
    Gary W. TRACY, Claimant-Appellee, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellant.
    No. 2007-7233.
    United States Court of Appeals, Federal Circuit.
    Feb. 11, 2008.
    Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.
   PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s November 19, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Tracy v. Nicholson, 04-1535, 2007 WL 641981 (Feb. 22, 2007). Gary W. Tracy has not responded.

The Secretary appealed the judgment of the Court of Appeals for Veterans Claims, challenging that court’s determination that, if there was a 38 U.S.C. § 5103(a) notification error, such error was prejudicial, and that remand to the Board of Veterans Appeals was required. In Sanders v. Nicholson, 487 F.3d 881 (Fed.Cir.2007), this court held that any section 5108(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891. In this case, it is not clear whether the Court of Appeals for Veterans Claims properly placed the burden of proving that the 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.  