Hudick v. Wilkie ( 2018 )

NOTE: This disposition is nonprecedential.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 connec-
tion 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 re-
sponse 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 Novem-
ber 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 acknowl-
edged 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 con-
nection 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 vegeta-
tion 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 Man-
ual recites steps for evaluating claims of herbicide expo-
sure 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 perim-
1 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, perfor-
mance 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 adjudicat-
ing 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 Re-
gional 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 Ap-
peals 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 archi-
vists 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 wheth-
er 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 exam-
ple, in July 2012, the JSRRC concluded, based on review-
ing relevant unit histories and historical data, that it
could not verify whether Hudick was exposed to herbi-
cides 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 Vi-
etnam. 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 muni-
tions 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 deci-
sion. Although it had previously remanded Hudick’s case
with clear instructions for the Regional Office to “readju-
dicate” 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 entitle-
ment 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 re-
peated 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 recog-
nized 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 expo-
sure should be conceded.” J.A. 58. It also recognized that
the Compensation Bulletin established a similar pre-
sumption. 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 prima-
ry arguments. First, he argued that “the Board commit-
ted 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 errone-
ously required him to provide “corroborating evi-
dence . . . 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 conclu-
sions.
In a single-judge, non-precedential opinion, the Vet-
erans 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 con-
sideration by a full panel. He argued that the M21 Man-
ual is binding when it reflects a policy statement or
instruction by the Secretary to the VA on how to adjudi-
cate 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 Veter-
an provide lay statements regarding duties on a[n] [Air
Force base in Thailand], those statements must be con-
firmed 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 consti-
tutional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
On these questions, we review conclusions by the Veter-
ans Court de novo. Wanless, 618 F.3d at 1336.
Hudick raises two primary arguments on appeal.
First, he argues that the Veterans Court ignored control-
ling 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 in-
cludes 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 interpreta-
tion 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. Accord-
ing 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 main-
tains, 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 pro-
ceeding 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 consti-
tutional 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. El-
dridge, 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 inter-
est in deciding whether a claimant is entitled to some
process or procedure).
Neither side disputes that Hudick has a property in-
terest 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., Credi-
ford 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 regula-
tions 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 exam-
ple, in Vitarelli, even though the Secretary for the De-
partment of the Interior was allowed to terminate
employees without giving any reason, once he “gratuitous-
ly 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 other-
wise 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. Appel-
lee 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 re-
lies, 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, be-
cause the VA does not generally consider M21 Manual
provisions binding, a veteran must challenge these provi-
sions on an as applied basis. See, e.g., DAV, 859 F.3d at
1078 (“Where, as here, manual provisions are interpreta-
tions 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 at-
tendant 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 Bulle-
tin, 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 provi-
sions 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 dif-
ficult to reconcile with its own practice 4 or the guarantee
4 See, e.g., Workman v. Shinseki, No. 08-3500, 2010
WL 2912254, at *5 (Vet. App. July 23, 2010) (un-
published) (“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 goal-
posts once he has done so. “This kind of goalpost-moving
does not reflect an optimal mode of administrative deci-
sionmaking.” 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. In-
stead, 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, includ-
ing 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 Compensa-
tion Bulletin.
According to the government, however, the manual
does not require an adjudicator to always concede expo-
sure. Instead, the adjudicator should weigh all the evi-
dence to conclude whether a veteran served at or near a
relevant base perimeter. Only upon making such a find-
ing, the government argues, must the VA concede expo-
sure. 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 identi-
fy 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 corrobo-
rated evidence. It required him to provide credible evi-
dence. 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 adjudi-
catory framework established by the VA in the Compen-
sation 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 herbi-
cides 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 herbi-
cides 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 De-
fense in Thailand. Therefore, when herbicide re-
lated 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 evi-
dence, 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 ar-
gument, 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.