Askew v. Peake

273 F. App'x 878

• Court: Court of Appeals for the Federal Circuit
• Decided: March 5, 2008
• Docket: No. 2005-7037
• Status: Published

Opinion

PER CURIAM.

ORDER

Edward L. Askew and the Secretary of Veterans Affairs each respond to the court’s December 5, 2007 order and request that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Askew v. Principi 01-1461, 18 Vet.App. 552 (July 20, 2004).

The Board of Veterans’ Appeals denied Askew’s claim for service connection for hypertension and declined to reopen his previously disallowed claim for service connection for a back disability. The Court of Appeals for Veterans Claims vacated the Board’s decision with respect to the above-mentioned claims and remanded.

*

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 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 court agrees that summary affirmance of the judgment vacating in part and remanding to the Board is appropriate in light of our decisions in Simmons and Sanders.

Accordingly,

IT IS ORDERED THAT:

(1) The stay of proceedings is lifted.

(2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded.

(3) Each side shall bear its own costs.

The Court of Appeals for Veterans Claims determined that Askew's claims for dermatitis, tinea cruris, allergic rhinitis, heat/cold intolerance, and multiple joint pain were abandoned.