Trimmer v. Nicholson

154 F. App'x 202

Opinion

ORDER

GAJARSA, Circuit Judge.

Alice Trimmer moves to vacate the Court of Appeals for Veterans Claims’ decision in Trimmer v. Principi, 03-1941, 2005 WL 1272985 (Vet.App. Jan. 26, 2005), and remand for further proceedings. The Secretary of Veterans Affairs responds and states that he has “no objection to vacating and remanding the decision below.”

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Trimmer appealed the decision of the Board of Veterans’ Appeals to the Court of Appeals for Veterans Claims alleging that (1) the Secretary failed to comply with the duty to assist set forth in 38 U.S.C. § 5103A and, (2) the Secretary failed to comply with the duty to notify set forth in 38 U.S.C. § 5103(a). The Court of Appeals for Veterans Claims agreed with Trimmer’s second assertion of error relating to notice and remanded to the Board without considering her first contention of error relating to the duty to assist. The Secretary appealed the notice issue and the case was stayed pending resolution of the related case of Roan v. Nicholson, 04-7093, -7097, -7106.

Trimmer now asserts that she wishes to waive her challenge concerning notice under section 5103(a) and have the Court of Appeals for Veterans Claims only consider her allegations pertaining to the Secretary’s duty to assist under section 5103A.

Upon consideration thereof,

IT IS ORDERED THAT:

il) The motion to vacate and remand is granted.

(2) Each side shall bear its own costs.

The Secretary’s unopposed motion for an extension of time to file his response to Trimmer’s motion is granted.