       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               EDWARD J. SIMPKINS,
                    Petitioner,
                           v.
     OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent.
              __________________________

                      2011-3005
              __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. DC844E090623-B-1.
             ____________________________

               Decided: February 9, 2011
             ____________________________

   EDWARD J. SIMPKINS, Greenbelt, Maryland, pro se.

    NICHOLAS JABBOUR, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director.
                __________________________
SIMPKINS   v. OPM                                         2


  Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
    Edward Simpkins appeals from the decision of the
Merit Systems Protection Board (“the Board”) affirming
the Office of Personnel Management’s (“OPM’s”) decision
denying his application for disability retirement benefits.
See Simpkins v. Office of Pers. Mgmt., No.
DC844E090623-B-1 (M.S.P.B. June 11, 2010) (“Initial
Decision”); Simpkins v. Office of Pers. Mgmt., No.
DC844E090623-B-1 (M.S.P.B. Sept. 13, 2010) (“Final
Decision”).
   For the reasons discussed below, we affirm.
                       BACKGROUND
    Simpkins served in the United States Navy from 1980
through 1986, when he was honorably discharged with
disability severance pay. He has since been receiving
disability pay for his service-connected condition of hyper-
tension with left ventricular hypertrophy from the De-
partment of Veterans Affairs (“DVA”) at a rating of 30%
or higher. Simpkins began working as a Benefits Advisor
with the Department of Labor in July 2000. In October
2008, he applied to OPM for disability retirement under
the Federal Employees Retirement System (“FERS”),
based on the medical conditions of hypertension, mitral
valve prolapse, and high cholesterol, but was denied.
Simpkins appealed OPM’s denial of disability retirement
benefits to the Board. In the meantime, Simpkins was
removed from his position in early 2009.
     The administrative judge (“AJ”) found that Simpkins
failed to establish that his medical conditions prevented
“useful and efficient service” in his position as a Benefits
Advisor. See Simpkins v. Office of Pers. Mgmt., No.
DC844E090623-B-1 (M.S.P.B. Sept. 8, 2009). The full
3                                          SIMPKINS   v. OPM


Board denied Simpkins’ petition for review of that deci-
sion, but reopened and remanded the matter based on
evidence Simpkins introduced after the close of the record
indicating that the DVA had increased his disability
rating in October 2009 for an overall disability rating of
80%. Simpkins v. Office of Pers. Mgmt., 113 M.S.P.R. 411
(2010).
    On remand, the AJ ordered Simpkins to submit any
additional medical evidence not previously available. He
thereupon submitted, inter alia, a list of his medications
and a letter from the DVA referencing his service-
connected disabilities. Initial Decision at 9. Simpkins’
other submissions were not medical in nature. Id. The
AJ then reopened the record, stating specifically that the
purpose was for Simpkins to submit “any additional
medical evidence upon which the DVA relied in the con-
text of its October 1, 2009 Rating Decision, that was not
previously provided to the Board.” Initial Decision at 10.
In addition, the AJ noted specific documents that were
referenced in the DVA’s rating decision but that were not
part of the record. Id. However, no further documents
were submitted. Id.
    The AJ again affirmed the OPM’s decision, finding
that Simpkins had not established his entitlement to a
disability retirement annuity by a preponderance of the
evidence. Initial Decision at 11. In particular, the AJ
found that Simpkins had not shown that the performance
deficiencies he had documented were caused by his medi-
cal condition. Id. at 13. The AJ emphasized that “[m]ore
importantly,” the medical evidence did not corroborate
Simpkins’ assertions that his medical conditions “pre-
vented him from rendering useful and efficient service in
the Benefits Advisor position.” Id. This was in large part
because none of the treating physicians of record had
“asserted [Simpkins’] medical conditions prevented him
SIMPKINS   v. OPM                                          4


from performing the essential duties of his . . . position or
that his conditions deteriorated to the point that he could
no longer render useful and efficient service in his posi-
tion.” Id. at 14. The AJ found no evidence that the al-
leged disability could not be controlled through
medication or other reasonable means, but, rather, that
the evidence appeared to support the opposite conclusion,
that the conditions were being controlled through medica-
tion. Id. at 15. The AJ found the DVA’s October 2009
Rating Decision and other documents newly submitted by
Simpkins insufficient to overcome the weight of the
evidence. Id. In so finding, the AJ noted Simpkins’
failure to produce the medical records upon which the
DVA relied in giving him a new rating. Id. at 16. To the
extent the Rating Decision was informative, however, the
AJ found that it was consistent with the medical records
that were before the Board and likewise suggested that
Simpkins’ conditions could be controlled with proper
medication. Id.
    The full Board denied Simpkins’ petition for review,
Final Order. The AJ’s initial decision thereupon became
the final decision of the Board. Simpkins timely appealed
to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                        DISCUSSION
     The scope of our review in an appeal from a Board de-
cision is limited. In general, we can set aside the Board’s
decision only if 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Substantial evidence is “such relevant evidence as a
5                                            SIMPKINS   v. OPM


reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938). However, in the case of the denial of a
request for disability retirement, our review is further
limited. Pursuant to 5 U.S.C. § 8461(d), we are precluded
from reviewing the factual underpinnings of physical
disability determinations, but may address whether there
has been “a substantial departure from important proce-
dural rights, a misconstruction of the governing legisla-
tion, or some like error ‘going to the heart of the
administrative determination.’” Anthony v. Office of Pers.
Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl
v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985)).
     Simpkins argues that the evidence clearly showed
performance and attendance deficiencies due to disability,
but that the Board failed to give weight to this evidence.
He also argues that the Board should have given more
weight to the DVA’s disability rating which constituted
new medical evidence that his conditions had worsened.
Simpkins further suggests that because evidence “disap-
peared” in the earlier proceeding, 1 it was possible that
some of his medical records could have disappeared from
the record in this proceeding as well. Simpkins also
argues that the Board erred by not recognizing that he did
not need to show how his medical conditions affect par-
ticular job requirements where the medical evidence
indicated unambiguously that he cannot perform the
duties of his position. In addition, Simpkins notes that
the DVA is currently deciding his claim for 100% disabil-
ity rating and that the resolution of that claim will resolve
any open factual questions remaining in this case.

    1   Simpkins appears to be referencing the loss of the
transcript of his initial hearing before an administrative
judge. Because the reporting service lost or misplaced the
audiotapes of the hearing, a second hearing was held.
SIMPKINS   v. OPM                                        6


    The government responds that the Board took into ac-
count all the facts presented by Simpkins in making its
decision and that its determination is supported by sub-
stantial evidence. In particular, the government argues
that the Board considered the evidence and found it
insufficient to show a causal connection between his
medical conditions and his performance deficiencies.
Additionally, the government argues that the Board
carefully considered all of the medical evidence in the
record in making its finding that Simpkins’ conditions are
not disabling and can be controlled. The government
points out that Simpkins did not submit his most recent
medical test results relating to his heart condition. The
government also argues that Simpkins’ reliance on the
DVA’s decision to increase his disability rating is mis-
placed. The government notes that the Board considered
that evidence and found that it supported the conclusion
that Simpkins’ conditions could be controlled by the
proper medicines. The government also argues that a
disability rating determination by the DVA is not disposi-
tive of the availability of disability retirement from OPM.
In addition, the government agrees that there are circum-
stances in which it is unnecessary to specifically show
that specific job duties cannot be performed due to a
disability, but argues that the Board correctly found that
this was not such a situation.
    We affirm the Board’s decision, discerning no sub-
stantial departure from procedural rights or misconstruc-
tion of the governing legislation in Simpkins’ legal
challenge to the Board’s decision. Although the Board has
applied an exception to the rule that proffered medical
evidence must be linked to the specific job duties at issue
to show entitlement to disability retirement, that ruling
was in a case where the employee provided overwhelm-
ingly unambiguous and uncontradicted evidence that she
7                                          SIMPKINS   v. OPM


suffered from such incapacity that she was unable to
leave her home. Mullins-Howard v. Office of Pers. Mgmt.,
71 M.S.P.R. 619, 627 (1996). In contrast, the Board found
that the medical evidence here does not suggest a com-
plete incapacity to function effectively such that it is
unnecessary to show an inability to perform specific job
duties. Instead, the Board found that the evidence sup-
ported a conclusion that Simpkins’ conditions were being
managed through medication such that he could continue
to perform his duties. This determination did not consti-
tute a misconstruction of the governing legislation, as
contemplated by the cases interpreting 5 U.S.C. § 8461(d).
See, e.g., Anthony, 58 F.3d at 626.
    The remainder of Simpkins’ arguments address the
factual findings of the Board and suggest that evidence in
support of his position was not considered. On the con-
trary, however, the evidence that Simpkins points to was
considered and weighed by the Board. The Board consid-
ered his performance evaluations and found no indication
that they resulted from his medical conditions. The
Board considered the medical evidence submitted (while
noting various test results and other supporting docu-
ments that were missing). The Board thoroughly dis-
cussed the medical evidence that was before it and
concluded that it supported a finding that Simpkins’
symptoms were being controlled through medication. As
a corollary, the Board concluded that the evidence did not
show that Simpkins was unable to perform his position as
Benefits Advisor. There is no indication that the Board
denied Simpkins any procedural rights in making its
determination and, as discussed above, we do not review
the factual findings.
   Simpkins suggests that additional medical records
may have “disappeared” from the record in this case.
However, he makes no assertion that he submitted any
SIMPKINS    v. OPM                                       8


further medical records, and the bulk of his argument is
that inferences favorable to his case should be drawn from
the documents that are on the record (such as the per-
formance reports and the rating decision of the DVA).
Additionally, the Board found that although Simpkins did
not submit the medical evidence underlying the DVA’s
rating decision, the rating decision actually supported the
finding that his medical conditions did not prevent useful
and efficient service and were being managed through
medication. We thus have no reason to assume that
records were submitted but disappeared.
    We have reviewed the case and found that it does not
implicate our limited scope of review from a denial of
disability retirement. We also note that we certainly
cannot open the record to examine determinations not yet
made by the DVA on Simpkins’ claim for 100% disability
rating.
                       CONCLUSION
    The Board’s decision affirming OPM’s denial of dis-
ability retirement does not represent a substantial depar-
ture    from    important    procedural    rights   or   a
misconstruction of the governing legislation. Accordingly,
we affirm.
                      AFFIRMED
                          COSTS
No costs.
