Opinion
No. 2007-7096.
January 10, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 04-0168, Chief Judge William A. Moorman.
Before MICHEL, Chief Judge, LOURIE and LINN, Circuit Judges.
ORDER
The Secretary of Veterans Affairs responds to the court's November 19, 2007 order and requests that the judgment of the United States Court of Appeals for Veterans Claims (CAVC) in Walton v. Nicholson, 04-0168 be summarily reversed. Ralph E. Walton has not responded.
Walton appealed from the CAVC's decision, challenging the court's placement of the burden on him to establish that a 38 U.S.C. § 5103(a) notification error was 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 reversal is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the CAVC is summarily reversed. The case is remanded for further proceedings.
(2) Each side shall bear its own costs.