                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK H. FOSS,                                   DOCKET NUMBER
                         Appellant,                  DE-0831-14-0529-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 21, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mark H. Foss, Grand Island, Nebraska, pro se.

           Linnette Scott, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) denying the appellant’s application for a survivor annuity. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, we conclude that the petitioner
     has not established any basis under section 1201.115 for granting the petition for
     review. Therefore, we DENY the petition for review and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        In January 2012, OPM notified the appellant that he might be eligible for a
     Civil Service Retirement System survivor annuity as a dependent of Arnold Foss.
     Initial Appeal File (IAF), Tab 7 at 177.           The appellant completed the
     corresponding questionnaire and returned it to OPM, requesting a survivor
     annuity. Id. at 170-73, 176.
¶3        In May 2012, OPM issued its initial decision, denying the appellant’s
     request. Id. at 167-69. The appellant submitted a request for reconsideration,
     with additional evidence attached. Id. at 89-166. OPM issued its reconsideration
     decision in April 2013, again denying his request for a survivor annuity.        Id.
     at 86-88.
¶4        The appellant challenged OPM’s April 2013 reconsideration decision in a
     previous Board appeal.    See Foss v. Office of Personnel Management, MSPB
     Docket No. DE-0831-13-0258-I-1, Remand Order at 1 (June 5, 2014). After the
     administrative judge affirmed OPM’s denial, the Board granted the appellant’s
     petition for review, vacated the initial decision, and remanded the matter to OPM
     to issue a new reconsideration decision. Id. at 1-3. We found that, while OPM
     determined that the appellant had not shown that he was incapable of self-support
                                                                                           3

     prior to age 18, the proper standard required a determination as to whether he “is
     incapable of self-support because of a mental or physical disability incurred
     before age 18.” 2 Id. at 1-2 (quoting 5 U.S.C. § 8341(a)(4)(B), (e)(2) (emphasis
     added)).
¶5         Following our remand, OPM issued a new reconsideration decision in
     July 2014, applying the proper legal standard and again denying the appellant’s
     request for a survivor annuity. IAF, Tab 7 at 4-6. The appellant filed the instant
     appeal, challenging that reconsideration decision. IAF, Tab 1. He requested that
     the administrative judge issue a decision on the written record, without a hearing.
     IAF, Tab 8 at 1-2.
¶6         The administrative judge affirmed OPM’s July 2014 reconsideration
     decision. IAF, Tab 14, Initial Decision (ID). The appellant has filed a petition
     for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response.
     PFR File, Tab 3.
¶7         Under 5 U.S.C. § 8341(a)(4)(B) and (e)(2), the unmarried dependent child
     of a deceased Federal annuitant is entitled to a survivor annuity, regardless of
     age, if he is incapable of self-support because of a mental or physical disability
     incurred    before    age    18.       Rajbhandary      v.   Office    of    Personnel
     Management, 91 M.S.P.R. 192, ¶ 4 (2002).              The burden of proving that
     entitlement is on the applicant for benefits. See Cheeseman v. Office of Personnel
     Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986).
¶8         As noted by the administrative judge, there is no substantive dispute
     concerning the appellant being the unmarried dependent child of a deceased
     Federal annuitant. See ID at 5-6; IAF, Tab 7 at 4-5. However, the administrative
     judge concluded that the appellant failed to establish that he is incapable of


     2
       Because OPM had not yet determined whether the appellant “is incapable of
     self-support,” within the meaning of section 8341(a)(4)(B), we did not have jurisdiction
     to answer that question in the prior appeal. See Remand Order at 2 (citing Deese v.
     Office of Personnel Management, 116 M.S.P.R. 166, ¶ 9 (2011); 5 C.F.R. § 831.110).
                                                                                         4

      self-support due to a disabling medical condition incurred prior to age 18. ID at
      6-10; IAF, Tab 7 at 5. The appellant disagrees, arguing that the administrative
      judge failed to adequately consider or otherwise erred in considering his passive
      aggressive personality disorder, the presence of his disabilities prior to age 18,
      and his limited earnings.     PFR File, Tab 1 at 3-4.     We find these arguments
      unpersuasive.
¶9           The Board has held that the “incapable of self-support” standard is similar
      to the Social Security standard of “able to engage in substantial gainful activity,”
      and that an applicant’s impairments must render him incapable of performing any
      occupation suitable for his age, education, work experience, and residual
      functional capacity. Salarzon v. Office of Personnel Management, 44 M.S.P.R.
      588, 592 (1990), aff’d, 925 F.2d 1479 (Fed. Cir. 1991) (Table); Sawyer v. Office
      of Personnel Management, 36 M.S.P.R. 201, 206 (1988). Although the record
      reflects little if any history of the appellant maintaining employment or otherwise
      engaging in substantial gainful activity, e.g., IAF, Tab 7 at 18-21, we agree with
      the administrative judge’s conclusion that the appellant failed to prove that he is
      incapable of self-support as defined under 5 U.S.C. § 8341(a)(4)(B), ID at 8.
¶10          The evidence of record documents a persisting left ear impairment and a
      history of psychological difficulties. See, e.g., IAF, Tab 7 at 13, 37, 40, 140, 171,
      173.    Concerning the appellant’s left ear, the record includes a history of
      treatment, as well as a recommendation that the appellant avoid environmental
      irritants, such as “change[s] in temperature, cold air, wind, water, and loud
      noises.”   Id. at 171, 173.   Concerning his mental status, the record includes
      historical information, such as a 1970 diagnosis of unsocialized aggressive
      reaction to childhood, 1989 diagnoses of passive aggressive and anti-social
      personality disorders, and treatment for depression symptomology in 1996. Id.
      at 13, 37, 140.
¶11          Despite the aforementioned evidence, the administrative judge found little
      evidence to support a claim that the appellant’s current condition renders him
                                                                                        5

      incapable of self-support, ID at 8, and the appellant has failed to identify any on
      review. The appellant has directed us to background information about passive
      aggressive personality disorder. PFR File, Tab 1 at 3; IAF, Tab 1 at 16-17, Tab 9
      at 2-8.   However, that background information does not prove the continued
      existence or severity of that condition as to the appellant and his ability to
      perform any occupation or otherwise support himself. See generally Sawyer, 36
      M.S.P.R. at 206 (finding that an appellant had not proven that he was incapable of
      self-support where there was little evidence demonstrating the asserted severity of
      vision loss, fatigue, and emotional problems). He also has directed us to the fact
      that he has a limited history of employment. PFR File, Tab 1 at 3; see IAF, Tab 7
      at 18-21. The appellant has not proven that his lack of employment is attributable
      to his physical or mental impairments, rather than other factors. See generally
      Salarzon, 44 M.S.P.R. at 592 (finding that an applicant’s failure to obtain
      employment for reasons unrelated to his physical or mental capabilities is
      immaterial to the determination of self-support). Accordingly, we agree with the
      administrative judge’s determination that the appellant failed to meet his burden.
      Although the appellant showed that he has some limitations, he did not prove that
      he is incapable of self-support because of a mental or physical disability incurred
      before age 18.
¶12        In his petition, the appellant also asserts that the administrative judge’s
      “rulings involve[] abuse of process and affect the outcome of the case.” PFR
      File, Tab 1 at 3. Although this seems to be a claim of abuse of discretion, the
      appellant failed to provide any further details. A petitioning party must explain
      in the petition how an administrative judge’s rulings are inconsistent with
      required procedures or involved an abuse of discretion.               See Weaver v.
      Department of the Navy, 2 M.S.P.R. 129, 133 (1980); 5 C.F.R. §§ 1201.114(b),
      1201.115(c). Because he failed to provide that requisite explanation, and because
      no abuse of discretion is apparent, the appellant’s argument fails.
                                                                                        6

¶13         Finally, the appellant asserts that the administrative judge made a factual
      error concerning the date on which his father passed away. PFR File, Tab 1 at 3.
      However, although this error may have occurred, we find that it does not warrant
      a different outcome in this matter.        See Panter v. Department of the Air
      Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial
      to a party’s substantive rights provides no basis for reversal of an initial
      decision); see also 5 C.F.R. § 1201.115(a)(1) (any alleged factual error must be
      material, meaning of sufficient weight to warrant a different outcome from that of
      the initial decision).

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439

            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States   Code,     at    our   website,   http://www.mspb.gov/appeals/uscode.htm.
                                                                                     7

Additional         information     is          available      at    the         court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for     information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                                ______________________________
                                              William D. Spencer
                                              Clerk of the Board
Washington, D.C.
