Citation Nr: 1031817	
Decision Date: 08/24/10    Archive Date: 09/01/10

DOCKET NO.  06-36 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Whether new and material evidence has been presented to reopen 
the claim of service connection for Asperger syndrome.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from 
July 1978 to June 1980.

This matter is before the Board of Veterans' Appeals (Board) on 
appeal of a rating decision in May 2006 of a Department of 
Veterans Affairs (VA) Regional Office (RO).

In May 2010, the Board remanded the claim to afford the Veteran a 
hearing.  The Veteran then failed to appear for the scheduled 
hearing in July 2010.  

The reopened claim of service connection for Asperger syndrome is 
REMANDED to the RO via the Appeals Management Center in 
Washington, DC. 


FINDINGS OF FACT

1.  In a rating decision in January 2002, the RO denied service 
connection for Asperger syndrome; after the Veteran was notified 
of the adverse decision and of his right to appeal, he did not 
perfect an appeal and the decision became final by operation of 
law based on the evidence then of record. 

2.  The evidence presented since the January 2002 rating decision 
relates to an unestablished fact necessary to substantiate the 
claim and raises a reasonable possibility of substantiating the 
claim of service connection for Asperger syndrome.







CONCLUSIONS OF LAW

1.  The rating decision in January 2002 by the RO, denying 
service connection for Asperger syndrome, became final.  38 
U.S.C.A. § 7105(c) (West 2002).

2.  The additional evidence presented since the rating decision 
by the RO in January 2002, denying the claim of service 
connection for Asperger syndrome, is new and material and the 
claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156 (2009).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties to 
notify and to assist a claimant in developing information and 
evidence necessary to substantiate a claim.

In light of the grant of the application to reopen the previously 
denied claim of service connection for Asperger syndrome, the 
only issue decided, further discussion here of compliance with 
the VCAA is not necessary.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Application to Reopen the Claim of Service Connection for 
Asperger Syndrome

In a rating decision in January 2002, the RO denied service 
connection for Asperger syndrome because Asperger syndrome was 
not incurred in or aggravated by service. 




After the RO notified the Veteran of the adverse determination 
and of his procedural and appellate rights, the Veteran filed a 
timely notice of disagreement.  The RO then furnished the Veteran 
a statement of the case, including notice that in order to 
complete the appeal a substantive appeal, VA Form 9, must be 
filed within 60 days from the date of the mailing of the 
statement of the case or within the remainder of the 1-year 
period from the date of mailing of the notification of the 
determination being appealed.  38 C.F.R. §§ 20.200 and 20.302.

The Veteran did submit a substantive appeal, but the RO 
determined that the appeal was not timely filed.  After the RO 
notified the Veteran that the appeal was untimely and that he 
could appeal the timeliness question, there was no further 
correspondence from the Veteran on the timeliness of the 
substantive appeal.  As the appeal was not perfected, by 
operation of law, the decision by RO became final based on the 
evidence then of record.  38 U.S.C.A. § 7105(c); 38 C.F.R. 
§ 3.104(a). 

In February 2006, the Veteran filed the current application to 
reopen the claim. 

On the application to reopen the claim of service connection for 
Asperger syndrome, although a prior unappealed rating decision of 
the RO is final, it may nevertheless be reopened if new and 
material evidence is presented. 38 U.S.C.A. § 5108.

Whether a previously denied claim should be reopened is a 
jurisdictional matter that must be addressed by the Board, 
regardless of how the RO ruled on the question.   Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior 
unappealed RO denial).

As the Veteran's current application to reopen the claim was 
received after August 2001, the current regulatory definition of 
new and material evidence applies.



New evidence means existing evidence not previously submitted to 
agency decision makers.  Material evidence means existing 
evidence that, by itself or when considered with previous 
evidence of record, relates to an unestablished fact necessary to 
substantiate the claim.  New and material evidence can be neither 
cumulative nor redundant of the evidence of record at the time of 
the last prior final denial of the claim sought to be reopened, 
and must raise a reasonable possibility of substantiating the 
claim. 38 C.F.R. § 3.156(a).

In determining whether the evidence is new and material, the 
specified basis for the last final disallowance must be 
considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)

For the purpose of establishing whether new and material evidence 
has been submitted, the credibility of the evidence, although not 
its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 
510, 513 (1992).

Evidence Previously Considered

The evidence considered at the time of the January 2002 rating 
decision consisted of the following.  

The service treatment records contained no complaint, 
finding, history, treatment, or diagnosis of Asperger 
syndrome.  In September 1978, the Veteran complained that a 
table fell on his right knee.  The Veteran was 
administratively discharged from service because of asthma. 

After service on VA examination in May 1981, the Veteran 
described seizures which began after service and the 
diagnosis was idiopathic convulsive disorder of the petite 
mal type.






On psychological assessment by VA in October 1982, there 
was mild impairment of complex tactile perceptual functions 
and moderate memory problems against a background of 
generally intact complex cognitive functions.  The 
psychodiagnostic assessment suggested a bipolar affective 
disorder, manic type.  One evaluator suggested possible 
central nervous system dysfunction as the first possible 
cause of hyperactive behavior.  On neurology evaluation, a 
CT scan and EEG were negative.  

On VA hospitalization in January 1983, the diagnoses were 
sympathomimetic intoxication, obsessive compulsive 
personality disorder, and question able petit mal seizures. 

On VA examination in May 1983, one physician questioned 
whether a diagnosis of convulsive disorder was justified.  
A second physician's diagnostic impression was narcolepsy 
rather than a seizure disorder.  

VA records show that in June 1985 the pertinent findings 
were normal speech and cerebellar functioning.  In July 
1985, EEG was normal but hypersomnolant.  In April 1987 on 
neuropsychological evaluation, there was no indication of 
neuropsychological impairment clearly attributable to brain 
damage.  And his problems with calculations were thought to 
reflect a longstanding learning disability.  In May 1987, 
the findings suggested a central nervous system condition 
under lying a personality syndrome.  

In August 1989, a private physician stated that the Veteran 
did not have a mental disorder but rather he had cerebral 
palsy from birth and he was savant autistic, and that the 
Veteran was a special gifted person with a developmental 
learning disability.

VA records show that in September 1989 the Veteran was 
described as a peculiar person having a personality type 
that goes along together with his artistic creativity and 
therefore having some difficulties following routine 
assignments and relating with people.   

In September 1989 on evaluation by a private physician, 
history provided by the Veteran's mother revealed that the 
Veteran had developed late and was accident prone as a 
youngster and he had episodes of staring spells with 
automatisms.  

VA and private medical records dating from June 1999 to 
December 2001 show a diagnosis of Asperger syndrome.  

Additional Evidence and Analysis

In January 2002, the RO denied service connection for Asperger 
syndrome on the grounds that there was no evidence of Asperger 
syndrome in service or aggravation of Asperger syndrome by 
service. 

In order that the additional evidence may be considered new and 
material, the evidence must relate to the basis for the prior 
denial of the claim, that is, in part, whether or not Asperger 
syndrome was aggravated by service.  

The additional evidence includes an evaluation of Asperger 
syndrome by a private psychologist in June 2006.  The private 
psychologist expressed the opinion that the Veteran showed 
features of an autism spectrum disorder with a history of 
atypical behavior prior to age two.  The diagnostic impression 
was pervasive developmental disorder. 

Also, the evidence includes an "Asperger Syndrome Fact Sheet" 
promulgated by the National Institute of Neurological Disorders 
and Strokes.  The Fact Sheet shows that Asperger syndrome is a 
developmental disorder in the spectrum of autism disorders, which 
include pervasive developmental disorder.  The characteristics of 
Asperger syndrome clumsy and uncoordinated motor movements. 

In a statement in February 2007, the Veteran stated that in 
service due to clumsiness and loss of motor control he injured 
himself. 






The evaluation of Asperger syndrome by a private psychologist, 
the "Asperger Syndrome Fact Sheet" promulgated by the National 
Institute of Neurological Disorders and Strokes, and the 
Veteran's statement establish a generic relationship with a 
degree of certainty such that, under the facts of this case, 
there is at least plausible causality of aggravation of Asperger 
syndrome by service, rather than on an unsubstantiated lay 
medical opinion expressed by the Veteran.  Wallin v. West, 11 
Vet. App. 509, 513 (1998).

As the additional evidence raises a reasonable possibility of 
substantiating the claim, the evidence is therefore new and 
material under 38 C.F.R. § 3.156. 


ORDER

As new and material evidence has been presented, the claim of 
service connection by aggravation for Asperger syndrome is 
reopened, and to this extent only the appeal is granted. 


REMAND

On the reopened claim of service connection by aggravation for 
Asperger syndrome as the evidence of record is insufficient to 
decide the claim, further evidentiary development is needed under 
the duty to assist.  

Accordingly, the case is REMANDED for the following action. 

1.  Request the records of the Social 
Security Administration.




2.  Afford the Veteran a VA examination by 
a VA neurologist to determine whether 
Asperger syndrome was aggravated by 
service considering accepted medical 
principles and a review of the medical 
literature, pertaining to the history, 
manifestations, clinical course, and 
character of Asperger syndrome.

In formulating the opinion, the VA 
neurologist is asked to consider that the 
term "aggravation" means a permanent 
increase in severity, that is, an 
irreversible worsening of Asperger 
syndrome beyond the natural clinical 
course and character of the condition as 
contrasted to a temporary worsening of 
symptoms.

Also, "aggravation" is not established 
if there is no increase in disability 
during service or the increase was due to 
the natural progress or clinical course of 
Asperger syndrome. 

The VA neurologist is asked to comment on 
the clinical significance of the event in 
service in September 1978 when a table 
fell on the Veteran's right knee as a 
possible sign of Asperger syndrome, that 
is, lack of motor development.  [Note.  
The Veteran did complete basic training 
and nearly two years of service without 
additional documented physical problems, 
although he was administratively separated 
from service for asthma]. 

The claims file must be made available to 
the examiner.






3. After the above development is 
completed, adjudicate the claim of service 
connection by aggravation for Asperger 
syndrome.  If the benefit sought remains 
denied, provided the Veteran and his 
representative a supplemental statement of 
the case and return the case to the Board


The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).



______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs