The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO ROWLES, DOCKET NUMBER
Appellant, CH-844E-22-0479-I-1
v.
OFFICE OF PERSONNEL DATE: February 20, 2025
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Antonio Rowles , Kansas City, Missouri, pro se.
Sheba Dunnings Banks and Linnette Scott , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement under the Federal Employees’
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Retirement System. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
Central Regional Office for further adjudication in accordance with this Remand
Order.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant submits alleged new documentation
concerning a decision from the Department of Veterans Affairs (DVA)
concerning his eligibility for Veteran Readiness and Employment (VR&E)
benefits. Petition for Review (PFR) File, Tab 1 at 5-6. Under the Board’s
regulations at 5 C.F.R. § 1201.115(d), the Board may grant a petition for review
when new and material evidence is available that, despite due diligence, was not
available when the record closed.
The record in this matter closed at the conclusion of the December 2022
hearing. Initial Appeal File, Tab 9-1, Hearing Recording. The DVA issued its
decision concerning VR&E benefits on May 12, 2023. PFR File, Tab 1 at 6. The
VR&E decision indicates that, on April 5, 2023, the vocational rehabilitation
counselor referred the appellant to Dr. R.K. and asked that he determine the
appellant’s status and the impact of his service-connected disabilities on his
ability to work as an accountant and in a sedentary environment and complete a
bachelor’s degree. PFR File, Tab 1 at 5-6. The DVA decision relies on a report
completed and signed by Dr. R.K. on April 27, 2023. Id. Although the DVA
issued its decision on May 12, 2023, ten days before the administrative judge
issued her initial decision, there is no indication that the appellant received it or
the accompanying medical report before the issuance of the initial decision on
May 22, 2023. Presuming 5 days for mail and delivery, he would have received
these documents less than a week before the administrative judge issued the
initial decision. See 5 C.F.R. § 1201.23. Under these circumstances, we find that
the VR&E decision and supporting medical report were not readily available to
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the appellant before the record closed below and that the appellant showed due
diligence in submitting the documentation to the Board along with his timely filed
petition for review. See Gardner v. Office of Personnel Management,
91 M.S.P.R. 391, ¶¶ 6-7 (2002) (finding that a Social Security Administration
(SSA) disability benefits award was new when there was no indication that the
appellant received it before the issuance of the initial decision 12 days later);
Redmond v. Office of Personnel Management, 90 M.S.P.R. 4, ¶ 7 (2001)
(determining that the SSA’s disability decision relied on an examination and
medical opinion that it obtained under its regulatory powers and was thus not
readily available to the appellant before it issued its decision). Thus, we find that
the evidence is new.
We also find that the DVA decision and supporting medical evidence
potentially affect the outcome and thus are material to the disposition of this
appeal. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
(holding that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision). The Board and OPM must consider an award of
benefits by the DVA based on the same medical conditions as the appellant’s
disability retirement application, although this evidence may be outweighed by
other evidence. Sachs v. Office of Personnel Management, 99 M.S.P.R. 521, ¶ 11
(2005). Additionally, in disability retirement cases, the Board has frequently
accepted as new evidence medical reports that were developed in concurrent
proceedings conducted in other fora and unavailable to the appellant when the
record closed. Harpole v. Office of Personnel Management, 98 M.S.P.R. 232,
¶ 14 & n.6 (2005). We find that it is in the interest of justice to allow the
appellant to submit evidence and argument regarding the VR&E decision and
underlying examination and information upon which it is based. The
administrative judge should allow the appellant a supplemental hearing on these
issues if he requests one. See, e.g., Gardner, 91 M.S.P.R. 391, ¶ 8. The
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administrative judge shall then issue a new initial decision based on the totality of
the evidence.
ORDER
For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.