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

05-3262 

KEVIN T. HENDRICKSON, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

___________________________ 

DECIDED: March 13, 2006 

___________________________ 

Before BRYSON, GAJARSA, and LINN, Circuit Judges. 

PER CURIAM. 

DECISION 

 Kevin T. Hendrickson petitions for review of a decision of the Merit Systems 

Protection Board, Docket No. NY-0752-04-0054-I-1. The Board upheld his removal 

from his position with the Department of Veterans Affairs (“VA”). We affirm. 

BACKGROUND 

 In March 2003, Mr. Hendrickson, who worked as a Veterans Service 

Representative for the VA, was pursuing his own claim for benefits relating to a serviceconnected injury. In connection with that claim, he submitted a VA Form 9 to the 
Newark, New Jersey, Veterans Affairs Regional Office in support of his claim for 

retroactive benefits and an increase in his compensation level. Included with his 

submission were two medical statements, which were dated April 29, 2002, and were 

purportedly written by Dr. Boaz Rabin. 

On June 10, 2003, at a hearing on his request for benefits, Mr. Hendrickson was 

questioned by Kenneth White, a decision review officer, regarding the authenticity of the 

two medical statements. Mr. White had observed that the two statements did not 

appear normal because they were both unsigned and were not on a preprinted form, 

letterhead, or memorandum. Mr. Hendrickson stated under oath that he had obtained 

the two statements from Dr. Rabin. Mr. Hendrickson testified that “the statements from 

Dr. Rabine [sic], like I said, I presented evidence to him, I requested that he provide an 

opinion, and he subsequently provided the opinion.” Mr. Hendrickson also testified that 

“I requested him to review the records, and that’s what I got back from him. I can have 

it signed by him, have him review it once again . . . .” 

Subsequently, during one of Dr. Rabin’s weekly visits to the New York Regional 

Office, Mr. Hendrickson approached him and asked him to sign the two medical 

statements. Dr. Rabin reviewed the statements and observed that they were not in his 

usual format. Dr. Rabin then stated that he had not authored the two statements, and 

he accused Mr. Hendrickson of writing them himself. Mr. Hendrickson nonetheless 

persisted in urging Dr. Rabin to sign the statements. When Dr. Rabin refused, Mr. 

Hendrickson apologized for the confusion and left. Mr. Hendrickson subsequently 

05-3262 2 
submitted a request to the VA that the two statements be withdrawn from 

consideration.1

On July 1, 2003, Special Agent Greg McLaughlin of the Office of Inspector 

General questioned Mr. Hendrickson about the two medical statements. Mr. 

Hendrickson explained that he did not know where he had obtained the statements and 

that he had found them amongst paperwork in his home. He denied writing the 

statements himself. He added that he might have received the statements from his 

service organization representative. 

On October 26, 2003, the VA removed Mr. Hendrickson from his position as a 

Veteran Service Representative. The removal action was based on four charges: (1) 

presenting false documents in order to defraud the VA in regard to a personal claim for 

benefits; (2) giving false testimony under oath in order to defraud the VA in regard to a 

personal claim for benefits; (3) attempting to deceive a VA official into signing fraudulent 

documents as his own work product; and (4) making false statements in connection with 

an official investigation. 

Mr. Hendrickson appealed the removal action to the Board. The administrative 

judge who was assigned to the appeal sustained the first three charges and upheld the 

 

1

 Mr. Hendrickson’s claim for benefits was ultimately granted in substantial 

part. In its review decision, the Veterans Benefits Administration noted that the 

“comment about the veteran’s attempts to produce documents for the purpose of 

obtaining a favorable outcome” was not supported by clear and convincing evidence. 

The administrative judge considered that finding but found it inapplicable because the 

burden of proof in Board appeals is a preponderance of evidence, not clear and 

convincing evidence. 

05-3262 3 
agency’s penalty of removal.2

 The administrative judge determined that there was a 

sufficient nexus between Mr. Hendrickson’s misconduct and the efficiency of the service 

and concluded that the penalty of removal was reasonable. The administrative judge 

also rejected Mr. Hendrickson’s affirmative defenses, including discrimination against a 

veteran, disability discrimination, retaliation for having filed equal employment 

opportunity complaints, reprisal for whistleblowing activity, reprisal for activity as a union 

shop steward and EEO representative, as well as a claim of harmful procedural error. 

Mr. Hendrickson’s request for review by the full Board was denied. He now 

petitions this court for review of the Board’s decision. 

DISCUSSION 

To sustain a charge of submitting false information, the agency must show by a 

preponderance of evidence “that the employee knowingly supplied wrong information, 

and that he did so with the intention of defrauding the agency.” Naekel v. Dep’t of 

Transp., 782 F.2d 975, 977 (Fed. Cir. 1986). In response to the charge of presenting 

false documents in order to defraud the VA in connection with a personal claim for 

benefits, Mr. Hendrickson contends that he was not aware that the two medical 

statements were false at the time he submitted them to the VA. He therefore argues 

that the Board erred in finding that he intended to defraud the agency. 

 

2

 The fourth charge is not a subject of this appeal. The administrative judge 

found that the agency failed to meet its burden on the fourth charge because nothing in 

the record contradicted Mr. Hendrickson’s statements to Special Agent McLaughlin that 

he did not know the origin of the documents and that he may have received them from 

his service organization. The administrative judge explained that “[w]hile his 

explanations may not satisfactorily explain the existence of the documents, . . . they do 

corroborate his testimony during this appeal.” 

05-3262 4 
The administrative judge found that circumstantial evidence adequately 

supported the agency’s conclusion that Mr. Hendrickson intended to defraud the 

agency. In particular, the administrative judge noted that Mr. Hendrickson “has held 

different positions on the unsigned statements at different times in the record.” For 

example, in the hearing before Mr. White, Mr. Hendrickson testified, without 

qualification, that the two statements had been provided by Dr. Rabin. Later, in his 

interview with Special Agent McLaughlin, Mr. Hendrickson claimed that he had found 

the two statements in paperwork at his home. Mr. Hendrickson also suggested that he 

may have received the documents from his service representative. Finally, at his 

hearing before the administrative judge, Mr. Hendrickson stated that he could not recall 

where he acquired the documents. 

The administrative judge also found that Mr. Hendrickson “failed to provide a 

reasonable and satisfactory explanation for the existence of the two unsigned, typed 

statements.” That is, Mr. Hendrickson has not come forward with any plausible 

scenario that could lead to his coming into possession of the two medical statements 

without being aware of their origin and who authored them. For instance, if the 

statements had indeed been written by the service representative, it seems implausible 

that the service representative would have surreptitiously placed them in Mr. 

Hendrickson’s home without notifying Mr. Hendrickson. Consequently, the 

administrative judge did not err in sustaining this first charge. 

Mr. Hendrickson’s response to the second charge of giving false testimony under 

oath in order to defraud the VA in regard to a personal claim for benefits is similarly 

unavailing. Mr. Hendrickson again argues that the Board erred in finding that he 

05-3262 5 
intended to defraud the agency. He contends that he was not aware that his testimony 

before Mr. White was false because he “remembered and actually met with” Dr. Rabin 

on April 29, 2002. In support, Mr. Hendrickson points to Dr. Rabin’s handwritten and 

signed medical opinion of that date. 

Mr. Hendrickson’s possession of a signed, handwritten statement by Dr. Rabin 

tends to undermine, not support, his assertion that he justifiably believed Dr. Rabin had 

authored the other two statements. Possession of one signed statement from a visit 

with a doctor would lead a reasonable person to question the authorship of two other 

unsigned statements of the same date in a different format. Moreover, as pointed out 

by the administrative judge, Mr. Hendrickson’s testimony before Mr. White contradicts 

his subsequent testimony before the administrative judge that he could not recall how 

he acquired the two unsigned statements. Consequently, the administrative judge did 

not err in sustaining the second charge. 

In response to the third charge of attempting to deceive a VA official into signing 

fraudulent documents as his own work product, Mr. Hendrickson contends that the 

administrative judge erred in her assessment of the witnesses’ credibility, particularly 

that of Dr. Rabin and of Mr. Hendrickson himself. However, “determination of the 

credibility of witnesses is within the discretion of the presiding official who heard their 

testimony and saw their demeanor,” Griessenauer v. Dep’t of Energy, 754 F.2d 361, 

364 (Fed. Cir. 1985), and an administrative judge’s credibility determinations are 

“virtually unreviewable,” Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 

1986). Because there is nothing in the record of this case that makes Dr. Rabin’s 

testimony inherently incredible, and because the administrative judge had the 

05-3262 6 
opportunity to assess Mr. Hendrickson’s credibility in person, we will not disturb the 

administrative judge’s credibility determinations regarding Dr. Rabin and Mr. 

Hendrickson. We therefore uphold the administrative judge’s decision to sustain the 

third charge. 

Mr. Hendrickson also argues that there is an insufficient nexus between his 

misconduct and the VA’s performance of its functions. He explains that in his capacity 

as a Veteran Service Representative all of his cases were reviewed by his supervisors 

and he therefore had no ability to “single handedly fraudulently prosecute a claim on his 

own behalf nor on behalf of any other veteran.” He also states that his job entailed 

minimal contact with the public. 

This court, however, deferentially reviews the Board’s determination of whether a 

nexus has been shown. Brown v. Dep’t of the Navy, 229 F.3d 1356, 1358 (Fed. Cir. 

2000). Here, the administrative judge emphasized that falsification is generally 

considered a serious offense and reflects “adversely on the employee’s reliability, 

veracity, trustworthiness, and ethical conduct.” Moreover, the administrative judge took 

note of the deciding official’s testimony that as a Veteran Service Representative, Mr. 

Hendrickson was in a special position with regard to veterans’ appeals for benefits. The 

administrative judge expressed concern that Mr. Hendrickson’s actions in pursuing a 

personal claim for benefits affected the agency’s confidence and trust in his ability to 

perform his job. The administrative judge also explained that Mr. Hendrickson’s actions 

reflected negatively on the agency’s credibility in representing the interests of veterans. 

Under our deferential standard of review, it does not appear that the administrative 

05-3262 7 
judge erred in finding a sufficient nexus between Mr. Hendrickson’s actions and the 

efficiency of the service. 

Mr. Hendrickson further argues that the penalty of removal was unreasonable. In 

particular, he contends that the penalty levied against him is “far more severe than any 

other penalty levied against [other] employees.” The administrative judge noted, 

however, that the deciding official properly considered all the relevant factors in 

rendering a decision, including the nature and seriousness of the misconduct. See

Douglas v. Veterans Admin., 5 M.S.P.R. 302, 332 (1981). The administrative judge also 

found that Mr. Hendrickson did not make an adequate showing that his penalty was 

substantially harsher than penalties given for similar misconduct to similarly situated 

employees. In particular, the administrative judge pointed out, Mr. Hendrickson’s 

referenced cases did not involve similar misconduct or similarly situated employees. 

We hold that the administrative judge did not err in concluding that removal “is within the 

range of reasonableness.” 

Mr. Hendrickson also alleges that the Board committed a harmful procedural 

error in refusing to consider his reply to the VA’s response. Mr. Hendrickson, however, 

erroneously confuses a response with a cross-petition. Under 5 C.F.R. § 1201.114(i), 

the record closes when a response to a petition for review is filed. However, in the 

event a cross-petition is filed, the original petitioner is allowed time to file a reply to the 

cross-petition. Here, the VA filed a response, not a cross-petition. Thus, Mr. 

Hendrickson was not entitled to file a reply and was so notified. In the Board’s 

acknowledgment letter to Mr. Hendrickson, the Board explained that a “cross-petition for 

review differs from a response because it also disagrees with the initial decision.” 

05-3262 8 
Consequently, there is no merit to Mr. Hendrickson’s argument that the Board 

committed a harmful procedural error. 

Mr. Hendrickson next argues that his removal was the product of discrimination 

based on his disability and his status as a veteran. The administrative judge found that 

Mr. Hendrickson had failed to present evidence in support of those claims. We sustain 

the administrative judge’s ruling in that regard. Mr. Hendrickson fails to point to any 

evidence to support his claims that the VA discriminated against him on either of those 

grounds. 

Finally, Mr. Henrickson reiterates his contention that his removal was the product 

of retaliation against him for filing equal employment opportunity complaints, for 

engaging in whistleblowing activity, and for acting as a union shop steward and EEO 

representative. The administrative judge analyzed Mr. Hendrickson’s claims of 

retaliation and found no retaliatory motive on the part of the deciding official in his case 

and no nexus between the alleged retaliation and the adverse employment action. 

Likewise, the administrative judge found that there was “little or no evidence” that the 

deciding official sought to retaliate against Mr. Hendrickson based on his activity as a 

shop steward and EEO representative. With regard to his allegations of retaliation 

based on protected disclosures, the administrative judge found that the disclosures in 

question related to complaints about Mr. Hendrickson’s own request for a promotion 

and a transfer and did not constitute protected disclosures within the meaning of the 

pertinent provision of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See

Francisco v. Office of Pers. Mgmt., 295 F.3d 1310, 1314 (Fed. Cir. 2002) (complaints 

05-3262 9 
about agency’s disposition of employee’s personal claims do not constitute protected 

whistleblower disclosures). 

We sustain each of those rulings. Mr. Hendrickson has not pointed to evidence 

that undermines the administrative judge’s findings with respect to his claims of 

discrimination and retaliation. Moreover, in his passing reference to the Whistleblower 

Protection Act, Mr. Hendrickson has failed to point to any disclosures that he made that 

would qualify as protected disclosures under the Act. Accordingly, because the 

administrative judge’s decision is supported by substantial evidence and Mr. 

Hendrickson has not pointed to any legal error in the proceedings before the Board, we 

uphold the Board’s decision. 

05-3262 10