Opinion
No. 2006-7322.
May 1, 2009.
Appeal from the United States Court of Appeals for Veterans Claims in 02-1552, Bruce E. Kasold, Judge.
Hugh D. Cox Jr., Greenville, NC, for claimant-appellant.
Martin F. Hockey, Jr., Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, Deborah A. Bynum, Assistant Director, and David F. D'Alessandris, Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before GAJARSA, DYK, and MOORE, Circuit Judges.
Michael J. Pope appeals a decision of the U.S. Court of Appeals for Veterans Claims (Veterans Court) affirming a Board of Veterans' Appeals decision denying his claims related to postoperative residuals of a ventral hernia. See Pope v. Nicholson, No. 02-1552, 2006 WL 1667039 (Vet.App. Apr.25, 2006). Mr. Pope, relying on our decision in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom. Shinseki v. Sanders, 556 U.S. ___, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009), asserts that the Veterans Court erred by improperly assigning him the burden of proving that a notice error under 38 U.S.C. § 5103 was prejudicial.
Following Mr. Pope's appeal, the Supreme Court of the United States reversed our judgment in Sanders, holding that the burden of proving prejudicial error is properly placed on the Veteran. See Shinseki v. Sanders, 129 S.Ct. at 1704-06. In light of the Supreme Court decision in Sanders, we affirm the Veterans Court.
COSTS
No costs.