KIDNEY DISEASE OF

MARCUS N. FULTON · 2026 · Case ID: A26040908

MIXED

Summary

The Veteran served from January 2011 to January 2015. The Veteran appealed the denial of service connection for obstructive sleep apnea (OSA) and sought an initial 30 percent rating for nephrolithiasis (kidney stones), as well as an increased rating for a left knee Baker's cyst. The Board granted an initial 30 percent rating for nephrolithiasis, finding that the Veteran's recurrent kidney stones required drug therapy, which met the criteria under the prior version of Diagnostic Code 7508. The Board dismissed the appeal for service connection for OSA, noting that the claim had already been granted service connection in a separate Board decision, making the current appeal a procedural defect. The claim for an increased rating for the left knee Baker's cyst was remanded. The Board found that the RO failed in its duty to assist the Veteran by not attempting to obtain outstanding treatment records from Kaiser Permanente around the time the claim was submitted, which could have substantiated the claim for a higher rating. The case involves a procedural defect regarding the OSA claim and a remand for further development of the left knee claim.

Rationale

Recurrent stone formation requiring drug therapy; Prior version of DC 7508 criteria applied; 30 percent rating is highest available

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7508

Docket No.

211108-196229

Full Decision Text

Citation Nr: A26040908
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 211108-196229
DATE: April 30, 2026

ORDER

Entitlement to an initial 30 percent rating for nephrolithiasis (kidney stones) is granted.

Entitlement to service connection for obstructive sleep apnea (OSA) is dismissed.

REMANDED

Entitlement to an initial rating in excess of 10 percent for left knee Baker's cyst is remanded.

FINDINGS OF FACT

1. The Veteran's service-connected nephrolithiasis (kidney stones) has been manifested by recurrent stone formation requiring drug therapy.

2. The appeal of entitlement to service connection for OSA was appealed in a November 2020 VA Form 10182 and was service connected by the Board in a February 2026 decision under Docket No. 201130-124490. The current VA Form 10182 is an invalid concurrent election.

CONCLUSIONS OF LAW

1. The criteria for a 30 percent initial rating for service-connected nephrolithiasis (kidney stones) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Codes (DC) 7508, 7509 (as in effect prior to November 14, 2021), and 4.115b, DCs 7508, 7509 (as in effect from November 14, 2021).

2. The criteria for dismissal of the appeal for service connection for OSA are met. 38 U.S.C. §§ 5104C(a)(2)(A), 7105; 38 C.F.R. § 3.2500(b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2011 to January 2015.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2021, the Veteran submitted a VA Form 10182 notice of disagreement (NOD), selecting the hearing lane. In a January 2025 communication, the Veteran withdrew his hearing request. Therefore, the Board may consider evidence of record at the time of the November 2020 rating decision and evidence that the Veteran or his representative submitted within 90 days of his January 2025 hearing withdrawal.

INCREASED RATING

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

1. Entitlement to an initial 30 percent rating for nephrolithiasis (kidney stones) is granted.

The Veteran contends entitlement to an initial compensable rating for his service-connected nephrolithiasis. In the November 2020 rating decision on appeal, the RO increased the Veteran's noncompensable rating to 30 percent, effective October 7, 2020.

Under the prior version of DC 7508, nephrolithiasis was rated as hydronephrosis under DC 7509, except where there was recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; or (3) invasive or noninvasive procedures more than two times per year. If evaluated under this diagnostic code
rating for nephrolithiasis (kidney stones) is granted.

Under the criteria effective November 14, 2021, nephrolithiasis/ureterolithiasis/ nephrocalcinosis are rated as hydronephrosis, except for recurrent stone formation requiring invasive or non-invasive procedures more than two times per year, which are evaluated as 30 percent disabling.

Under DC 7509 for hydronephrosis, which was not amended, a 10 percent rating is assigned when there is only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent rating is warranted when there are frequent attacks of colic, requiring catheter drainage. A maximum 30 percent rating is warranted when there are frequent attacks of colic with infection (pyonephrosis), with impaired kidney function. If hydronephrosis is severe, it is rated as renal dysfunction.

Here, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, as that is the criteria that is more favorable to the Veteran.

An October 2020 VA kidney examination does not show renal dysfunction, urinary tract or kidney infection, tumors or neoplasms. The Veteran reported occasional attacks of colic due to ureter urolithiasis but had no residuals or conditions due to kidney stones, including infections, hydronephrosis, impaired kidney function and did not require catheter drainage. The examiner noted treatment for recurrent stone formation, including drug therapy.

Under the pre-amended criteria of DC 7508, a 30 percent rating is warranted when recurrent stone formation requires one or more of the following: drug therapy, diet therapy, or more than two invasive or noninvasive procedures per year. Here, the October 2020 VA examination report reflects that the Veteran underwent drug therapy for recurrent kidney stones since 2018.

In light of the finding of the October 2020 VA examiner that the Veteran had recurrent kidney stones that required drug therapy and in light of the rating criteria under the prior version of DC 7508, which provides a maximum 30 percent rating for recurrent stone formation requiring drug therapy, the evidence weighs in favor of granting an initial 30 percent rating for a kidney stone disability the appeal is granted. As the 30 percent rating is the highest available under the schedular criteria, a higher rating is not warranted regardless of the symptoms.

2. Entitlement to service connection for OSA is dismissed.

Concurrent review of the same VA decision under different appeal lanes is prohibited by law. 38 U.S.C. § 5104C(a)(2)(A); 38 C.F.R. § 3.2500(b); Terry v. McDonough, 37 Vet. App. 1 (2023) (holding that "a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option"). In other words, only one administrative review option can be pursued at a time for any given issue or issues. Id.

In the November 2020 rating decision on appeal, the Veteran was denied service connection for OSA. The Veteran submitted a November 2020 VA Form 10182, which was docketed with the Board under Docket 201130-124490. The Board issued a February 2026 decision that granted entitlement to service connection for OSA.

As the Court noted in Hall v. McDonough, although the Board cannot dismiss an appeal for lack of jurisdiction, it may dismiss an appeal for a procedural defect. See Hall v. McDonough, 34 Vet. App. 329 (2021) (holding that the Board may not dismiss an appeal for lack of jurisdiction but may consider dismissing it for other non-jurisdictional reasons such as a procedural defect). In this regard, the appeal for entitlement to service connection for OSA denied in the November 2020 rating decision was docketed in a different appeal; such is a procedural defect, and the Board may
124490. The Board issued a February 2026 decision that granted entitlement to service connection for OSA.

As the Court noted in Hall v. McDonough, although the Board cannot dismiss an appeal for lack of jurisdiction, it may dismiss an appeal for a procedural defect. See Hall v. McDonough, 34 Vet. App. 329 (2021) (holding that the Board may not dismiss an appeal for lack of jurisdiction but may consider dismissing it for other non-jurisdictional reasons such as a procedural defect). In this regard, the appeal for entitlement to service connection for OSA denied in the November 2020 rating decision was docketed in a different appeal; such is a procedural defect, and the Board may dismiss this claim at this time. See 38 C.F.R. §§ 3.2500(b), 20.104; Terry, supra; Hall, supra. The claim is dismissed.

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), the Board must remand a claim to correct an error by the RO to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the RO decision on appeal. 38 U.S.C. § 5103A f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other RO error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a).

1. Entitlement to an initial rating in excess of 10 percent for left knee Baker's cyst is remanded.

The Veteran contends entitlement to a higher initial rating for his left knee disability.

Prior to the issuance of the November 2020 rating decision on appeal, the Veteran noted treatment for his knee disability through Kaiser Permanente. See July 2019 VA Treatment Note. However, no records from Kaiser Permanente from around the time the Veteran submitted his claim are of record. In light of the foregoing, the Board finds that an attempt to identify and obtain these records should have been made. A remand is warranted to correct this pre-decisional duty to assist error.

The matters are REMANDED for the following action:

1. After obtaining completed release forms from the Veteran, request all outstanding treatment records from his non-VA primary care provider.

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Love, Kelsey

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.

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