Robert B. Wister v. R. JAMES NICHOLSON, Secretary of Veterans Affairs

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-7030
ROBERT B. WISTER,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: October 5, 2006
__________________________
Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and GAJARSA,
Circuit Judge.
PER CURIAM.
Robert B. Wister appeals the decision of the United States Court of Appeals for
Veterans Claims, which affirmed a Board of Veterans’ Appeals decision denying his
claim for service connection for Lyme disease. Wister v. Nicholson, No. 04-324 (Vet.
App. Sept. 20, 2005). We vacate and remand.
The Secretary of Veterans Affairs has a duty to “make reasonable efforts to
assist a claimant in obtaining evidence necessary to substantiate the claimant's claim.”

-- 1 of 4 --

38 U.S.C. § 5103A(a)(1). This duty expressly requires the Secretary to “make
reasonable efforts to obtain relevant records (including private records) that the claimant
adequately identifies to the Secretary and authorizes the Secretary to obtain.” Id.
§ 5103A(b)(1); see also id. § 5103A(c)(1) (requiring the Secretary to obtain a claimant’s
service medical records).
Wister argues that the Department of Veterans Affairs (“VA”) breached its duty to
assist him by not obtaining relevant documents from the Air Force, particularly Service
Medical Records from November 6, 1952 to March 3, 1953. During this period, Wister
was hospitalized and treated at two Air Force hospitals. The record suggests that some
documents from this period were obtained. However the government concedes that the
records were incomplete. In particular, the government has stated that the record did
not include the daily treatment or clinical records for most of that period. In addition,
there is no indication that the VA determined that they do not exist or would be futile to
obtain.
Nonetheless, the Veterans Court held that the VA fulfilled its duty to assist
Wister. In doing so, the Veterans Court noted that the VA had requested records from
at least ten providers on a list submitted by Wister, advised him of the release forms still
needed, and advised him of documents not received. Wister, No. 04-324, slip op. at 8.
It then concluded that there “appears to be no other ‘relevant records’ specifically
identified by Mr. Wister that VA did not attempt to obtain.” Id. The government earlier
requested a remand for a determination of whether the duty to assist was satisfied in
light of these documents not being obtained and the record being unclear as to whether
the VA ever requested them from the Air Force. A judge of this court denied that
06-7030 2

-- 2 of 4 --

motion, determining that the argument was best presented in the government’s brief on
the merits. Wister v. Nicholson, No. 2006-7030 (Fed. Cir. Apr. 5, 2006) (Order). Having
now reviewed the issue in its entirety, we agree that remand is proper.
First, despite the court having a nearly two thousand-page record before it and
the VA having obtained records from ten providers, the duty to assist is not measured
by the bulk of the information obtained. Indeed, compiling a voluminous record does
not obviate the need for, nor satisfy the VA’s duty to provide, a complete record.
Second, in addressing the merits of his claim, the Veterans Court noted that
Wister “does not contend that the [missing] records contain a diagnosis of Lyme
disease; rather he believes the records contain other diagnoses or symptoms consistent
with Lyme disease.” Wister, No. 04-324, slip op. at 8. Putting aside the obvious fact
that Wister would not know the contents of the documents that the VA failed to obtain,
the VA is obligated to obtain them unless “no reasonable possibility exists that such
assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). Thus, the
Veterans Court applied an incorrect standard by concluding that there are “no other
‘relevant records.’” Instead the standard set forth in section 5103A(a)(2) must be
applied. In addition, this correct standard should be applied in light of the government’s
previous motion for a remand, which candidly stated that even if the documents do not
contain a Lyme disease diagnosis, they “may be relevant if they contain other
diagnoses or symptoms consistent with Lyme disease.”
Moreover, when the VA “attempts to obtain records from a Federal department or
agency under this subsection or subsection (c), the efforts to obtain those records shall
continue until the records are obtained unless it is reasonably certain that such records
06-7030 3

-- 3 of 4 --

do not exist or that further efforts to obtain those records would be futile.” Id.
§ 5103A(b)(3). Since the requested records were not obtained and the record does not
indicate if any attempts were made to obtain them, we remand for compliance with the
duty to assist.
In light of our remand, we do not address the denial of his service connection
claim on the merits. Indeed, to the extent that Wister challenges the application of the
law to his factual case, we lack jurisdiction. 38 U.S.C. § 7292(d)(2). Wister also has
requested the case be transferred to district court for a jury trial. However, a party “in
an action against the United States has a right to trial by jury only where Congress has
affirmatively and unambiguously granted that right by statute.” Lehman v. Nakshian,
453 U.S. 156, 168 (1981). Here, the statutory scheme provides the Veterans Court with
exclusive jurisdiction to review board decisions, 38 U.S.C. § 7252(a)-(b), thereby
precluding the availability of a jury trial.
06-7030 4

-- 4 of 4 --