
    Arthur R. MACKEIL, Claimant-Appellee, v. Gordon H. MANSFIELD, Acting Secretary of Veterans Affairs, Respondent-Appellant.
    No. 2007-7158.
    United States Court of Appeals, Federal Circuit.
    Dec. 10, 2007.
    Before RADER, SCHALL, and PROST, Circuit Judges.
   ORDER

SCHALL, Circuit Judge.

The Acting Secretary of Veterans Affairs moves without opposition to vacate the judgment of the United States Court of Appeals for Veterans Claims and remand this appeal.

Arthur R. MacKeil appealed to the Court of Appeals for Veterans Claims from a June 20, 2005 decision of the Board of Veterans’ Appeals that, inter alia, determined MacKeil had received adequate notification of the evidence or information necessary to substantiate his. claim as required by 38 U.S.C. § 5103(a). The Court of Appeals for Veterans Claims determined that the Board’s decision failed to address whether MacKeil’s expressed confusion regarding what evidence or information was necessary to substantiate his claim rendered the notification inadequate. The court vacated and remanded without first considering whether such error was prejudicial. The Secretary appealed, seeking review by this court.

On October 4, 2007, the court issued its decision in Mlechick v. Mansfield, 503 F.3d 1340, (Fed.Cir.2007). Mlechick held that the Court of Appeals for Veterans Claims cannot refuse to consider the rule of prejudicial error when assessing whether the Secretary has satisfied his section 5103(a) notification requirements. Id. at 1345-46. Rather, in cases such as this, where the Secretary has attempted to show the notice error was nonprejudicial, the court should “determine if any differences between the notice given and the notice required by [section 5103(a) ] ‘affected the fundamental fairness of the adjudication’ being mindful that the burden is on [the Secretary] to make such a showing.” Id. (citation omitted).

Accordingly,

IT IS ORDERED THAT:

(1) The Acting Secretary’s motion is granted.

(2) Each side shall bear its own costs.  