Opinion
No. 2007-7287.
June 3, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 05-2796, Judge Ronald M. Holdaway.
Robert V. Chisholm, Chisholm Chisholm Kilpatrick, Providence, RI, Zachary M. Stolz, Chisholm Chisholm Kilpatrick, Washington, DC, for Claimant-Appellee.
Martin F. Hockey Jr., Department of Justice, Washington, DC, for Respondent-Appellant.
Before MAYER, SCHALL, and LINN, Circuit Judges.
ORDER
The parties have not responded to the court's order indicating that the court would consider summarily affirming the judgment of the United States Court of Appeals for Veterans Claims in Brown v. Nicholson, 04-857, 2005 WL 1804790 (July 21, 2005).
The Secretary appealed the judgment of the Court of Appeals for Veterans Claims, challenging that court's determination that there was a 38 U.S.C. § 5103(a) notification error, that such error was prejudicial, and that remand to the Board of Veterans Appeals was required. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), this court held that any section 5103(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891. Under these circumstances, summary affirmance is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded.
(2) Each side shall bear its own costs.
(3) All pending motions are moot.