Opinion
No. 2007-7138.
March 11, 2008.
Appeal from the United States Court of Appeals for Veterans Claims in 04-2397, Judge William A. Moorman.
Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.
ON MOTION
ORDER
The Secretary of Veterans Affairs moves to respond out-of-time to the court's November 19, 2007 order and requests that the court vacate the judgment of the United States Court of Appeals for Veterans Claims (CAVC) in Merritt v. Nicholson, 04-2397, 2006 WL 4029680 (Dec. 29, 2006). William B. Merritt 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 in light of this court's holding in Sanders, the CAVC erroneously placed the burden on Merritt to demonstrate that the section 5103(a) notice error was prejudicial. Under these circumstances, the court agrees with the Secretary that vacating the CAVC's judgment and remanding the matter to apply the prejudicial error framework set forth in Sanders is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the CAVC is vacated and the matter is remanded for further proceedings.
(2) The Secretary's motion to file his response out-of-time is granted.
(3) Each side shall bear its own costs.