Opinion
No. 2004-7134.
February 11, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 02-1971, Judge Donald L. Ivers.
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.
ORDER
The Secretary of Veterans Affairs responds to the court's November 30, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims (CAVC) in Mitchell v. Principi, 02-1971, 2004 WL 2966161 (April 1, 2004). Jack Mitchell has not responded.
This case was stayed pending the court's disposition in Roan v. Principi, 2004-7093, which 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 section 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 stay of proceedings is lifted.
(2) The judgment of the CAVC is summarily affirmed. The case is remanded for further proceedings.
(3) Each side shall bear its own costs.