Williams v. Peake

273 F. App'x 909

• Court: Court of Appeals for the Federal Circuit
• Decided: March 7, 2008
• Docket: No. 2005-7004
• Status: Published

Opinion

PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s December 5, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Williams v. Principi, 01-968, 2004 WL 1637969 (July 8, 2004).

The Board of Veterans’ Appeals determined that no new and material evidence had been submitted to reopen Larry D. Williams’ claim for service connection for narcolepsy. The Court of Appeals for Veterans Claims vacated the Board’s decision with respect to the narcolepsy 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.

(4) All pending motions are moot.

The Court of Appeals for Veterans Claims determined that Williams' claim for entitlement to a total disability rating based on individual unemployability was abandoned.