Citation Nr: 21005332 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-46 926A DATE: February 1, 2021 ORDER Entitlement to a separate rating for left knee subluxation from August 1, 2012 is granted. FINDING OF FACT The rating decision that closed-out the rating for subluxation/instability contained no analysis and after the fact evidence questioned whether there could be subluxation or instability following surgery. CONCLUSION OF LAW A separate disability rating for left knee subluxation is restored. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a,, 3.344, Diagnostic Code 5257.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to August 1970. An April 2019 Board of Veterans’ Appeals (Board) decision remanded the issue of entitlement to a separate rating for left knee subluxation from August 1, 2012, for a new examination and medical opinion. 1. Entitlement to a separate rating for left knee subluxation from August 1, 2012 This case has an unnecessarily complicated history. The Veteran had separate ratings for impairment of flexion and extension which the AOJ found to be in error (CUE). A single evaluation for limitation of impairment was then assigned with an evaluation of 40 percent contemplating all ranges of motion. Thereafter, the AOJ found CUE in the assignment of the 40 percent evaluation and a 30 percent evaluation was assigned. That decision was changed and restored the 40 percent evaluation. The AOJ assigned an evaluation and diagnostic code following surgery. Thereafter, that diagnostic code was closed-out. Here, the issue about subluxation was addressed by the AOJ as a close-out rating. We accept that section 3.105e due process was not implicated since there was no reduction in overall compensation being paid. We also note that the Veteran was granted a temporary rating due to the surgical procedure. However, the rating decision contained absolutely no discussion of why diagnostic code 5257 was subject to a close-out rating. Furthermore, there was no discussion of improvement or whether surgery either did or did not end instability or subluxation. We shall not speculate when the AOJ, at the time of the decision, provided no explanation and did not address the concept of improvement or any other basis for the close-out rating. Generally, our due process analysis ceases at the time the decision by the AOJ makes a determination. The Court has stated that after the fact justification cannot make right that which is already wrong. However, we must comment on a July 2020 deferred rating decision noting that an examiner was unclear if the Veteran continued to experience subluxation. Whether a decision is amended based upon severance, improvement, or a close-out rating, there must be justification. The decision to close out code 5257 contained no facts or analysis to justify the decision and the July 2020 deferred rating decision raised the ghost that there may not have been improvement or that either instability or subluxation could exist after surgery. The decision to close-out code 5257 was remarkably silent. We also note that the AOJ closed-out the rating for the knee replacement. It is clear and a Code 5257 and a limitation of motion code may exist at the same time. Here, the rating decision to close-out Code 5257 was fatally flawed by the absolute silence regarding the issue, and the July 2020 rating decision certainly raised the possibility that the close-out rating decision was unjustified. Although the Court has stated that after the fact justification cannot make right that which was wrong, here after the fact comments tends to confirm that the close-out rating decision was wrong or at least questionable (in addition to containing no analysis). We find there was a basic denial of due process and a separate rating under Code 5257 is restored. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.