Citation Nr: 1337632 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-16 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was subsequently transferred to the RO in Nashville, Tennessee, which currently has jurisdiction over this appeal. In October 2009, the Veteran testified before the undersigned via video conference. A transcript of the hearing is associated with the claims file. This appeal has been remanded by the Board for additional development on several previous occasions, including in March 2010, March 2012, and most recently in May 2013. All requested development has been conducted and the appeal has been returned to the Board for adjudication. As noted in the Board's prior remands, the issues of cellulitis, type II diabetes, hypertension, left shoulder, hands, buttocks, knees, ankles, broken second rib, tinea pedis, hearing loss, kidney issues, liver issues, pneumonia, broken bones in his feet, knees, ankles, buttocks, neck, and obesity have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Some of these issues may be claims for increased ratings or service connection. Regardless, the Board does not have jurisdiction over them and they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The most competent, credible, and probative evidence of record establishes that the Veteran's current back disability is directly related to his military service and is also aggravated by his service-connected bilateral knee and right foot disabilities. 2. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran currently has a bilateral hip disability that was incurred in or aggravated by active military service, or is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. A back disability was incurred as a result of the Veteran's active military service, to include as a result of service-connected bilateral knee and right foot disabilities. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. A bilateral hip disability was not incurred as a result of the Veteran's active military service or as a result of the service-connected bilateral knee and right foot disabilities. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2013 letter, which was sent after the initial unfavorable AOJ decision issued in August 2006, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The June 2013 letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Indeed, review of the record reveals that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appeal and given ample time to respond, as evidenced by the issuance of several statements of the case throughout this appeal and the receipt of the Veteran's argument and evidence in support of his appeal. The AOJ also readjudicated the case by way of a supplemental statement of the case issued in August 2013 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private and VA treatment. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. In addition, a review of the Virtual VA paperless claims processing system includes additional VA treatment records dated from March 2012 to June 2013 that were considered in the most recent SSOC issued in August 2013. The Board notes that the Veteran was also provided with several VA medical examinations in conjunction with this appeal, including in July 2006, June 2010, and May 2012. VA also obtained an independent medical opinion in conjunction with this claim in August 2013. There is no indication or allegation that the examinations conducted in this appeal were inadequate to evaluate the Veteran's back and bilateral hip disabilities. Likewise, as discussed in detail below, the Board finds that the evidentiary record contains an adequate medical opinion that addresses whether the claimed disabilities are related to the Veteran's military service. As such, the Board concludes that no further examination is necessary is conjunction with this appeal. In the May 2013 remand, the RO/AMC was directed to conduct additional evidentiary development, including obtaining VA treatment records dated since March 2012 and affording the Veteran a VA examination to address his claimed back and bilateral hip disabilities. Review of the record reveals that all requested development was conducted, as the requested VA treatment records are located on Virtual VA and the Veteran was afforded a VA examination in July 2013. As such, the Board finds that there was substantial compliance with the May 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998; D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Indeed, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition to the foregoing, service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for a back disorder and bilateral hip disorder. Throughout this appeal, he has consistently reported that he began experiencing back and hip symptoms after an in-service fall while unloading a helicopter. He has asserted that his back and hips have bothered him since the in-service incident and that he sought treatment for the problems after service. In the alternative, the Veteran has asserted that his current back and hip disabilities are secondary to his service-connected bilateral knee and right foot disabilities, as they have caused him to have an antalgic gait, which has resulted in or aggravated his current back and hip disabilities. Back Disability Review of the record reveals the Veteran has a current diagnosis of degenerative disc disease and degenerative joint disease affecting the thoracic and lumbar spine, as well as neuro-foraminal stenosis, bilateral pars defects at L5-S1, and intervertebral disc syndrome involving the only the lumbar spine. See July 2013 VA examination report. Accordingly, the first element of service connection is established. As noted, the Veteran seeks service connection on the theory that his current back disability was incurred during military service or, in the alternative, is secondary to his service-connected bilateral knee and right foot disabilities. The service treatment records (STRs) do not contain any information or findings related to in-service fall that occurred while the Veteran was unloading a helicopter. Nevertheless, the STRs show that the Veteran sought treatment for low back pain in March 1988. While the STRs do not reflect any subsequent treatment for low back pain during service, the evidence shows the Veteran also reported having recurrent back pain on medical examinations in August 1992 and December 1989. Parenthetically, the Board notes that the notation indicating recurrent back pain on the August 1992 report of medical history is crossed out; however, the Veteran's representative has correctly noted that it appears the examining physician crossed out the Veteran's positive response with no further explanation. See April 2013 Brief. As a result, the Board will resolve all doubt in favor of the Veteran and find that he reported having recurrent back pain in August 1992. The STRs do not contain a report of medical examination conducted when the Veteran was discharged from service in December 1992. Nevertheless, the Veteran has maintained that his back has bothered him since the in-service incident, which is considered competent and credible lay evidence. He has also reported that he sought treatment for his back problems after service, which is also considered competent and credible lay evidence of such. Indeed, the post-service evidence supports the Veteran's report of continued back problems after service, as the evidence shows he presented to VA for treatment in August 1995 complaining of various symptoms, including a history of back problems in the military. He specifically reported having low back pain for 10 years with radiation down into the right thigh, knee, and foot, which would place the onset of his back pain in approximately 1985. X-rays of the lumbar spine were negative in August 1995, but the Veteran continued to complain of and receive treatment for increasing back pain since that time. See VA treatment records dated August and October 1995; see also VA and private treatment records dated from 2001 to 2013. The Veteran was afforded several VA examinations in conjunction with this claim and, as a result, the evidentiary record contains several medical opinions that purport to address whether the Veteran's current back disability is related to his military service or his service-connected disabilities. However, several of the medical opinions are deemed inadequate because they are (1) based on an inaccurate factual basis and (2) are not supported by an adequate rationale. See VA examination reports dated June 2010 and May 2012; see also August 2013 VA medical opinion. Nevertheless, the Veteran was afforded a VA examination in July 2013, at which time he was diagnosed with several disabilities affecting the thoracolumbar spine, as noted above. After reviewing the claims file and examining the Veteran, the VA physician opined that it is more likely than not that the Veteran's back disability is casually related to his service. While the July 2013 VA examiner did not provide a rationale immediately following this opinion, the VA examiner stated that his opinion was based upon the Veteran's medical history and current examination, including current imaging studies, consideration of the relevant published literature, and his expertise in Orthopedic surgery. In this regard, the examination report reflects that the examiner specifically noted the Veteran's report of in-service trauma to his back and that a service treatment records shows musculoskeletal complaints that are consistent with his report of in-service trauma. The examiner further noted the Veteran's report that his symptoms never resolved and that he continued to experience increasing back pain, with radicular lower extremity pain and loss of function, after service. Therefore, while the July 2013 VA examiner did not provide a specific rationale in support of this opinion, the Board finds that the opinion is supported by facts and data noted in the examination report by the VA examiner. In addition to the foregoing, the July 2013 VA examiner also opined that it is more likely than not that the Veteran's back disability is associated or linked to the service-connected bilateral knee and right foot disabilities. In making this determination, the examiner noted that the service-connected bilateral knee and right foot disabilities have contributed to the Veteran's altered gait, which he stated has more likely than not exacerbated the back disability (although the examiner was unable to quantify the amount of aggravation without resorting to mere speculation). In evaluating this claim, the Board finds that the July 2013 VA medical opinion is competent, credible, and probative evidence in support of the Veteran's claim, as it shows that the Veteran's current back disability is likely related to his military service and was also likely aggravated by his service-connected bilateral knee and right foot disabilities. The Board notes that the July 2013 examination was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is also no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that he misstated any relevant fact. In fact, the VA examiner provided opinions regarding each theory of entitlement which were based upon the evidence of record and supported by a complete rationale. In evaluating this claim, the Board finds particularly probative that the preponderance of the most competent, credible, and probative evidence of record supports the conclusions provided by the July 2013 VA examiner. With respect to direct service incurrence, there is competent evidence of back pain during service, as well as competent and credible evidence of continued back pain no more than three years after service, which has continued to the present. In this regard, the Board finds probative that, when the Veteran sought treatment for back pain approximately three years after service, he attributed his back pain to service and reported continued symptoms since that time. This evidence supports a finding that the Veteran's current back disability is related to his military service. Likewise, with respect to secondary service connection, the evidentiary record contains an October 2009 private opinion from Dr. S.R., which states that he has treated the Veteran since 1996, noting the Veteran's report of having constant pain, including in his back, since an injury in service in 1986. Dr. S.R. noted that pain and discomfort in the knees and legs more than likely would cause antalgic gait, thus, leading to increased subluxation or misalignment of the pelvic/hip and lower back condition. This medical opinion supports a finding that the Veteran's current back disability is aggravated by his service-connected knee disability. In evaluating this claim, the Board also finds probative that there is no opposing or contradicting medical evidence or opinion of record which the Board finds is more competent, credible, or probative as to the issue of whether the current back disability is related to service or his service-connected disabilities. Therefore, based on the foregoing, the Board finds the preponderance of the evidence supports the grant of service connection for a back disability. Indeed, as noted, the most competent, credible, and probative evidence of record establishes that the Veteran's current back disability is likely related to his military service and is also aggravated by his service-connected knee disability. As a result, the Veteran's claim is granted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Bilateral Hip Disability As noted, the Veteran has asserted that his current bilateral hip disability was incurred during service or, in the alternative, is secondary to his service-connected bilateral knee and right foot disabilities. However, review of the evidentiary record reveals there is no competent lay or medical evidence showing the Veteran currently has a disability involving his bilateral hips. The STRs show that, in July and August 1985, the Veteran complained of pain and swelling in his right foot, ankle, knees, and hips. The examining physician noted the Veteran was previously diagnosed with cellulitis and venous insufficiency and he also noted, in pertinent part, that the Veteran's hip pain was not constant and did not occur often. No diagnosis pertinent to the Veteran's hips was rendered at that time. The STRs do not contain any additional or subsequent complaints, treatment, or findings related to a bilateral hip problem. Nevertheless, the Veteran has asserted that his back and hips have bothered him since service. The Veteran has also asserted that he sought treatment for the problems after service. In this regard, the record reflects that the Veteran sought treatment for a hip problem in August 1995. At a VA examination conducted in June 1995, the Veteran also reported having right hip pain, which he stated was seasonal. This evidence corroborates the Veteran's report of continued hip symptoms after service. While there is competent evidence of hip pain during service and continued hip symptoms after service, there is no competent lay or medical evidence of record which establishes that the Veteran has a current bilateral hip disability. A current diagnosis is the first requirement of service connection, and without a diagnosis, the benefit cannot be granted. In this regard, the evidentiary record reflects that the Veteran has consistently reported having bilateral hip pain since approximately 1995 and, yet, there is no competent evidence showing that his pain has been attributed to an underlying bilateral hip condition. In this context, the Board notes that pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. Brown, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As noted above, there is evidence of continued hip symptoms shortly after service. However, the evidence does not establish that the Veteran was diagnosed with a hip disability at that time. Indeed, when the Veteran sought treatment for hip problems in August 1995, the examining physician did not note any clinical findings or provide a diagnosis regarding the Veteran's bilateral hips at that time. Instead, the examiner noted the Veteran also reported having problems with his back, right ankle, and knee, and physical examination revealed low back pain with radiation from the right thigh to knee and into the right foot. Likewise, while the Veteran reported having right hip pain at the June 1995 VA examination, x-rays of the right hip were negative and, as such, the diagnosis was recurrent right hip pain, by history. Subsequent medical evidence shows the Veteran continues to consistently report bilateral hip pain; but, the medical evidence does not contain a diagnosis of an actual bilateral hip condition to which the Veteran's subjective reports of pain have or may be related. Instead, the medical evidence of record variously documents the Veteran's chronic hip pain and bilateral hip arthralgias (pain), with no clinical or radiographic evidence of an underlying hip disability or condition. See VA treatment records dated August 2005, March 2012, and November 2012; VA examinations dated July 2006 and June 2010; January 2009 record from Dr. R.B. The Board notes that a May 2011 VA treatment record contains a diagnosis of degenerative joint disease involving the hips, knees, and low back. While the examining physician noted the radiographic findings that supported the diagnosis of low back DJD, he did not refer to any radiographic findings of DJD affecting the bilateral hips. Indeed, the Board notes that the evidentiary record, inclusive of the VA treatment records, do not contain any radiographic studies which contain findings consistent with DJD of the bilateral hips. As such, the diagnosis of DJD of the hips noted in the May 2011 VA treatment records is not accepted as a competent diagnosis of such. The Veteran was afforded a VA examination in July 2013, at which time the VA examiner noted the Veteran's report of hip problems beginning in March 1986 and continuing thereafter. The examiner noted, however, that on clinical evaluation, the Veteran complained of pain in his bilateral thighs. Physical examination revealed limited range of hip motion but x-rays of the right hip revealed minimal osteoarthritic changes in the acetabulum, while x-rays of the left hip were normal. Parenthetically, the Board notes that, while the right hip x-rays revealed minimal osteoarthritic changes in the acetabulum, the July 2013 VA examiner stated that neither degenerative nor traumatic arthritis is documented in the imaging studies. As such, the Board finds that the right hip x-rays conducted at the July 2013 VA examination do not support a diagnosis of arthritis in the right hip. See also March 2012 VA treatment record. After reviewing the claims file, interviewing the Veteran, and conducting a physical examination, the VA examiner opined that the Veteran has non-anatomic hip pain, explaining that the Veteran has mistakenly confused thigh pain for anatomic hip joint pain. In making this determination, the examiner noted that the Veteran does not have anatomic hip joint pain on active testing of the hips with weight-bearing or internal rotation and that hip x-rays demonstrate very minimal hip degenerative joint disease, which are consistent with age. The VA examiner also stated that the actual source of the Veteran's thigh pain is not the hip joints but, instead, is referred pain from his lumbar spine, further noting that the limitation of hip motion seen on examination is the secondary effect of his lumbar spine pain. The Board considers the July 2013 VA examination and opinion to be the most competent, credible, and probative evidence of record with respect to whether the Veteran's has a current bilateral hip disability. The Board finds that the July 2013 VA examination was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is also no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that he misstated any relevant fact. In fact, the VA examiner provided his conclusions based upon the evidence of record and he provided a complete rationale in support thereof. Notably, the VA examiner's opinion is supported by the preponderance of the other evidence of record, which does not contain a diagnosis of an actual bilateral hip disability, or findings referable to any such diagnosis but, instead, show complaints, findings, and treatment for bilateral hip pain alone. The Board has considered whether the record contains competent lay evidence of a bilateral hip disability. In this regard, the Court has held that lay persons are not are not generally competent to render an opinion regarding the diagnosis or etiology of a disease or injury. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Nevertheless, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the evidence does not show, nor does the Veteran allege, that he currently suffers from a disability that is capable of lay observation, such as a dislocated hip. As such, the Board notes that disabilities involving the bilateral hips joints (such as arthritis or any other musculoskeletal disability) are not generally capable of lay observation, as a diagnosis of any such disability is medical in nature and requires clinical testing. It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to render a diagnosis of a bilateral hip disability. Therefore, the Veteran is not considered competent to identify a bilateral hip disability. In addition, as noted, there is no medical evidence of record that shows the hip pain the Veteran has experienced throughout this appeal was diagnosed as or attributed to an actual bilateral hip disability. See Sanchez-Benitez, supra. Therefore, based on the foregoing, the Board finds the Veteran's lay assertions are not competent to establish a diagnosis of a bilateral hip disability at any time during the appeal period. See Jandreau, supra. Without proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board acknowledges the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, while there is evidence of hip complaints of pain during and after service, there is no lay or medical evidence of record which competently and credibly establishes that the Veteran has been diagnosed with a bilateral hip disability or condition at any time during the appeal period, i.e., since March 1995. In evaluating this claim, the Board has considered whether service connection may be granted for a bilateral thigh disability, as the July 2013 VA examiner stated that the Veteran has confused his thigh pain for hip pain. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). However, upon review of the record, the Board finds that there is no competent lay or medical evidence of a thigh disability or condition, other than pain. See Sanchez-Benitez, supra; see also July 2013 VA examination report. As a result, the Board finds there is no basis on which to grant service connection for a bilateral thigh disability or any other disability reasonably construed by the evidence of record. Therefore, the Veteran's claim of service connection for a bilateral hip disability must be denied, as the evidence fails to establish he has the claimed disability. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application and his claim must be denied. See Gilbert, supra. ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for a bilateral hip disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs