829 F.2d 42
Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Alvin R. POTTER, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Appeal No. 87-3272
United States Court of Appeals, Federal Circuit.
Aug. 7, 1987.

Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and NEWMAN, Circuit Judge.
PER CURIAM.

DECISION

1
The decision of the Merit System Protection Board, Docket No. AT08318710195, affirming a reconsideration decision of the Office of Personnel Management terminating petitioner's disability income payments, is affirmed.

OPINION

2
The Office of Personnel Management treated the payments for unused sick leave as wages in making its calculations for the purpose of determining Mr. Potter's entitlement to continuing disability payments.  5 U.S.C. Sec. 8337(d).  The Board stated that it applied the same standard to this payment for unused sick leave as that set in the Internal Revenue Code for determining whether payment for sick leave under a health plan is taxable wages, and concluded that in terms of 26 U.S.C. Sec. 3401(a) the payments to Mr. Potter for unused sick leave meet the criteria for taxable income.  26 C.F.R. Sec. 31.3401(a)-1(a).  This is a reasonable interpretation of the cited law and regulations.  Although petitioner argues that payments such as unemployment compensation are not counted as income for purposes of disability entitlement, we think the Board was correct in considering payment for unused sick leave as part of total earned income.  We affirm on the basis of the opinion of the Board.

