that when service connection was granted for the left eye disorder, effective from July 23, 1997, the veteran had, from that date forward, three service-connected disabilities: bronchiectasis, atrial fibrillation, and retinal detachment of the left eye, each rated 30 percent disabling. Although he was shown to have a combined disability evaluation of 70 percent at that time, it was not felt that the appellant met the basic schedular requirements for a total rating based on unemployability, as set forth in 38 C.F.R. § 4.16(a) (2002) which requires that he have at least one disability rated as 60 percent disabling, or one disability rated at least 40 percent disabling, and sufficient additional disability to bring the combined rating to 70 percent or more. The Board points out, however, that 38 C.F.R. § 4.16(a)(2) stipulates that "at least one disability ratable at 40 percent of more may be satisfied by disabilities resulting from common etiology or a single accident." The Board notes in this case that atrial fibrillation and retinal detachment result from a common etiology - the service-connected bronchiectasis. Thus, for the purposes of 38 C.F.R. § 4.16(a), they may considered a single disability. The veteran is thus shown to have met the schedular requirements for a total disability rating based on unemployability due to service-connected disability as of July 23, 1997 with one disability rated at least 40 percent disabling, and sufficient additional disability to bring the combined rating to 70 percent. See 38 C.F.R. § 4.25 (2002). The question thus becomes whether the appellant was unemployable as of July 23, 1997 due solely his service-connected disabilities. After considering all the evidence of record, and for the reasons elucidated below, the Board concludes that he was. It is evident from the medical evidence and lay statements recounted above that the veteran's symptoms produced substantial industrial impairment. The comments from his employers and other lay evidence regarding his inability to maintain employment on account of pulmonary, cardiac and eye disability are persuasive. Thus after consideration of all procurable and assembled data, the Board finds that the evidence shows that the veteran's service-connected disabilities alone prevented him from maintaining substantially gainful employment, consistent with his education and prior work experience, from the date of the grant of service connection for left eye disability on July 23, 1997. The benefit of the doubt is resolved in favor of the appellant by finding that entitlement to a total rating based on individual unemployability was demonstrated from July 23, 1997. ORDER An effective date earlier than January 22, 2001 for the assignment of a 100 percent disability rating for bronchiectasis is denied. A total rating based on unemployability due to service- connected disability is granted from July 23, 1997, subject to controlling regulations governing the payment of monetary awards. _________________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.