Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7025
WALTER W. MCDANIEL,
Claimant-Appellee,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellant.
ON MOTION
Before RADER, Circuit Judge.
ORDER
The Secretary of Veterans Affairs moves without opposition to stay proceedings
in this appeal pending the court’s disposition of Mlechick v. Nicholson, 2006-7362. The
court considers whether the parties should be directed to respond concerning whether
the judgment of the United States Court of Appeals for Veterans Claims should be
summarily affirmed.
In Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006), we held that:
[T]he duty of affirmative notification [as to the evidence that is needed and
who shall be responsible for providing it] is not satisfied by various post-
decisional communications from which a claimant might have been able to
infer what evidence the VA found lacking in the claimant’s presentation . . .
. [S]ection 5103 requires the VCAA notification to be issued prior to the
initial decision on the claim, not afterwards.
In the decision on appeal, the Court of Appeals for Veterans Claims remanded to
the Board of Veterans’ Appeals, determining that “the Board relied on decisional and
post decisional documents to support its conclusion that VA had satisfied its duty-to-
notify obligations.” It appears that the Court of Appeals for Veterans Claims correctly
determined that remand was required pursuant to Mayfield.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to stay is held in abeyance.
(2) The parties are directed to respond concerning whether the decision of the
Court of Appeals for Veterans Claims should be summarily affirmed.
(3) The briefing schedule is temporarily stayed.
February 15, 2007 /s/ Randall R. Rader
Date Randall R. Rader
Circuit Judge
cc: Allan T. Fenley, Esq.
Martin F. Hockey, Jr., Esq.
s17
2007-7025 2