Panel Application; Hudick v. Wilkie, 755 F. App’x 998, 1006–07 (Fed. Cir. 2018); Board adopted the M21-1’s guidance on adjudicating service connection for hepatitis C; once the Board cited the M21-1 in a remand order and so invited the veteran to submit evidence reflecting compliance with its provisions, it effectively incorporated that provision and couldn’t later ignore it when adjudicating a claim;

Board’s 2017 remand order and 2018 decision adopted the M21-1’s guidance on adjudicating service connection for hepatitis C in this case.
The Federal Circuit ruled in Hudick v. Wilkie, 755 F. App’x 998, 1006–07 (Fed. Cir. 2018) that, once the Board cited the M21-1 in a remand order and so invited the veteran to submit evidence reflecting compliance with its provisions, it effectively incorporated that provision and couldn’t later ignore it when adjudicating a claim. Although unpublished and therefore not binding as precedent, Hudick nonetheless bears critical insight: The Board’s citation to a manual provision amounts to a tacit recognition that the provision constitutes authority in the case. As in Hudick, the Board here also cited to specific provisions from the M21-1 and directed the regional office to obtain a new etiology opinion and to identify high risk sexual activity as a risk factor for hepatitis

C. By specifically incorporating the relevant M21-1 provision into the remand order, the Board rendered this authority binding on the regional office in terms of how it developed the claim and how the Board would readjudicate it if the matter returned there. As Hudick put it: “It cannot be that the VA may tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” 755 F. App’x at 1007 (quotation marks omitted).
Because the Board “did not identify or analyze any