
    Ellis C. SMITH, Claimant-Appellee, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellant.
    No. 03-7212.
    United States Court of Appeals, Federal Circuit.
    Aug. 23, 2004.
    Claudia Burke, David M. Cohen, Brian M. Simkim, Department of Justice, Washington, DC, for Respondent-Appellant.
    Ronald L. Smith, Disabled American, Washington, DC, for Claimant-Appellee.
    Before NEWMAN, BRYSON, and DYK, Circuit Judges.
   ON MOTION

ORDER

DYK, Circuit Judge.

The Secretary of Veterans Affairs moves without opposition to vacate the Court of Appeals for Veterans Claims’ decision in Smith v. Principi, 01-623 (Vet.App. June 10, 2003), and remand this case for further proceedings consistent with this court’s recent decision in Wanner v. Principi, 370 F.3d 1124 (Fed.Cir.2004).

In Wanner, we reversed the Court of Appeals for Veterans Claims’ determination that it had jurisdiction to review the rating schedule, absent a constitutional challenge. In the instant case, the decision on appeal relied heavily on the Court of Appeals for Veterans Claims’ Wanner decision in concluding that it had jurisdiction to review the Diagnostic Code, which is included in the rating schedule. Thus, we reverse the Court of Appeals for Veterans Claims’ determination in this case that it had jurisdiction and remand for further proceedings consistent with our decision in Wanner.

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted to the extent that the Court of Appeals for Veterans Claims’ decision is reversed and remanded.

(2) Each side shall bear its own costs.  