NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT M. HUDICK,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-2234

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 15-4161, Judge Coral Wong 

Pietsch, Judge Mary J. Schoelen, Senior Judge Alan G. 

Lance, Sr. 

______________________ 

Decided: December 3, 2018

______________________ 

ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, 

Providence, RI, argued for claimant-appellant. Also 

represented by MEGAN MARIE ELLIS, APRIL DONAHOWER; 

BARBARA J. COOK, Barbara J. Cook, Attorney at Law, 

Cincinnati, OH; CHRISTOPHER J. CLAY, Disabled American 

Veterans, Cold Springs, KY. 

 NATHANAEL YALE, Commercial Litigation Branch, 
2 HUDICK v. WILKIE

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by ROBERT EDWARD KIRSCHMAN, JR., LOREN 

MISHA PREHEIM, JOSEPH H. HUNT; BRIAN D. GRIFFIN,

BRANDON A. JONAS, Office of General Counsel, United 

States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit 

Judges.

O’MALLEY, Circuit Judge. 

Robert M. Hudick appeals from the final decision of 

the United States Court of Appeals for Veterans Claims 

(“Veterans Court”), which affirmed a decision by the 

Board of Veterans’ Appeals (“the Board”) denying him an 

entitlement to service connection for his prostate cancer. 

Hudick v. Snyder, 2017 WL 444516, at *1 (Vet. App. Feb. 

2, 2017). Because we conclude that the Board failed to 

apply its own internal procedures in adjudicating 

Hudick’s claim and that this error was not harmless, we 

reverse. 

I. BACKGROUND

Hudick served in the United States Air Force from 

September 1962 until he was honorably discharged in 

July 1983. As relevant to this appeal, Hudick served at

the Udorn Royal Thai Air Force Base in Thailand (“Udorn

Air Force Base”) from January 1967 to January 1968. 

In April 2006, Hudick was diagnosed with prostate 

cancer. Hudick thereafter filed a claim for service connection regarding his prostate cancer with the Department of 

Veterans Affairs’ (“VA”) regional office in Fort Harrison, 

Montana (“the Regional Office”). This began the process, 

spanning many years and several appeals, outlined below.
HUDICK v. WILKIE 3

A. VA Regional Office Decision

Before the Regional Office, Hudick argued that his 

prostate cancer was connected to herbicide exposure in 

Vietnam. Hudick specifically explained that, although he 

was stationed at Udorn Air Force Base in Thailand, he 

regularly traveled to Tan Son Nhut Air Base in Vietnam

for various assignments. 

On July 10, 2006, the Regional Office sent a letter to 

Hudick and the National Personnel Records Center 

requesting records showing that Hudick had physically 

set foot in Vietnam while serving at Udorn Air Force Base 

in Thailand. The Regional Office did not receive a response from Hudick. The National Personnel Records 

Center, however, did respond. It explained that it was

“unable to verify that [Hudick] had in-country service in 

the Republic of Vietnam.” J.A. 21. 

The Regional Office denied Hudick’s claim on November 3, 2006. In its decision, the office explained that 

Hudick could not show a connection between his prostate 

cancer and his military service. While the office acknowledged that such a connection is presumed for veterans 

who served in Vietnam during the time frame Hudick

alleged, it concluded that he was not entitled to this 

presumption because there was “no evidence” showing he 

was “ever in the country of Vietnam.” J.A. 21. Without 

the presumption, the Regional Office found “no basis in 

the available evidence of record to establish service connection for [Hudick’s] prostate cancer.” J.A. 22. 

Hudick appealed this decision to the Board.

B. Intervening Compensation Bulletin

After Hudick appealed the Regional Office decision 

but before the Board ruled on his petition, the VA issued a 

new Compensation & Pension Service Bulletin. See 

Department of Veterans Affairs, Comp. & Pension Serv. 

Bull., Policy 211, New Procedures for Claims Based on 
4 HUDICK v. WILKIE

Herbicide Exposure in Thailand and Korea (May 2010)

(“Compensation Bulletin”), available at 

https://tinyurl.com/CompensationBulletin (accessed Oct. 

22, 2018). In the Compensation Bulletin, the VA 

acknowledged that, between February 28, 1961 and May 

7, 1975—while Hudick served in Thailand—“there was 

significant use of herbicides on the fenced in perimeters of 

military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.” Id.

at 3. The VA concluded that it would concede herbicide 

exposure on a facts-found basis where a veteran could 

establish by “credible evidence” that he had served near 

the perimeter of particular Air Force bases, including 

Udorn, during this time period. Id. The goal of these

“policy changes,” according to the VA, was to expedite 

claim processing. Id. at 4. 

In addition to issuing the Compensation Bulletin, the 

VA revised its Adjudication Procedures Manual M21-1 

(“M21 Manual”). In relevant part, the revised M21 Manual recites steps for evaluating claims of herbicide exposure for veterans with service in Thailand during the 

Vietnam Era. See M21 Manual, Part IV, Subpart ii, ch. 1, 

§ H, ¶ 5(b), available at https://tinyurl.com/M21Manual.1 

The first step is to determine if the veteran served at one 

of several enumerated airbases in Thailand during the 

“Vietnam Era” “as an Air Force [i] security policeman, [ii] 

security patrol dog handler, [iii] member of the security 

police squadron, or [iv] otherwise near the air base perim1 These steps were originally outlined in Part IV, 

Subpart ii, ch. 2, ¶ C.10.q. They now appear in Part IV, 

Subpart ii, ch. 1, ¶ H.5.b. For clarity, we refer to the 

current version of the M21 Manual unless otherwise 

stated. The government has not argued that the language 

that appeared in Section C differs from the language as it 

appears in Section H. 

 
HUDICK v. WILKIE 5

eter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.” Id. 

The manual then instructs: “If yes, concede herbicide 

exposure on a direct/facts-found basis.” Id. 

C. First Board Decision 

In May 2012, the Board remanded Hudick’s case for 

further consideration based on the new Compensation 

Bulletin and M21 Manual revisions. J.A. 34–38. The 

remand order included specific instructions for adjudicating Hudick’s claim. First, the Board directed the Regional 

Office to inform Hudick “of the evidence required to 

establish a service connection claim based on Agent 

Orange exposure and explain[] the manual procedures for 

addressing claims based on Agent Orange exposure in 

Thailand.” Id. at 36–37. Next, the Board told the Regional Office to request additional information from the

Department of Defense (“DOD”) or the Joint Services 

Records Research Center (“JSRRC”). Id. at 37. With that 

information, the Board directed the Regional Officer to 

“readjudicate the claim of service connection for prostate 

cancer.” Id. This adjudication was to proceed, the Board 

explained, based on the “specific procedures” in the M21 

Manual.2 Id. at 35–36 (“The United States Court of Appeals for Veterans Claims (Court) has consistently held 

that evidentiary development procedures provided in the 

Adjudication Procedures Manual are binding.”). 

D. Additional Evidence 

After the Board’s May 2012 decision, various archivists and agencies reviewed information about Hudick’s 

2 Because the Board remanded so that Hudick’s 

service in Thailand could be reevaluated based on the new 

Compensation Bulletin, the Board did not discuss whether the Regional Office erred in concluding that Hudick did 

not serve in Vietnam. 

 
6 HUDICK v. WILKIE

service and the use of herbicides in Thailand. For example, in July 2012, the JSRRC concluded, based on reviewing relevant unit histories and historical data, that it 

could not verify whether Hudick was exposed to herbicides while serving at Udorn Air Force Base or whether 

his duties placed him at the base perimeter there. J.A. 

100–01. In January 2014, an archivist with the U.S. Air 

Force Historical Research Agency concluded that Hudick’s 

commendations did not reflect in-country service in Vietnam. J.A. 41. And in a May 2014 addendum, the 

archivist also concluded that “herbicides were not used on 

any USAF Thailand base until April 1969, long after 

[Hudick] was at Udorn.” J.A. 45. 

Hudick also submitted an additional statement to the 

Board on September 15, 2014. In his statement, Hudick

explained that his regular duty location was at a munitions storage area “two miles from the main support base 

on the outer perimeter [at Udorn Air Force Base].” J.A. 

53. He also explained that he had frequent contact with 

aircrafts that had “direct exposure to . . . Agent Orange.” 

Id. 

E. Second Board Decision 

In September 2015, the Board issued another decision. Although it had previously remanded Hudick’s case 

with clear instructions for the Regional Office to “readjudicate” his claims based on the M21 Manual and the 

Compensation Bulletin, in its new decision the Board

concluded that remand was “unnecessary.” J.A. 56. 

Instead, the Board explained that its exhaustive research 

demonstrated “substantial compliance” with its previous 

remand order. Id. 

On the merits, the Board denied Hudick an entitlement to service connection for his prostate cancer based 

on his service in Thailand and Vietnam. 
HUDICK v. WILKIE 7

As to Vietnam, the Board acknowledged Hudick’s repeated assertions that he had served temporary duty 

assignments in Vietnam, which “were [not] properly 

recorded as troop movements were classified.” J.A. 60. 

But after examining Hudick’s service records, historical 

information about his unit, and other information, the 

Board found that, “[d]espite exhaustive research, there is 

no evidence to confirm that [Hudick] had in-country 

service in Vietnam.” J.A. 60–62. 

As to Thailand, the Board began by discussing the 

M21 Manual and the Compensation Bulletin. It recognized that, under the M21 Manual, “if a Veteran served 

[at Udorn Air Force Base] . . . during the Vietnam Era 

and was stationed near the air base perimeter as shown 

by evidence of daily work duties, performance evaluation 

reports, or other credible evidence, then herbicide exposure should be conceded.” J.A. 58. It also recognized that 

the Compensation Bulletin established a similar presumption. J.A. 58–60. The Board then found that Hudick

was “competent to report . . . working at a munitions 

storage area away from the central base near the base 

perimeter in Thailand.” J.A. 65. But this “probative 

evidence,” the Board reasoned, “[was] outweighed by 

review of the Veteran’s service personnel records and 

exhaustive research efforts which resulted in conclusions 

that contradicted his own and serve as the most probative 

evidence in the current appeal.” Id.3 It therefore found 

3 The Board did not explain what evidence, beyond 

his “service personnel records” and unspecified “research 

efforts,” had “contradicted” Hudick’s account. At most, 

the Board acknowledged that his records “are silent for 

the assignment of security duties or other duties along the 

perimeter [at Udorn Air Force Base].” J.A. 63; see also 

J.A. 64 (“[H]is service personnel records and a specific 

review of his unit history does not reveal that he had 

 
8 HUDICK v. WILKIE

that Hudick “was not near the base perimeter [at Udorn

Air Force Base] on a regular basis.” J.A. 64. The Board 

also found that, regardless of whether Hudick placed 

himself at the base perimeter, the “historical data” 

showed that herbicides were not used in Thailand until 

“long after” Hudick was at Udorn Air Force Base. Id. 

(“[T]he available historical data does not document Agent 

Orange spraying testing or storage [sic] at the [Air Force 

base] in Udorn, Thailand, during the 1967 and 1968 time 

frame.”). 

Hudick appealed the Board’s decision to the Veterans 

Court. 

F. Veterans Court 

Before the Veterans Court, Hudick raised two primary arguments. First, he argued that “the Board committed prejudicial legal error by failing to analyze the 

credibility of his lay statements.” Hudick, 2017 WL 

444516, at *2. Second, he argued that the Board erroneously required him to provide “corroborating evidence . . . to establish that he served near the perimeter of 

Udorn.” Id. As to both arguments, Hudick also argued 

that the Board failed to adequately explain its conclusions.

In a single-judge, non-precedential opinion, the Veterans Court affirmed. It concluded that, because “the 

Board weighed [Hudick’s] statements against the other 

evidence of record,” this “implie[d] that the Board found 

[Hudick’s statements] to be credible.” Id. The Veterans 

Court also concluded that Hudick was not entitled to any 

presumption of exposure based on service in Vietnam or 

Thailand. Id. While Hudick insisted that he performed 

temporary assignments in Vietnam, the Veterans Court 

security or other duty that placed him along the base 

perimeter.” (emphasis added)). 

 
HUDICK v. WILKIE 9

credited the Board’s contrary finding. Id. And, although 

Hudick credibly placed himself along the perimeter at 

Udorn Air Force Base in Thailand, the Veterans Court 

concluded that “a veteran who served in Thailand during 

the Vietnam Era is not entitled to any presumption of 

exposure to herbicides”; thus, Hudick’s testimony could

not establish an entitlement to any presumptive service 

connection. Id. The Veterans Court did acknowledge that 

the “VA has created internal agency guidance that allows 

for herbicide exposure to be conceded for certain veterans 

who served on or near the perimeter of [Udorn Air Force 

Base],” but it reasoned that this was irrelevant because 

“this internal guidance is not binding on the Board.” Id. 

And, even if the Board had erred by not applying the M21 

Manual, the Veterans Court went on, “any such error 

would be non-prejudicial, given that the Board found that 

the evidence clearly demonstrates that herbicides were 

not used on any USAF base in Thailand until April 1969, 

after [Hudick] was at Udorn.” Id. at 3. 

Hudick moved for reconsideration, or at least for consideration by a full panel. He argued that the M21 Manual is binding when it reflects a policy statement or 

instruction by the Secretary to the VA on how to adjudicate individual claims. He also complained that the 

opinion imposed an impossible burden on veterans. J.A. 

96 (“Based on the Court’s holding, not only must a Veteran provide lay statements regarding duties on a[n] [Air 

Force base in Thailand], those statements must be confirmed by independent research in order for VA to abide 

by its own guidance on the issue.”). 

His motion was denied. Hudick timely appealed. We 

have jurisdiction under 38 U.S.C. §§ 7292(a), (c). 

II. DISCUSSION

“This court’s jurisdiction to review decisions by the 

Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d 

1333, 1336 (Fed. Cir. 2010). Absent a constitutional 
10 HUDICK v. WILKIE

issue, we “may not review (A) a challenge to a factual 

determination, or (B) a challenge to a law or regulation as 

applied to the facts of a particular case.” 38 U.S.C § 

7292(d)(2). Instead, our jurisdiction extends to 

“relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). 

On these questions, we review conclusions by the Veterans Court de novo. Wanless, 618 F.3d at 1336.

Hudick raises two primary arguments on appeal. 

First, he argues that the Veterans Court ignored controlling law—the Veterans’ Dioxin and Radiation Exposure 

Compensation Standards Act—in finding that he was not 

entitled to a presumption of service connection for his 

prostate cancer. Second, he argues that the Veterans 

Court violated his due process rights by allowing the VA 

to ignore its own internal policies and rules providing a 

presumption of service connection in the circumstances at 

issue here. The government argues we lack jurisdiction as 

to both issues. Because Hudick’s constitutional claim is 

dispositive, we address that argument first, beginning 

with the attack on jurisdiction and then turning to the 

merits. 

A. Jurisdiction 

When a veteran challenges a decision by the Veterans 

Court, we have the authority to “decide all relevant 

questions of law, including interpreting constitutional and 

statutory provisions.” 38 U.S.C. § 7292(d)(1). This includes the authority to hear “free-standing” constitutional 

challenges. See In re Bailey, 182 F.3d 860, 869–70 (Fed. 

Cir. 1999). A free-standing constitutional challenge is 

an attack on the process followed rather than the result 

reached or the validity of an interpretation, statute, or 

rule upon which the result turned. Id. (“[T]his court has 

jurisdiction over any ‘free-standing’ constitutional issue, 

i.e., one not also involving a challenge to the interpretation or validity of a statute or regulation.”). 
HUDICK v. WILKIE 11

The government argues that we lack jurisdiction to 

consider Hudick’s due process challenge because it is 

“constitutional in name only.” Appellee Br. at 9. According to the government, Hudick’s constitutional challenge 

is not genuine because his due process argument simply 

repackages a complaint about how the Board weighed the 

evidence in this case, which we cannot review. 

Appellant contends that his due process challenge 

does not require us to consider how the Board weighed 

evidence. Instead, according to Appellant, his due process 

challenge asks us to consider whether the Board and the 

Veterans Court erred by ignoring the M21 Manual. If the 

manual applies and was not followed, Appellant maintains, then he was not afforded due process because, 

according to the M21 Manual, the Board did not need to 

weigh the evidence which it claims was dispositive. 

Accordingly, this appeal turns on whether the Board 

should have weighed evidence, not how it did so.

We agree with Appellant. His challenge asks us to 

consider whether the process followed by the Board and 

the Veterans Court violated his due process rights. This 

is a classic example of a free-standing constitutional 

challenge. See Cushman v. Shinseki, 576 F.3d 1290 (Fed. 

Cir. 2009) (challenge to the procedural fairness of a proceeding rather than the outcome confers jurisdiction).

None of the authorities cited by the government 

compel a different result. In Helfer v. West, 174 F.3d 1332 

(Fed. Cir. 1999), for example, we explained that a constitutional challenge does not confer jurisdiction when it 

simply repackages a challenge to the merits of a Board 

decision. 174 F.3d at 1335 (“[Appellant] is really arguing 

the merits of his EAJA claim, not raising a separate 

constitutional contention.”); see also Geib v. Shinseki, 733 

F.3d 1350, 1354–55 (Fed. Cir. 2013) (concluding that a 

constitutional challenge did not confer jurisdiction where 

the claimant challenged the Board’s finding that the 
12 HUDICK v. WILKIE

evidence presented was inadequate). But Hudick is not 

simply arguing that the Board incorrectly weighed the 

evidence in his case. He is arguing that the process

followed was defective and unfair because the Board, and 

the Veterans Court, ignored specific procedural rules. We 

have jurisdiction to consider this argument. 38 U.S.C § 

7292. 

B. Due Process 

To seek redress under the Due Process Clause of the 

Fifth Amendment, a claimant must establish that the 

government denied him or her a property interest to 

which they were entitled without the process due to them. 

Cushman, 576 F.3d at 1296; see also Mathews v. Eldridge, 424 U.S. 319 (1976) (directing courts to consider

the private interest at stake, “the risk of an erroneous 

deprivation of such interest,” and the government’s interest in deciding whether a claimant is entitled to some 

process or procedure). 

Neither side disputes that Hudick has a property interest in this case. See, e.g., Appellee Br. at 24 (“This 

Court has found that a veteran has a constitutionally 

protected property interest in veterans benefits.” (citing 

Cushman, 576 F.3d at 1298)). We therefore turn to what 

process was due and whether that process was denied.

1. The VA Cannot Ignore Its Own Rules 

Agencies must follow their own rules. See, e.g., Crediford v. Shulkin, 877 F.3d 1040, 1047 (Fed. Cir. 2017). In 

Crediford, this meant the VA could not ignore a line of 

duty investigation by the agency because its own regulations required the investigation to at least be considered. 

877 F.3d at 1046–47. We therefore remanded the case for 

further consideration, noting that the VA needed to follow 

its own rules and regulations. See also United States ex 

rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
HUDICK v. WILKIE 13

Even when an agency’s rules are more generous than

they are required to be by statute, these rules still must 

be followed. See Vitarelli v. Seaton, 359 U.S. 535, 539 

(1959); Voge v. United States, 844 F.2d 776, 779 (Fed. Cir. 

1988) (“It has long been established that government 

officials must follow their own regulations, even if they 

were not compelled to have them at all . . . .”). For example, in Vitarelli, even though the Secretary for the Department of the Interior was allowed to terminate 

employees without giving any reason, once he “gratuitously decided to give a reason, and that reason was national 

security, he was obligated to conform to the procedural 

standards he had formulated in Order No. 2738 for the 

dismissal of employees on security grounds.” 359 U.S. at 

539. Because he did not, “such dismissal was illegal and 

of no effect.” Id. at 545. 

Even when an agency’s rules lack the force of law, it 

may still be compelled to follow them. See, e.g., Morton v. 

Ruiz, 415 U.S. 199 (1974). This is why, in Morton, the 

Bureau of Indian Affairs could not deny benefits to an 

applicant based on unpublished criteria where its internal 

guidance manual required such criteria to be published. 

Id. at 234–35. As the Supreme Court explained: “Before 

the BIA may extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at a minimum, 

with its own internal procedures.” Id. at 235. And in 

Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997), the 

D.C. Circuit concluded that, although “rules in the [Coast 

Guard] Personnel Manual may not qualify as binding 

regulations for all purposes,” they should be treated as 

binding where the Coast Guard Board of Military Records 

viewed them as such. 111 F.3d at 177 (“The Board thus 

treated the rule [in the Personnel Manual] prohibiting 

reference to matters outside the reporting period as 

binding upon it, and we defer to its judgment.”). 

Against this backdrop, the government suggests there 

is no due process problem here because the M21 Manual 
14 HUDICK v. WILKIE

is not binding and can therefore be freely ignored. Appellee Br. at 21 (“To the extent Mr. Hudick means to assert 

that the board must follow the Manual . . . he effectively 

argues that the Manual must be treated as binding even

when it is not.”). This argument misapprehends our 

precedent and ignores the unique facts of this case.

In two previous cases, on which the government relies, we noted that the M21 Manual is not necessarily 

binding on the Board. See Disabled American Veterans v. 

Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017)

(“DAV”); Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102 

(Fed. Cir. 2017). But neither of these cases suggested 

that the Board could ignore the M21 Manual or other VA 

policies whenever it wants. Instead, both cases turned on 

how and in what forum veterans may challenge aspects of 

the manual. In DAV and Gray, we explained that, because the VA does not generally consider M21 Manual 

provisions binding, a veteran must challenge these provisions on an as applied basis. See, e.g., DAV, 859 F.3d at 

1078 (“Where, as here, manual provisions are interpretations adopted by the agency, not published in the Federal 

Register, not binding on the Board itself, and contained 

within an administrative staff manual, they fall within § 

552(a)(2)—not § 552(a)(1)” and thus we lack jurisdiction 

to review them until provisions are “applied to the facts of 

[a veteran’s] case”); Gray, 875 F.3d at 1109 (“We must 

await an individual action to assess the propriety of the 

VA’s interpretation of the Agent Orange Act and attendant regulations.”).

The procedural history here is materially different. 

When Hudick’s claim reached the Board the first time, the 

Board remanded the case so that his claim could be 

“readjudicate[d]” according to the “specific procedures” of 

the M21 Manual. J.A. 36–37. Based on this instruction, 

Hudick submitted additional evidence that credibly 

placed him near the perimeter of Udorn Air Force Base, 

which is all that was required of him by the M21 Manual. 
HUDICK v. WILKIE 15

J.A. 52–53; Hudick, 2017 WL 444516, at *2 (noting that 

the Board found Hudick’s statements credible). But the 

Board never finalized its remand order. Instead, in a 

second decision, the Board concluded that remand was 

“unnecessary.” J.A. 56. It then proceeded to adjudicate 

Hudick’s claim without resort to the M21 Manual. 

The government now argues that, even though the 

Board told Hudick that his claim would be adjudicated

based on the M21 Manual and the Compensation Bulletin, the Board was free to ignore these authorities if it 

wanted to do so. We cannot agree. Regardless of whether 

the M21 Manual is binding on the Board in all cases and 

setting aside the question of whether the Compensation 

Bulletin is binding VA policy, the Board made these 

authorities binding here. Put simply, once the Board told 

Hudick his adjudication would be governed by the 

M21 Manual and the Compensation Bulletin, inviting him 

to submit evidence reflecting compliance with the provisions of the M21 Manual and Compensation Bulletin, it 

was not free to ignore these authorities in adjudicating 

his claim. See Frizelle, 111 F.3d at 177; Crediford, 877 

F.3d at 1047. 

The contrary conclusion by the Veterans Court is difficult to reconcile with its own practice4 or the guarantee 

4 See, e.g., Workman v. Shinseki, No. 08-3500, 2010 

WL 2912254, at *5 (Vet. App. July 23, 2010) (unpublished) (“On remand, the Secretary is instructed to 

apply the newly established procedures in the above-cited 

bulletin to Mr. Workman’s claim.”); Hildebrandt v. 

McDonald, No. 14-0090, 2015 WL 65578, at *7 (Vet. App. 

Jan. 6, 2015) (non-precedential) (“The Board’s failure to 

consider this particular theory of service connection is 

particularly egregious given the numerous prior Board 

remands to develop evidence pertinent to that theo-

 
16 HUDICK v. WILKIE

of procedural fairness provided by the 

Due Process Clause. See Honda Motor Co. v. Oberg, 512 

U.S. 415, 430 (1994) (“When the absent procedures would 

have provided protection against arbitrary and inaccurate 

adjudication, this Court has not hesitated to find the 

proceedings violative of due process.”). It cannot be that 

the VA may tell a veteran how to establish a service 

connection for his prostate cancer only to move the goalposts once he has done so. “This kind of goalpost-moving 

does not reflect an optimal mode of administrative decisionmaking.” Qwest Corp. v. F.C.C., 689 F.3d 1214, 1228 

(10th Cir. 2012). Indeed, it reflects an arbitrary one. See 

F.E.R.C. v. Triton Oil & Gas Corp., 750 F.2d 113, 116 

(D.C. Cir. 1984) (“The Commission may not abuse its 

discretion by arbitrarily choosing to disregard its own 

established rules and procedures in a single, specific 

case.”). Such an arbitrary process does not comport with

due process, particularly given the important benefit at 

stake for Hudick. See Cushman, 576 F.3d at 1297 n.1

(“The right to a hearing necessarily implies the right to a 

fair hearing.”). We therefore need not, and do not, decide 

whether these specific M21 Manual provisions or the 

Compensation Bulletin are binding in every case. Instead, our holding rests on the conclusion that the Board 

made these authorities binding in this case. 

Having concluded that Hudick did not receive a fair 

hearing because the Board refused to apply rules it told 

Hudick would govern his adjudication, we next address 

the government’s argument that this error was harmless. 

2. Applying the VA’s Rules 

Under the M21 Manual, the VA concedes herbicide 

exposure if a veteran provides credible evidence showing 

ry . . . and VA’s express policy to concede such exposure in 

cases like Mr. Hildebrandt’s.”).

 
HUDICK v. WILKIE 17

that they were “otherwise near the air base perimeter” at 

Udorn Air Force Base in Thailand. There is no dispute 

that Hudick did exactly that. As the Veterans Court 

explained, the Board found Hudick’s statements, including his statements placing him near the perimeter of 

Udorn Air Force Base, to be credible. Hudick, 2017 WL 

444516, at *2. The VA should have therefore conceded 

exposure based on the M21 Manual and the Compensation Bulletin.

According to the government, however, the manual 

does not require an adjudicator to always concede exposure. Instead, the adjudicator should weigh all the evidence to conclude whether a veteran served at or near a 

relevant base perimeter. Only upon making such a finding, the government argues, must the VA concede exposure. The government therefore maintains that the Board 

correctly applied the manual because it weighed Hudick’s 

statements against other evidence to conclude that 

Hudick did not serve at the base perimeter. Assuming 

the government’s interpretation of the M21 Manual is 

correct, its argument still fails. The Board did not identify or analyze any evidence that cut against Hudick’s claim 

that he served near the base perimeter at Udorn Air 

Force Base. At most, it acknowledged that other evidence 

did not corroborate Hudick’s statements. J.A. 63 (noting 

that his unit histories and performance reviews “are 

silent for the assignment of security duties or other duties 

along the perimeter of [Udorn Air Force Base]”). But the 

M21 Manual did not require Hudick to provide corroborated evidence. It required him to provide credible evidence.5 Hudick did that. 

5 The Compensation Bulletin draws the distinction 

between corroborated and credible evidence explicitly 

with respect to other types of service members. For 

example, in discussing United States Army personnel

 
18 HUDICK v. WILKIE

The government insists that any error in applying the 

manual or other policies is harmless here because an 

archivist found that no herbicides were used at Udorn Air 

Force Base until after Hudick left. But under the adjudicatory framework established by the VA in the Compensation Bulletin and the M21 Manual, the archivist report 

is irrelevant. Hudick need only establish that he worked 

at or near the perimeter at Udorn Air Force Base. If he 

does so, the VA has agreed to concede exposure to herbicides given its own determination about how, when, and 

where herbicides were used in Thailand:

After reviewing documents related to herbicide 

use in Vietnam and Thailand, C&P Service has 

determined that there was significant use of herbicides on the fenced in perimeters of military bases 

in Thailand intended to eliminate vegetation and 

ground cover for base security purposes. Evidence 

of this can be found in a declassified Vietnam era 

Department of Defense (DoD) document titled 

Project CHECO Southeast Asia Report: Base Defense in Thailand. Therefore, when herbicide related claims from Veterans with Thailand service 

are received, RO personnel should now evaluate 

the treatment and personnel records to determine 

whether the Veteran’s service activities involved 

stationed at air bases “[d]uring the early years of the war 

in Vietnam,” the Compensation Bulletin requires these

veterans to establish their perimeter duty through a “lay 

statement” and “additional credible evidence supporting 

this statement.” Compensation Bulletin at 4 (emphasis in 

original). The section discussing United States Air Force 

personnel, however, contains no similar directive. It 

simply says that the veteran must provide credible evidence, not “additional credible evidence” beyond a lay 

statement. Id. at 3. 

 
HUDICK v. WILKIE 19

duty on or near the perimeter of the military base 

where the Veteran was stationed . . . this applies 

only during the Vietnam era, from February 28, 

1961 to May 7, 1975.

Compensation Bulletin at 3 (emphasis added). Hudick’s 

service in Thailand fell squarely within the VA’s own 

timeline. The Board’s failure to follow its own rules or VA 

guidance, and the Veterans Court’s refusal to hold the 

Board to those rules, is therefore not harmless error

because Hudick should have prevailed under the proper 

adjudicatory framework based on facts already found by 

the Board. 6

III. CONCLUSION

Having concluded that the Board did not apply the 

rules and authorities it told Hudick would govern his 

adjudication, and that this error was not harmless, we 

further conclude that remand for further consideration of 

the facts relating to his service is not necessary. Indeed, 

as explained above, the Board has already found that 

Hudick provided credible evidence that he served near the 

base perimeter at Udorn Air Force Base. Because no

additional findings are necessary to establish that Hudick

is entitled to service connection for his prostate cancer 

according to the M21 Manual and the Compensation

Bulletin, it would make little sense to remand for further 

consideration and delay. For this reason, and for the 

reasons stated above, we reverse the Board’s denial of 

benefits to Hudick and remand for purposes of finalizing 

an appropriate award of the same. 

6 Because Hudick prevailed on his alternative argument, we need not address his argument that the 

Veterans Court erred in its application of the Veterans’ 

Dioxin and Radiation Exposure Compensation Standards 

Act. 

 
20 HUDICK v. WILKIE

REVERSED AND REMANDED

COSTS

No costs.