Citation Nr: 18154841 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-49 020 DATE: November 30, 2018 ORDER The application to reopen the claim of service connection for a heart disability (claimed as leaking valve and murmur) is granted. REMANDED The claim of service connection for a heart disability (claimed as leaking valve and murmur) is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied entitlement to service connection for a heart disability on the grounds of a lack of nexus to service. The Veteran did not timely appeal. 2. Evidence received since February 2014 is not probative of the unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW 1. The February 2014 decision denying service connection for a heart disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018) 2. Evidence received since the February 2014 rating decision in relation to the Veteran’s claim for entitlement to service connection for a heart disability is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1967 to November 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an February 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). Regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran was denied entitlement to service connection for a heart disability (claimed as leaking valve and murmur) in a February 2014 rating decision, finding that no nexus to active service was shown. When the Veteran failed to appeal, the denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2017). Since that time, in correspondence received by VA in September 2017, the Veteran indicated that when he underwent open heart surgery for a leaky valve, his doctors told him it was caused by an in-service assault. The Veteran is competent to report what he was told. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA treatment records do not corroborate the statement, but for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Reopening of the claim is warranted. REASONS FOR REMAND Once the claim is reopened, the presumption of credibility for the evidence upon which reopening is based is removed, and all the evidence of record must be evaluated for competency, credibility, and weight in assessing the underlying claim of service connection for a heart disability on the merits. The duty to assist requires provision of an examination when there is a current disability, an injury in service, and a possible nexus between them. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the question of whether an in-service assault actually occurred remains open, the Veteran has presented sufficient evidence to raise the possibility of such, as well as a nexus. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA heart examination; the claims folder must be reviewed in conjunction with the examination. The examiner should presume, solely for purposes of the examination, that the Veteran was assaulted in service in December 1968. The examiner must opine as to whether it is at least as likely as not such assault is related to any currently diagnosed heart condition, to include a leaking valve or murmur. A full and complete rationale for all opinions expressed is required. 2. Upon completion of the above, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel