BVA9503738 DOCKET NO. 91-23 866 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a January 1990 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied entitlement to a permanent and total disability evaluation for pension purposes. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that he is permanently and totally disabled and unable to work in the construction trade because his back pain and arthritis had made it impossible to find suitable work. He alleges that not only does he have a slipped disc in his back, but that the medication he takes makes him very drowsy, which, along with seizures, prevents him from handling machinery or other types of equipment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 veteran's claim for a permanent and total disability evaluation for pension purposes. FINDINGS OF FACT 1. The veteran was born in October 1942. He completed one year of high school and last worked in 1985 as a construction worker and laborer for a soup company. 2. The veteran has not cooperated in obtaining evidence essential to the development of his claim. 3. The veteran's disabilities consist of chronic obstructive pulmonary disease, hemorrhoids, lumbar radiculopathy, and probable seizure disorder, Jacksonian v. generalized, all evaluated at 10 percent, and recurrent dislocation of the left shoulder, residuals of an abrasion of the left wrist, history of left Bell's palsy, alcoholic liver disease, anemia of unknown etiology, and small bilateral inguinal hernias, easily reducible, rated as 0 percent; the combined evaluation is 30 percent. The veterans also has significant disability as the result of the veteran's alcoholism. 4. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to follow a substantially gainful occupation. 5. The veteran's disabilities do not permanently preclude him from engaging in substantially gainful employment consistent with his age, education and occupational history. CONCLUSION OF LAW The veteran is not totally disabled or unemployable due to permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.342, Part 4 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION By rating dated in September 1988, the RO denied a permanent and total disability evaluation for pension purposes on the basis that the veteran's disabilities were not so severe as to permanently preclude him from engaging in a substantially gainful occupation. Substantially the same decision was reached in decisions in January, June, and December 1990. In November 1991 and February 1993, this case came before the Board which remanded it for further development. Although in August 1990 the veteran requested a hearing, he did not appear for a scheduled hearing in April 1991. He also failed to report for medical examinations scheduled in December 1991 and in May 1993. Additionally, he failed to keep regularly scheduled outpatient clinic appointments since February 1992. Because proceedings before the Board are ex parte and non- adversarial in nature, the VA is required by statute to assist the veteran in developing his claim. See 38 § U.S.C.A. 5107 (West 1991). The VA has attempted to fulfill its duty by scheduling a hearing and medical appointments and by requesting that the veteran supplement evidence in the claims file. The veteran, however, has not responded to any of the VA communications. The RO sent letters to the veteran's address of record in Omaha, Nebraska. When no response was forthcoming, the RO sent a letter to another address in Omaha. This letter was returned to the sender with the notation that no forwarding address had been left with the Post Office. The duty to assist is not always a one-way street, and a veteran has the responsibility of providing information that is essential in obtaining evidence which may help to support his claim. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Board finds that, even though this claim has not been fully developed, the VA has fulfilled its statutory duty to assist the veteran and that no further efforts by VA are warranted in connection wit this appeal. The instant case may be distinguished from Hyson v. Brown, 5 Vet.App. 262 (1993), where under the peculiar facts of that case, a reexamination of the file was required to determine whether another address might be available. In reviewing the evidence of record, the Board is unable to find that the veteran's medical problems, apart from his persistent alcoholism, are sufficient to preclude him from working. A disabling condition which is the result of a veteran's own willful misconduct may not be considered as a disability in evaluations for pension purposes. See 38 C.F.R. § 3.342 (1994). The veteran was last hospitalized in July and August 1990 by VA for treatment of chronic obstructive pulmonary disease and a pulmonary abscess, determined not to be malignant. He had previously been hospitalized by VA in July 1989 for internal hemorrhoids and was considered to be able to return to his prehospital level of activity upon discharge. Through remand requests, the Board and the RO have unsuccessfully attempted to afford the veteran current examinations and obtain follow-up medical records. Based on the available evidence, the assigned disability rating are consistent with the reported levels of disability and would not preclude the veteran from working. It is unclear why the veteran has not worked since 1985, but permanent disabilities not a result of misconduct do not account for this situation. The Social Security Administration recently confirmed that an Administrative Law Judge in 1990 affirmed the denial of the veteran's claim for Social Security Disability benefits. Given the foregoing, the preponderance of the evidence is against the veteran's claim for a permanent and total disability evaluation for pension purposes. The record does not present an approximate balance of positive and negative evidence with respect to the merits of the veteran's claim. Accordingly, the benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107 (b) (West 1991). ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans'Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___(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), 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 (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.