
    Cecil E. HEMBREE, Claimant-Appellee, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellant.
    No. 2004-7133.
    United States Court of Appeals, Federal Circuit.
    March 5, 2008.
    Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.
   PER CURIAM.

ORDER

Cecil E. Hembree and the Secretary of Veterans Affairs each respond to the court’s December 5, 2007 order and request that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Hembree v. Principi, 03-0331, 2004 WL 718458 (March 31, 2004).

The Board of Veterans’ Appeals denied Hembree’s claim for an earlier effective date for an award of service connection for degenerative disc disease of the lumbar spine with bilateral leg radiculopathy. The Court of Appeals for Veterans Claims vacated the Board’s decision and remanded the case to the Board, and the Secretary appealed.

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 court agrees that summary affirmance of the judgment vacating and remanding to the Board is appropriate in light of our decisions in Simmons and Sanders.

Accordingly,

IT IS ORDERED THAT:

(1) The stay of proceedings is lifted.

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

(3) Each side shall bear its own costs.  