Sanchez v. Peake

276 F. App'x 972

Opinion

ORDER

PER CURIAM.

Andrew J. Sanchez, Jr. 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 Sanchez v. Principi, 01-1035 (July 23, 2004).

The Board of Veterans’ Appeals determined that the criteria for a schedular rating greater than 50% for post-traumatic stress disorder (PTSD) had not been met prior to July 1, 1997. The Court of Appeals for Veterans Claims vacated the Board’s decision with respect to the PTSD claim 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 noted that the Board decision addressed two other claims that were not at issue in the appeal.