
    Douglas J. CORBETT, Claimant-Appellee, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellant.
    No. 2006-7085.
    United States Court of Appeals, Federal Circuit.
    Feb. 8, 2008.
    Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.
   ORDER

PER CURIAM.

The Secretary of Veterans Affairs responds to the court’s November 21, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Corbett v. Nicholson, 04-312, 2005 WL 3030907 (Nov. 9, 2005). Douglas J. Corbett has not responded.

In Sanders v. Nicholson, 487 F.3d 881 (Fed.Cir.2007), this court held that any error in the notice required by 38 U.S.C. § 5103(a) should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. In this case, it is not clear whether the Court of Appeals for Veterans Claims properly placed the burden of proving that a notice error was nonprejudicial on the Secretary. Nevertheless, the court agrees that because the Court of Appeals for Veterans Claims did not find that the error was nonprejudicial and remanded to the Board for further proceedings, summary affirmance is appropriate.

Accordingly,

IT IS ORDERED THAT:

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

(2) Each side shall bear its own costs. 
      
       The court notes that the Court of Appeals for Veterans Claims affirmed the decision of the Board of Veterans' Appeals denying Corbett’s claim for bilateral hearing loss. However, because Corbett did not file a notice of appeal, we do not address this claim.
     