concurring.
I concur with the decision of the majority to remand this case back to the Board of Veterans’ Appeals (BVA) for it
to comply promptly with the requirement of 38 U.S.C. § 4004(d)(1) that its findings and conclusions be accompanied by ‘reasons or bases’ adequate to explain both to the veteran and to this Court its factual findings and its conclusion that the veteran is not entitled to the ‘benefit of the doubt’ under 38 U.S.C. § 3007(b).
Ante at 58. However, to the extent that the majority opinion could be read to suggest that this Court will always affirm BVA determinations that the statutorily mandated “benefit of the doubt” standard of proof is not applicable as long as the BVA has provided reasons or bases for that determination, I write separately to emphasize that I believe that such an approach would be too restrictive. While I agree that the failure to list reasons and bases is a proper ground for this Court to remand a BVA decision not to apply the “benefit of the doubt” standard, I do not believe that the mere listing of the reasons or bases is enough for this Court to affirm such a decision. This Court must also be convinced after considering those reasons or bases that the BVA decision not to apply the “benefit of the doubt” standard was not in violation of 38 U.S.C. § 3007(b) (1988).
When reviewing BVA decisions that the “benefit of the doubt” standard does not *60apply, there are three statutory sections that must be considered.
First, there is the “benefit of the doubt” standard itself contained in 38 U.S.C. § 3007(b) (1988):
(b) When, after consideration of all evidence and material of record in a case before the [Department of Veterans Affairs (Department) ] with respect to benefits under laws administered by the [Department] there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. ...
Second, there are the key provisions of this Court’s scope of review regarding the “benefit of the doubt” standard contained in 38 U.S.C. § 4061 (1988):
(a) In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall—
(1) decide all relevant questions of law, interpret ... statutory ... provisions ...
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(3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), ... [and] ... conclusions ... issued or adopted by ... the Board of Veterans’ Appeals ... found to be—
(A) ... not in accordance with law;
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(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or
(4) in the case of a finding of material fact made in reaching a decision in a case before the [Department] with respect to benefits under laws administered by the [Department], hold unlawful and set aside such finding if the finding is clearly erroneous.
Third, and finally, there is the requirement of reasons or bases contained in 38 U.S.C. § 4004(d)(1) (1988):
(d) Each decision of the [BVA] shall include—
(1) a written statement of the [BVA]’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; ...
Thus, when § 4004(d)(1) has been complied with and this Court is reviewing BVA decisions not to apply the “benefit of the doubt” standard, it is engaged in two separate analyses. First, the Court must determine if the BVA’s findings of material fact made in reaching its decision were clearly erroneous pursuant to § 4061(a)(4). Second, after making these determinations, this Court must use them and apply § 4061(a)(1), (3) to decide whether the BVA’s decision not to apply the “benefit of the doubt” standard was in accordance with § 3007(b). It is crucial to understand, however, that though these two analysis are interrelated, they are still made independently of one another and under different scopes of review.
The “benefit of the doubt” standard is a standard of proof statutorily mandated by 38 U.S.C. § 3007(b). As such, review by this Court as to whether this standard of proof has been correctly applied by the BVA does not constitute review of a finding of material fact which would invoke the clearly erroneous test of 38 U.S.C. § 4061(a)(4). Rather, it is a separate review made pursuant to 38 U.S.C. § 4061(a)(1), (3) to determine whether in light of these reviewed findings of material fact, the refusal to apply the § 3007(b) mandated standard was not “in accordance with law,” not “in excess of statutory jurisdiction, authority, or limitations,” and not “in violation of a statutory right.” 38 U.S.C. §§ 4061(a)(3)(A), (C). Cf. United States v. Samuels, 801 F.2d 1052, 1057 (8th Cir.1986) (When reviewing the sufficiency of the evidence supporting a verdict, the reviewing court, though it may not judge the creditability of that evidence, must “inevitably determine the weight that should *61be accorded to [it].”), Vance v. Southern Bell Telephone and Telegraph, 863 F.2d 1503, 1515 (11th Cir.1989) (When deciding whether to grant a judgment not withstanding verdict, the court is “free to weigh the evidence” itself.), United States v. Bright, 550 F.2d 240, 242 (5th Cir.1977) (When determining whether facts are sufficient to support a verdict, the court applies a “legal test.”). See generally Office of Communication of the United Church of Christ v. F.C.C., 707 F.2d 1413, 1423 (D.C.Cir.1983) (It is the “quintessential function of the reviewing court” to strike down agency actions that are inconsistent with statutory mandate.), Securities Exchange Commission v. Sloan, 436 U.S. 103, 119, 98 S.Ct. 1702, 1712, 56 L.Ed.2d 148 (1978) (“Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of agency decisions that they deem inconsistent with statutory mandate.”) (citations omitted.)
The only effect 38 U.S.C. § 4004(d)(1) has on these two analyses is that it requires the BVA to list its reasons or bases for both its findings of material fact and its decision not to apply the “benefit of the doubt” standard. The requirement of reasons or bases is only meant to provide the veteran and this Court with help in understanding whether such findings and decisions were in accordance with §§ 4061(a) and 3007(b). Section 4004(d)(l)’s requirements are not meant to replace, nor lower, the scope of review this Court will apply when making these determinations. Reasons or bases may or may not justify such findings and decisions. No amount of reasons or bases, no matter how articulately made, can justify that which is not justifiable.
The determination of how these three statutory provisions interact constitutes a decision of far reaching importance to the development of this Court. If this Nation’s veterans are truly to have the benefit of independent judicial review as envisioned by the Veterans’ Judicial Review Act, 38 U.S.C. §§ 4051-4092 (1988) (VJRA), it must be real judicial review, not just the appearance thereof. To adopt a framework which is too deferential to the BVA will be contrary to the congressional intent in passing the VJRA as it will leave the BVA, not the judiciary, as the final arbiter of “benefit of the doubt” determinations. I do not believe the majority intends this result, especially in light of its elegant recognition that:
This unique standard of proof [the ‘benefit of the doubt’ standard] is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an ‘approximate balance of positive and negative evidence.’ By tradition and by statute, the benefit of the doubt belongs to the veteran.
Ante at 54. Therefore, I respectfully add this concurrence.