
    Rex MING, Claimant-Appellee, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellant.
    No. 2005-7119.
    United States Court of Appeals, Federal Circuit.
    March 11, 2008.
    Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.
   ON MOTION

PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s December 4, 2007 order and requests that the judgment of the United States Court of Appeals for Veterans Claims (CAVC) in Ming v. Principi, 01-1878 be summarily affirmed. Rex Ming moves to dismiss or affirm.

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 Secretary concedes that the only issue raised in this appeal is identical to the issue decided in Sanders and Simmons. Under these circumstances, summary affirmance is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) The judgment of the CAVC is summarily affirmed. The case is remanded for further proceedings.

(2) All other pending motions are deemed moot.

(3) Each side shall bear its own costs.  