
    Mark W. ROSS, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
    No. 2007-7190.
    United States Court of Appeals, Federal Circuit.
    June 3, 2008.
    Before MAYER, SCHALL, and LINN, Circuit Judges.
   PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s order and requests that the court remand the case to the United States Court of Appeals for Veterans Claims.

The Board of Veterans’ Appeals denied Mark W. Ross’ claim for service-connected disability compensation for status post lumbar laminectomy. The Court of Appeals for Veterans Claims determined that the notice requirements of 38 U.S.C. § 5103(a) were not met but that the notice error was not prejudicial. Thus, the Court of Appeals for Veterans Claims affirmed the Board’s decision.

This ease 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 Secretary concedes that the Court of Appeals for Veterans Claims improperly placed the burden of showing lack of prejudice on Ross. 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.  