KIDNEY NEOPLASM OF MALIGNANT

Summary

The veteran, who served in the U.S. Army from May 1970 to December 1972, appeals the denial of an initial compensable disability rating for right kidney cancer and entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024. The Board previously denied these claims in September 2024, but the case was remanded by the Court of Appeals for Veterans Claims due to procedural error. The Board is now readjudicating the claims after providing the veteran the opportunity to submit additional argument. Regarding right kidney cancer, a July 2023 VA examination found the cancer to be in remission with no residuals or complications, and the medical evidence showed no recurrence or further dysfunction. The Board found the VA examination's findings more probative than the veteran's lay testimony, concluding the noncompensable rating was appropriate. The benefit of the doubt doctrine was considered but found inapplicable as the evidence favored denial. For SMC housebound status, the veteran previously qualified from July 2023 to January 2024 due to a 100% rating for cerebrovascular accident (CVA) and additional service-connected disabilities. However, after January 9, 2024, the CVA rating decreased, and the veteran did not meet the criteria for a 100% rating for a single disability or for permanent housebound status, as evidenced by post-service records showing independent travel. Therefore, the claim for SMC housebound status from January 9, 2024, was denied.

Rationale

VA examination found cancer in remission with no residuals; No evidence of recurrence or voiding/renal dysfunction; Lay testimony less probative than medical evidence for rating criteria

Full Decision Text

Citation Nr: A26033271
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 240729-459872
DATE: April 9, 2026

ORDER

An initial compensable disability rating for right kidney cancer is denied. 

Entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024, is denied.

FINDINGS OF FACT

1.  During the period on appeal, the Veteran's service-connected right kidney cancer was in remission, without any residual symptoms.

2. A December 2023 rating decision granted service connection for cerebrovascular accident (CVA) and assigned a 100 percent rating from July 9, 2023 to January 9, 2024, with a 10 percent rating thereafter.  As a result, SMC benefits were awarded until January 9, 2024. Beginning January 9, 2024, the Veteran is not in receipt of a single service-connected disability rated as total, nor does the evidence of record demonstrate that the Veteran is housebound.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable disability rating for right kidney cancer are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7528. 

2. From January 9, 2024, the criteria for SMC based on housebound status are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 1970 to December 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2024 and July 2024 rating decisions of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran filed a Board appeal (Notice of Disagreement) in July 2024 and elected the Direct Review option. 

Under the Direct Review option, the Board's decision will be based on the evidence of record at the time of the AOJ decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.301, 20.801(a).

In a September 2024 decision, the Board denied an initial compensable disability rating for right kidney cancer and entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024.

He appealed that decision to the United States Court of Appeals for Veterans Claims (Court).

In a September 2025 Order, the Court granted a joint motion for partial remand (JMPR). Pursuant to the JMPR, the Court vacated that portion of the Board's September 2024 decision denying an initial compensable disability rating for right kidney cancer and entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024, and remanded the matter to the Board for action consistent with the terms of the joint motion.

The JMPR found that the Board erred by issuing its September 2024 decision less than one year from the date of mailing of the February and July 2024 AOJ decisions. In that regard, a claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in § 20.202(b). 38 C.F.R. § 20.202(c). Requests to modify a Notice of Disagreement must be made by completing a new Notice of Disagreement on a form prescribed by the Secretary, and must be received at the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later. Id.

The Board is generally required to wait the full period allowed an appellant to modify a Notice of Disagreement under § 20.202(c) before it may proceed to issue a decision. Williams v. McDonough, 37 Vet. App. 305, 311 (2024). Thus, the JMPR found that the Board's September 2024 decision contravened Williams because the Board had not waited the full period allowed, or explained why it could proceed with adjudication of the issue on appeal
 the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later. Id.

The Board is generally required to wait the full period allowed an appellant to modify a Notice of Disagreement under § 20.202(c) before it may proceed to issue a decision. Williams v. McDonough, 37 Vet. App. 305, 311 (2024). Thus, the JMPR found that the Board's September 2024 decision contravened Williams because the Board had not waited the full period allowed, or explained why it could proceed with adjudication of the issue on appeal notwithstanding Williams.

At this juncture, the Board finds that it may proceed to adjudicate the issue on appeal. The JMPR instructed the Board to send the Veteran a letter permitting no fewer than 90 days for the submission of additional argument to the Board prior to readjudication, barring an explicit waiver by the Veteran.

The Board has complied with both those directives. It sent the Veteran a letter in September 2025 providing him 90 days from the date of the letter to submit additional argument. 

Accordingly, the Board will proceed with appellate review.

1. An initial compensable disability rating for right kidney cancer is denied.

Legal Criteria

The Veteran seeks a compensable rating for his service-connected right kidney cancer, which is currently rated as noncompensable (0 percent) under Diagnostic Code 7528 (Malignant neoplasms of the genitourinary system).  38 C.F.R. § 4.115b, Ratings of the genitourinary system - diagnoses.

Under Diagnostic Code 7528, active malignant neoplasms of the genitourinary system are rated as 100 percent, and this rating shall only continue following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure with a mandatory VA examination at the expiration of six months.  38 C.F.R. § 4.115b.  If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  Id.

Factual Background and Analysis

The Veteran was afforded a July 2023 VA examination during which the conducting examiner noted that the Veteran's right kidney cancer was in remission and that he has had no further treatment for his right kidney cancer. The examiner further noted that the Veteran did not have renal dysfunction, nor were there any residuals or complications due to right kidney cancer.

The remainder of the relevant medical evidence shows no signs of right kidney cancer recurrence or additional voiding or renal dysfunction symptoms throughout the appeal period. As such, the currently assigned noncompensable disability rating for right kidney cancer is appropriate, and a higher rating is not warranted.

The Board is sympathetic to the Veteran's claim that his right kidney cancer is more severe than as reflected by the currently assigned disability rating.  However, the Board must consider all the probative evidence of record when analyzing the criteria set out in the rating schedule.  The Veteran is competent to describe his observable symptomatology.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, in this case, the competent medical evidence offering specific, specialized determinations relevant to the rating criteria is the most probative evidence regarding evaluating the pertinent symptoms of the Veteran's right kidney cancer.

Accordingly, the Veteran's claim for an initial compensable disability rating for right kidney cancer is denied. 

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990), Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024, is denied.

Legal Criteria

SMC at the housebound rate is payable where a veteran has a single service-connected disability rate as 100 percent and, (1) has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

For the purpose of meeting the first criterion, a
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2. Entitlement to special monthly compensation (SMC) based on statutory housebound status from January 9, 2024, is denied.

Legal Criteria

SMC at the housebound rate is payable where a veteran has a single service-connected disability rate as 100 percent and, (1) has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating).  Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability.  See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011).  While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement.

Regarding the permanently housebound requirement, this is met where a veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinic areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout his or her lifetime. Id.

Factual Background and Analysis

A December 2023 rating decision granted service connection for cerebrovascular accident (CVA) with a 100 percent disability rating, effective July 9, 2023, and a 10 percent rating, effective January 9, 2024. 

Because the Veteran had one disability rated at 100 percent and additional service-connected disabilities independently ratable at 70 percent from July 9, 2023, to January 9, 2024, he was also awarded SMC based on housebound criteria for the same period. The Veteran's SMC was discontinued when his CVA rating decreased from 100 percent to 30 percent.

From January 9, 2024, the Veteran does not have a single disability rated as 100 percent disabling, nor has he been awarded a TDIU based on a single disability. Additionally, the record does not reflect that the Veteran is permanently housebound.  Notably, post-service VA treatment records from July 2023 reflect that the Veteran indicated that he travels independently on public transportation or drives his car.  

Because the Veteran does not meet the criteria for SMC based on statutory housebound status from January 9, 2024, entitlement to SMC is not warranted, and the Veteran's claim must be denied. 

 

 

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bahus, Alexander

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.