       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  WAYNE C. WALL,
                     Petitioner,
                           v.
     OFFICE OF PERSONNEL MANAGEMENT,
                   Respondent.
            __________________________

                      2011-3006
              __________________________

   Petition for review of the Merit Systems Protection
Board in No. AT0831080779-M-1.
              __________________________

                 Decided: April 8, 2011
              __________________________

   WAYNE C. WALL, of Jackson, Mississippi, pro se.

    A. BONDURANT ELEY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
               __________________________

   Before NEWMAN, LOURIE, and LINN, Circuit Judges.
2                                              WALL V. OPM

PER CURIAM.

     Wayne C. Wall (“Wall”) appeals from a final decision
of the Merit Systems Protection Board (“Board”) affirm-
ing, after remand from this court, its April 17, 2009 final
decision, Wall v. Office of Pers. Mgmt., 111 M.S.P.R. 122
(2009) (“Final Decision”), aff’g as modified Wall v. Office
of Pers. Mgmt., No. AT0831080779-M-1, 2008 M.S.P.B.
LEXIS 5628 (Oct. 28, 2008) (“Initial Decision”), which
affirmed the Office of Personnel Management’s (“OPM’s”)
denial of Wall’s application for disability retirement
benefits under the Civil Service Retirement System
(“CSRS”).      Wall v. Office of Pers. Mgmt., No.
AT0831080779-M-1, 2010 M.S.P.B. 178 (Aug. 31, 2010)
(“Reconsideration Decision”), on remand from Wall v.
Office of Pers. Mgmt., 348 F. App’x. 576 (Fed. Cir. 2009).
For the reasons discussed below, this court affirms.

                       BACKGROUND

    On January 7, 2007, Wall received an appointment
under the Veterans Readjustment Act to a position as a
Claims Assistant with the Veterans Affairs Medical
Center (“VAMC”) in Jackson, Mississippi. Final Decision,
111 M.S.P.R. at 123. Approximately seven months into
Wall’s trial period, on August 17, 2007, Wall was termi-
nated from the position based upon two unapproved
absences and an inability to master the duties of his
position. Reconsideration Decision, 2010 M.S.P.B. 178, ¶
7. Wall’s supervisor submitted a statement accompanying
Wall’s disability retirement application stating that
“[Wall] went to sleep during training[,] . . . had an alterca-
tion with another employee[,] . . . [and] was trained in
several different positions within the scope of his position
description in an attempt to find a match for his abilities.
He did not demonstrate satisfactory performance in any
area.” Respt.’s Appx. at 34.
WALL V. OPM                                               3
    Four days prior to his termination, Wall applied for
disability retirement benefits under the CSRS. Reconsid-
eration Decision, 2010 M.S.P.B. 178, ¶ 2. In his applica-
tion for retirement benefits, Wall asserted that he was
disabled by arthritis and ankylosis (i.e., stiffness) in his
right ankle, tension and migraine headaches, hyperten-
sion, sinusitis, and diabetes. Id. ¶ 3. The OPM denied
Wall’s application for disability benefits because it found
that Wall failed to show that he was disabled by a medical
condition that caused his service deficiencies. Id. Wall
appealed the OPM’s decision to the Board.

    The Administrative Judge (“AJ”) found, to the con-
trary, that Wall’s medical conditions were the cause of his
service deficiencies; however, the AJ affirmed the OPM’s
denial of disability benefits on the ground that Wall
became disabled prior to, and not during, his probationary
appointment at the VAMC.           Initial Decision, 2008
M.S.P.B. LEXIS 5628, at *7, *9. Wall filed a petition for
review by the full Board, which the Board denied for
failure to meet the requirements of 5 C.F.R. § 1201.115(d).
Instead, the Board reopened the case on its own motion
because it found that the AJ erred in concluding that Wall
had established disabling medical conditions that caused
his service deficiencies. Final Decision, 111 M.S.P.R. at
125. The Board nevertheless affirmed the AJ’s conclu-
sion, holding that “[Wall] did not qualify for disability
retirement benefits because he did not show he was
disabled.” Id. Wall appealed to this court.

     While Wall’s appeal was pending, this court issued its
decision in Reilly v. Office of Personnel Management,
holding that the categorical exclusion of post-separation
medical evidence in a CSRS disability retirement benefits
determination is legally erroneous. 571 F.3d 1372, 1380-
81 (Fed. Cir. 2009) (“OPM [and the Board] must consider
all of an applicant’s competent medical evidence.”) (inter-
nal citation omitted). Based on its decision in Reilly, this
4                                             WALL V. OPM

court vacated Wall’s first appeal and remanded to the
Board because “the Board gave no weight to Wall’s post-
termination medical evidence.” Wall, 348 F. App’x. at
577.

    In the Reconsideration Decision, the Board reaffirmed
its earlier decision that Wall failed to show that he suf-
fered from a disability that rendered him incapable of
useful and efficient service. 2010 M.S.P.B. 178, ¶ 19. In
so finding, the Board considered the following medical
evidence: Wall’s statements concerning his medical condi-
tions in his disability retirement application; an April
2005 initial VAMC evaluation noting Wall’s history of
hypertension; Wall’s progress notes from his treatment at
the VAMC between April 2005 and August 2007; Wall’s
VA disability rating of twenty percent for loss of motion in
his ankle and a September 2006 x-ray revealing advanced
arthritis in the same; September and November 2006
reports diagnosing Wall with sinusitis and diabetes; a
May 2007 report indicating headaches twice a month,
lasting about half a day; a call on August 6, 2007, from
Wall to the VAMC complaining of more headaches due to
work stress; an August 21, 2007, report (post-termination)
indicating regular, frequent, and serious headaches; an
August 21, 2007, letter (post-termination) from a nurse
practitioner explaining that Wall’s migraines had wors-
ened over the past year, occurred daily, and resulted in
“nausea, vomiting, light sensitivity and noise sensitivity
along with the need of bed rest”; August and October 2008
submissions (post-termination) from Wall to the Board
regarding the severity of his migraines; and a September
29, 2008, letter (post-termination) from the nurse practi-
tioner reporting that Wall has had migraines for thirty
five years, that they worsened since 2005, and that he
currently suffered four exacerbation headaches per month
resulting in cognitive dysfunction and requiring bed rest.
Id. ¶¶ 8-17.
WALL V. OPM                                                5
     With regard to Wall’s contentions of disability based
on arthritis, ankylosis, hypertension, diabetes, and sinusi-
tis, the Board concluded that none of the medical evidence
indicated how or if these conditions would affect his
ability to perform his job as a Claims Assistant. Id. ¶ 14.
With regard to his migraines, the Board again found that
the evidence failed to show any potentially debilitating
migraines until around the time of and after his termina-
tion in August 2007, and thus Wall failed to demonstrate
that these migraines caused his unapproved absences or
inability to master the duties of his position. Id. ¶ 17.
The Board also found that Wall’s application for disability
only four days prior to his termination “cast doubt on the
veracity of his application.” Id. ¶ 15 (relying on Hender-
son v. Office of Pers. Mgmt., 109 M.S.P.R. 529, ¶ 9 (2008)
and Anderson v. Office of Pers. Mgmt., 96 M.S.P.R. 299, ¶
22 (2004), aff’d, 120 F. App’x. 320 (Fed. Cir. 2005).
Accordingly, the Board held that Wall failed to prove that
he was disabled from useful and efficient service as a
Claims Assistant, affirming its prior decision and the
OPM’s denial of disability retirement benefits. Id. ¶¶ 19-
20.

    The Reconsideration Decision became the final deci-
sion of the Board. Wall timely appealed to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                        DISCUSSION

                  A. Standard of Review

     This court’s review of a Board decision is limited by
5 U.S.C. § 7703(c), providing that this court can set aside
a decision of the Board only if it is found to be: “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” See
6                                             WALL V. OPM

Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.
Cir. 2003). This court’s review is further limited in the
case of a denial of a request for disability retirement. See
5 U.S.C. § 8347(c); Lindahl v. Office of Pers. Mgmt., 470
U.S. 768, 791 (1985); see generally Reilly, 571 F.3d at
1376-79 (discussing the history and scope of this court’s
review of disability retirement determinations under
section 8347(c)). In disability retirement determinations
under the CSRS, this court is without authority to review
the substantive merits or factual underpinnings of such
determinations. Lindahl, 470 U.S. at 791. Rather, 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
error ‘going to the heart of the administrative process.’”
Id. (quoting Scroggins v. United States, 397 F.2d 295, 297
(Ct. Cl. 1968)). “Thus we may only address critical legal
errors, if any, committed by the [Board] in reviewing
OPM’s decision.” Vanieken-Ryals v. Office of Pers. Mgmt.,
508 F.3d 1034, 1038 (Fed. Cir. 2007).

                        B. Analysis
     Under the CSRS, an employee is eligible for disability
retirement if he or she has “complete[d] 5 years of civilian
service and has become disabled.” 5 U.S.C. § 8337(a).
The statute charges the OPM with making the disability
determination and provides, in relevant part, that “an
employee shall be considered to be disabled only if the
employee is found . . . to be unable, because of disease or
injury, to render useful and efficient service in the em-
ployee’s position and is not qualified for reassignment.”
Id. The OPM’s implementing regulations define useful
and efficient service as “(1) acceptable performance of the
critical or essential elements of the position; and (2)
satisfactory        conduct         and        attendance.”
5 C.F.R. § 831.1202. A determination on eligibility for
disability retirement must take into account all compe-
WALL V. OPM                                                7

tent medical evidence, including both objective clinical
findings and qualified medical opinions based on the
applicant’s symptoms. Vanieken-Ryals, 508 F.3d at 1041-
42.   Post-retirement or post-termination evidence is
relevant “[w]here proximity in time, lay testimony, or
some other evidence provides the requisite link to the
relevant period.” Reilly, 571 F.3d at 1382.

    In this appeal, Wall argues that the “[m]edical evi-
dence collaborates [sic] and supports the fact that [his]
pre-existing medical conditions show that [his] service
deficiency is (was) caused by the subsequent progression
of the medical condition,” Petr.’s Br. at 3, and that the
Board again erred in categorically excluding post-
termination evidence. Wall points to the August 21, 2007,
letter from the nurse practitioner as competent evidence
that his migraines caused his service deficiencies. Wall
argues that the document “is in the present tense and
goes to the heart of the matter over the past year includ-
ing the time served in the position of Claims Assistant.”
Petr.’s Br. at 4. Wall also provides, for the first time in
this appeal, an August 20, 2009, Social Security Admini-
stration Office of Disability Adjudication and Review
(“SSA”) determination awarding him social security
disability as additional evidence that his disability caused
his service deficiencies. Wall is understood to assert that
the Board erred in not reaching a similar determination of
disability. Finally, Wall explains that he applied for
retirement disability benefits just four days prior to his
termination because:

      (1) . . . [P]rior to the issuance of the August 1,
      2007 termination notice [he] never received
      any type of complaints from [his] supervisor
      concerning [his] attendance, conduct, or per-
      formance[, and]
8                                             WALL V. OPM

       (2) [He] filed an EEOC complaint to the Of-
       fice of Resolution Management concerning
       the August 1, 2007 termination notice based
       on [his] disabilities, sex, and age and had to
       allow the process to be completed before [he]
       filed [his] application for disability, which
       happen [sic] to be four days prior to effective
       termination date.

Petr.’s Br. at 1-2.

    The OPM replies that the Board did indeed take into
account all relevant evidence, including Mr. Wall’s own
accounts of his condition, the August 21, 2007, and Sep-
tember 29, 2008, post-termination letters from the nurse
practitioner, and Wall’s post-termination complaints
made in the course of his various appeals. The OPM
asserts that the Board addressed each of Wall’s alleged
disabling conditions—including his arthritis, ankylosis,
hypertension, diabetes, sinusitis, and migraines—finding
that none of these conditions were shown to cause Wall’s
service deficiencies as a Claims Assistant. According to
the OPM, the Board took into account all relevant facts,
and “to the extent that Mr. Wall disagrees with the
[B]oard’s fact finding, all such disagreements are beyond
the jurisdiction of this [c]ourt.” Respt.’s Br. at 15-16.
Furthermore, the OPM argues that Wall waived any
argument with respect to the August 20, 2009, SSA
decision regarding disability insurance benefits because
Wall neither made it a part of the record before the Board
on remand nor advanced any arguments regarding the
same to the Board. According to the OPM, even if this
court were to consider the SSA decision, the decision
pertains only to a period after Wall’s termination.

   This court affirms the Board’s decision, discerning no
substantial departure from Wall’s procedural rights or
WALL V. OPM                                              9

misconstruction of the governing legislation. This court is
not persuaded by Wall’s argument that the Board cate-
gorically excluded post-termination medical evidence
because the Reconsideration Decision does indeed analyze
the post-termination evidence. As discussed above, the
Board specifically addressed, among other things, the
August 21, 2007, and September 28, 2008, post-
termination letters from the nurse practitioner regarding
Wall’s migraines and Wall’s post-termination submissions
to the Board on appeal. Considering this evidence, the
Board found that Wall failed to establish that he had
disabling conditions rendering him incapable of satisfac-
tory performance in his position as a Claims Assistant.
As to Wall’s migraines in particular, the Board concluded
based on pre- and post-termination evidence that any
disabling migraines did not begin until the time of Wall’s
termination or thereafter, and thus did not cause his
unsatisfactory performance in his position as a Claims
Assistant. 2010 M.S.P.B. 178, ¶ 17. This court lacks
authority to review these factual findings.

    Moreover, this court agrees with the OPM that this
court cannot consider the August 20, 2009, SSA disability
insurance decision discussed extensively in Wall’s brief
because that decision was rendered based on a different
record before a different administrative agency and, in
any event, was not included in the record before the
Board.

    Finally, the Board considered Wall’s timing in filing
his disability retirement application as one element in its
ultimate factual determination based on the medical
evidence and the entire record. Although this court does
not view the timing of Wall’s disability retirement appli-
cation as persuasive evidence in this case, this again is a
factual finding not subject to review.
10                                             WALL V. OPM

                        CONCLUSION

     For the foregoing reasons, this court affirms.

                        AFFIRMED

                            COSTS

     Each party shall bear its own costs.
