The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BONNIE J. WILSON, DOCKET NUMBER
Appellant, SF-844E-18-0127-I-1
v.
OFFICE OF PERSONNEL DATE: June 30, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Steven E. Brown, Esquire, Westlake Village, California, for the appellant.
Albert Pete Alston, Jr., Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed a reconsideration decision of the Office of Personnel Management
(OPM) finding her no longer eligible for continued disability retirement benefits
under the Federal Employees Retirement System (FERS). For the reasons
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to OPM for a new reconsideration
decision addressing whether the appellant’s medical co nditions, including heavy
metal poisoning, entitle her to continued disability retire ment benefits.
BACKGROUND
¶2 The appellant was formerly employed as a Tools & Parts Attendant at the
Puget Sound Naval Shipyard. Initial Appeal File (IAF), Tab 9 at 24, 33. She was
removed from Federal service effective December 15, 2009, due to an “inability
to perform assigned duties for medical reasons.” Id. at 32-33. She filed an
application for a disability retirement annuity under FERS. Id. at 24-27. In her
Applicant’s Statement of Disability, she described her conditions as “permanent
damage to [her] eyes and redness on [her] neck due to an exposure in the Tool
Room,” an “achiness in [her] neck and elbow” which was impeding her ability to
lift objects, and severe insomnia. Id. at 21-22. OPM has provided
documentation, presumably submitted by the appellant, showing she was
diagnosed with hypersomnia with sleep apnea, id. at 74, was suffering from a
history of contact dermatitis and eczema in 2005, id. at 75 and 79, and as of 2009
had high levels of bismuth, cadmium, lead, mercury, and tin in her urine,
id. at 81-88, and dry eye syndrome, id. at 95-100. On May 25, 2010, OPM
approved the appellant’s FERS disability retirement application. Id. at 37-39.
OPM found the appellant “disabled due to multiple conditions” from h er previous
position as a Tools & Parts Attendant. Id. at 40.
¶3 On June 16, 2016, OPM issued an initial decision determining that the
appellant was not eligible for continued disability retirement payments because
she had not shown that her medical condition still rendered her disabled.
Id. at 57-58. The decision noted that the appellant had previously been found
disabled “due to poison exposure of dangerous levels of chemicals and heavy
metals causing significant systemic reactions.” Id. at 57. The appellant requested
3
reconsideration from OPM and submitted additional medical documentation.
Id. at 68-69. OPM issued a reconsideration decision denying the appellant’s
reconsideration request, and indicated that her medical evidence was insufficient
to support continued disability retirement benefits for the accepted condition of
eye and skin exposure. Id. at 7-8.
¶4 The appellant appealed OPM’s reconsideration decision, IAF, Tab 1, which
the administrative judge affirmed, IAF, Tab 32, Initial Decision (ID) .
The appellant timely filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, she reasserts that she has a continuing disability caused by
heavy metals, which has resulted in various conditions, and that OPM is “trying
to get out of paying a severely disabled person” by incorrectly limiting her
medical conditions to skin and eye irritation. PFR File, Tab 7 at 2 -3. OPM has
responded to the petition and the appellant has replied. PFR File, Tabs 6 -7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Generally, the Board only has jurisdiction over retirement issues once they
have been the subject of an OPM reconsideration decision, and the Board will not
consider evidence relating to medical conditions unless they were presented to,
and addressed by, OPM. Ott v. Office of Personnel Management, 120 M.S.P.R.
453, ¶ 4 (2013); Ballenger v. Office of Personnel Management, 101 M.S.P.R. 138,
¶ 12 (2006). However, when OPM fails to adjudicate all the claims and
dispositive issues before it, the Board has jurisdiction to consider the
non-adjudicated claims and issues, and may remand the case for OPM to complete
a full review of the matter. Ott, 120 M.S.P.R. 453, ¶ 4; Byrum v. Office of
Personnel Management, 618 F.3d 1323, 1332-33 (Fed. Cir. 2010).
¶6 In Byrum, the appellant submitted an application to OPM indicating that she
was claiming her mother’s FERS death benefits only in her capacity as her
mother’s “child” on her death benefits application, but supplemental
documentation to the application clearly indicated that she was a pplying also in
4
her capacity as “assignee” of the benefits, pursuant to a court -ordered assignment
executed by her mother’s spouse. 618 F.3d 1323, 1326-27 (Fed. Cir. 2010).
OPM denied the appellant’s application without addressing whether the appellant
was entitled to her mother’s FERS death benefits by way of the assignment.
Id. at 1327-28. Because of OPM’s failure to address that issue, our re viewing
court remanded the case for OPM to conduct a “full and complete review” of all
of the claims in the appellant’s application. Id. at 1333.
¶7 In Ott, the appellant submitted a disability retirement application with a list
of impairments. 120 M.S.P.R. 453, ¶ 2. Although not included on that list, the
medical documentation submitted with the application also demonstrated the
existence of permanent hearing loss. Id. OPM denied the application, at the
initial and reconsideration levels, without making any findings as it related to
hearing loss. Id. The Board found the case similar to Byrum in that, by failing to
address the hearing loss, OPM effectively failed to adjudicate all of the claims in
the appellant’s disability retirement application. Id., ¶ 6. As a result, the Board
remanded the case to OPM for a new reconsideration decision addressing whether
all of the medical conditions raised in the appellant’s application materials
entitled her to disability retirement benefits. Id., ¶¶ 6, 9. The Board’s precedent
in Byrum and Ott stand for the proposition that OPM must look beyond the four
corners of a retirement application form to consider also an applicant’s supporting
documents.
¶8 Here, similar to Byrum and Ott, OPM limited its reconsideration decision of
the appellant’s eligibility for continuation of her disability retirement benefits to
only some of the medical conditions in the appellant’s original Statement of
Disability, specifically her eye and skin irritation “due to an exposure in the Tool
Room.” IAF, Tab 9 at 21-22. However, the appellant listed additional
conditions, such as insomnia, and provided supporting docu mentation of heavy
metal exposure with her initial disability retirement application. Id. at 81-88.
Furthermore, OPM’s initial decision, from which the appellant requested
5
reconsideration, explicitly stated that she had previously been found disabled
“due to poison exposure of dangerous levels of chemicals and heavy metals
causing significant systemic reactions.” Id. at 57.
¶9 In requesting reconsideration, the appellant provided updated medical
documentation purportedly in support of her diagnosis of heavy metal poisoning,
such as a December 2015 diagnosis of osteopenia, a January 2016 heavy metals
panel, documentation for her January 2017 syncope and collapse, a February 20 17
abnormal electro cardiology report, and documentation from emergency room
visits in February and March 2017 related to tingling in her arms and legs.
Id. at 88, 108-127. However, OPM limited the scope of its reconsideration
decision to the “eye and skin irritation” identified in the appellant’s initial
application and did not consider the documentation related to the appellant’s
other conditions. Id. at 7. By not addressing the heavy metal poisoning, which
OPM had previously indicated was the basis for granting the appellant’s disability
retirement application, id. at 57, OPM failed to adjudicate all of the issues
necessary to determine the appellant’s eligibility for continued disability
retirement payments. 2 Accordingly, as in Ott, we find that this case should be
remanded to OPM to determine whether the appellant’s medical conditions,
including heavy metal poisoning, entitle her to continued disability retirement
benefits. 3
2
OPM provided a letter from its own contract medical doctor reflecting that he could
not determine the conditions accepted by OPM, and recognizing that the appellant’s
claim had been accepted for “exposure.” IAF, Tab 9 at 9. He then declined to consider
this accepted basis for granting disability retirement because it was not a health
condition. Id. Without more, this discussion appears overly circumscribed.
Presumably, OPM is in the best position to identify to what it was referring when it
approved the claim of “exposure.”
3
In light of our decision to remand this matter to OPM for a new reconsideration
decision, we do not address the appellant’s remaining allegations of error by the
administrative judge.
6
¶10 Further, although the appellant’s receipt of Social Security disability
benefits is not dispositive of her eligibility for continued FERS disability
retirement benefits, OPM must consider on remand whether her receipt of those
benefits affects the appellant’s entitlement to FERS disability retirement benefits.
See Trevan v. Office of Personnel Management, 69 F.3d 520, 526
(Fed. Cir. 1995); IAF, Tab 26. OPM argues on review that the Social Security
decision concerns a mental health condition with an onset date in 2015, and thus
has no impact on the appellant’s claim. PFR File, Tab 6 at 11 -12. On this record,
we are not persuaded. First, the decision, which is incomplete, appears to
attribute the appellant’s mental health condition, as least in part, to heavy metal
exposure. IAF, Tab 26 at 2. Further, OPM submitted medical documentation that
suggests the appellant’s mental health was at issue in her original disability
retirement application. IAF, Tab 9 at 91-94. OPM may request documentation
from the Social Security Administration to clarify any ambiguities in the
decision. Trevan, 69 F.3d at 526.
¶11 On review, the appellant provided a July 9, 2018 note from her doctor
stating that her disability of “neuropathy pain and debilitating chronic fatigue” is
permanent and that she is not capable of carrying out gainful employment.
PFR File, Tab 3. On remand, OPM should consider this evidence given the
nature of disability retirement cases and the high priority the Board has placed on
resolving such cases on the merits. See Ott, 120 M.S.P.R. 453, ¶ 8 (citing these
reasons in ordering OPM on remand to consider evidence relating to an
appellant’s disability retirement application that she submitted for the first time
with her petition for review). 4
4
On May 8, 2019, the appellant filed a motion to supplement the record with an
additional pleading. PFR File, Tab 13. In light of our disposition in this matter, we
find it unnecessary to rule on the appellant’s motion. The appellant ma y wish to submit
her additional medical documentation to OPM for consideration on remand.
See Ott, 120 M.S.P.R. 453, ¶ 8.
7
ORDER
¶12 On remand, OPM shall issue a new reconsideration decision addressing
whether the appellant’s medical conditions, including heavy metal poisoning,
entitle her to continued disability retirement benefits. OPM shall issue the new
reconsideration decision within 60 calendar days from the date of this Remand
Order and shall advise the appellant of her right to file an appeal to the Western
Regional Office if she disagrees with that new decision. See Litzenberger v.
Office of Personnel Management, 88 M.S.P.R. 419, 424 (2001).
¶13 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
Western Regional Office if the appellant believes that OPM did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant believes OPM has not fully carried out the Board’s Order, and should
include the dates and results of any communications with OPM. See 5 C.F.R.
§ 1201.182(a).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.