Garcia v. Office of Personnel Management

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
05-3293
MAX J. GARCIA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
____________________
DECIDED: February 13, 2006
____________________
Before LOURIE, RADER, and DYK, Circuit Judges.
PER CURIAM.
Max J. Garcia petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) affirming the decision by the Office of
Personnel Management (“OPM”) denying his application for a disability
retirement annuity. Garcia v. Office of Personnel Management, No. DE-831E-01-
0029-M-1 (M.S.P.B. Jan. 27, 2004). We affirm.
BACKGROUND
On September 30, 1999, Garcia retired from his position as a contracting
officer for the National Park Service and applied for disability retirement benefits.
On March 12, 2000, OPM denied Garcia’s disability retirement application,
finding that he had not shown a deficiency in his performance at the time of
retirement sufficient to establish that he was disabled for useful service. Garcia
requested reconsideration of OPM’s decision, and OPM again denied his
application. OPM noted that Garcia had received a within-grade increase one
month prior to retirement and his supervisor did not specify any performance
deficiencies that would affect his ability to perform in his position.
On October 18, 2000, Garcia appealed OPM’s decision to the Board. In a
December 27, 2001 initial decision, the administrative judge (“AJ”) affirmed
OPM’s decision, holding that Garcia did not demonstrate by a preponderance of
the evidence that he was entitled to a disability retirement annuity. The initial
decision became final on November 26, 2002, when the full Board denied his
petition for review. Garcia appealed that decision to this Court. On December
27, 2002, one month after the Board’s decision, while Garcia’s appeal to this
court was pending, the DVA issued a rating decision on Garcia’s disability and
increased his cumulative disability rating from 70%, as determined on August 29,
2000, to 170%. In light of that new evidence, we vacated the Board’s decision
and remanded for consideration on the basis of the increased disability rating.
On remand, the AJ noted that in order for the increased disability rating to
be relevant to Garcia’s application for a disability retirement annuity there must
be a “nexus” between the increased rating and Garcia’s ability to perform useful
service in his Federal civilian position. The AJ determined that Garcia failed to
establish that “nexus,” and that the increased rating was not relevant to Garcia’s
claim for a disability retirement annuity. The AJ observed that the medical
conditions upon which OPM and the Board based their determinations were the
05-3293 2
same as those considered by the DVA in determining Garcia’s rating. The AJ
further noted that although the disability rating changed, there was no change in
Garcia’s medical conditions as addressed by OPM. The AJ determined that the
evidence was insufficient to prove by a preponderance of the evidence
entitlement to a disability retirement annuity and affirmed the OPM’s decision
denying Garcia’s disability claim.
The Board denied Garcia’s petition for review, and the AJ’s decision
became the Board’s final decision. See 5 C.F.R. § 1201.113(b). Garcia timely
appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is
limited. We must affirm the Board’s decision unless it was “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)
(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
We are precluded from reviewing the factual underpinnings of a decision by OPM
concerning entitlement to a disability retirement annuity. Lindahl v. Office of
Personnel Management, 470 U.S. 768, 791 (1985). Our review is limited to
determining whether “there has been a substantial departure from important
procedural rights, a misconstruction of the governing legislation, or some like
05-3293 3
error ‘going to the heart of the administrative determination.’” Linhahl, 470 U.S.
at 1971 (citation omitted).
On appeal, Garcia contends that the Board failed to follow our remand
instructions because it did not take into account the increased rating. Garcia
further asserts that in increasing the disability rating, the DVA confirmed his
permanent and total disability and unemployability, and that the Board did not
consider those new DVA determinations or their relevance. Garcia further
contends that the Board and OPM ignored pertinent medical determinations by
physicians.
The scope of our review is limited to whether, on remand, the Board
considered the DVA’s increased disability rating. We conclude that it did. On
remand, the AJ acknowledged that the disability rating increased but found that
the change in rating was not relevant to Garcia’s application for a disability
retirement annuity. The AJ noted that the medical conditions upon which the
DVA made its increased rating determination were the same as those considered
previously by OPM and the Board. The AJ determined that evidence presented
on those medical conditions was insufficient to warrant entitlement to disability
retirement annuity. The AJ therefore considered the increased disability rating,
as it was required to do on remand, and concluded that it did not change OPM’s
conclusion.
To the extent that Garcia is challenging the Board’s determination of the
relevancy of the increased disability rating, we conclude that the Board did not
abuse its discretion in determining that the DVA’s increased rating was not
05-3293 4
relevant to his denial of a disability retirement annuity. The standard for
awarding a disability retirement annuity is whether Garcia was able to perform
“useful and efficient service” in his position at the time of retirement, which is not
the standard the DVA uses to increase a veteran’s rating. The increased rating,
therefore, does not necessarily affect entitlement to disability retirement annuity.
The Board did not err in weighing the evidence and determining the relevancy of
the increased disability rating. Moreover, to the extent that Garcia disagrees
with the AJ’s factual findings concerning his entitlement to disability retirement
benefits, those findings are beyond the scope of our review. Because the
Board considered the increased disability rating, we affirm the Board’s decision.
We have considered Garcia’s remaining arguments and find them to be
unpersuasive.
COSTS
No costs.
05-3293 5