                 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


                                       05-3200


                                 SYLVIA A. KAPEN,

                                                            Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.



                          _________________________

                          DECIDED: January 12, 2006
                          _________________________



Before MICHEL, Chief Judge, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM


                                      DECISION

      Sylvia A. Kapen petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that sustained the remand decision of the Office of

Personnel Management (“OPM”) denying her application on behalf of her son Lorin

Kapen for survivor annuity benefits under the Civil Service Retirement System (“CSRS”)
as an adult disabled child. Kapen v. Office of Pers. Mgmt., No. NY-0831-04-0326-I-1

(M.S.P.B. May 4, 2005). We affirm.

                                       DISCUSSION

                                             I.

       Under the CSRS, the “unmarried dependent child” of a deceased federal

employee is entitled to a survivor annuity, regardless of age, if he or she “is incapable of

self-support because of mental or physical disability incurred before age 18.” 5 U.S.C.

§ 8341(a)(4), (e). Ms. Kapen is the widow of Jack Kapen, a deceased former employee

of the United States Postal Service. In January of 2000, Ms. Kapen applied to OPM on

behalf of her son Lorin for survivor annuity benefits under the statute, claiming that Lorin

was an adult dependent child. In July of 2000, OPM denied the application; it then

denied reconsideration in November of 2000. Ms. Kapen appealed to the Board. The

reconsideration decision was affirmed in an initial decision in November of 2001, and in

October of 2002, the Board denied Ms. Kapen’s petition for review.

       Ms. Kapen petitioned this court for review. On May 12, 2003, we vacated the

Board’s decision and remanded the case for further proceedings. Kapen v. Office of

Pers. Mgmt., No. 03-3076, 74 Fed. Appx. 50 (Fed. Cir. 2003) (per curiam) (“Kapen I”).

We did so after holding that the Board had erred in not reopening the appeal to consider

the February 28, 2001 decision of the Veteran’s Administration (“VA”) approving Ms.

Kapen’s application for dependent child survivor benefits for Lorin, as well as the

evidence underlying that decision.

       Following our decision, the Board remanded the case to OPM for further

proceedings. Thereafter, on July 22, 2004, OPM once again determined that Lorin was




05-3200                                      2
not entitled to survivor annuity benefits as an adult dependent child. In its decision,

OPM stated that it had considered the decision of the VA, as well as the evidence that

formed the basis for that decision.

      Ms. Kapen again appealed to the Board.            On November 24, 2004, the

administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision

sustaining OPM’s remand decision. Kapen v. Office of Pers. Mgmt., No. NY-0831-04-

0326-I-1 (M.S.P.B. Nov. 24, 2004). The AJ’s initial decision became the final decision

of the Board on May 4, 2005, after the Board denied Ms. Kapen’s petition for review for

failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). This appeal

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                         II.

      Pursuant to 5 U.S.C. § 8347(c), OPM is charged with making disability

determinations such as the one at issue in this case.      Section 8347(c) provides in

relevant part that, except for an appeal to the Board, see 5 U.S.C. § 8347(d)(1) (2000),

such determinations by OPM “are final and conclusive and are not subject to review.”

Under this statutory scheme, the Board’s factual findings with respect to Lorin’s

disability claim are not subject to our review. We may only review 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

determination.” Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995)

(internal quotation marks omitted) (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S.

768, 791 (1995)).




05-3200                                        3
      Ms. Kapen contends that, in view of the evidence that was presented, the Board

failed to properly assess the seriousness of her son’s disability. Lindahl and Anthony

make clear that this is precisely the sort of claim that we may not consider. Ms. Kapen

does, however, raise two arguments that we may consider. It is to those arguments that

we now turn.

                                           III.

      First, before the Board, Ms. Kapen had the burden of proving that her son Lorin

was entitled to survivor annuity benefits by a preponderance of the evidence. 5 C.F.R.

§ 1201.56(a)(2) (2005). On appeal, although it is not entirely clear, Ms. Kapen seems to

argue that the AJ misapplied the preponderance of the evidence standard.            Her

contention appears to be that when she introduced some relevant evidence that a

reasonable person could have found supported her son’s claim, the burden shifted to

OPM to show that there was sufficient evidence to support rejection of the claim. Ms.

Kapen’s argument reflects a misunderstanding of the preponderance of the evidence

standard. Preponderant evidence is defined as the “degree of relevant evidence that a

reasonable person, considering the record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.56(c)(2)

(emphasis added). We agree with the government that the “definition does not create a

presumption whereby the submission of any evidence supporting eligibility [for benefits]

shifts the burden to establish that contrary evidence is sufficient to prove that the

applicant is not eligible to receive benefits.” Respondent’s Brief at 28 (emphasis in

original). Under the preponderance of the evidence standard, the evidence as a whole

must be considered—not just the evidence that supports the applicant’s claim. We




05-3200                                    4
have reviewed the AJ’s decision and have found no indication that he misapplied the

preponderance of the evidence standard.

       Second, Ms. Kapen argues that the Board failed to adhere to our decision in

Kapen I. According to Ms. Kapen, on remand the Board was required to follow our

decision and “grant [a] survivor annuity and benefits to Lorin Kapen.” Petitioner’s Brief

at 2, response to Question 6. Ms. Kapen is mistaken. In Kapen I, we did not direct the

award of an annuity and benefits to Lorin. Rather, we directed that Lorin’s claim be

reconsidered in light of the VA’s decision and the evidence underlying that decision.

We have reviewed the record before us and are satisfied that both OPM and the Board

followed our instructions in Kapen I.

       For the foregoing reasons, the decision of the Board sustaining OPM’s remand

decision is affirmed.

       Each party shall bear its own costs.




05-3200                                       5
