Opinion
No. 2006-7076.
January 11, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 03-2030, Judge Alan G. Lance, Sr.
Before MICHEL, Chief Judge, LOURIE and LINN, Circuit Judges.
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 Percival v. Nicholson, 03-2030 be summarily affirmed. Leonard W. Percival has not responded.
The Secretary appealed from the CAVC's decision, challenging the court's placement of the burden on the Secretary of establishing that a 38 U.S.C. § 5103(a) notification error was not prejudicial. 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 CAVC is summarily affirmed. The case is remanded for further proceedings.
(2) Each side shall bear its own costs.