NEPHROLITHIASIS

Summary

The veteran, who served in the North Carolina National Guard and had active duty for training from January 28, 2014, to July 10, 2014, and again from July 31, 2016, to August 14, 2016, appeals the denial of service connection for kidney stones and a back disability. The Board granted service connection for kidney stones, finding that the condition was diagnosed on August 4, 2016, during a period of active duty for training at an Army hospital. The Board noted that the Veteran's service treatment records were silent for prior complaints, and the July 2020 VA examination confirmed the diagnosis and the Veteran's report of symptoms beginning in 2016. The Board found the combination of medical evidence and lay statements sufficient to establish service connection. The claim for a back disability was remanded due to a duty to assist error. The Board found the Veteran had active service for VA purposes during the 2016 training period, during which he was diagnosed with an L5 pars defect. However, the VA examiner's opinion did not clarify whether this was a congenital defect or disease, nor did it address superimposed injury or aggravation during service. Therefore, a remand is necessary for a medical opinion to clarify the nature and etiology of the back disability, including whether it is congenital and if it was affected by service.

Rationale

Current diagnosis of kidney stones established; Diagnosis occurred during active duty for training (ACDUTRA); No evidence of prior complaints or treatment for kidney stones

Full Decision Text

Citation Nr: A26036138
Decision Date: 04/17/26	Archive Date: 04/17/26

DOCKET NO. 210317-146328
DATE: April 17, 2026

ORDER

Entitlement to service connection for kidney stones is granted.

REMANDED

Entitlement to service connection for a back disability is remanded.

FINDINGS OF FACT

1. The Veteran's period of active duty for training from July 31, 2016, to August 14, 2016, qualifies as active military service.

2. The Veteran's kidney stones were incurred during a period of active military service.

CONCLUSIONS OF LAW

1. The criteria for establishing active military service for the period of July 31, 2016, to August 14, 2016, have been met. 38 U.S.C. §§ 101(24), 12301, 12401; 38 C.F.R. § 3.6.

2. The criteria for service connection for kidney stones have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from January 28, 2014, to July 10, 2014, and from July 31, 2016, to August 14, 2016.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 higher-level review decision, following a July 2020 rating decision by the Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's Hearing docket. See March 2021 VA Form 10182. In correspondence received on December 4, 2024, the Veteran withdrew the request for a hearing. This restricts the Board's review to the evidence of record at the time of the July 2020 rating decision and any evidence submitted by the Veteran or his or her representative within 90 days following the receipt of the withdrawal. 38 C.F.R. § 20.302(b).

The Board notes that evidence as associated with the claims file that is outside the applicable evidentiary windows - either between the July 2020 rating decision and the December 4, 2024, hearing withdrawal, or more than 90 days following the hearing withdrawal. If the Veteran would like VA to consider the additional evidence that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and identify the evidence for the AOJ's consideration. 38 C.F.R. § 3.2501. Specific instructions for filing a supplemental claim are included with this decision.

However, as the Veteran's claim for entitlement to service connection for a back disability is being remanded, the AOJ will consider the claim in light of the entire claims file upon remand.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Renal (kidney) conditions with a presumptive period of one year following separation from service, are listed conditions.

Eligibility for VA benefits, such as service connection, is governed by statutory and regulatory law which defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.

"Active
 continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Renal (kidney) conditions with a presumptive period of one year following separation from service, are listed conditions.

Eligibility for VA benefits, such as service connection, is governed by statutory and regulatory law which defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.

"Active military, naval, or air service" includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c).    

National Guard duty is different from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States. At all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been: (1) been ordered into federal service by the President of the United States; (2) performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505; or (3) ordered to ACDUTRA under 10 U.S.C. § 12301(d). 10 U.S.C. § 12401. 

In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Further, when the evidence persuasively favors one side or the other, the evidence is not in approximate balance and therefore the benefit-of-the-doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776, 

781-82 (Fed. Cir. 2021).

Entitlement to service connection for kidney stones is granted.

The Veteran contends that his kidney disability, diagnosed as kidney stones, first manifested during active service. See March 2020 VA Form 21-526EZ. In the alternative, the Veteran makes the argument that his condition manifested to a compensable degree within one year of his active service. See March 2025 VA Form 20-10208. For the reasons below, the Board agrees and finds that service connection is warranted.

In the December 2020 rating decision on appeal the AOJ made the following favorable findings - that the Veteran has a current diagnosis of kidney stones, that the Veteran's kidney stones were diagnosed on August 4, 2016, at Womack Army Medical Center, that the Veteran meets the minimum requirements for presumptive service connection, that his kidney disability has manifested to a degree of 10 percent or more following service, and that his kidney disability is one that may be presumptively linked to his military service. See December 2020 Rating Decision. 

As a procedural note, the Veteran's service was primarily with the North Carolina National Guard. See April 2016 Military Personnel Record. However, on January 28, 2014, the Veteran was called up pursuant to 10 U.S
 made the following favorable findings - that the Veteran has a current diagnosis of kidney stones, that the Veteran's kidney stones were diagnosed on August 4, 2016, at Womack Army Medical Center, that the Veteran meets the minimum requirements for presumptive service connection, that his kidney disability has manifested to a degree of 10 percent or more following service, and that his kidney disability is one that may be presumptively linked to his military service. See December 2020 Rating Decision. 

As a procedural note, the Veteran's service was primarily with the North Carolina National Guard. See April 2016 Military Personnel Record. However, on January 28, 2014, the Veteran was called up pursuant to 10 U.S.C. § 12301 for active duty for training. Id. This service lasted through July 10, 2014. See September 2014 Certificate of Release from Active Duty. 

The Veteran was called up to annual training for a period beginning July 31, 2016, through August 14, 2016, pursuant to 32 U.S.C. § 503. See April 2016 Military Personnel Record. As the Veteran's period of active training in 2016 was for less than 90 days, the presumptions pertaining to chronic conditions do not apply. See 38 C.F.R. §§ 3.307 and 3.309 (for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service).

While the elements of service connection are discussed more in-depth below, the Board finds that the Veteran's period of service from July 31, 2016, to August 14, 2016, counts as "active military, naval, or air service" pursuant to 38 U.S.C. § 101(24) and 38 C.F.R. § 3.6. This is because during that period of active duty for training the Veteran incurred his kidney stone disability.

Turning to the elements of service connection, the Board notes that the first Shedden element has been satisfied. As the AOJ pointed out in its favorable finding, the Veteran has a current diagnosis of kidney stones. See December 2020 Rating Decision.

Imaging done on August 4, 2016, revealed the Veteran had kidney stones. See June 2017 Medical Treatment Record. There is no evidence that prior to this point the Veteran complained of, or was treated for, symptoms relating to his kidney stones. Not only was the diagnosis of kidney stones made during a period of annual training, but the diagnosis was made at an Army hospital in Fort Bragg. Id. 

At his July 2020 VA examination, the examiner diagnosed the Veteran with kidney stones, the same diagnosis that was made on August 4, 2016. The Veteran reported that his symptoms began in 2016. The Veteran explained that the symptoms included "[b]ack pain, stomach pain, groin pain, fever, vomiting, [and] painful urination." See July 2020 C&P Exam. The Veteran continued, stating that the condition was bad enough that it impacted his ability to move and drive, and that he treated it with medicines such as Toradol and Zofran. Id. Treatment records from February 2020 show that the Veteran was indeed prescribed those medications. See February 2025 Medical Treatment Record.

There is no evidence that the Veteran experienced symptoms of kidney stones prior to his August 4, 2016, diagnosis. The Veteran's medical records from 2014 and 2015 are silent for any complaints of, or treatment for, symptoms related to his kidney stones. In June 2011, the Veteran denied any kidney symptoms, and in March 2014 the Veteran denied kidney problems specifically, and pain generally. See April 2016 STR. In May 2014, the Veteran was seen for a military service physical and stated that he was "pain free." Id. In April 2015, there were "no duty limiting conditions identified." Id.

The July 2020 VA examiner's findings, along with the Veteran's lay statements, and the AOJ's favorable finding that the Veteran's kidney stones were diagnosed on August 4, 2016, establish that the condition was initially diagnosed during the period of ACDUTRA from July 31, 2016, through August 14, 2016. The Board finds that this satisfies the second Shedden element necessary to establish service connection, as the Veteran was diagnosed with the disability during a period of ACDUTRA. 38 U.S.C. §§ 101(22), 101(24); 38 C.F.R. §§ 3.6(a
, there were "no duty limiting conditions identified." Id.

The July 2020 VA examiner's findings, along with the Veteran's lay statements, and the AOJ's favorable finding that the Veteran's kidney stones were diagnosed on August 4, 2016, establish that the condition was initially diagnosed during the period of ACDUTRA from July 31, 2016, through August 14, 2016. The Board finds that this satisfies the second Shedden element necessary to establish service connection, as the Veteran was diagnosed with the disability during a period of ACDUTRA. 38 U.S.C. §§ 101(22), 101(24); 38 C.F.R. §§ 3.6(a), 3.6(c); see also Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (stating that there must be "some evidence that his or her condition was incurred or aggravated during the relevant period of service."). 

The Board notes that medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the service and postservice medical evidence in combination with the Veteran's lay statements are sufficient to resolve the matter without further development for a medical nexus opinion.

Here, the evidence conclusively shows that the Veteran was diagnosed with kidney stones on August 4, 2016, and he still has kidney stones. The Veteran's lay statements and postservice medical records establish ongoing treatment for his symptoms. See February 2025 Medical Treatment Record. In essence, the evidence shows that the Veteran's kidney stones initially manifested in service and have persisted since. Therefore, the Board finds that the third Shedden element necessary to establish service connection has been met. 

For the above reasons, the Board finds that the evidence is persuasively in favor of finding that the Veteran's kidney stones were incurred during a period of ACDUTRA, and service connection for kidney stones is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran's claim is granted.

REASONS FOR REMAND

Entitlement to service connection for a back disability is remanded.

The Veteran contends that his back disability is caused by, or otherwise due to, his active military service. See March 2020 VA Form 21-526EZ. For the reasons below, the Board finds that a remand is necessary to correct a pre-decisional duty to assist error on the part of the AOJ.

As discussed above, the Veteran has active military service for VA purposes from July 31, 2016, to August 14, 2016, by virtue of being awarded service connection for kidney stones based on that period. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c).

On August 4, 2016, during a period of active service, the Veteran was initially diagnosed with a back disability. Specifically, he was diagnosed with an L5 pars defect with grade 1 anterolisthesis L5 and S1 with associated neural foraminal narrowing was noted. See June 2017 Medical Treatment Record. Prior to that date, the Veteran's STRs are silent for complaints of, or treatment for, any back problems. The Board notes that, in March 2020, the Veteran complained of back pain "throughout" his military career but did not provide a date of onset, and at his July 2020 VA examination, he reported symptoms beginning in or around 2012. See March 2020 VA Form 21-526EZ; see also July 2020 C&P Exam.

At the July 2020 VA examination, a VA examiner found that the Veteran had the same L5 pars defect, along with additional diagnoses of sciatica and a lumbosacral strain. See July 2020 C&P Exam. However, the Board finds that further clarification is necessary regarding whether the L5 pars defect is a congenital condition.

No opinion addressing whether the pars defect is a congenital condition has been provided. If the congenital condition is a defect, an opinion as to whether it was subject to a superimposed disease or injury during service is needed. If it is a congenital disease, an opinion as to whether it was aggravated in service is needed. Quirin v. Shinseki, 22 Vet. App. 390 (2009); VAOPGCPREC 82-90
 L5 pars defect, along with additional diagnoses of sciatica and a lumbosacral strain. See July 2020 C&P Exam. However, the Board finds that further clarification is necessary regarding whether the L5 pars defect is a congenital condition.

No opinion addressing whether the pars defect is a congenital condition has been provided. If the congenital condition is a defect, an opinion as to whether it was subject to a superimposed disease or injury during service is needed. If it is a congenital disease, an opinion as to whether it was aggravated in service is needed. Quirin v. Shinseki, 22 Vet. App. 390 (2009); VAOPGCPREC 82-90, 55 Fed. Reg 45711 (July 18, 1990). This is a duty to assist error. Therefore, a remand is needed for a medical opinion on the subject.

The matter is REMANDED for the following action:

Obtain an addendum medical opinion, from a qualified medical professional, to address the nature and etiology of the Veteran's back disability. The examiner is to review the entire claims file and respond to the following:

(a)	Identify, by diagnosis, all low back disabilities the Veteran has or had since August 4, 2016. 

(b)	The examiner should provide an opinion as to whether each low back disability is a congenital disease or defect. 

The terms "disease" and "defect" must be interpreted as being mutually exclusive. For VA legal purposes, the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term "defect" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Defects are static conditions that are incapable of improvement or deterioration, whereas diseases are capable of such progression.

(c)	For each congenital defect, is it at least as likely as not that such condition was subject to a superimposed disease or injury that resulted in additional disability of the back during the Veteran's service?

(d)	For each congenital disease, is there clear and unmistakable evidence that it was not aggravated during the Veteran's service?

(e)	For each non-congenital condition, is it at least as likely as not that such had its onset in service or is otherwise related to the Veteran's service?

The examiner must address all relevant lay and medical evidence in the claims file, including the August 4, 2016, diagnosis, and the lack of complaints or findings of back problems prior to that date. 

The examiner is to provide a full and complete rationale for all opinions rendered. If the examiner cannot provide the necessary opinions without an in-person examination of the Veteran, the AOJ shall schedule the examination to be done at a time and place convenient to the Veteran. If the examiner cannot provide the necessary opinions without resorting to mere speculation, they must explain why that is the case.

 

 

T. V. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Neville, Mikael

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.