Citation Nr: 1319351 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-37 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for fibrosing mediastinitis. 2. Whether new and material evidence has been presented to reopen claims for entitlement to service connection for a back and right thigh conditions. 3. Entitlement to service connection for a back condition (originally claimed as back pain). 4. Entitlement to service connection for a right thigh condition. 5. Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from November 2001 to November 2005. This appeal comes to the Board of Veterans' Appeals (Board) from two rating decisions dated December 2008 and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The weight of evidence fails to establish that the Veteran's currently diagnosed fibrosing mediastinitis condition either began during, or was otherwise caused by, his military service. 2. The RO denied the Veteran's claims of entitlement to service connection for a back condition and right thigh condition in an April 2007 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 3. Evidence obtained since the time of the April 2007 rating decision raises a reasonable possibility of substantiating the claims of entitlement to service connection for the Veteran's back and right thigh conditions. 4. The weight of evidence fails to establish that the Veteran has a current chronic back disability which either began during, or was otherwise caused by, his military service. 5. The weight of evidence fails to establish that the Veteran has a current chronic right thigh disability which either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. Criteria for service connection for fibrosing mediastinitis have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The April 2007 rating decision, which denied entitlement to service connection for a back and right thigh conditions, is final; new and material evidence has been submitted, and the Veteran's claims are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302 (2012). 3. Criteria for service connection for a back condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Criteria for service connection for a right thigh condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran is seeking service connection for fibrosing mediastinitis, a back condition, right thigh condition, and migraine headaches. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Fibrosing Mediastinitis The Veteran filed his claim for service connection for fibrosing mediastinitis (FM) in August 2008 (originally claimed as chest condition). In his accompanying written report the Veteran asserted he had no chest pain when he entered service, but in 2004 he had an abnormal x-ray. The Veteran reported he recently had a procedure to determine his chest condition and the doctor told him he had scarring in his chest around the aortic valve and upper lobe of his lung. Service treatment records were reviewed and do contain the September 2004 abnormal x-ray referenced by the Veteran. This scan revealed an increased opacity in the Veteran's right lower lobe; however his lungs were well aerated. Cardiomediastinal silhouette and bony and soft tissue structures were all normal. A medic read this radiology report and opined the subtle increased opacity was likely insignificant and may simply be related to the Veteran's body habitus. He explained the testing confirmed his lungs were well aerated and expanded. As such while the x-ray was abnormal, the service treatment records suggest the abnormality revealed was insignificant, providing evidence against the Veteran's contention. Service treatment records also reflect the Veteran's work during military service sometimes included exposure to potential hazards, and the Veteran was provided with a respirator for this purpose. In his August 2005 report of medical history shortly before his separation from service the Veteran reported frequent pain in his chest by his heart which made it hard to breathe. However, no diagnosis of a chronic chest condition was noted during the Veteran's military service. After separating from military service, the Veteran sought treatment from a private physician for his chest pain. In August 2008, years after service, this private physician performed a biopsy of the Veteran's left hilar mass. This physician noted the findings were most consistent with sclerosing mediastinitis. He noted cultures from some sclerosing mediastinitis-like lesions yielded histoplasm or mycobacterium. In September 2008 the Veteran returned for a follow-up. The Veteran reported a history of episodic chest pain over the past five years, occurring more frequently in the last two months. His physician opined the Veteran had fibrosing mediastinitis, likely due to his histoplasmosis, based on the positive histo serum antibody. Chest x-ray revealed abnormal soft tissue density was again noted at the left side of the mediastinum, but the Veteran had improved aeration of the left base since the previous month. The physician noted his heart was normal size. In October 2008 the Veteran established treatment with the VA. He reported a history of chronic fibrosing mediastinitis, as well as chest pain which began in 2003, during military service. In December 2008 an additional CT of the Veteran's chest was performed. This scan revealed the Veteran's condition had improved, with both the aorticopulmonary window mass and left hilar lymph node decreasing in size. The physician opined this meant the Veteran's condition was likely due to reactive lymphadenopathy, since there is a low probability that a malignancy would have regressed on its own, providing more evidence against this claim. In January 2009 the Veteran was provided with a VA examination. The examiner reviewed the Veteran's claims file and medical record, as well as personally interviewed and examined the Veteran. The examiner opined the Veteran had fibrosing mediastinitis due to histoplasmosis. This examiner opined that he could not provide an opinion whether the Veteran's chest condition was due to his military service without resort to mere speculation. The examiner explained that the Veteran could have been exposed to histoplamosis, the source of his current FM condition, at any time from breathing air in the southern United States, as well as his history of working around paint detailing cars before his military service. A conclusion that an etiology opinion is not possible without resort to speculation is a medical opinion and may be relied upon by the Board if the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, the examiner provided a basis for his inability to reach an etiology conclusion, that the Veteran could have encountered the histoplasmosis which caused his current condition at any time from breathing the air. Essentially, the examiner is asserting that he could not find sufficient reasons to connect the Veteran's current disability to his military service from November 2001 to November 2005, as opposed to any other time. The examiner's opinion provided a rationale for his inability to find service connection, and was based on a complete and accurate review of the record, as well as personally interviewing and examining the Veteran. As such, the Board finds this medical examination is adequate and may be relied upon by the Board that a further medical opinion is not required. In April 2009 the Veteran returned for a follow-up of his FM condition. His private physician noted he was doing well and planned to wean the Veteran off steroid medication. In his October 2009 written statement the Veteran asserted while working around cars and paint before and after service he wore a respirator. In his March 2011 written statement the Veteran asserted he worked around several hazardous materials, including fecal matter from birds, during military service without use of a respirator. However, service treatment records also reflect the Veteran's work during military service sometimes included exposure to potential hazards, and the Veteran was provided with a respirator for this purpose. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as feeling pain in his chest. Layno v. Brown, 6 Vet. App. 465 (1994). However, service connection cannot be granted for symptoms of a disability alone, such as pain. Instead, a disability is required. The Board finds that the Veteran lacks the medical training and experience required to determine the etiology of his chest pain, or whether this condition began during or was otherwise aggravated by his military service. As such, the Veteran's lay statements regarding his pain have been considered, but the Board will look to the weight of the evidence of record to determine if the Veteran has a current disability that began during, or was otherwise caused by, his military service. The fact that this problem was no found until several years after service (while not fatal to the claim) provides some limited evidence against this claim. Based on the foregoing, overall, the weight of the evidence does not establish the Veteran's current chest condition of fibrosing mediastinitis either began during or was otherwise caused by his time in military service. First, although there was one abnormal chest x-ray in service, this x-ray was determined to be insignificant during his service. There is no diagnosis of a chronic chest condition during his military service or the problem at issue. This is not simply a case where there is no evidence: in service the Veteran had a problem which was checked and this disability was not indicated, providing some evidence against this claim. There is no indication that this problem was somehow "missed". Second, no medical professional has found that the Veteran's current fibrosing mediastinitis is related to his time in service. His private physician did not provide an opinion regarding this question, and the VA examiner provided that he was unable to determine if the Veteran as likely as not developed this condition during military service. As such, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107. As such, the Veteran's claim for service connection for fibrosing mediastinitis is denied. It simply cannot be said, based on the best evidence, including the Veteran's statements, that it is at least as likely as not (50% or great chance) that this disability began during service from November 2001 to November 2005. New and Material Evidence The Veteran filed his initial claim for back pain and right thigh numbness in November 2006. These conditions were denied in an April 2007 rating decision. The Veteran did not file new evidence or a notice of disagreement within one year, so the determination became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302. However, previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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 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 preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). At the time of the April 2007 rating decision the evidence of record included the Veteran's application for benefits and service treatment records. The Veteran failed to report to his scheduled VA examination. His claims were then denied for, among other reasons, failure to establish a current disability. In August 2008 the Veteran sought to reopen his previously denied claims for service connection for back and right thigh conditions. Considerable additional evidence has been presented in conjunction with the claim to reopen. Because the Board concludes that this new evidence is sufficient to reopen the Veteran's claim, only a limited amount of the new evidence will be discussed in this portion of the decision. Since this prior determination additional records have been submitted, including private and VA treatment records and the reports from two VA examinations. This evidences suggests the Veteran currently has low back pain and right thigh numbness. Therefore this new evidence addresses the previously unestablished fact, the presence of current disabilities. As such, the Board finds new and material evidence has been submitted and the claims are reopened. The Board acknowledges that when the Board reopens a claim, the new and material evidence must first be considered by the RO unless there is a waiver from the Veteran or no prejudice would result from adjudication of this claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Board finds the RO has already considered the case on its merits in the December 2008 and February 2009 rating decisions, as well as the August 2009, March 2011, and March 2012 statements of the case. Therefore, the Board is satisfied that no prejudice will result to the Veteran by the adjudication of these claims at this time. Back Condition The Veteran filed the current claim for service connection for a back condition in August 2008. In his accompanying written statement the Veteran reported he had experienced pain in his back since July of 2005, when he had to bear nearly 700 pounds of weight after his partner dropped his half of the load. The Veteran reported he was told by medics in service that he may have torn a muscle in his back since the pain never went away. Service treatment records reflect the Veteran sought treatment for back pain during military service. On his June 2003 post-deployment health assessment the Veteran indicated he experienced back pain. In July 2005 he reported acute pain in his low back. He described that three months earlier his partner dropped his share of the 700 pound bomb weight causing the Veteran to bear all the weight. He reported pain since this incident. The Veteran described right lower back pain on the left and midline, with no radiating pain. The Veteran also described muscle spasm on the right and left side, as well as stiffness in the entire lower region. The medic assessed non-radicular low back pain and provided the Veteran with Motrin, warm compress, and an exercise program for his low back. He opined the Veteran had lumbar back strain. The record does not establish the Veteran sought additional medical treatment during service for a back condition. In his August 2005 report of medical history shortly before separation the Veteran reported persistent back pain mainly in his lower back but with some pain in his shoulder and neck. As such, the Board finds the service treatment records establish the Veteran experienced an acute episode of back pain during military service, but do not include a diagnosis of a chronic back condition. After separating from military service the Veteran established treatment at a VA facility in October 2008 and reported experiencing pain in his back since 2004. However an x-ray was taken of the Veteran's back which revealed his lumbosacral spine was in normal condition, with no abnormalities noted. No chronic back condition or disability was diagnosed. The record does not establish the Veteran received any additional medical treatment for his back condition during the period on appeal. In his March 2009 written statement the Veteran again asserted he had constant back pain since discharge, as well as constant muscle spasms. In an October 2009 written statement the Veteran reported additional details about the in-service incidence in which he injured his back. The Veteran asserted that during his military service he was given Flexoril to treat his pain. The Veteran reported while on this medication his condition improved. However after separating from military service he did not have medical insurance and could not continue to take the prescribed medication. Instead the Veteran has taken Bayer and Ibuprofen to treat his ongoing pain. As discussed above, as a lay person the Veteran is competent to describe his back pain. However, service connection cannot be granted for symptoms alone, such as pain, but rather must be based on a diagnosis of a chronic "disability". In February 2012 the Veteran was provided with a VA examination. The examiner noted the Veteran's history of diagnosis of mechanical lower back pain in July 2005. The examiner recapped the Veteran's medical history consistent with the record, noting that after the initial incident in service he recovered fairly quickly, but two months later he slipped and jarred his back again. Since that time the Veteran has experienced random events of low back pain, which are not triggered by any specific movements. The Veteran reported that every three to four months he experienced incapacitating episodes of back pain that took a week or two to get over. The examiner performed range of motion testing which revealed some limited motion in extension, left lateral flexion, and left lateral rotation. Muscle strength was normal. Sensation was normal except for decreased sensation in the left foot. Straight leg raising test was negative bilaterally. Imaging studies were reviewed and revealed no evidence of arthritis or vertebral fracture. The examiner opined imagining studies revealed normal lumbosacral spine. Based on the foregoing the examiner opined the Veteran's current back condition was less likely than not permanently aggravated by in-service events that caused mechanical lumbar back pain. The Veteran explained that the Veteran's service treatment records indicate his back condition was resolving before separation and no further complaints of low back pain are noted after he separated from military service in November 2005. The examiner also noted that x-ray studies were normal. The examiner opined that despite the Veteran's lay complains of recurrent mechanical symptoms, there is no objective evidence of a chronic or structural condition that would support a permanent debilitating condition. The Board finds this examiner was familiar with the Veteran's medical history both during and after military service, he personally interviewed the Veteran and considered his lay statements, and personally examined and conducted the required testing on the Veteran. Based on the foregoing the examiner opined there was no objective evidence of a chronic back condition that began during, or was otherwise caused or aggravated by his military service. As such, the Board finds this examination provides highly probative evidence against the Veteran's claim. Therefore, the Board finds the weight of the evidence of record does not establish the Veteran has a current back condition which either began during, or was otherwise caused by, his military service. The evidence does establish the Veteran experienced an episode of acute back pain during military service, but subsequent medical evidence establishes his back was in normal condition. The Board has considered the Veteran's lay statements regarding ongoing back pain, but finds his lay complaints of symptoms of a condition are not supported by medical evidence of a diagnosis of a chronic back condition on which service connection could be based. As such, the Veteran's claim for service connection for a back condition is denied. Right Thigh Condition The Veteran is also seeking service connection for a right thigh condition, describing tingling and numbness in his right lower extremity. Service treatment records have been reviewed and do not establish the Veteran sought medical treatment for tingling or numbness in his right leg or thigh. In fact, in July 2005 when the Veteran complained of back pain the medic specifically noted no radiculopathy or parasthesia accompanied his back pain. In his August 2005 report of medical history the Veteran reported experiencing a "closed off" nerve in his right thigh for four years, but that he was told he just damaged it. However the Veteran reported his condition continued to hurt. He described if he stood in one place for too long his right thigh went numb. The Board notes the Veteran's assertions of a pinched or otherwise injured nerve in his right thigh are not supported by the medical evidence of record. However, the Veteran's lay statements regarding symptoms of numbness and tingling during service have been noted and considered. The Veteran filed his current claim of service connection for right thigh condition in August 2008. In his accompanying written statement the Veteran asserted that he injured his right thigh during basic training in 2001. He reported since that time he had experienced intermittent numbness and tingling in his side to the top of his thigh. He reported needing to constantly move his right thigh when this condition occurred to avoid severe tingling. In October 2008 the Veteran established treatment with the VA facility. He reported a history of numbness and feeling of pins in his right thigh since boot camp. The Veteran attributed his condition to a pinched nerve, however as discussed above, this diagnosis is not supported by medical evidence of record. He reported being told his symptoms would abate with time, but they have continued to persist. In January 2009 the Veteran returned to his private physician and reported his right-sided leg pain had gotten worse over the last several weeks. The Veteran reported first developing shooting pain in his right leg while doing sit-ups in boot camp in 2001 and stated he thought his current pain was due to a nerve impingement. The physician opined the Veteran had radiculopathy and conducted a nerve condition study. The physician reported that the Veteran's lay statements suggest possible radicular involvement; however testing revealed no neurologic compromise of the peripheral nervous system. Electrodiagnostic studies of the right lower extremity and corresponding lumbosacral paraspinal musculature were normal, providing probative evidence against the Veteran's claim. That same month the Veteran was provided with a VA examination. The examiner noted the Veteran's history and complaints consistent with the record, including the Veteran's assertion that his right thigh condition began while performing sit-ups while wearing a large belt during basic training. The examiner opined the Veteran had neuralgia which caused neuropathy in his right thigh, but noted the etiology of this condition was unknown. The examiner opined he was unable to provide a nexus opinion regarding the Veteran's right thigh condition without resort to mere speculation. He explained that the Veteran had not reported any injury to his right thigh except for the sit-ups incidence in boot camp. The examiner opined sit-ups were not enough to cause permanent nerve damage. As discussed above, a medical opinion which finds it cannot reach a nexus opinion without resort to speculation is adequate if the examiner provides a basis for his lack of a conclusion. See Jones, 23 Vet. App. at 382. In this case, the examiner explained that the only in-service incident described by the Veteran, that which occurred during sit-ups in boot camp, could not have caused the Veteran's current condition. Essentially the examiner asserted that the Veteran's current condition could not be caused by the in-service event the Veteran described. As such, the Board finds the examiner's opinion is adequate and may be relied on by the Board as an opinion that the Veteran's current right thigh condition was not caused by his in-service events, thereby providing evidence against the Veteran's claim. In his March 2009 written statement the Veteran asserted his right thigh condition was due to his back condition. In his October 2009 written statement the Veteran stated that during boot camp he was ordered to perform sit-ups in full dress while wearing his military issued guard belt and this resulted in his right thigh condition. He asserted the examiner failed to consider the Veteran was wearing full dress and belt during these sit-ups. However, as discussed above, the examiner specifically noted the Veteran asserted his right thigh condition began following sit-ups while wearing a large belt in basic training. As such, the Board finds the examiner considered the Veteran's full description of the in-service event. In February 2012 the Veteran was provided with an additional VA examination. This examiner specifically found the Veteran did not have any radicular pain or other signs of radiculopathy, providing evidence against the Veteran's claim that he has a current right thigh condition. As such, the Board finds the weight of the evidence of record fails to establish that the Veteran has a current right thigh condition that began during, or was otherwise caused by, his active military service. As discussed above, some of the medical evidence of record suggests the Veteran does not have any current right thigh condition. Regardless the objective medical evidence does not establish that any right thigh condition was caused by his active military service. Therefore the Veteran's claim for service connection is denied. The Board has also considered whether the Veteran's alleged right thigh condition is service connected secondary to his back condition. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). However, as discussed above, the Board has determined that the Veteran's back condition is not connected to his military service. As such, the Veteran's alleged right thigh condition cannot be service-connected secondary to the Veteran's non-service-connected back condition. Therefore secondary service connection is not established. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, the Board finds the Veteran was provided with all required notice in his claim for service connection for fibrosing mediastinitis in a September 2008 letter, including all elements required by Pelegrini II and Dingess/Hartman. The Board notes this letter failed to provide the required Kent notice regarding the Veteran's claims for back condition and right thigh condition. However, the Veteran was provided with an additional letter in October 2008, before the claim was adjudicated, which provided all the required notice for these claims, including the elements required by Pelegrini II, Dingess/Hartman, and Kent. In addition the Veteran was provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations, in January 2009 and February 2012 (the reports of which have been associated with the claims file). The Board notes that in his May 2013 written brief the Veteran's representative asserted these examinations were inadequate due to the examiner's disregard of the Veteran's lay assertions. However, the Board finds both examiners considered the Veteran's lay assertions. Both examiners interviewed the Veteran and elicited a history from him. The examiners also considered these lay statements in formulating their opinion regarding the Veteran's conditions. The examiners personally examined the Veteran and conducted the required testing. As such, the Board finds both examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence has been submitted, and the Veteran's claims of service connection for back and right thigh conditions are reopened. The Veteran's claims for service connection for fibrosing mediastinitis, a back condition, and a right thigh condition are denied. REMAND The Veteran is also seeking service connection for migraine headaches. Review of the record reflects no VA examination has been provided regarding this issue. As will be discussed the Board finds remand is required to provide such an examination. Review of service treatment records reflect the Veteran made several complaints of headaches during his military service. For example, in December 2002 the Veteran sought treatment for a headache and accompanying nausea, although he denied experienced vomiting or diarrhea. The medic gave the Veteran Tylenol to treat his condition. In January 2004 the Veteran again complained of dull intense pain in the front of his head radiating to the back of his head. The Veteran also reported nausea but denied vomiting or dizziness. The medic noted the Veteran had a history of migraines for the past six months and gave the Veteran Excedrin Migraine medication. CT scan of the head was performed and was negative. On his August 2005 report of medical history shortly before separation the Veteran noted a history of frequent headaches and migraines. As such, the evidence suggests the Veteran experienced some occurrence of headaches and/or migraines during his active military service. Review of post-service medical records does not establish the Veteran received treatment for or a diagnosis of migraines after his active military service. However, in October 2008 the Veteran established treatment at the VA facility in Mount Vernon. He reported experiencing migraine headaches since 2003 during a deployment to Nevada. He described the headaches as a constant throb at the back of his neck and frontal area and accompanying nausea. He also noted photophobia. The Veteran reported he currently developed migraine headaches one to three times per month and received relief from Excedrin Migraine. In addition, the Veteran has consistently reported to the VA that he continued to experience headaches since his military service. As a lay person, the Veteran is competent to report what comes to him through his senses, such as experiencing a headache. As such, the Board finds there is some evidence of continuity of symptoms of headaches and/or migraines since the Veteran's military service. Therefore, the Board finds the requirements of McLendon are met and remand for a VA medical opinion is required. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a medical opinion regarding his claim for headaches and/or migraines, to include an examination if the RO/AMC determines one is required. The claims folder must be made available to the medical professional for review in conjunction with the opinion. Any required tests and studies must be accomplished, and clinical findings must be reported in detail. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the report, and a rationale provided. Consistent with the factual history of the Veteran's headaches and/or migraine condition, to include the Veteran's lay assertions, the medical professional should provide an opinion as to the following questions: a) Does the Veteran currently have a chronic headache and/or migraine condition? b) If so, is it as likely as not (50 percent or greater) that the Veteran's current headache or migraine condition either began during or was otherwise caused by his active military service? Indications of exaggerations should be noted in the records (if any). 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs