concurring:
For the reasons set forth in part II. of this opinion, I concur in the judgment of the Court which, inter alia, reverses the BVA’s selection of a diagnostic code for the veteran’s service-connected tinnitus. However, I disagree with the Court’s analysis suggesting that “questions of the application of the law to the facts” should be reviewed under an “arbitrary [or] capricious” standard, rather than a “clearly erroneous” standard.
As to the Court’s conclusion, which prompted en banc consideration, that selection of a diagnostic code is not a question of law but rather one of the application of law to the facts, I do not necessarily disagree. However, both McGrath v. Brown, 5 Vet.App. 57, 59 (1993), and Horowitz v. Brown, 5 Vet.App. 217, 224 (1993), which the Court is overruling on this question of labels, applied the same standard of review as does the Court now in Butts — the “arbitrary [or] capricious” standard from 38 U.S.C.A. § 7261(a)(3)(A) (West 1991).1 [All subsequent citations to U.S.C.A. are to the West 1991 edition.] Hence, the outcome, under the Court’s analysis, would have been the same even had McGrath and Horowitz been followed rather than overruled.
Although I do not disagree with the label now applied to the question of diagnostic-code selection, I believe the Court has further confused rather than clarified what is *542already an exceedingly murky area of our jurisprudence — the standard of judicial review for various BVA determinations.
I. Determining Standard of Judicial Review
A. Standard of Judicial Review “Categories”
Under our case law, the following have been labelled as “questions of law” subject to a “de novo” standard of review by the Court under 38 U.S.C.A. § 7261(a)(1)2: (a) The question whether, under 38 U.S.C.A. § 5108, there is new and material evidence to reopen a previously and finally disallowed claim, Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); (b) the question whether, under 38 U.S.C.A. § 5107(a), a person has submitted a well-grounded claim, Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); (c) the question whether, under 38 U.S.C.A. § 1111, there is sufficient evidence to rebut a presumption of soundness upon entry into service, Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991); and (d) the question whether, under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 (1992) [all subsequent citations to 38 C.F.R. refer to the 1992 edition], the Board applied correctly, based on the facts found, a statutory and regulatory presumption of aggravation, Hunt v. Derwinski, 1 Vet.App. 292, 293 (1991)3.
The Court has labelled the following as “questions of fact” subject to the “clearly erroneous” standard of review in 38 U.S.C.A. § 7261(a)(4)4: (a) The question as to when a disability was incurred, Santiago v. Brown, 5 Vet.App. 288, 292 (1993); (b) the question whether, under 38 U.S.C.A. § 1110 (West 1991), a disability was incurred in service, Hoag v. Brown, 4 Vet.App. 209, 212 (1993); (c) the question whether, under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306, a preexisting disability was aggravated during service, Corry v. Derwinski, 3 Vet.App. 231, 234 (1992); (d) the question whether, under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a), (b), and (d), a disability is service connected, Horowitz, 5 Vet.App. at 221-22; Mense v. Derwinski, 1 Vet.App. 354, 356 (1991); (e) the question of the degree of impairment resulting from a disability, that is, its rating under the VA schedule for rating disabilities, Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990); (f) the question whether, under 38 U.S.C.A. § 1521(a) and 38 C.F.R. § 4.17, a disability is permanent and total, Wilson v. Brown, 5 Vet.App. 103, 107 (1993); (g) the question whether, under 38 C.F.R. § 4.16, a veteran is unemployable for purposes of service-connected disability compensation, Pratt v. Derwinski, 3 Vet.App. 269, 270 (1992); (h) the question whether, under 38 U.S.C.A. § 5302(c), a VA debtor was guilty of fraud, Farless v. Derwinski, 2 Vet.App. 555, 556 (1992); (i) the question whether, under 38 U.S.C.A. § 101(4)(A)(ii), a veteran’s adult child was incapable of self-support, Bledsoe v. Derwinski, 1 Vet.App. 32, 33 (1990); and (j) the question whether, under 38 C.F.R. § 3.307(c), a time lapse between the manifestation of a chronic disease and definite diagnosis of that disease was “unreasonable”, Cook v. Brown, 4 Vet.App. 231, 238 (1993).
*543The Court has held or indicated that the following questions are subject to its review on an “arbitrary [or] capricious” standard under 38 U.S.C.A. § 7261(a)(3)(A) (it is this category which the Court now labels “application of the law to the facts”, ante at 539: (a) The question whether the Board erred, under 38 U.S.C.A. § 5107(b), in determining that evidence was not in equipoise on a question of material fact, Hayes v. Brown, 5 Vet.App. 60, 70 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 57-58 (1990); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 218 (1991) (separate views of Steinberg, J.); (b) the question whether the Board erred, under 38 C.F.R. § 4.30(b), in making a discretionary, adverse determination as to a veteran’s entitlement to a temporary total convalescence rating, Foster v. Derwinski, 1 Vet.App. 393, 394 (1991)5; (c) the question whether the Board erred, under 38 U.S.C.A. § 1112(b), in classifying a particular disease (type of arthritis), Bailey v. Derwinski, 1 Vet.App. 441, 445-46 (1991); (d) the question whether the Board erred in assigning a particular diagnostic code, McGrath, supra6; Horowitz, supra; (e) the question whether the Board erred, under 38 C.F.R. § 3.105(a), in determining that a prior regional office or BVA decision did not contain “clear and unmistakable error”, Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc); (f) the question whether the Board erred, under 38 U.S.C.A. § 5302(b) and 38 C.F.R. § 1.964(a), in making a discretionary determination on an application for a waiver of indebtedness to a VA debtor, Smith (Barbara) v. Derwinski, 1 Vet.App. 267, 279 (1991)7; Schaper v. Derwinski, 1 Vet.App. 430, 436 (1991) (quoting Smith); and (g) the question whether the Board erred in determining that a regulation governing individual unemployability (38 C.F.R. § 4.16(c)) is not applicable, Martin (Ray) v. Brown, 4 Vet.App. 136, 141 (1993) (Steinberg, J., concurring). In applying the “arbitrary [or] capricious” standard, our cases have tended to characterize the question involved as a question of law, see McGrath, supra; Young v. Brown, 4 Vet.App. 106, 108 (1993)8, if any label was applied at all.
B. Vagueness in Categorical Distinctions
The distinctions among these categories are not totally clear, but it would appear that cases in the first category (question of law and “de novo” review) involve issues of the sufficiency of the evidence to meet a legal standard and that those in the second category (question of fact and “clearly erroneous” review) involve questions of historical factfinding — i.e., who, what, when, and where.9 However, the line between the third (application of the law to the facts) and the first two categories appears most irregular to me. For example, I do not see the justification for treating the question whether the evidence is adequate to rebut the presumption of soundness (Bagby, supra) or to constitute a well-grounded claim (Grottveit, supra) as a question of law and treating the question whether the evidence is in equipoise (Gilbert, supra) or shows a certain type of disease (Bailey, supra) as a question of the application of the law to the facts. All of these questions involve the application of the law to the facts and evaluating the Board’s assessment of evidence. Indeed, it is unclear why the very question in Butts could not be worded as “whether the evidence justifies the diagnostic code assigned” — so as to fit that question into the first category of question of law and “de novo” review.
*544In creating the third category, the Court appears to be suggesting that it somehow matters whether a question falls into the second (“clearly erroneous” review) or third (“arbitrary [or] capricious” review) category. The opinion seems to define the latter standard of review as being whether the agency “articulates a satisfactory explanation for its actions”, ante at 539 (quoting Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983)), or if “a rational basis” exists for an agency determination, ante at 539 (citing Environmental Defense Fund v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981)). I can discern, however, no material difference between what the Court in Butts seems to establish as the arbitrary-and-capricious standard — whether a rational basis or explanation exists for an agency decision — and what the Court, based on Supreme Court precedent,10 has consistently defined as the “clearly erroneous” test— whether there is “a plausible basis in the record for the Board’s determination.” Gilbert, 1 Vet.App. at 52. Indeed, during the debate on the Veterans’ Judicial Review Act, Pub.L. No. 100-687, Div. A, 102 Stat. 4105 (1988), the principal historical proponents of the Senate and House bills proposing judicial review of BVA decisions expressed the view, in reliance on an administrative law treatise, that the “clearly erroneous” standard would permit a wider ambit of judicial review than would the “arbitrary [or] capricious” standard.11
Regardless of whether one of these standards permits broader judicial review, both the “clearly erroneous” and “arbitrary [or] capricious” standards seem to provide substantial deference to the Board’s determinations and provide very narrow bases for the Court to overturn those determinations. Binding federal precedent illustrates the congruence of those two supposedly different standards Compare, e.g., Marsh v. Oregon Nat. Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861-62, 104 L.Ed.2d 377 (1989) (“As we observed in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 [91 S.Ct. 814, 823-24, 28 L.Ed.2d 136] ... (1971), in making the factual inquiry concerning whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ”); Hines v. Secretary of Health and Human Services, 940 F.2d 1518, 1528 (Fed. Cir.1991) (“ ‘arbitrary and capricious’ is a highly deferential standard of review”); and Smith (Barbara), 1 Vet.App. at 279 (quoting Motor Vehicle Mfrs. Ass’n, supra, and Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962), to the effect that “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow”), with, e.g., Concrete Pipe and Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., — U.S. -, -, 113 S.Ct. 2264, 2280, 124 L.Ed.2d 539, 564 (1993) (“review under the ‘clearly erroneous’ standard is significantly deferential”); Cooter & Gell v. Hartmarx, 496 U.S. 384, 400, 110 S.Ct. 2447, 2458, 110 L.Ed.2d 359 (1990) (“[i]n practice, the ‘clearly erroneous’ standard requires the appellate court to uphold any district court determination that falls within a broad range of permissible conclusions”); and Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988) (“[w]e have stressed that the clearly-erroneous standard of review is a deferential one”). Thus, review by the Court of a so-called “question of the application of the law to the facts” under the “arbitrary [or] capricious” standard will apparently result in according a high degree of deference to the Board determination in question.
*545C. An Alternative Approach
I believe that the highly deferential “arbitrary [or] capricious” standard should not automatically be applied to review of a “mixed” question of law and fact12, or what the Court in Butts calls “a question of the application of the law to the facts”. Ante at 539. Rather, when confronted with such questions, the Court should determine the appropriate standard of review pursuant to the following two-step analysis derived from Supreme Court guidance and this Court’s own jurisprudence: First, the Court should determine whether the “mixed” question can be broken down into component parts presenting more purely factual or legal questions. Second, if the “mixed” question cannot be broken down into separate factual and legal components, the Court should determine whether the specific “mixed” question involves a determination which is more suited to decision by the Board, in which case a deferential review is proper, or is more suited to decision by the Court, in which case a non-deferential review is proper.
As to the first step of this analysis, I note that this Court, in Hunt, supra, undertook just such an analysis when confronted with a “mixed” question of law and fact as to whether a veteran was entitled to a statutory presumption of aggravation. In Hunt, the Court stated:
The issue before this Court involves both a question of fact and a question of law. Whether the BVA’s finding, that appellant’s knee injury did not worsen in service, is erroneous, involves a question of fact. Whether the BYA correctly applied 38 U.S.C. § 353 [ (now § 1153) ] and 38 C.F.R. § 3.306(a) (1990) (which defines aggravation for compensation purposes) to those findings involves a question of law. We hold that the factual findings of the BYA as to the condition of the knee upon entry into service and upon separation are plausible in light of the record viewed in its entirety and are not clearly erroneous. We also hold that the BVA did not err in applying the definition of “aggravation in service” under 38 U.S.C. § 353 and 38 C.F.R. § 3.306(a) to the facts of the case.
1 Vet.App. at 293 (emphasis added).
As to the second step of the analysis outlined above — determining whether a particular “mixed” question should be reviewed under a deferential or a non-deferential standard — the Supreme Court has stated the following, regarding the appropriate standard for an appellate court’s review of a trial court’s determinations:
Perhaps much of the difficulty in this area stems from the practical truth that the decision to label an issue a “question of law,” a “question of fact,” or a “mixed question of law and fact” is sometimes as much a matter of allocation as it is of analysis. At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned upon a determination that, as a matter of the sound administration of justice, one judicial actor is better suited than another to decide the issue in question.
Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985) (emphasis added); see Pierce v. Underwood, 487 U.S. 552, 559-60, 108 S.Ct. 2541, 2547, 101 L.Ed.2d 490 (1988) (determining that, in that case, the Miller standard “argues in favor of deferential, abuse-of-discretion review” of a “mixed” question because district court is “better positioned” to decide the question); Cooter & Gell, 496 U.S. at *546403, 110 S.Ct. at 2459-60 (same).13 In Bag-by, supra, this Court endorsed such a functional approach for determining the amount of deference due to a BVA determination, stating:
Initially, we must determine the proper standard of review of the BVA determination that the presumption of soundness was rebutted.... While the underlying determinations may be factual — in this case, for example, the BVA could have determined as a factual matter that appellant was treated prior to service— whether those facts are sufficient to satisfy the statutory requirement that clear and unmistakable evidence be shown is a legal determination subject to de novo review_ There will, of course, be instances where what might be characterized as a legal determination will fall so clearly within the area of the BVA’s expertise that deference to that expertise requires that the conclusion be characterized as factual
1 Vet.App. at 227 (boldface italics added).
Indeed, this very alternative analysis is echoed by the majority’s quotation here {ante at 538,) of the Ninth Circuit’s Morris decision, which states, as to judicial review of agency determinations, that “[w]here the question to be decided involves a matter of particular expertise of the agency, the deferential standard should be applied”, but that “the more probing de novo standard is appropriate” “where courts have experience in the area and are fully competent to decide the issue”. Morris v. C.F.T.C., 980 F.2d 1289, 1293 (9th Cir.1992).
Based on those precedents and the fuzziness between the standard-of-review categories of questions described above, I think our jurisprudence would be better served if the Court were to avoid the third category and, instead, assign the questions to which an “arbitrary [or] capricious” review is being applied into the first or second category, generally labelling them as questions of law subject to “de novo” review or questions of fact subject to “clearly erroneous” review, depending on whether the Court or the Board is better suited to make the particular determination.
D. Possible Distinction Between Standards of Review
Finally, it occurs to me that a distinction that might be made between the “arbitrary [or] capricious” and “clearly erroneous” standards might be that our review under the former standard should focus on the Board’s stated justification or explanation and whether it is rational. See Smith (Barbara), 1 Vet.App. at 279 (quoting Burlington, supra, and Motor Vehicle Mfrs. Ass’n, supra, for the proposition that the Court in applying an “arbitrary [or] capricious” standard of review is to determine whether the agency “articulate[d] a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made’ ”); United States v. Garner, 767 F.2d 104, 116 (5th Cir.1985) (“the central focus of the arbitrary and capricious standard is on the rationality of the agency’s ‘decisionmaking’ rather'than its actual decision”); Russell, 3 Vet.App. at 320, 322 (where BVA failed to explain the reasons or bases for its determination on a claim of “clear and unmistakable error”, remand, rather than reversal under “arbitrary [or] capricious” standard, was required for Board statement of reasons or bases). In undertaking judicial review under such an analysis, the Court should hold that a Board determination was “arbitrary [or] capricious” only where the Board has provided the basis for its decision. Of course, that is exactly what the Court has not done in Butts where it should be remanding for the Board to explain its reasons for selecting a particular diagnostic code. Because the BVA’s decision lacks an explanation for the Board’s selection of the particular diagnostic code chosen, there is not a sufficient basis for the Court to determine whether that decision is “arbitrary [or] capricious”.
*547Indeed, the remand approach is the one the Court has invariably followed in connection with the very first question assigned an “arbitrary [or] capricious” standard of review — the application of the benefit-of-the-doubt doctrine — whether the evidence preponderates against the claim. See, e.g., Williams v. Brown, 4 Vet.App. 270, 273-74 (1993); Jones, 1 Vet.App. at 217-18; Hatlestad v. Derwinski, 1 Vet.App. 164, 170 (1991); Gilbert, 1 Vet.App. at 57-58; but see Gilbert, 1 Vet.App. at 59-61 (Kramer, J., concurring) (in addition to reviewing adequacy of BVA’s reasons or bases, Court should determine whether BVA decision not to apply the benefit of the doubt violated the provisions of 38 U.S.C.A. § 5107(b)). In contrast, the Court has on occasion reversed as clearly erroneous so-called fact determinations by the Board without remanding for an adequate statement of reasons or bases where the reasons or bases in the Board’s decision were inadequate; this has been done on the theory that no explanation could be convincing that the record afforded a plausible basis for the Board’s determination. See Bucklinger v. Brown, 5 Vet.App. 435, 440-41 (1993); Hersey v. Derwinski, 2 Vet.App. 91, 93-95 (1992); Gleicher v. Derwinski, 2 Vet.App. 26, 28-29 (1991); see also Jones, 1 Vet.App. at 218-19 (separate views of Steinberg, J.).
II. Review of Selection of Diagnostic Code in Butts
Applying the analysis suggested in part I.D., above, and adhering to the recent precedential opinion in Bucklinger, supra, I believe that the Court should review the Board’s selection of a diagnostic code in the instant case under the “clearly erroneous” standard. Under that proposed two-step analysis, the Court should determine whether the “mixed” question can be broken down into purely factual and legal components. The question of the selection of a diagnostic code may properly be called a “mixed question of law and fact” or “a question of the application of the law to the facts” in that it requires the Board to determine which regulatory diagnostic code must be applied (i.e., a legal determination) to the facts found (i.e., a factual determination). In order to make the legal determination as to which diagnostic code must be applied, the Board must first make a factual determination as to the nature of the disability from which the veteran suffers. If there is no dispute as to the factual elements — e.g., the identity or etiology of the disability — the Board’s selection of a diagnostic code will be a purely legal determination, which the Court should review de novo. On the other hand, if there is a dispute as to the underlying facts, the Court should review the Board’s determination under the deferential “clearly erroneous” standard applicable to review of questions of fact.
As will be explained below, the Court in Bucklinger, supra, very recently followed exactly this analysis in reversing a fact determination by the Board that a veteran’s tinnitus was caused by disease rather than trauma, and that precedential opinion should be followed.
In the instant case, the dispute as to the selection of the appropriate diagnostic code pertains to a purely factual issue — the cause of the veteran’s tinnitus. If, as the veteran contends, his tinnitus was caused by in-service acoustic trauma, then, as a matter of law, the Board would be required to evaluate that disability under the diagnostic code pertaining to tinnitus resulting from acoustic trauma (38 C.F.R. § 4.87a, diagnostic code 6260). On the other hand, if, as the BVA apparently concluded, the veteran’s tinnitus was caused by his rhinitis, then it may have been appropriate, as a matter of law, to evaluate his tinnitus under the diagnostic code pertaining to rhinitis. Therefore, determination of the purely factual issue as to the cause of the veteran’s tinnitus may be — and, in my view, is in this case — dispositive of the “mixed” question regarding selection of the appropriate diagnostic code.
Applying the “clearly erroneous” standard to the facts of this case compels the conclusion that the Board’s determination that the veteran’s tinnitus was caused by his rhinitis rather than in-service noise exposure is clearly erroneous and must be *548reversed. In determining that the veteran’s tinnitus was not caused by in-service acoustic trauma, the Board stated:
We acknowledge various statements to the effect that the veteran’s tinnitus is, in fact, the result of inservice acoustic trauma sustained on a flight line. However, it should be noted that the earliest clinical indication of the presence of any high frequency sensorineural hearing loss normally associated with such trauma is in September 1990, slightly more than five years following the veteran’s discharge from service. Based upon such findings, and following a full review of the record, the Board remains unconvinced that the veteran’s current tinnitus is in any way related to acoustic trauma sustained in service.
Chester L. Butts, BVA 91-21122, at 8-9 (July 11, 1991). As the majority notes, the record contains a VA physician’s September 1990 opinion that the veteran’s tinnitus was caused by his in-service noise exposure, and no evidence to the contrary. R. at 92; ante at 540. Additionally, the veteran’s January 1985 report of examination at separation from service contains a diagnosis of “mild high frequency hearing loss” (R. at 14), although the degree of hearing loss noted on that examination was not then sufficient to warrant VA disability compensation. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet.App. 155 (1993).
In Bucklinger, supra, a case with almost identical facts, the Court has just held that where “there is no evidence in the record that could plausibly support a conclusion that the veteran’s tinnitus was caused by disease rather than in-service acoustic trauma”, “that conclusion by the Board must be set aside under 38 U.S.C.A. § 7261(a)(4)” as clearly erroneous. Bucklinger, 5 Vet. App. at 440. Under this precedent, the Board’s factual determination that the veteran’s tinnitus was caused by rhinitis rather than in-service noise exposure should be set aside as clearly erroneous under section 7261(a)(4). That conclusion compels the holding that, as a matter of law, the Board applied the incorrect diagnostic code to evaluate the veteran’s tinnitus. I thus concur in the Court’s holding that “the veteran’s tinnitus must be re-rated under DC 6260”. Ante at 540.
The majority asserts that Bucklinger is not directly relevant because in Bucklinger “it is clear that the issue is one of causation”, a question of fact, whereas in Butts the issue is “the selection of a diagnostic code, which involves the application of the law to the facts rather than a clear question of law or. review of a factual determination.” Ante at 540. However, it is clear in this case, as it was in Bucklinger, that the dispositive issue is one of causation, which is a factual question. Resolution of the factual question as to the cause of the veteran’s tinnitus will dictate the resolution of the issue of the selection of the appropriate diagnostic code.
In Bucklinger, the Court held:
[Tjhere is no ... evidence whatsoever in the record which would support a conclusion that the veteran’s tinnitus was caused by external otitis rather than noise exposure....
In contrast, the veteran testified under oath that he had been exposed during service to loud, noises, including noise from weapons fire during his Pacific combat service. R. at 150-52. Furthermore, in the report of a May 1990 VA audiological examination, the examiner stated that the veteran’s “tinnitus is consistent with a ... history of noise exposure”. R. at 136. In view of this evidence, and in the absence of any evidence of record that the veteran's tinnitus was caused by anything other than noise exposure, there is no plausible basis for the Board’s conclusion that the veteran’s tinnitus was caused by disease rather than trauma. Therefore, that conclusion by the Board must be set aside under 38 U.S.C.A. § 7261(a)(4) (West 1991).
Bucklinger, 5 Vet.App. at 440.
In Butts, the Court holds:
There is no evidence of record that the tinnitus is a result of rhinitis. On the contrary, on a September 14, 1990, consultation report, a VA physician wrote: “In addition [appellant] has a tinnitus which I feel is associated with a mild high[-]frequency neurosensory hearing *549loss and is secondary to working on the flight line for several years.” R. at 92_ Because of the differences be-
tween [rhinitis and tinnitus] and especially because of the absence of evidence of a causal connection between appellant’s rhinitis and tinnitus, it is unclear how the Board or the RO could have concluded that tinnitus should be rated as a complication of rhinitis under DC 6501. Therefore, the Court sets aside as arbitrary and capricious that part of the BYA decision adopting the RO’s rating of tinnitus under DC 6501 and remands the matter with directions that the veteran’s tinnitus be re-rated under DC 6260.
Ante at 540 (citation omitted).
There is no appreciable difference between the issues decided in Bucklinger and Butts. The only distinction between the two cases is the one unnecessarily created by the majority here in applying a different (or at least purportedly different) standard of review in Butts than was applied to the same issue in Bucklinger. The majority’s statement that the issue in Bucklinger was one of fact while the issue in Butts is one of “the application of the law to the facts” is misleading, cannot withstand close scrutiny, and illustrates why the standard of judicial review should be determined by relying not upon such labels but, rather, as described in part I.C. of this opinion, upon appropriate dissection of the issues presented.
. The Court shall “hold unlawful and set aside" BVA findings, other than findings of material fact, that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. 38 U.S.C.A. § 7261(a)(3)(A).
. The Court shall "decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary". 38 U.S.C.A. § 7261(a)(1).
. In Young v. Brown, 4 Vet.App. 106, 108 (1993), the Court coalesced the “question of law" label and the "arbitrary and capricious" standard of review, in the same way as did the Court in McGrath, 5 Vet.App. at 59, by stating: "Because a decision or finding that a veteran is to be awarded P.O.W. status under 38 U.S.C. § 101(32)(B) is a legal determination, the standard of review is defined by 38 U.S.C. § 7261(a)(3)(A).” Because the Court did not cite 38 U.S.C.A. § 7261(a)(1) or refer to de novo review, this case does not really fall into the question-of-law category. See also Fallo v. Derwinski, 1 Vet.App. 175, 177 (1991) (Court stated that its review of a "question of law” (whether, apparently under 38 U.S.C.A. § 1154(b), the Board applied the correct burden of proof) was "under 38 U.S.C. § 4061(a)(3) [now § 7261(a)(3) ]").
. The Court shall “in the case of a finding of material fact made in reaching a decision in a case before the Department [of Veterans Affairs] with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous.”
. Although the Court in Smith (Barbara), infra, and Foster, stressed the discretionary nature of the Secretarial determination under review, the stated standard was "arbitrary, capricious, [or] an abuse of discretion”. Smith (Barbara) v. Derwinski, 1 Vet.App. 267, 279 (1991); Foster v. Derwinski, 1 Vet.App. 393, 394 (1991). These cases do not suggest any difference in the review standard in terms of "abuse of discretion" versus “arbitrary and capricious”.
. See supra note 3.
. See supra note 5.
. See supra note 3.
. For this analysis, I am much indebted to Judge Farley whose keen insights have provided great stimulation, inspiration, and learning.
. See Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)).
. See 134 Cong.Rec. S16648-49 (Oct. 18, 1988) (statement of Sen. Cranston) (citing 5 Kenneth Culp Davis, Administrative Law Treatise § 29:6 (2d ed. 1984)); 134 Cong.Rec. H10360-61 (Oct. 19, 1988) (statement of Rep. Edwards) (same).
. The Supreme Court has characterized issues as "mixed” questions when they involve "the application of a legal standard to a particular set of facts”. TSC Industries v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2133, 48 L.Ed.2d 757 (1976); see also Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963) (“the application of a legal standard to the historical fact determinations”); see also Miller v. Fenton, 474 U.S. 104, 113, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985) (quoted in text, infra); Pullman-Standard Co. v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982) ("whether the rule of law as applied to the established facts is or is not violated”).
. See abo William W. Schwarzer et al., The Analysb and Decbion of Summary Judgment Motions, 139 F.R.D. 441, 454-61 (1992) (discussing criteria for distinguishing questions of law from questions of fact for purposes of rulings on motions for summary judgment).