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
05-3086 WAYNE B. CARLTON, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________ _________ DECIDED: June 10, 2005

__________________ _________ Before LOURIE, RADER, and GAJARSA, Circuit Judges

. RADER, Circuit Judge

. I. The Merit Systems Protection Board (B oard) affirmed the Office of Personnel Management’s (OPM) denial of disability annuity benefits for Wayne B. Carlton on the ground that he had filed his application after t he statutory time limit had expired, and was not eligible for waiver of this limit on the basis of mental incapacity. Because the Board’s finding was not arbitrary, capricio us, or an abuse of discretion, and was in accordance with law, this court affirms

. II. Mr. Carlton resigned from his posit ion as an equipment cleaner at the Long Beach Naval Shipyard on May 23, 1995, bec ause he was “unhappy with the system.”Mr. Carlton had not actually wor k ed at the shipyard s i nce December 1, 1992, having suffered a work-related injury on the day before. Due to his work-related injury, at the time of his resignation Mr. Carlton was rece iving benefits fro m the Office o f Workers’ Compensat ion (OWCP) at t he Department of Labor. The OWCP terminated these benefits in March 1997 becaus e it found that he had no resi dual employ ment-related disab ility. On appeal, this decision was affirmed by the Employees ’ Compensation Appeals Board and made final on Ju ly 14, 2000. Docket No. 98-1994. OPM received an undated application f o r Civil Service Retirement System (CSRS) disability retirement benefits from Mr. Carlton on Dec e mber 5, 2003. Mr. Carlton asserted he was entitled to thes e benefits because he had been “disabled as a civilian and as a military pers onnel” and had paid into the retirement fund while he was a federal employee. On January 12, 2004, OPM notified Mr. Carlton that under 5 U.S.C. § 8337(b) (2000) , an application for CSRS dis ability retirement benefits must be filed before, or within one year after, separation from federal service. Mr. Carlton was also adv is ed that a waiver of the one y e ar time limit is pe rmitted by the statute if an employee is found to be mental ly incompetent on the date of separation from federal service or within one year t hereafter, and that if mental incompetence was an issue he could subm it any evidence he may hav e in order to justi f y a waiver. On January 20, 2004, Mr. Carlton s ubmitted medical records, dated from November 1991 to November 1993, to OPM. These records are evidence that Mr. Carlton suf f ered lower back pain, lumbosac ral strain with disk herniation, depression, anxiety dis o rder, and hypertension during this period. Mr. C a rlton also submitted affidavits from two acquaintanc es, and a letter stating that he was being treated at the

05-3086 2outpatient psychiatric clinic of his local Veterans Administra tion Hospital. I n reviewing these records OPM was unable to find any evid ence of a disorder justifying waiver of the time limit, and affirmed its decision on July 14, 2004. Mr. Carlton appealed the OPM decision to the Board. The administrative judge found, as did OPM, that because Mr. Carlto n had filed his applicat i on seven years after separation from service, and coul d not provide evidenc e of ment al incapacity at time of separation or within o ne year of separation, that his applic ation should be dismissed. The judge f u rther held that none of the doctors Mr. Carlton had seen had stated that he was mentally incompetent or unable to functi on normally. Mr. Carlton did not submit a petition for review with the full Board bef ore the deadline, so t he judge’s dec i sion became the final decision of the Board, on November 25, 2004. III. This court must affirm the Board’s dec is ion unles s it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having b een followed; or (3) unsupported by s ubstantial evidence .” 5 U.S.C. § 7703(c) (2000); McLaughlin v. Office of Pers. Mgmt. , 353 F.3d 1363 (Fed. Cir. 2004); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). In pertinent part the statute c oncerning timely filing rea d s: A claim may be allowed under this subc hapter only if applic ation is filed with the Office before the employee or Member is se parated from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee or Member who, at the date of separation from service or within 1 year thereafte r, is mentally incompeten t if the application is filed with the Office within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary , whichever is earlier.

05-3086 35 U.S.C. § 8337(b) (2000) . This court’s standard for mental inc o mpetence is an inability to handle one’s personal affairs because of eit her physical or mental diseas e or injury; an applicant may be “one hav ing some minimal capac ity to manage hi s own affairs, and not needing to be committed. The claimant is not required to have been a r a ving lunatic continuous ly.” French v. Office of Pers. Mgmt. , 810 F.2d 1118, 1 120 (Fed. Cir. 1987). Under this standard the Board correctly found that Mr. Carl ton failed to qualify for a waiver of the one year time limit. Mr. Carlton argues that he submitted the docume n tation OPM requested to substantiate his mental incompetence in the form of the affidavits by two acquaintanc es and the doctor’s letter. The affidavits stated that his medi cation made him lethargic and the letter from a doctor at the outpatient psych iatric clinic of t he Loma Linda Veterans Administration Hospital stated he was a cur r ent patient. Ne ither t he affidavit s nor the doctor’s letter stated that Mr. Carlton was ever mentally incompetent. Mr. C a rlton als o argues that the Board did not co nsider his s i tuation carefully, nor did they “loo k at all the things [he] had done as a person.” However, the record shows that OPM and the Board thoroughly evaluated Mr. Carlton’s medi cal records and found that there was no evidenc e of mental incompetence. Mr. Ca rlton further asserts that he was on “heavy medication” and was therefor e unable to function normally. Howev e r, prior to his leaving federal servic e, between December of 1992 and April of 1994, Mr. Carlton was evaluated by an internist and two different p sychiatrists. These doctors all agreed that Mr. Carlton was well- oriented to time and pl ace, alert, and cooperative, but suffering from depression, with no indication of psyc hosis. In a report dated March 23, 1995, another ps ychiatrist noted that Mr. Carlton, who had been his patient since October

05-3086 41994, was taking anxiety-controlling medic a tion and was not psyc hotic . No examiner indic a ted that Mr. Carlton wa s mentally incompetent due to m edication or any other reason. Based on t h is record, on Februa ry 4, 2004, OPM dismissed M r . Carlton’s application for disa bility retirement as untimely filed a nd f o r not fulfilling the requirements necessary for a waiver of the ti me limit for mental incompetence. Upon reconsider ation, OPM affirmed its decision on July 14, 2004. The record does not indicate that Mr. Carl ton would ha ve been unable to file his application for disability retirement benefits in a timely manner. Mr. Carlton states no reason as to why he submitt ed his application for dis abili ty retirement benefits more than seven and one-half years late, other than that he was receiving psychiatric treatment and that he was on medication. Mr. Carlton makes no assertion that he was mentally incompetent. Although the record contains no psychiatric evaluation of Mr. Carlton during the period from May 1995, when he resigned from federal service, to May 1996, the critical time period in determini ng his eligibility for the waiv er of the one year time limit, the record does show that during and after this period, Mr. Carlton successfully and apparently without assist ance, made filings s i milar to those he would have had to have made for disability benefits. Because this court fi nds that the Boar d reviewed the record appropriately and applied the proper law, we affirm the decision of the Board.

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