MacDonald v. Nicholson

Landa P. MacDonald (“MacDonald”) appeals from a decision of the United States Court of Appeals for Veterans Claims affirming the denial of MacDonald’s service-connection claim for the death of her veteran-husband. On appeal, MacDonald presents a single issue, namely, whether an adverse presumption in favor of the claimant should be applied when the veteran’s service records have been lost by the Government. MacDonald, however, conceded both before this court as well as the court below that we previously rejected such an adverse presumption in Cromer v. Nicholson, 455 F.3d 1346 (Fed.Cir. 2006). MacDonald notes only that Cromer is “not yet final, as a petition for a writ of certiorari is currently pending before the Supreme Court.” After MacDonald filed her opening brief, the Supreme Court denied the petition in Cromer. Cromer v. Nicholson, - U.S. -, 127 S.Ct. 2265, 167 L.Ed.2d 1093 (2007). Because MacDonald concedes that Cromer controls the outcome of her appeal, we affirm.