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                        NOTE: This order is nonprecedential.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
