WINEMAN v. PEAKE, 269 Fed.Appx. 961 (Fed. Cir. 2008)

No. 2006-7127.United States Court of Appeals, Federal Circuit.
February 11, 2008.

Appeal from the United States Court of Appeals for Veterans Claims in 04-1693, Judge Robert N. Davis.

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.

PER CURIAM.

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 Wineman v. Nicholson, 04-1693, 2005 WL 3591005 (Dec. 22, 2005). Joseph R. Wineman has not responded.

The Secretary appealed the judgment of the Court of Appeals for Veterans Claims, challenging that court’s ruling that the Secretary had the burden 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 Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded.

(2) Each side shall bear its own costs.