Citation Nr: 21040492 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-06 859 DATE: July 3, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to a right lower extremity disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to July 1978. He testified at a March 2012 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. This appeal was most recently before the Board in November 2020 when the claim for service connection for a lumbar spine disorder, to include as secondary to a right lower extremity disorder, was REMANDED to secure a VA addendum opinion. The record shows the Veteran was afforded an April 2021 VA back conditions examination and separate medical opinions addressing direct service connection, secondary service connection and aggravation were obtained. As previously noted in the November 2020 Board remand, the Board has found that the cited veterans service organization continues to be the Veteran's representative, and the Board will not repeat its full explanation for this here. Again, the representative did not submit an informal hearing presentation in this case, but this is not prejudicial since the claim is being remanded, and no final determination has been made on the claim here. The Board regrets further delay but finds that additional development is necessary before a decision may be rendered regarding the issue on appeal. The Board notes that the April 2021 medical opinion adequately addressed the theory of direct service connection and provided an opinion on aggravation. However, the Board finds the rationale supporting the examiner's negative secondary service nexus opinion failed to address the elements of secondary service connection, noting instead that the Veteran's service treatment records (STRs) were silent for back pain. The Board notes this is not a necessary element to establish secondary service connection. The rationale did not address the necessary elements of the Veteran's secondary connection claim, specifically if his low back disorder was caused by or aggravated by his service-connected right ankle scar or his service connected right lower extremity muscle disorder. Corrective action, including a fully adequate VA opinion, is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As a reminder, secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). There are thus two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a), and aggravation under § 3.310(b). Finally, a thorough review of the claims file reveals an April 2021 Social Security Administration (SSA) inquiry result that indicates the Veteran has applied for SSA disability benefits, although it appears no determination has been made. SSA disability determinations are not controlling on VA, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records. Hayes v. Brown, 9 Vet. App. 67, 74 (1996). However, VA need only obtain "relevant" SSA disability records, which, under 38 U.S.C. § 5103A, are those records that relate to the injury for which the appellant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Contact Social Security Administration (SSA) and request they provide VA with the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. A copy of any records obtained from SSA, to include a negative reply, should be included in the Veteran's record. 2. The claims file must be returned to the April 2021 VA examiner (or, if unavailable, to another VA medical professional who has reviewed the file). An examination is not required by this remand. However, if a new examination is deemed necessary, the most up-to-date disability benefits questionnaire should be used. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not that the Veteran's diagnosed low back condition was caused or aggravated by either his service-connected right ankle scar or right lower extremity muscle disorder. A complete rationale must be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate Counsel 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.