         NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                  ______________________

                 DONALD E. CONNELL,
                      Petitioner,

                             v.

       OFFICE OF PERSONNEL MANAGEMENT,
                    Respondent.
               ______________________

                        2013-3184
                  ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF0831130142-I-1.
                ______________________

                Decided: February 11, 2014
                 ______________________

      DONALD E. CONNELL, of Ocean Park, Washington, pro
se.

    JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and DEBORAH
A. BYNUM, Assistant Director.
                 ______________________
2                                          CONNELL v. OPM



 Before RADER, Chief Judge, MOORE and HUGHES, Circuit
                        Judges.
PER CURIAM.
    Donald Connell appeals the final decision of the Merit
Systems Protection Board. The Board concluded that the
administrative judge properly affirmed the Office of
Personnel Management’s decision to deny a request for an
increased survivor annuity under the Civil Service Re-
tirement System. Because the Board’s conclusion is in
accordance with the law and supported by substantial
evidence, we affirm.
                            I.
    Mr. Connell’s spouse, Mona Connell, worked at the
Department of Energy for thirty years. Prior to her
retirement in April 2011, Mrs. Connell, the annuitant,
elected to provide Mr. Connell with a partial survivor
annuity using an annuity election form. The form’s
instructions stated that annuitants may increase the
survivor annuity amount at retirement if they request the
increase no later than eighteen months after retirement.
Mr. Connell consented to Mrs. Connell’s election in writ-
ing, affirming that his consent was “final (not revocable).”
(A044.)
    About two weeks after her retirement, Mrs. Connell
was diagnosed with terminal cancer. She died on Febru-
ary 10, 2012.
    In December 2011, within the time between the diag-
nosis and Mrs. Connell’s death, OPM sent a notice to its
annuitants stating that an annuitant could elect an
increased survivor annuity for her spouse if an election
was filed no later than eighteen months after an annui-
tant’s retirement. Mrs. Connell never elected to increase
the survivor annuity before her death.
CONNELL v. OPM                                            3



     On February 23, 2012, Mr. Connell requested that
OPM increase his survivor annuity. OPM denied Mr.
Connell’s request on the ground that Mrs. Connell did not
file for an increase in survivor annuity before her death.
An administrative judge affirmed OPM’s decision. In
doing so, the Board noted that Mr. Connell did not deny
that his wife received OPM’s notice regarding survivor
annuities.
    On petition for review to the Board, and after close of
the record, Mr. Connell asserted for the first time that
OPM failed to comply with the regulations because Mrs.
Connell did not receive the December 2011 notice. The
Board denied Mr. Connell’s petition, finding that the
record contained a sworn affidavit by an OPM official
establishing OPM’s delivery of the notice to annuitants in
December 2011. Additionally, the Board determined that
Mr. Connell’s assertion, standing alone, was not sufficient
to overcome the presumption that Mrs. Connell received
the notice.
     Mr. Connell appeals. This court has jurisdiction un-
der 28 U.S.C. § 1295(a)(9) (2012).
                            II.
    This court “must affirm the Board’s decision unless it
is arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law, obtained without proce-
dures required by rule, law, or regulation, or unsupported
by substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c) (2012).
    OPM must notify retirees on an annual basis that
they have eighteen months from the date of retirement to
elect an increase in a spouse’s survivor annuity. 5 U.S.C.
§ 8339(o)(6) (2012). It is OPM’s burden to establish that it
is more probable than not that a notice was sent and that
its contents notified annuitants of available elections.
4                                           CONNELL v. OPM



Schoemakers v. Office of Pers. Mgmt., 180 F.3d 1377, 1380
(Fed. Cir. 1999). If OPM satisfies this burden, a rebutta-
ble presumption arises and the petitioner must put forth
evidence or testimony tending to support the contention
that the annuitant did not receive the annual notice. Id.
The Board must then decide whether the petitioner’s
evidence overcomes the presumption that notice was
received.
    If OPM fails to show that it complied with the notice
requirement and the annuitant’s conduct was consistent
with having made the election at issue, the Board may
order survivor benefits as if the deceased had made a
timely election. See, e.g., Hathaway v. Office of Pers.
Mgmt., 118 M.S.P.R. 678, 681 (2012) (citing Simpson v.
Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. Cir.
2003)).
    On appeal, Mr. Connell asserts that substantial evi-
dence does not support the Board’s finding that OPM met
its statutory notice obligations. But, the record below
included a sworn affidavit from the OPM official respon-
sible for printing and distributing retirement notices. The
affidavit described the process for, and the personnel in
charge of, generating annuitant lists and mailing notices
to those on the lists. It also stated that OPM sent all
annuitants general notices regarding survivor elections
every December since September 1989. The record fur-
ther included a copy of the notice sent in December 2011.
The notice states an annuitant is “eligible to elect . . . an
increased survivor annuity for [her] spouse if [she] 1)
ha[s] been retired less than 18 months.” (A024.)
     Citing this evidence, the Board determined that OPM
met its burden regarding the notice requirement. It also
determined that Mr. Connell’s assertion was made for the
first time on petition for review and was not sufficient to
overcome OPM’s showing. In view of the evidence cited
by the Board, the Board’s determinations were supported
CONNELL v. OPM                                           5



by the substantial evidence. See, e.g., Schoemakers, 180
F.3d at 1380-81; Hathaway, 118 M.S.P.R. at 1381.
    Although we are sympathetic to Mr. Connell’s situa-
tion, because Mrs. Connell did not change her election of a
partial survivor annuity within eighteen months of her
retirement, OPM correctly denied the request for an
increased annuity. Cf. Kievenaar v. Office of Pers. Mgmt.,
421 F.3d 1359, 1365 (Fed. Cir. 2005).
                           III.
     Because its decision is supported by substantial evi-
dence, the Board correctly denied Mr. Connell’s petition
for review. Accordingly, this Court affirms.

                      AFFIRMED
                          COSTS
   No costs.
