              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.




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