Citation Nr: 0001704 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-05 001A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a left ankle disability. 2. Entitlement to an original evaluation in excess of 10 percent for the residuals of a right ankle injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from March 1941 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of two rating decisions of the Pittsburgh, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeals that portion of a May 1992 rating decision which determined that there existed no new and material evidence of record warranting reopening of his prior claim for service connection for bilateral ankle disorders. The veteran filed his notice of disagreement with that rating decision subsequently in May 1992. In June 1992, the RO issued a statement of the case to the veteran. In July 1992, the veteran filed his substantive appeal. In an October 1993 remand of the Board, it was determined that new and material evidence had been received to reopen a claim for service connection for right ankle disability and the claim was remanded for further development. No mention was made of left ankle disability, despite the veteran having filed for service connection for bilateral ankle disabilities, and subsequent review of the veteran's claim, including review by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court), was limited to the right ankle. As the claim pertaining to the left ankle has never been specifically adjudicated on appeal, the Board considers the current appeal to have continued since the May 1992 rating decision. The veteran also appeals a September 1997 rating decision concerning his right ankle. The rating decision granted service connection for injury to the right ankle and assigned it a noncompensable rating. The veteran filed a notice of disagreement with the rating decision in September 1997. In April 1998 the RO issued a rating decision increasing the evaluation of the right ankle injury to 10 percent. A statement of the case was provided to the veteran later in April 1998. Subsequently in April 1998, the veteran filed his substantive appeal. A supplemental statement of the case was issued by the RO in August 1998. The veteran's claim of entitlement to an original evaluation in excess of 10 percent for a right ankle injury will be addressed in the Remand portion of this decision. The Board notes that in a statement submitted to the RO in September 1997, as well as in other statements, the veteran appears to have raised the issue of entitlement to service connection for post-traumatic stress disorder. Also, the Board notes that in a statement received by the RO on March 23, 1998, the veteran appears to have raised the issue of new and material evidence sufficient to reopen a prior claim of entitlement to service connection for pneumonia. The Board notes as well that the representative of the veteran argues in its brief on appeal that a claim of the entitlement to service connection for pes planus may be inferred from the medical evidence of record. None of these issues are now before the Board, and none is inextricably intertwined with those now on appeal. They are referred to the RO for appropriate action. FINDINGS OF FACT 1. A decision of the Board in April 1989 denied the application of the veteran to reopen his claim of entitlement to service connection for a left ankle disability on the basis of there having been submitted new and material evidence. 2. Evidence added to the record since the April 1989 decision of the Board is not cumulative or redundant, is relevant and probative, and is so significant that it would be necessary to a fair determination of the merits of the veteran's claim of entitlement to service connection for a left ankle disability. CONCLUSION OF LAW New and material evidence warranting the reopening of the veteran's claim of entitlement to service connection for a left ankle disability has been presented since the last prior final denial of the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend that the veteran is disabled with a left ankle disorder. They maintain that service connection for the claimed disability is warranted because the veteran injured both his left and right ankles during service. In the alternative, they argue that service connection is warranted for the claimed left ankle disorder (or for any aggravation of a left ankle disorder that might have preexisted the veteran's service) because such disability is proximately due to the veteran's service- connected right ankle injury. The veteran filed his initial claim, which sought service connection for bilateral ankle injuries, in August 1985. The claim was denied by the RO in January 1986 and by the Board on appeal in March 1987. The Board found that any inservice ankle injury resolved without residual disability. Subsequently the veteran applied several times to have the claim reopened on the ground that new and material evidence had been submitted. The RO issued rating decisions in June 1987 and July 1987 denying the veteran's application; neither was appealed by the veteran. However, an August 1987 rating decision denying another such application was appealed by the veteran. Evidence that had been of record prior to the April 1989 decision of the Board consisted of private medical reports and statements of the veteran. Private medical records received by the RO in 1985 and covering treatment in December 1979 show that the veteran complained of pain in both legs and that he was diagnosed with severe bilateral varicose veins and edema and prescribed soft orthotics. Private medical records submitted in July 1987 and covering treatment from April 1982 to October 1982 note marked varicosities on both lower extremities. In several written personal statements included in the claims file, the veteran recounted that he had injured his ankles during the invasion of France during World War II, that he was hospitalized for the injuries, and that his right ankle has been crooked since then. Also included in the claims file was transcript of a May 1988 personal hearing at which the veteran delivered the same account of his injuries. In an April 1989 decision, the Board found that new and material evidence sufficient to reopen the claim had not been submitted. Specifically, the Board found that the additional evidence did not show injuries to the ankles. This decision is final. As noted above, the May 1992 rating decision which is the subject of this appeal determined that there existed no new and material evidence of record sufficient to reopen the veteran's claim for bilateral ankle disorders. The October 1993 remand of the Board on appeal of that rating decision found that there had been introduced into the record new and material evidence sufficient to reopen the veteran's claim as to the right ankle. The decision did not address specifically the claim as to the left ankle. Thus the claim concerning the left ankle claim has remained in appellate status. The Board first will assess the merits of the veteran's application to reopen his original claim of entitlement to service connection for a left ankle disability. In determinations of whether there exists new and material evidence pertaining to a claim, the evidence to be evaluated is that which has been added to the record since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996); Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999. In the assessments of whether evidence is new and material, the credibility of each piece of evidence must be presumed, see Justus v. Principi, 3 Vet. App. 510 (1992), unless inherently incredible, see Duran v. Brown, 7 Vet. App. 216 (1994), or incompetent, see Moray v. Brown, 5 Vet. App. 211 (1993). If evidence secured in support of a claim is found to be new and material, the claim must be reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). In this matter, therefore, evidence potentially representing new and material evidence will be that introduced into the record since the April 1989 decision of the Board referred to above. This evidence includes a copy of the report of the veteran's service entrance examination. This report states that the examination was negative for musculoskeletal abnormalities. The Board notes that the service medical records of the veteran have been presumed destroyed in the fire which occurred at the National Personnel Records Center in St. Louis, Missouri in 1973. With the exception of the entrance examination report, no relevant service medical records are available. Other evidence secured since the April 1989 decision of the Board includes numerous written statements by the veteran. The veteran submitted written statements in January 1992, July 1992, April 1994, February 1997, September 1997, March 1998 (when he submitted two), September 1998, and October 1998. The veteran recounted that he had injured both his ankles in France during World War II. He suggested that he had been hospitalized with those injuries during service and asserted he has suffered with ankle discomfort for more than 50 years. The veteran stated that he experiences chronic pain in both ankles. The veteran implied that he first sought medical attention for the pain in his ankles in the late 1970's at a VA Medical Center (VAMC). He recounted that there he had been prescribed ibuprofen for his pain but later, because of possible side effects, discontinued its use in favor of aspirin. The veteran maintained that he had to elevate his legs and wear soft orthotics because of his left and right ankle discomfort. He accompanied one of his statements with a photograph of himself wearing soft orthotics on both lower legs. The veteran maintained that it had been necessary for him to retire early from his job because he experienced pain when standing for any prolonged length of time. He related that he had seen a physician about his ankles not long after his separation from service and was diagnosed then with a tendon injury in each (as well as a fracture in the right ankle). The veteran appeared to suggest that he saw the physician and received this diagnosis not long after his separation from service. However, no records from the physician were submitted. Rather, the veteran submitted a September 1996 letter from the physician stating that he had retired and that it would be impossible for him to recall what his treatment and diagnosis of the veteran's condition might have been, and suggesting that the veteran contact another physician who had taken over the practice. Also added to the claims file after the April 1989 decision of the Board were private medical records. Most of these concerned the right ankle. Two letters, dated October 1991 and January 1994, were submitted by a physician, who stated that he had treated the veteran beginning in 1982 and had diagnosed the veteran in 1991 as having residuals of a right ankle injury "evidently" sustained during his service in World War II. Private medical records submitted in February 1997 demonstrated that the veteran had sought treatment for right ankle pain in September 1988 and September 1990. Other records concerned both ankles and/or lower extremities or the left alone. Among records submitted in February 1997 were those indicating that the veteran had sought treatment for leg pain in October 1992 and December 1993 and that ankle braces had been recommended for him in April 1994. Medicare records also received in February 1997 indicated that x-rays had been taken of one of the veteran's ankles and a pneumatic splint prescribed for it, although it was not specified whether this was the left or the right ankle. The claims file also includes Social Security medical reports that were received by the RO in April 1997. These records, which were generated in connection with a disability claim that the veteran had filed, indicated that the veteran had worked as a machinist in a factory. The report of a disability examination performed upon the veteran in February 1980 set forth a diagnosis of large varicosities of both lower extremities. A March 1980 report by a second physician confirmed the diagnosis; in it the physician opined that it would be inadvisable for the veteran to attempt standing for 6-8 hours each day on his job. VA medical records were introduced into the record since the April 1989 decision of the Board. The report of the examination performed upon the veteran in June 1997 at the Erie, Pennsylvania VAMC found slight swelling in the right ankle as compared to the left and identified venous dilation of both feet and ankles, but with no gross varicosities or loss of skin. It found adequate circulation in both ankles. The report stated that there was no malalignment, and no marked eversion or inversion, of either ankle. It noted that the veteran had been prescribed both orthoses for his lower extremities and mild medication on account of pain. Range of motion was recorded as 130 degrees in both feet on active and passive plantar flexion and 80 degrees on dorsiflexion. The examiner noted in the report that the veteran had stated during the examination that he had injured his right ankle during service in 1944 while climbing up a hill during the invasion of France, that no x-rays had been taken at the time because of the lack of equipment, and that he had received no other medical attention for the injuries during service. The impression stated by the examiner was post-traumatic synovitis of the right ankle due to an inservice injury. No final impression or diagnosis concerning the veteran's left ankle was set out in the report. The claims file also contains a November 1997 outpatient record from the same VAMC concerning an evaluation of the veteran's ankles. It is indicated that the veteran complained that when walking he had pain in both ankles, with more pain in the right than in the left. The examiner observed that the veteran walked with a slow gait, had compressed isolated toe raise bilaterally, and showed evidence of "healed valgus" bilaterally. However, X-rays of the ankles were found to be normal. The examiner diagnosed the veteran with bilateral acquired pes planus secondary to disruption of the posterior tibial tendons. The examiner prescribed soft orthotics and requested a follow-up examination in six months. Subsequently, as noted in a report of contact dated in April 1998, the examiner clarified for the RO that he had prescribed the orthotics for the flat feet, and not the ankles, of the veteran. In the May 1992 rating decision which the veteran now appeals and in the June 1992 statement of the case, the RO stated that it had denied the application of the veteran to reopen his claim because the record presented no evidence that the veteran had injured his left ankle during service or had experienced the aggravation of a preservice injury of his left ankle during service. The RO therefore found that there existed no new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for a left ankle disability. The Board does not agree with the determination of the RO. As defined by regulation, new and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order that the merits of the claim may be fairly decided. 38 C.F.R. § 3.156(a) (1999); see Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). It has been held in Hodge v. West that the regulatory standard constitutes the proper test of the materiality of new evidence. Hodge v. West, 155 F.3d 1356; see also Elkins v. West, 12 Vet. App. 209 (1999). In addition, in order to be material, or probative, evidence also must be competent on the issue to which it pertains. See Moray v. Brown, 5 Vet. App. 211 (1993). Having reviewed the evidence presented or secured since its April 1989 decision, the Board considers the written statements of the veteran. They represent competent evidence on what symptoms have been experienced by the veteran, the length of time for which he has had those symptoms, and the wartime circumstances in which he contends he injured both his ankles. See Grottveit v. Brown, 5 Vet. App. 91 (1993). On their face, these statements are repetitious of evidence that was of record at the time of the April 1989 Board decision, particularly the testimony of the veteran at the personal hearing in May 1988. However, the Board finds that the statements are rendered both new and material by application of 38 U.S.C.A. § 1154(b). That statute provides that [i]n the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of such service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991); see also 38 C.F.R. § 3.304(d) (1999). In the September 1997 rating decision granting service connection for the veteran's right ankle injury, the RO found that the veteran had engaged in combat with the enemy at the time that he claimed he injured his right ankle and thus granted him the benefit of Section 1154(b). The veteran claims to have injured his left ankle at the same time that he injured the right. Therefore, the Board finds that the veteran also is entitled to the benefit of Section 1154(b) with respect to his claim concerning the left ankle. By application of Section 1154(b) the statements of the veteran submitted since the April 1989 decision of the Board represent new and material evidence. They are probative of the proposition that the veteran injured his left ankle during service. These statements therefore meet the regulatory standard of evidence "which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156. As such, they are neither cumulative nor redundant. Consequently, the claim for service connection for a left ankle disability is reopened. In view of this determination, it will not be necessary for the Board to decide whether the other evidence added to the record since its April 1989 decision is also new and material. The RO has not considered the veteran's claim to reopen using the standard set forth by the United States Court of Appeals for the Federal Circuit in Hodge. However, in view of the Board's favorable decision herein, it is not necessary to remand the case to the RO for such consideration before the Board considers this matter. ORDER To the extent that the Board has determined that new and material evidence has been received warranting the reopening of the veteran's claim of entitlement to service connection for a left ankle disability, the appeal is granted. REMAND i. Left Ankle Having reopened the veteran's claim, the Board observes that claims involving the question of new and material evidence are to be governed by a three-step process. First, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) sufficient to reopen the claim; second, if the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim is well grounded; third, if the claim is well grounded, its merits must be addressed, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). The Court has held that when the Board addresses an issue that has not been addressed by the RO, the Board must consider whether the appellant would be prejudiced by the Board's going forward on that issue without first remanding for the RO to adjudicate the issue in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1995). The Board finds that it would be fundamentally unfair to the veteran for it to further decide his claim without his being afforded an opportunity to have the RO do so first, to be provided with a statement of the reasons and bases for the RO's decision, and to respond to that decision. ii. Right Ankle The veteran has alleged that the symptoms resulting from his service-connected right ankle injury are more severe than contemplated by the 10 percent rating assigned. Thus, the veteran's claim of entitlement to a greater original evaluation is well-grounded. Bruce v. West, 11 Vet. App. 405 (1999); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); 38 U.S.C.A. § 5107(a). When a well-grounded claim is presented, VA has a duty to assist the claimant in developing facts pertinent to that claim. Id. The Board also observes that the veteran is contesting the original rating assigned to his right ankle disability rather than seeking an increased rating for that disability. The veteran is appealing the September 1997 rating decision which granted service connection for his right ankle injury and rated it noncompensable. An April 1998 rating decision increased the evaluation to 10 percent. However, that rating action did not close the issue of the appropriate original evaluation of the disability. The veteran's disability was rated under Diagnostic Code 5271, where a maximum rating of 20 percent is available, and by analogy with Diagnostic Codes 5270-5274, where a maximum rating of 40 percent is available. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274 (1999). The veteran placed his claim in appellate status by filing a notice of disagreement expressing dissatisfaction with the September 1997 rating decision, and his appeal was timely perfected. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1999). Since he was not subsequently awarded the maximum benefit assignable on his claim, the veteran is still contesting the original evaluation of his right ankle disability in this appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum benefit allowed by law and regulation for the disability in question, and a claim remains in controversy when less than the maximum benefit has been awarded). The distinction between a claim concerning an original rating of disability following a grant of service connection on that claim and a new claim for an increased rating of a disability is pertinent to this case. In Fenderson v. West, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) distinguished the procedure to be followed when the issue is entitlement to a greater original evaluation of a disability from the procedure to be followed when the issue is entitlement to an increased evaluation of a disability. The Court observed that in a claim for an increased rating of a disability, the present level of the disability is of primary concern. Fenderson, 12 Vet. App. at 126, citing Francisco v. Brown, 7 Vet. App. 55 (1994). The Court stated that in contrast, an original evaluation of a disability must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date) See Fenderson, 12 Vet. App. at 126-27. The Court observed that accordingly, the evidence might require the issuance of separate, or "staged," ratings of the disability based on the facts shown to exist during separate periods of time. Id. The Court also noted that the distinction between a service connection claim involving an original rating of disability and a claim for an increased rating thereof was significant in assessing whether the claimant has received an adequate statement of the case (or supplemental statement of the case) with respect to his claim. In this case, the RO granted service connection to the veteran for his right ankle disability from the date of the filing of the claim on which the grant was made. However, it is not clear from the rating decisions or statement of the case whether the RO reviewed the full history of the disability from the date of the claim so as to take into account all potentially significant changes in the facts and in the law. See 38 C.F.R. § 4.1 (1999). The RO should so evaluate the claim, giving consideration to staged ratings consistent with Fenderson. In addition to the above, the Board notes that the Court has expounded on the evidence required for a full evaluation of disabilities involving, as in this appeal, the musculoskeletal system. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court considered ratings of disabilities of the musculoskeletal system that were based on limitation of motion; specifically, the Court considered a rating under 38 C.F.R. § 4.71, DC 5201. The Court stressed that, in addition to considering evidence of limitation of motion, VA has a duty to determine under 38 C.F.R. §§ 4.40 and 4.45 whether the part or parts in question exhibit such symptoms as weakness, instability of station, interference with sitting, standing, and weight bearing, lack of endurance, and/or lack of coordination on use, as well as swelling and/or deformity, and whether pain could significantly limit the functional ability of the part of parts during flare-ups or upon repeated use. If so, the decision of the Court provided, an increased disability rating under one or both of those regulations should be considered. DeLuca, 8 Vet. App. at 206. The Court suggested that determinations of the presence or absence of the factors set out in those regulations should be made by an examiner and set out explicitly in the examination report. The Court indicated that the failure to address a factor was not the equivalent of a finding that the factor was not present. See id. The RO indicated that it had considered the report of the June 1997 VA examination of the veteran's right and left ankles for its evaluation of the veteran's right ankle injury. The Board finds the examination report did not sufficiently address the factors identified in regulations 38 C.F.R. §§ 4.40 and 4.45. The veteran has complained consistently of pain on use of, and loss of function in, the right ankle. Swelling of the right ankle was noted and post- traumatic synovitis thereof diagnosed in the June 1997 VA examination report. In his Social Security disability evaluation, a report of which was contained in the claims file at the time of the June 1997 examination, the veteran was deemed incapable of standing for 6-8 hours each day. However, the June 1997 VA examination report did not undertake the evaluation and analysis required by DeLuca. Indeed, in a written statement that he submitted to the RO in September 1997, the veteran suggested that the physician conducting the June 1997 examination did not observe him standing, ambulating, or performing other motion from a standing position. The RO also indicated in its rating actions that it had considered the November 1997 report of VA outpatient treatment received by the veteran. This report states that the veteran walked with a slow gait and exhibited compressed toe raise. However, these findings have not been related to the factors required by DeLuca to be considered in a disability rating. The claims file also contains the report of a VA examination performed upon the veteran in May 1998. It recorded the impression of post-traumatic synovitis of the right ankle. This examination report was considered by the RO prior to its issuing a supplemental statement of the case in August 1998. The Board observes that the findings set forth in this report appear to be inconsistent with those set forth in the June 1997 VA examination report. The latter stated that "no allowable" eversion or inversion of the ankle was found. The May 1998 examination report noted that both eversion and inversion of the ankle were "somewhat uncomfortable." This examination report also identified slight pronation of the right ankle on weight bearing, whereas the June 1997 examination report did not address the functioning of the ankle when bearing weight. Therefore, the Board finds that the veteran should be afforded another examination in connection with his claim for a greater original evaluation of his right ankle disability. In view of the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should appropriately contact the veteran and request that he identify all sources of treatment for his service- connected right ankle injury residuals and his left ankle disability since October 1997. After obtaining any necessary release, the RO should request all VA records from the medical centers identified pertaining to both ankles and private treatment records pertaining to the service-connected right ankle injury residuals. The veteran should be advised that he should obtain and submit all private (non-VA) records pertaining to his left ankle, as well as any evidence which establishes current left ankle disability due to inservice injury or secondary to the service-connected right ankle. All records obtained should be associated with the claims folder. 2. The RO should schedule the veteran for a VA orthopedic examination to evaluate the severity of his service- connected right ankle injury residuals. All indicated tests and studies should be performed in order that a complete and specific picture of the veteran's right ankle disorder and its current severity be secured. Any other specialty examinations deemed necessary should be obtained. The orthopedic examiner should make certain to address in the examination report (a) whether, based on observation of the behavior of the veteran in undertaking motion as well as on the pathology of his disability, there is functional loss exhibited as weakness, lack of endurance, and/or pain (during flare-ups or after repeated motion), etc., on use of the right ankle, see 38 C.F.R. § 4.40; and (b) whether, as regards the joint at issue, there is lack of coordination, impaired ability to execute skilled movements, excessive fatigability, lack of endurance, and/or pain on use of the joint at issue, and/or instability of station, interference with sitting, standing, and weight bearing, and/or swelling or deformity, etc., see 38 C.F.R. § 4.45. It is critical that the entire claims folder, to include a copy of this Remand, be provided to the examiner for review. The examination should reflect review of pertinent material in the claims folder and include the complete rationale for all opinions expressed. 3. The RO should evaluate whether the evidence of record renders the veteran's reopened claim for service connection for a left ankle disability well grounded. Consideration should also be given to secondary service connection for left ankle disability. If the RO finds the claim well grounded but determines that additional evidence pertinent to the claim should be developed, the RO shall assist the veteran in developing the additional evidence, in accordance with 38 U.S.C.A. § 5107(a). If the RO finds the claim to be not well grounded, the RO should furnish the veteran and his representative with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. § 19.31. 4. If the RO has found the claim concerning the veteran's left ankle well grounded and after the RO determines that it has fulfilled its duty to assist the veteran in developing any additional evidence pertinent to his claim, the RO should determine whether the claim may be allowed. Consideration should also be given to secondary service connection for left ankle disability. If the determination is unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case. 5. The RO should then readjudicate the issue of the evaluation of the veteran's right ankle disability, reviewing the evidence of record from the date of the claim upon which service connection was granted and giving consideration to the applicability of "staged" ratings in accordance with Fenderson. The RO should furnish the veteran and his representative with a supplemental statement of the case explaining its decision and its evaluation of the evidence, in accordance with 38 C.F.R. § 19.31, to which the veteran and his representative should be given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals