Opinion
No. 2006-7006.
February 8, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 04-857, Judge Robert N. Davis.
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.
ORDER
The Secretary of Veterans Affairs responds to the court's November 21, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Brown v. Nicholson, 04-857, 2005 WL 1804790 (July 21, 2005). Gregory Brown has not responded.
The Secretary appealed the judgment of the Court of Appeals for Veterans Claims, challenging that court's determination that, if there was a 38 U.S.C. § 5103(a) notification error, 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.