Herring v. Peake

273 F. App'x 901

Opinion

PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s December 4, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Herring v. Principi, 01-2148 (June 1, 2004).

The Board of Veterans’ Appeals denied an increased rating for service-connected cephalagia, currently rated as 30% disabling. The Court of Appeals for Veterans Claims vacated the Board’s decision to the extent that it denied a rating in excess of 30% for cephalagia and remanded the case to the Board, and the Secretary appealed.

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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 stated that the Board’s denial of Bobby P. Herring, Jr.'s claim for a temporary total disability rating was not before the court.