
    Gina B. UBATAY, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
    No. 2006-7090.
    United States Court of Appeals, Federal Circuit.
    May 1, 2008.
    Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
   ORDER

PER CURIAM.

The Secretary of Veterans Affairs responds to the court’s order and requests that the court summarily reverse the decision of the United States Court of Appeals for Veterans Claims in Ubatay v. Nicholson, 04-1509, 2006 WL 319181 (Feb. 1, 2006).

The Board of Veterans’ Appeals denied service connection for the cause of death of Gina B. Ubatay’s father, veteran Antonio C. Baylin. The Court of Appeals for Veterans Claims determined that Ubatay had the burden of demonstrating that any deficiency in the notice required by 38 U.S.C. § 5103(a) was prejudicial and that she had not met her burden. Thus, the Court of Appeals for Veterans Claims affirmed the Board’s decision.

This case was stayed pending the court’s disposition in Sanders v. Nicholson, 487 F.3d 881 (Fed.Cir.2007). In Sanders, the court held that the initial burden is on the Secretary to prove that any 38 U.S.C. § 5103(a) notice error was nonprejudicial.

In this case, the Court of Appeals for Veterans Claims improperly placed the burden of showing tack of prejudice on Ubatay. Thus, the court vacates and remands.

Accordingly,

IT IS ORDERED THAT:

(1) The judgment of the Court of Appeals for Veterans Claims is vacated and the case is remanded.

(2) Each side shall bear its own costs.  