Reilly v. Office of Personnel Management

United States Court of Appeals for the Federal Circuit
2008-3236

SYLVIA M. REILLY,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

Brian T. Edmunds, Arnold & Porter LLP, of Washington, DC, argued for
petitioner. With him on the brief was Justin S. Antonipillai.

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Earl A. Sanders, Attorney, United States Office of
Personnel Management, of Washington, DC.

Appealed from: Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit
2008-3236

SYLVIA M. REILLY,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

Petition for review of the Merit Systems Protection Board in DE831E070359-I-1.

___________________________

DECIDED: July 15, 2009
___________________________

Before MICHEL, Chief Judge, DYK and MOORE, Circuit Judges.

DYK, Circuit Judge.

Sylvia M. Reilly (“Reilly”) petitions for review of a decision of the Merit Systems

Protection Board (“Board”) affirming the denial of petitioner’s application for disability

retirement. Because we hold that the Board applied an erroneous legal standard by

categorically rejecting post-retirement medical evidence, we vacate and remand.
 BACKGROUND

From May 26, 1984, to March 15, 2006, Reilly worked as a mail carrier in

Glendale, Arizona for the United States Postal Service. Reilly’s duties included driving a

postal vehicle to deliver mail in rural Arizona, parts of which are frequently dusty. On

March 15, 2006, Reilly resigned for “ill health.” During at least the later part of her

service Reilly had chronic asthma, a permanent condition that, if severe, includes

potentially life-threatening attacks sometimes requiring hospitalization. Chronic asthma

can be aggravated by a variety of environmental factors, including smoking, airborne

dust or dirt, high temperatures, humidity, and pollutants.

During the final few years of her employment, Reilly visited her primary doctor

frequently, and the doctor’s notes documented regular complaints about asthma of

varying severity. However, prior to her resignation Reilly apparently was not examined

by a specialist for diagnosis and treatment. In the later years of her employment, Reilly

sought accommodation for her asthma based on her doctor’s recommendations. In

August 2003, Reilly and her doctor wrote to the Postal Service about Reilly’s asthma,

and requested that Reilly be permitted to start work earlier in the day. Her doctor wrote

that Reilly’s asthma “has been aggravated by the exposure to the high temperatures,

pollutants and humidity in the air,” and requested that Reilly be permitted to start work

early in the morning so that she would not be exposed “to the asthma trigger factors that

occur highest between 3:00PM and 5:00PM.” This request was denied.

2008-3236 2
 In January 2006, Reilly and her primary doctor again wrote to the Postal Service

about Reilly’s asthma in a certification of leave under the Family Medical Leave Act.

Her doctor certified to the Postal Service that Reilly had severe asthma, and stated that

Reilly “gets sudden and random attacks of shortness of breath that can be life-

threatening.” Her doctor also stated that the condition is of “permanent/lifetime”

duration. Her doctor stated that these attacks occur one to two times per month and

result in incapacity of one to three days for each occurrence. Reilly also wrote to the

Postal Service regarding her asthma, informing them that dirt in her vehicle aggravated

her asthmatic condition.

On March 1, 2006, Reilly received a letter of warning from her supervisor, citing

Reilly’s absences and stating that Reilly was “failing to meet essential job

requirements.” On March 15, 2006, Reilly resigned, citing “ill health.” On or about April

5, 2006, Reilly applied for disability retirement, stating that she became disabled in

March 2006. Under the applicable regulations, Reilly’s resignation did not bar an

application for disability retirement. 5 C.F.R. § 831.1204.

With her April 5, 2006, application, Reilly listed two physicians—her primary

doctor and a pulmonary specialist named Dr. Orr—as “physician(s) . . . from whom you

plan to request Physician’s Statements” supporting the application.

Over the rest of the summer, Reilly continued to develop her application and

supporting documents. In June 2006, the pulmonary specialist conducted a physical

examination, finding scattered rhonchi in Reilly’s lungs, and commissioned an X-ray

examination which revealed scarring in the lungs and small airway disease.

2008-3236 3
 In August 2006, the pulmonary specialist submitted a form to the Office of

Personnel Management (“OPM”) in support of Reilly’s application for disability

retirement. The specialist stated that in three visits with Reilly in June, July, and

August, Reilly had shortness of breath and coughs, and that she had a history of

chronic asthma. The specialist noted:

[Reilly’s] asthma is an ongoing condition that can be
exacerbated by outdoor elements (including dust), illness,
etc. I am unable to predict when this will happen or the
duration of the occurrences. . . . Restrictions for this patient
are as follows: No riding in or operating vehicles that are
dusty on the interior. The vehicle the patient operates must
be clean on the interior and free of dust. This restriction is to
be in place at all times and has no expiration, as asthma is a
chronic condition.

Reilly’s primary doctor also submitted documentation based on his examinations

occurring both during the time of her employment and afterwards, concluding that Reilly

had “asthma severe and chronic – lifetime duration, exacerbated by dust, dirt, and

pollen, improved but not cured with medications.” Reilly also submitted her own

observations of her condition and its impact on her work, stating that she “was having

asthma attacks often when the air quality was bad” or there was dust outside or in her

vehicle, and often had to miss work. Reilly also obtained lay statements from coworkers

and others familiar with the impact of her medical condition on her work, confirming that

dust and dirt aggravated Reilly’s asthma; that she was forced to rely on coworkers to

complete her routes; and that she missed many work days because she was sick.

2008-3236 4
 In an effort to rebut Reilly’s doctors’ statements and lay evidence, Reilly’s

supervisor for the eight months before her resignation submitted a partially completed

standard form for use in disability applications, answering “no” to the question of

whether Reilly’s performance was “less than fully successful in any critical element of

position.” Asked to explain the impact of Reilly’s absence on work operations, the

supervisor answered “SHE QUIT.” Asked whether Reilly’s conduct was unsatisfactory,

the supervisor cryptically answered “NO CONDITION.” The supervisor did not answer

any other question on the form about Reilly’s medical condition or work performance.

Apparently the Postal Service did not produce any other evidence about Reilly’s work

performance or medical condition.

On December 14, 2006, after Reilly’s application and supporting statements were

complete, OPM denied Reilly’s application for disability retirement. OPM stated that the

“supervisor did not document any service deficiencies in [Reilly’s] performance,

attendance or conduct. She only noted that [Reilly] quit.” OPM further stated that it

reviewed all of Reilly’s medical documentation, and that “no medical records prior to

your resignation were submitted to show that your asthma was of the severity to

substantiate disabling condition prior to your resignation.” On April 16, 2007, OPM

denied Reilly’s request for reconsideration, repeating many of the same reasons

provided in its original decision.

2008-3236 5
 On May 11, 2007, Reilly appealed pro se to the Board, and did not request a

hearing. 1 On July 24, 2007, OPM submitted a two-page expert report from Dr. Bradley,

a doctor chosen by OPM to provide a medical opinion in support of OPM’s decision. Dr.

Bradley did not examine Reilly, but simply analyzed the medical evidence submitted by

Reilly’s doctors from both before and after Reilly’s resignation and opined:

This woman is not disabled. . . . In a ten month [sic] from
September 2005 to the end of June 2006, this woman had
one minor episode of asthma. Documents prior to this
period from 2004 did not show any evidence of asthma. Her
asthma was clearly well controlled, and mild. She is not
disabled. I strongly recommend denial of this application.

The Board’s administrative judge (“AJ”) reversed OPM’s decision in an initial

decision on August 31, 2007. The AJ reviewed the relevant medical and lay testimony

presented by Reilly. The AJ found that Reilly, “while still employed . . . did become

disabled as a result of her chronic asthma and the dust and other impurities she would

come into contact with on her route. I further find that her asthma resulted in

deficiencies in her conduct, performance and attendance.” The AJ noted that the

opinion of OPM’s medical expert was based only on review of the records rather than

actual physical treatment or examination. The AJ also reviewed the supervisor’s

statement, and found that, in light of all the other evidence, the supervisor’s statement

was “less than accurate, if not less than truthful.” Finally, the AJ found that the agency

was unable to accommodate her condition by either changing the start time of Reilly’s

shift, keeping Reilly’s vehicle clean, or transferring Reilly to a vacant position.

1
Reilly appears to have proceeded pro se until her petition to our court,
where she is represented pro bono. We thank Reilly’s pro bono counsel Justin S.
Antonipillai and Brian T. Edmunds of Arnold & Porter, LLP, for their service.

2008-3236 6
 OPM filed a petition for review to the full Board, and on March 14, 2008, the

Board reversed the AJ. The Board found that Reilly had not established that she had

“become disabled while employed.” Reilly v. Office of Pers. Mgmt., 108 M.S.P.R. 360,

363 (2008). The Board held that, although the AJ could rely on pre-retirement medical

evidence, it was error for the AJ to rely on post-retirement medical evidence. Id. at 364.

The Board analyzed the evidence that preceded Reilly’s resignation. Id. The

Board discussed the various communications by Reilly’s primary doctor to the Postal

Service and the medical notes from the doctor’s treatments. Id. The Board found that,

although some statements in these notes reflected that Reilly’s asthma was severe,

other statements indicated that the asthma improved with medication, and that it was

“moderate” with only “mild diffuse wheezing” and “no rhonci.” Id. Looking at this pre-

resignation evidence, the Board concluded that there was little medical evidence

suggesting that appellant was disabled. Id. at 365.

In discussing the other medical evidence, the Board first noted that much of

Reilly’s medical evidence, including the medical examination by Reilly’s primary doctor

on April 25, 2006; the medical tests and examinations by and for the pulmonary

specialist; as well as the results of the x-rays and other tests ordered by the specialist;

“post-dates the appellant’s resignation, and does not address her condition at the time

of her resignation.” Id. at 364. The Board then stated that “to the extent that the AJ

relied on [this evidence] to determine that the appellant was disabled, this was error.”

Id. The Board also noted the letter from the specialist indicating that Reilly was

restricted from riding in dusty vehicles. The Board stated that “this letter post-dates the

appellant’s March 15, 2006 resignation, and does not address her condition at the time

2008-3236 7
of her resignation. We therefore do not find it persuasive on the issue of whether the

appellant was disabled when she resigned.” Id.

The Board also cited the lay testimony provided by Reilly, and noted that “[a]n

employee’s own evidence concerning her medical condition is entitled to weight in a

disability retirement case when it is supported by competent medical evidence. In this

case, however, there is little supportive competent medical evidence indicating she was

disabled.” Id.

The Board concluded that Reilly was not disabled when she resigned, and so did

not address the AJ’s finding that the agency was unable to accommodate Reilly. Reilly

timely filed a petition for review to this court. We have jurisdiction pursuant to 29 U.S.C.

§ 1295(a)(9), 5 U.S.C. § 7703(b)(1), and 5 U.S.C. § 8347. Lindahl v. Office of Pers.

Mgmt., 470 U.S. 768, 791-99 (1985).

DISCUSSION

Our jurisdiction to review disability determinations is quite limited. The Civil

Service Retirement Act provides in pertinent part that:

The Office [of Personnel Management] shall determine
questions of disability and dependency arising under this
subchapter. Except to the extent provided under subsection
(d) of this section [dealing with findings of mental disability],
the decisions of the Office concerning these matters are final
and conclusive and are not subject to review.

5 U.S.C. § 8347(c) (emphasis added). Despite the seemingly unequivocal language of

the statute, as the Supreme Court has stated, there is a strong presumption favoring

judicial review that can only be rebutted “upon a showing of clear and convincing

evidence of a contrary legislative intent.” Lindahl, 470 U.S. at 778 (quotation and

citation omitted).

2008-3236 8
 In Lindahl, the Supreme Court analyzed the language and history of § 8347. As

the Court in Lindahl noted, “§ 8347(c) imposes ‘a special and unusual restriction on

judicial examination, and under it courts are not as free to review [agency] retirement

decisions as they would be if the finality clause were not there.’” Lindahl, 470 U.S. at

780 (quoting Scroggins v. United States, 397 F.2d 295 (Ct. Cl. 1968)). However, the

Court concluded that the statute did not entirely deprive our court of jurisdiction to

review decisions of the Board on disability claims. The Court cited approvingly our

predecessor court’s decision in Scroggins, 397 F.2d 295, which held that this court had

jurisdiction to 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’” but had no jurisdiction to review

factual determinations. Lindahl, 470 U.S. at 780-81 (quoting Scroggins, 397 F.2d at

297). The Supreme Court adopted this standard.

The result is that, under Scroggins and Lindahl, we cannot review Board

decisions for substantial evidence. Lindahl, 470 U.S. at 781-82. However, in the rare

case where the petitioner alleges that the agency committed legal errors of sufficient

gravity, we have jurisdiction to review the Board’s decision. Lindahl, 470 U.S. at 790

n.26.

The scope of our review under Lindahl can be understood by examining the prior

cases cited by the Supreme Court as applying the Scroggins standard, as well as more

recent cases applying Scroggins after Lindahl. These cases generally fall into either of

two categories: first, there are cases holding that we cannot review issues related to

evidentiary sufficiency or to minor legal errors. For example, in Gaines v. United States,

2008-3236 9
158 Ct. Cl. 497, 501-503 (1962), relied on by the court in Scroggins and cited in Lindahl,

the court rejected “hyper-technical arguments that the [CSC] did not follow every jot and

tittle of the applicable procedures,” as well as challenges to weighing of medical

evidence, as beyond the jurisdiction of the court. See also Davis v. Office of Pers.

Mgmt., 470 F.3d 1059, 1060-61 (Fed. Cir. 2006) (no jurisdiction over failure “to consider

the totality of the evidence” or specific evidentiary rulings within the discretion of the

Board); Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1327 (Fed. Cir. 2006)

(rejecting argument that the Board “failed to consider” certain evidence); Baker v. Office

of Pers. Mgmt., 782 F.2d 993, 994 (Fed. Cir. 1986) (no jurisdiction to review whether

Board decision supported by substantial evidence); Smith v. Office of Pers. Mgmt., 784

F.2d 397, 399-401 (Fed. Cir. 1986) (no jurisdiction to review whether uncontroverted

evidence established disability); Fitzgerald v. United States, 623 F.2d 696, 698-700 (Ct.

Cl. 1980) (no jurisdiction to review harmless procedural error in withholding a

government medical opinion); Fancher v. United States, 588 F.2d 803, 806-807 (Ct. Cl.

1978) (no jurisdiction over argument that agency “did not properly consider and weigh

all the relevant evidence”); Scroggins, 397 F.2d at 298-300 (no jurisdiction to review fact

determination based on the resolution of “a pure conflict of medical evidence” where no

showing that agency “did not examine all the material before them”).

On the other hand, we have held that we can review claims of serious legal error

in the course of the proceedings. See Rapp v. Office of Pers. Mgmt., 483 F.3d 1339,

1340-42 (Fed. Cir. 2007) (question of whether the appellant was incompetent and

entitled to appointed counsel was within our jurisdiction); Gooden v. Office of Pers.

Mgmt., 471 F.3d 1275, 1278-82 (Fed. Cir. 2006) (reviewing Board decision based on

2008-3236 10
concession by the government that the Board misapplied the established legal

standard); Marino v. Office of Pers. Mgmt., 243 F.3d 1375, 1377-78 (Fed. Cir. 2001)

(reviewing whether “light duty” work was, as a legal matter, a reasonable

accommodation); Bracey v. Office of Pers. Mgmt., 236 F.3d 1356, 1358-63 (Fed. Cir.

2001) (same); Little v. Office of Pers. Mgmt., 860 F.2d 1068, 1070 (Fed. Cir. 1988)

(affirming, rather than dismissing, because “[a]lthough we reject Mr. Little’s [statutory

interpretation] argument, we cannot say that it is frivolous or so insubstantial as to

preclude us from considering it”); Baker v. Office of Pers. Mgmt., 782 F.2d 993, 993-995

(Fed. Cir. 1986) (reviewing claims that it was improper to deny disability retirement to

someone otherwise eligible simply because “ailments continued, in large part, as a

result of her own failure to follow medically-recommended corrective procedures”); Allen

v. United States, 571 F.2d 14, 17-19 (Ct. Cl. 1978) (reviewing determination based on

legal error as to the standard for disability of dual military/civilian employees); Polos v.

United States, 621 F.2d 385, 390-93 (Ct. Cl. 1980) (en banc) (reviewing the legal

question dealt with in Allen and overruling the specific legal interpretation adopted in

Allen).

The scope of our review under Lindahl and Scroggins was most recently

addressed by this court in Vanieken-Ryals v. Office of Personnel Management, 508

F.3d 1034 (Fed. Cir. 2007). We described the scope of our review, concluding that “we

may only address the critical legal errors, if any, committed by the [Board] in reviewing

OPM’s decision.” Id. at 1039.

In Vanieken-Ryals, the appellant sought to establish her psychological disability

by submitting, among other things, letters and medical reports from her doctors. Id. at

2008-3236 11
1036-38. Her doctors’ reports were based primarily on the doctors’ consultations with

the petitioner, and relied on the petitioner’s own description of her psychological

symptoms. Id. In denying her claim for disability, OPM and the Board gave no weight

to the medical evidence because the appellant failed to submit any “objective” medical

evidence “such as emergency room reports showing incidents of panic attack . . . [and]

relevant psychiatric studies or test results.” Id. at 1039-40. According to OPM, the

doctors’ opinions were entitled to no weight because the doctor “provided no details

concerning any mental status evaluation,” and “does not provide copies of any formal

cognitive testing.” Id. Before the Board, the AJ noted that the medical evidence relied

on the appellant’s account of her symptoms, and stated that “the evidence presented by

Dr. Nichols is only as good as the information given to her by [the appellant],” and that

evidence based on appellant’s “subjective narrative” would not be considered. Id.

We rejected the distinction drawn by the Board and OPM between objective

evidence of the appellant’s condition and subjective, i.e. self-reported, evidence of the

appellant’s condition. We noted that the doctor’s reports inherently involved a

determination by the doctor that the appellant’s “account of these symptoms is credible.”

Id. at 1042. We held that under general evidentiary rules there was no basis for

rejecting such “subjective” medical evidence as irrelevant, and that this legal error went

to the heart of the administrative determination. Id. at 1043-44.

In interpreting the Board’s decision, we cautioned that the court “must be

discerning and cannot be satisfied by opinions that invoke the trappings of factual

analysis—e.g., by vaguely describing broad swaths of evidence as ‘insufficient’ or as

2008-3236 12
failing to carry the claimants burden, or simply asserting that all record evidence was

considered.” Id. at 1040.

[W]hen read closely and carefully, [the Board’s decision]
reveal[s] that absolutely no weight was given to certain
evidence solely because it cannot generally be classified as
“objective” and not because of any specific identifiable
defect. . . . Disqualification of evidence because of its type is
an imposition of a legal standard because it inherently
imposes a categorical requirement. When the use of such a
standard is dispositive of disability retirement claims, they go
to the heart of the administrative determination, and we are
charged with resolving whether the imposed standard and its
inherent evidentiary requirement are lawful.

Id. (emphasis added).

II

Applying these standards, we first consider Reilly’s argument that the Board

“act[ed] arbitrarily and capriciously in conducting a legally insufficient factual analysis”

by failing to consider particular items of evidence. For support, Reilly relies primarily on

the fact that this evidence was not explicitly mentioned in the Board’s decision. We

conclude that this claim is beyond our jurisdiction to review. As we stated in Davis v.

Office of Personnel Management, arguments relating to whether “the Board improperly

failed to consider the totality of the evidence . . . are, in reality, challenges to the factual

underpinnings of the Board’s determination. Under Lindahl, we cannot entertain these

arguments.” 470 F.3d at 1060-61.

By contrast, Reilly’s argument that that the Board categorically rejected all

uncorroborated lay evidence is of the type that, if established, likely would be within our

2008-3236 13
jurisdiction to review. 2 Under Scroggins, we have jurisdiction to determine whether the

Board gave no weight to evidence pursuant to a legal “error going to the heart of the

administrative determination” or “a substantial departure from important procedural

rights.”

However, the Board did not reject Reilly’s lay evidence. Rather, the Board

discussed the contents of Reilly’s lay evidence of her condition and its effect on her

employment. The Board specifically recognized that “[a]n employee’s own evidence

concerning her medical condition is entitled to weight in a disability retirement case

when it is supported by competent medical evidence.” Reilly urges that this statement

imposed a legal requirement that each piece of lay evidence must be corroborated by

medical evidence. However, as the government notes, OPM regulations require the

appellant to provide medical documentation supporting the claim for disability. 5 C.F.R.

§ 831.1206. In our view, the Board was merely reciting, albeit imprecisely, OPM’s

regulatory requirement that all claims for disability must be supported by medical

documentation. We do not read the Board as holding that each fact must be

established by medical documentation. Indeed, as the Board stated in Chavez v. Office

of Personnel Management, 6 M.S.P.R. 404, 422 (1981), “expert diagnostic opinion and

evidence alone may not enable a fact finder properly to determine whether [a medical

impairment] amounts to a disability;” indeed, certain facts, such as the appellant’s job

requirements and “the effect of [the medical] impairments upon the Claimant,” are

hardly conducive to medical support.

2
To the extent that Reilly argues that the Board required too much medical
evidence, this is not the kind of error over which we have jurisdiction.

2008-3236 14
 III

Finally, Reilly urges that the Board erred in categorically holding that post-

resignation evidence of the applicant’s condition should not be considered. The

government conceded at oral argument that, if the Board had adopted such a

categorical legal rule, it would be unlawful and within our jurisdiction to reverse.

However, the government urges that the Board did not adopt such a rule. We disagree.

To be sure, we do not read the Board as suggesting that all medical opinions

rendered post-retirement are inadmissible; indeed, the Board relied on the opinion of

OPM’s own expert medical doctor rendered post-retirement. What we understand the

Board to be holding is that medical opinions rendered post-retirement are admissible

only if they are based on pre-retirement tests, observations, interviews, and medical

examinations, and address the employee’s pre-retirement condition.

The Board clearly adopted a rule that post-resignation medical evidence is

categorically irrelevant, and that it was legal error for the AJ to rely on such evidence.

After very briefly reciting the post-resignation medical evidence, the Board stated that

“[b]ecause all of this evidence post-dates the appellant’s resignation, and does not

address her condition at the time of her resignation, to the extent that the AJ relied on it

to determine that the appellant was disabled, this was error.” Reilly, 108 M.S.P.R. at

364. The Board repeated this categorical exclusion in addressing the letter of August

2006 by the pulmonary specialist. The Board stated that “this letter post-dates the

appellant’s . . . resignation, and does not address her condition at the time of her

resignation. We therefore do not find it persuasive on the issue of whether the appellant

was disabled when she resigned.” Id. at 364-65.

2008-3236 15
 The Board made no mention of how much (or how little) time had elapsed after

resignation, nor addressed why, on these particular facts, evidence of the appellant’s

medical condition a few months after resignation was of no value in establishing the

appellant’s medical condition at the time of resignation. Instead, the Board categorically

held that it is legal error to consider any evidence that is noncontemporaneous and

does not explicitly refer back to the condition at the time of resignation. A subsequent

decision of the Board supports this interpretation. In Luzi v. Office of Personnel

Management, 109 M.S.P.R. 79, 84 (2008), the Board cited Reilly as support for

declining to consider any evidence that “post-dates the appellant’s . . . separation, and

does not address his condition [before separation].”

As stated previously, the government does not defend this rule. We cannot see

any basis for such a rule which contradicts the general rule that “OPM [and the Board]

must consider all of an applicant’s competent medical evidence.” Vanieken-Ryals, 508

F.3d at 1041.

There is no question that such evidence may be considered under general

evidentiary principles. “Although the Federal Rules of Evidence do not apply to Board

hearings, they are a helpful guide to proper hearing practices.” Yanopoulos v. Dep’t of

Navy, 796 F.2d 468, 471 (Fed. Cir. 1986) (citation omitted). The rule is that “[a]ll

relevant evidence is admissible, except as otherwise provided by [the Rules or other

law].” Fed. R. Evid. 402; Unif. R. Evid. 402. Under the Uniform Rules of Evidence and

the Federal Rules of Evidence, “‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

2008-3236 16
Fed. R. Evid. 401; Unif. R. Evid. 401. “The provisions that all relevant evidence is

admissible . . . are ‘a presupposition involved in the very conception of a rational system

of evidence.’” Advisory Committee Notes to Fed. R. Evid. 402 (quoting Thayer,

Preliminary Treatise on Evidence 264 (1898)).

Thus, it is established that “the tests of relevancy . . . are of the same general

nature for retrospectant evidentiary facts.” Wigmore on Evidence, § 148 (4th ed. 1983).

“[P]assage of time alone is insufficient to support an objection of remoteness.” 31A

C.J.S. Evidence § 295 (2008). Remoteness is only established where the passage of

time “undermin[es otherwise] reasonable inferences due to the likelihood of supervening

factors.” 1 McCormick on Evidence § 185 (6th ed. 2006). The field of forensic medicine

abounds with examples of subsequent medical examinations relevant to a prior

condition. As a classic example, inferences about prior intoxication can be drawn from

blood alcohol tests conducted at a later time. See 1 McCormick on Evidence § 205 (6th

ed. 2006).

Additionally, although the regulatory scheme and standard on review are different

in Social Security cases, 3 the reasoning of these cases also provides support for the

general principle that later medical evidence can be relevant. As the Fifth Circuit stated

in Ivy v. Sullivan, “noncontemporaneous medical records are relevant to the

determination of whether onset occurred on the date alleged by the claimant. . . .

Subsequent medical evidence is relevant because it may bear upon the severity of the

claimant’s condition before the expiration of his or her insured status.” 898 F.2d 1045,

3
Social Security regulations deal with the treatment of retrospectant
evidence in some detail. See SSR 83-20.

2008-3236 17
1049 (5th Cir. 1990) (citations and quotation marks omitted); see also Basinger v.

Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984). As stated by the Second Circuit:

We have observed, repeatedly, that evidence bearing upon
an applicant’s condition subsequent to the date upon which
the earning requirement was last met is pertinent evidence in
that it may disclose the severity and continuity of
impairments existing before the earning requirement date or
may identify additional impairments which could reasonably
be presumed to have been present.

Pollard v. Halter, 377 F.3d 183, 193-94 (2d Cir. 2004) (alterations omitted). Medical

examinations identifying a disability are always retrospectant in some sense; as the

Ninth Circuit observed, “[i]t is obvious that medical reports are inevitably rendered

retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen,

849 F.2d 1222, 1225 (9th Cir. 1988).

Similarly, in military retirement cases this court’s predecessor has held that

subsequent medical evidence can be highly relevant to determining the prior medical

condition. See, e.g., Jordan v. United States, 205 Ct. Cl. 65 (1974) (stressing “the

importance . . . of considering the applicant’s medical condition subsequent to his

discharge, and the professional evaluation and treatment thereof, in its determination of

fitness for duty as of the date of discharge”); Beckham v. United States, 392 F.2d 619,

625-26 (Ct. Cl. 1968) (“[W]e must look to manifestations of the disease or ailment

appearing both before and after the point in time of separation” to determine fitness at

the time of separation); see also Farrar v. United States, 358 F.2d 965 (Ct. Cl. 1965).

Nothing in the OPM regulations contradicts these general principles or specifies

that the medical examination or documentation must have occurred prior to retirement.

In fact, the regulations permit filing an application within one year after separation, 5

2008-3236 18
C.F.R. § 831.1204, and explicitly countenance taking additional medical examinations

during the pendency of the application to assist OPM in making a decision, 5 C.F.R.

§ 831.1206(c). OPM’s standard form for doctor statements is also written in the present

tense, and includes no question specifically asking what the applicant’s medical

condition was at the time of her separation from service. OPM Standard Form 2824C.

We conclude that the Board erred in adopting a categorical rule barring

consideration of post-retirement evidence. Where proximity in time, lay testimony, or

some other evidence provides the requisite link to the relevant period the subsequent

medical evidence can be very probative of a prior disability. This is not to say that a

later medical condition will always be relevant or entitled to substantial weight. There

are circumstances where such evidence is irrelevant or entitled to little weight as a

factual matter, such as where the later medical condition is attributable to some incident

that occurred after the period in question, or where there is a substantial lapse of time

and a lack of evidence connecting the prior condition to the more recent medical

evidence. However, it is equally clear that evidence of a later medical condition will not

always be irrelevant. Here, for example, the specialist’s examinations occurred within a

few months of Reilly’s retirement, and there was no suggestion of any event that would

have caused Reilly’s condition to deteriorate at an unusual rate. Also, lay testimony

might establish the same symptoms and severity before retirement as was observed

after retirement.

The Board erred in categorically excluding post-resignation evidence. As in

Vanieken-Ryals, this legal error is a substantial departure from important procedural

rights and goes to the heart of the administrative determination. 508 F.3d at 1043-44.

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Thus, this case must be remanded to the Board for further consideration based on the

appropriate legal standard.

CONCLUSION

For the foregoing reasons we vacate and remand for further proceedings

consistent with this opinion.

VACATED and REMANDED

COSTS

No costs.

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