Order for the Court filed PER CURIAM.
Dissenting order filed by Circuit Judge BRYSON.
ORDER
Bruce R. Claussen responds to the court’s order and requests that the court vacate the decision of the United States Court of Appeals for Veterans Claims in Claussen v. Principi, 01-1301, 19 Vet.App. 164 (Dec. 8, 2004). The Secretary of Veterans Affairs responds to the court’s order and suggests that summary affirmance is appropriate.
The Board of Veterans’ Appeals declined to reopen Claussen’s claim for compensation for an acquired psychiatric disorder, personality disorder, and substance abuse. The Court of Appeals for Veterans Claims determined that “the Board failed to adequately discuss the requirement that VA must indicate which portion of any information or evidence necessary to substantiate the appellant’s claim is to be provided to each party.” However, the Court of Appeals for Veterans Claims determined that the Board’s error was nonprejudicial and affirmed the Board’s decision. Claus-sen appealed.
This case was stayed pending the court’s disposition in Roan v. Principi, 2004-7098, 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). Subsequently, this court issued its decision in Sanders, which 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, it is unclear whether the Court of Appeals for Veterans Claims properly placed the burden of demonstrating lack of prejudice on the Secretary. 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.