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Abstract

"In sight, it must be right" was the advertising slogan of a chain of hamburger restaurants that featured visible grills so customers could see the food being prepared, the assumption being that under customers' watchful eyes the burgers would be grilled properly. The Board of Veterans' Appeals ("Board") provides the final decision of the Department of Veterans Affairs ("VA") on a veteran claimant's entitlement to benefits, based on de novo review of a previous VA regional office determination. When in 1988 Congress provided in the Veterans Judicial Review Act for court review of agency decisions on veterans' claims for benefits, it imposed a requirement that the Board provide in its written decision a statement of reasons and bases for its findings on all material issues of fact and law.' The legislative history of the statute articulated a dual purpose for the reasonsand-bases requirement: to enable the claimant to understand how the Board dealt with his or her arguments and evidence, and to assist a reviewing court to understand and evaluate the VA's adjudication action. These purposes seem quite similar to the hamburger chain's idea that a process conducted in plain sight will likely be done properly. In the important case of Gilbert v. Derwinski, the then-new Court of Veterans Appeals, now the Court of Appeals for Veterans Claims ("Court"), fleshed out what the reasons and bases requirement entails. The Court referred to a Board decision being "tested by the basis upon which it purports to rest" and declared, in Judge Farley's vivid locution, that the Court cannot be expected "to chisel that which must be precise from what the agency has left vague and indecisive." Thus, the Court will vacate and remand a Board decision that lacks adequate reasons and bases. While the statute explicitly provides for Board decisions to be vacated if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and it is likely that a decision without adequate reasons and bases falls under one or more of those categories, the Court typically does not cite any other legal authority for remand, holding the inadequacy of reasons and bases alone sufficient.

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