UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

APRIL J. WOLSTENCROFT,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-844E-14-0642-I-1

DATE: May 7, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert R. McGill, Walkersville, Maryland, for the appellant.

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

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The Office of Personnel Management (OPM) has filed a petition for review 

of the initial decision, which reversed OPM’s reconsideration decision denying 

the appellant’s application for disability retirement under the Federal Employees’ 

Retirement System (FERS). Generally, we grant petitions such as this one only 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

when: the initial decision contains erroneous 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, and based on the following points and authorities, 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). 

BACKGROUND

¶2 The appellant was employed as a Management and Program Analyst at the 

National Oceanic and Atmospheric Administration (NOAA). Initial Appeal File 

(IAF), Tab 4 at 88, 117. According to her position description, the principal 

objective of her position was support for the Protected Resources’ Divisions’ 

salmon recovery program, including information management, database systems 

knowledge, database administration, quality assurance, quality control, customer 

relations, and public outreach. Id. at 88-89. The duties of her position included

independent responsibility for planning, coordinating, and performing 

administrative and management functions; analyzing and advising on changes in 

policies and resources that affect program objectives; receiving supervisory 

direction on policies, objectives, and results; and consulting with the supervisor 

on priorities and unusual situations. Id. at 88. The appellant was required to 
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identify problems, propose solutions, defend recommendations, and write and 

communicate clear guidelines. Id. 

¶3 On September 6, 2012, while still employed by NOAA, the appellant 

applied for disability retirement under FERS. Id. at 48-51. She claimed she 

became disabled due to post-traumatic stress disorder (PTSD), major depressive 

disorder, anxiety, and panic disorder, complicated by migraine headaches and 

irritable bowel syndrome. Id. at 50-51. On September 5, 2012, OPM issued an 

initial decision denying the appellant’s disability retirement application. Id. at 

41-43. In pertinent part, OPM found that she had failed to submit sufficient 

medical evidence to substantiate that she was suffering from a disabling medical 

condition. Id. at 43. Following a request for reconsideration by the appellant, 

OPM issued a May 29, 2014 reconsideration decision affirming its initial denial 

of the appellant’s application. Id. at 7-11. 

¶4 Thereafter, the appellant filed an appeal of OPM’s reconsideration decision. 

IAF, Tab 1. Following a hearing, the administrative judge issued an initial 

decision reversing OPM’s reconsideration decision. IAF, Tab 18, Initial Decision 

(ID) at 2, 10. 

¶5 OPM has filed a petition for review of the initial decision. Petition for 

Review (PFR) File, Tab 1. On review, OPM contends that the administrative 

judge erroneously credited the appellant’s and her counselor’s testimonies. Id. at 

6. OPM further contends that the administrative judge disregarded facts showing 

that the appellant (1) was able to continue to work until 2012 despite her claim 

that she became disabled in 2006, (2) stopped taking medication in 2012, and 

(3) barely attended any therapy sessions in 2014. Id. at 8-9. The appellant has 

responded to the petition for review. PFR File, Tab 2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An employee bears the burden of proving by preponderant evidence his 

entitlement to disability retirement. Henderson v. Office of Personnel 
4

Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(b)(2)(ii). To 

qualify for disability retirement benefits under FERS, an individual must meet the 

following requirements: (1) the individual must have completed at least 18 

months of creditable civilian service; (2) the individual must, while employed in a 

position subject to FERS, have become disabled because of a medical condition 

resulting in a deficiency in performance, conduct, or attendance, or, if there is no 

such deficiency, the disabling medical condition must be incompatible with either 

useful and efficient service or retention in the position; (3) the disabling medical 

condition must be expected to continue for at least 1 year from the date the 

disability retirement benefits application is filed; (4) accommodation of the 

disabling medical condition in the position held must be unreasonable; and (5) the 

individual must not have declined a reasonable offer of reassignment to a vacant 

position. 5 U.S.C. § 8451(a); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. 

§ 844.103(a).

¶7 The administrative judge found that it was undisputed that the appellant 

timely filed her FERS application, had completed at least 18 months of creditable 

civilian service, and had not declined a reasonable offer of reassignment to a 

vacant position. ID at 3. The administrative judge further found that the 

appellant suffered from PTSD and major depressive disorder that rendered her 

incapable of useful and efficient service, and that she had shown that her 

disabling conditions were likely to last for more than a year from September 

2012. ID at 8-10. In addition, the administrative judge found that the appellant 

had shown that accommodation of her conditions in the Management and Program 

Analyst position was unreasonable and that she was never offered an 

accommodation to a vacant position. ID at 10. 

¶8 The parties do not dispute that the appellant had completed at least 18 

months of creditable civilian service and that she had not declined a reasonable 

offer of reassignment, and we discern no basis for disturbing these findings on 

review. Therefore, the only remaining issues in this appeal relate to the 
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appellant’s medical condition and its effects on her ability to perform in her

former position, i.e., eligibility criteria (2), (3), and (4). For the following 

reasons, we find that the appellant has met these criteria and is entitled to a 

disability retirement.

¶9 There are two ways to meet the statutory requirement that an employee “be 

unable, because of disease or injury, to render useful and efficient service in the 

employee’s position”: (1) by showing that the medical condition caused a 

deficiency in performance, attendance, or conduct; or (2) by showing that the 

medical condition is incompatible with either useful and efficient service or 

retention in the position. Henderson v. Office of Personnel 

Management, 117 M.S.P.R. 313, ¶¶ 12-19 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5 

C.F.R. § 844.103(a)(2). Under the first method, an appellant can establish 

entitlement by showing that her medical condition affected her ability to perform 

specific work requirements, prevented her from being regular in attendance, or 

caused her to act inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the 

second method, the appellant can show that the medical condition is inconsistent 

with working in general, working in a particular line of work, or working in a 

particular type of setting. Id. 

¶10 A determination of disability is based on objective clinical findings, 

diagnoses and medical opinions, subjective evidence of pain and disability, and 

evidence showing the effect of the applicant’s condition on her ability to perform 

the duties of her position. Id., ¶ 19. “OPM must consider all of an applicant’s 

competent medical evidence, and an applicant may prevail based on medical 

evidence that . . . consists of a medical professional’s conclusive diagnosis, even 

if based primarily on his/her analysis of the applicant’s own descriptions of 

symptoms and other indicia of disability.” Vanieken-Ryals v. Office of Personnel 

Management, 508 F.3d 1034, 1041 (Fed. Cir. 2007).

¶11 With regard to diagnoses and medical opinions, the appellant has presented: 

(1) a May 15, 2012 letter from her counselor stating that she had first met the 
6

appellant on September 20, 2010, had conducted 41 individual therapy sessions

with her, and that she had diagnosed the appellant with PTSD based on the 

appellant’s history of physical and emotional childhood abuse, nightmares, panic 

attacks, disassociation, and hypervigilance; (2) biweekly therapy notes with her

counselor from March 2011 to June 2012, documenting the appellant’s symptoms 

and her progress; (3) an October 23, 2013 letter from her counselor reiterating the 

appellant’s initial diagnosis of PTSD and stating that the appellant also meets the 

criteria for major depressive disorder, as evidenced by her prolonged periods of 

sadness, feelings of hopelessness, helplessness, and worthlessness; and (4) her 

counselor’s testimony stating that she is a licensed counselor in the State of 

Oregon, specializes in adult PTSD, and that she had diagnosed the appellant, 

using the Diagnostic and Statistical Manual of Mental Disorders-IV, with PTSD 

and major depressive disorder based on the appellant’s self-report, a group 

therapy report, and sessions with the appellant after an initial diagnosis of anxiety 

disorder. IAF, Tab 4 at 27-28, 54-55, 59-87; Hearing Compact Disc (HCD). 

¶12 As to evidence of subjective pain and disability, the appellant presented: 

(1) her counselor’s therapy notes from March 2011 to June 2012 recording the 

subjective complaints the appellant made during office visits; and (2) her own 

testimony that she became disabled in 2006 and, since then, has been suffering 

from numerous physical limitations. IAF, Tab 4 at 59-87; HCD.

¶13 Concerning the effect of the appellant’s condition on her ability to perform 

in her former position, she presented: (1) descriptions of the duties and 

requirements of her former position; (2) a May 15, 2012 letter from her counselor 

stating that the appellant could no longer perform her job duties because they 

required focus, concentration, and attention to detail, and the appellant’s PTSD 

rendered her incapable of focusing and concentrating; (3) her counselor’s 

testimony that two major components of the appellant’s job—significant attention 

to detail and communication—are nearly impossible for the appellant to engage in 

when she is experiencing PTSD symptoms and that the appellant’s depression had 
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pervaded all aspects of her life, including her work; (4) her own testimony that 

her psychiatric conditions result in an inability to focus or concentrate, and 

therefore prevent her from performing her job, which requires concentration and 

attention to detail; and (5) an October 23, 2013 letter from the appellant’s 

counselor stating the appellant could not perform the duties of her position, or 

any similar position, as of May 2011. IAF, Tab 4 at 27-28, 54-55, 88-89; HCD.

¶14 We find that, based on the totality of the evidence, the appellant has met her 

burden of establishing that, while employed at NOAA, she suffered from a

disabling medical condition that was incompatible with useful and efficient 

service or retention in her position. In particular, we agree with the 

administrative judge’s finding that the appellant was disabled due to PTSD. 2

 

¶15 OPM’s contentions on review do not provide a basis for disturbing this 

finding. While OPM contends that the appellant’s and her counselor’s 

testimonies are inconsistent with evidence showing the appellant engaged in rock 

climbing, was enrolled in nursing school, and participated in numerous other 

outdoor social activities, PFR File, Tab 1 at 6-7, the administrative judge 

considered the fact that the appellant participated in outdoor activities and was 

enrolled in classes in her initial decision, ID at 7-8. However, as noted by the 

administrative judge, the appellant’s counselor testified that it was not 

inconsistent for the appellant to be able to attend classes but not be able to 

perform her job, because classes are voluntary and there is no pressure, as 

opposed to her job, which requires responsibility for completing her work and 

increases her anxiety level. HCD. The appellant’s counselor further testified 

that, even in low pressure environments, the appellant’s brain still shuts down. 

Id. Although OPM states that the testimony of the appellant’s counselor is not 

credible because it is based on the appellant’s subjective statements, the U.S. 

Court of Appeals for the Federal Circuit has noted that, because psychological 

 2 Because we find that the appellant was disabled due to PTSD, we decline to make a 

finding regarding whether she also was disabled due to major depressive disorder.
8

issues are often almost exclusively diagnosed based upon patient-reported 

symptoms, medical reports relying exclusively on an appellant’s own description 

of her psychological symptoms are relevant evidence for purposes of determining 

disability retirement eligibility. Vanieken-Ryals, 508 F.3d at 1042. OPM has not 

called into question the appellant’s counselor’s professional competence, has not 

alleged that the counselor’s professional opinions are not based on established 

diagnostic criteria, or alleged that these opinions are inconsistent with generally 

accepted professional standards. See id. at 1042-43. In addition, OPM has failed 

to present any medical evidence contrary to that presented by the appellant. See

Henderson, 117 M.S.P.R. 313, ¶ 23 (it is well established that subjective evidence 

may be entitled to great weight on the matter of disability, especially where such 

evidence is not contradicted by the record). Accordingly, we discern no basis for 

disturbing the administrative judge’s decision to credit the appellant’s counselor’s 

testimony on this issue.

¶16 OPM also contends that the appellant’s performance between 2006 and 

2012 was satisfactory and that she received a promotion in February 2007 and 

numerous cash awards between 2006 and 2012. PFR File, Tab 1 at 8. While 

OPM’s contention may show that the appellant cannot establish entitlement to a 

disability award under the first method articulated by the Board in 

Henderson, 117 M.S.P.R. 313, ¶ 16, which requires than an appellant show that 

her medical condition affected her ability to perform specific work requirements, 

prevented her from being regular in attendance, or caused her to act 

inappropriately, the appellant may still establish entitlement under the second 

method. We find that the appellant has established entitlement under the second 

method because she has shown that her medical condition is inconsistent with 

working in her position or any similar position. See id. 

¶17 Regarding the agency’s assertions that the appellant did not seek adequate 

treatment for her conditions, PFR File, Tab 1 at 9, the appellant contended in her 

disability retirement application and testified that she had complied with all 
9

treatment regimes. IAF, Tab 4 at 50; HCD; cf. Smedley v. Office of Personnel 

Management, 108 M.S.P.R. 31, ¶ 23 (2008) (when an employee fails or refuses to 

follow or accept normal treatment, her disability flows not from the disease or 

injury itself, as the statute requires, but from her voluntary failure or refusal to 

take the available corrective or ameliorative action). The appellant stated that her 

treatment regimes included dialectal behavorial therapy, sensorimotor 

psychotherapy, prolonged exposure treatment and medication to treat anxiety and 

panic disorders. IAF, Tab 4 at 50; HCD. The appellant’s counselor’s statements 

corroborate that, between 2010 and 2013, the appellant was being treated with 

dialectical behavioral therapy, sensorimotor psychotherapy, and prolonged 

exposure treatments with limited success. IAF, Tab 4 at 27. The counselor 

testified that attempting a medicine regime with the appellant would be difficult 

because to effectively medicate her would require prescribing a dosage that would 

knock her out, rendering her incapable of working. Id. OPM has not presented

any medical evidence that would shed doubt on the appellant’s counselor’s 

testimony. See Henderson, 117 M.S.P.R. 313, ¶ 23. 

¶18 We discern no other basis for disturbing the administrative judge’s finding 

that the appellant met her burden of establishing that she suffered from a 

disabling medical condition that was incompatible with useful and efficient 

service or retention in her position. While the appellant has not submitted any 

evidence of relevant objective clinical findings, our reviewing court has found 

that such evidence is not necessary for an appellant to establish entitlement to a 

disability retirement. See Vanieken-Ryals, 508 F.3d at 1041. We also find the 

appellant’s counselor’s conclusions persuasive because they are based on a long 

familiarity with the appellant and her conditions. See Tan-Gatue v. Office of 

Personnel Management, 90 M.S.P.R. 116, ¶ 11 (2001) (the Board gives greater 

weight to medical conclusions based on a long familiarity with a patient than to 

those based on a brief association or single examination), aff’d, 52 F. App’x 511 

(Fed. Cir. 2002).
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¶19 Finally, the appellant has met the remaining criteria for establishing 

entitlement to a disability retirement. The appellant’s counselor opined in her 

October 23, 2013 letter that the appellant’s condition had lasted well over 12

months and was likely to be permanent in nature. IAF, Tab 4 at 27-28. We 

therefore agree with the administrative judge’s finding that the appellant 

established that her PTSD was expected to continue for at least 1 year from 

September 6, 2012—the date the disability retirement benefits application was 

filed. ID at 10; see Henderson, 109 M.S.P.R. 529, ¶ 8. As noted by the 

administrative judge, the appellant’s supervisor indicated that an accommodation 

was not possible due to the severity of the appellant’s medical condition and the 

requirements of the position. IAF, Tab 4 at 106. The appellant’s supervisor 

further indicated that reassignment was not possible because there were no vacant 

positions within the agency for which the appellant met the minimum 

qualification standards. Id. at 107-08. Thus, we discern no basis for disturbing 

the administrative judge’s finding that the appellant established that an 

accommodation of her disabling medical condition in the Management and 

Program Analyst position was unreasonable. ID at 10; see

Henderson, 109 M.S.P.R. 529, ¶ 8.

¶20 Based on the foregoing, we AFFIRM the initial decision reversing OPM’s 

reconsideration decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. You must submit your request to the court at the following 

address: 
11

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. 

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 your court 

appeal, 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
12

neither endorses the services provided by any attorney nor warrants that any 

attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board