Martinez v. Peake

273 F. App'x 895

Opinion

PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s December 3, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Martinez v. Principi, 02-2436, 2004 WL 437473 (Mar. 5, 2004).

The Board of Veterans’ Appeals denied Rodolfo E. Martinez’s claim for service connection for a mental disorder and determined that Martinez had not submitted a timely substantive appeal with respect to the denial of service connection for arthritis. The Court of Appeals for Veterans Claims vacated the Board’s decision and remanded the case to the Board, and the Secretary appealed.

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 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.