Opinion
No. 2006-7365.
March 11, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 04-1322, Judge Bruce E. Kasold.
Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.
ON MOTION
ORDER
The Secretary of Veterans Affairs responds to the court's November 20, 2007 order and requests that the judgment of the United States Court of Appeals for Veterans Claims (CAVC) in Mallare v. Nicholson, 04-1322 be summarily affirmed. Abelardo T. Mallare has not responded.
This case was stayed pending the court's disposition in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and its companion case Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In Sanders, this court held that any 38 U.S.C. § 5103(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891.
The Secretary concedes that the only issue raised in this appeal is identical to the issue decided in Sanders and Simmons. Under these circumstances, summary affirmance is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the CAVC is summarily affirmed. The case is remanded for further proceedings.
(2) Each side shall bear its own costs.