NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MILOS PUACA,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2014-3173

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-0432-12-0595-I-1.

______________________ 

Decided: June 8, 2015

______________________ 

MILOS PUACA, Chicago, IL, pro se.

MEEN GEU OH, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOYCE R.

BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.

GILLINGHAM. 

______________________ 

Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
 2 PUACA v. DVA

PER CURIAM

The Department of Veterans Affairs (VA) removed Milos Puaca (Mr. Puaca) from his position as a Veterans 

Service Representative with the Veterans Benefit Administration in Chicago, Illinois as a result of his failure to 

maintain a satisfactory performance quality rating. Mr. 

Puaca now appeals the decision of the Merit Systems 

Protection Board (Board) affirming his removal. We 

affirm. 

BACKGROUND

Mr. Puaca began his employment as a Veterans Service Representative (VSR) in September 2009. A VSR is

tasked with obtaining information from Illinois veterans, 

widows, and dependents to substantiate claims for benefits. The VA requires its VSRs to maintain an 85% accuracy rate (performance quality rating). The VA calculates 

this performance quality rating by reviewing randomly 

selected actions completed by the VSR. After an error is 

identified, the VSR may rebut the error and, if successful, 

that error will be removed from the calculation. The VA 

then uses the number of errors to calculate the VSRs 

accuracy rate or “performance quality rating.” Mindful of 

the learning curve for new VSRs, however, the VA does 

not impose this performance standard during a VSR’s 

first year of employment. Consistent with this practice, 

Mr. Puaca was not subject to the 85% performance quality 

rating requirement until October 2010. In addition, the 

VA provided Mr. Puaca with extensive training. 

After Mr. Puaca became subject to the performance 

standards, the VA recognized that Mr. Puaca was struggling to maintain adequate performance quality ratings. 

By March 2011, the VA placed Mr. Puaca on a 90-day 

performance improvement plan. After this 90-day period, 

Mr. Puaca’s performance quality rating had improved 

from approximately 40% to nearly 92%. The VA informed 

him, however, that he needed to maintain an acceptable 
PUACA v. DVA 3

performance quality rating for one year after the date he 

was placed on the performance improvement plan. Mr. 

Puaca was further informed that failure to maintain this 

performance quality rating could result in him being 

subject to removal from his position.

Despite additional training, a random sampling of the 

claims on which Mr. Puaca had worked revealed a performance quality rating below 85%. Mr. Puaca was given 

an opportunity to rebut the errors that the VA cited and 

was also notified that these errors could lead to his removal. Mr. Puaca failed to submit any such rebuttal. As 

a result, on April 16, 2012, the VA proposed Mr. Puaca’s 

removal from his position for failing to meet a minimally 

acceptable performance quality rating. On June 3, 2012, 

Mr. Puaca was removed from his position.

Mr. Puaca timely appealed and, after a hearing, an 

Administrative Judge (AJ) affirmed the removal. Thereafter, Mr. Puaca petitioned for review of the AJ’s decision 

by the Board. The Board denied the petition for review 

and affirmed the AJ’s decision. Mr. Puaca then appealed 

to this court. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

Our review of a Board decision is limited. A decision 

of the Board must be affirmed unless it is “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c); Dickey v. Office of Personnel Mgmt., 419 F.3d 

1336, 1339 (Fed. Cir. 2005). Under the substantial evidence standard, we will reverse the Board’s decision only 

“if it is not supported by such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.” Haebe v. Dep’t of Justice, 288 F.3d 1288, 

1298 (Fed. Cir. 2002) (internal quotation marks omitted). 
 4 PUACA v. DVA

Mr. Puaca raises several factual arguments. None of 

these arguments, however, establish that the Board’s 

decision is unsupported by substantial evidence. 

Mr. Puaca first argues that the VA failed to show that 

he was removed pursuant to an OPM-approved performance standard, as required by 5 U.S.C. § 4304. The 

Board properly rejected this argument after the VA 

submitted a letter from OPM indicating OPM’s approval 

of VA’s performance appraisal system. In fact, Mr. Puaca 

even previously conceded this point. Mr. Puaca now 

argues, for the first time on appeal, that OPM’s approval 

of the VA system expired in 1993. Because Mr. Puaca did 

not raise this argument before the Board, it is not properly before us. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 

665, 668 (Fed. Cir. 1998) (“A party in an MSPB proceeding must raise an issue before the administrative judge if 

the issue is to be preserved for review in this court.”). 

Even if we could consider the argument, however, the 

document to which Mr. Puaca cites does not mention the 

VA or any revocation of OPM’s approval of the VA’s 

performance appraisal system. 

Second, Mr. Puaca raises factual issues relating to the 

manner in which the VA evaluated his performance. Mr. 

Puaca asserts that the VA improperly selected the samples of his work to review. In addition, he contends that 

the VA denied him an opportunity to rebut the purported

errors in his work. The Board rejected each of these 

assertions based on testimony presented by the VA. The 

Board first credited VA testimony indicating that it 

randomly selected the samples using a computerized 

tracking system. The Board also credited VA testimony 

that Mr. Puaca’s superiors had informed him of the errors 

and advised him of his ability to submit rebuttals. See 

King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 

1453 (Fed. Cir. 1990) (“[A]n evaluation of witness credibility is within the discretion of the Board and . . . , in gen-
PUACA v. DVA 5

eral, such evaluations are virtually unreviewable on 

appeal.” (internal quotation marks omitted)). 

Third, Mr. Puaca argues that the VA provided insufficient training to facilitate improvement of his performance. The Board affirmed the AJ’s rejection of this 

argument. Specifically, the AJ found that Mr. Puaca’s 

successful completion of the performance improvement 

plan demonstrated that he was capable of satisfactory 

performance. The AJ also rejected this argument in light 

of credible testimony from Mr. Puaca’s trainer that he 

received at least 272 hours of classroom training in his 

first year of employment and an additional ninety-eight 

hours of training in his second year. 

Fourth, Mr. Puaca contends that the Board erred by 

failing to give proper weight to his medical conditions 

during the relevant timeframe. The Board reviewed the 

record and noted that Mr. Puaca never requested additional leave while he was recovering from these medical 

conditions. The Board also recognized that nothing in the 

record indicated that Mr. Puaca’s medical condition 

affected his ability to satisfactorily perform his work 

duties. 

Finally, Mr. Puaca argues that the tenth performance 

quality error that the VA identified was erroneously 

included in the calculation of his performance quality 

rating because it occurred after the expiration of the oneyear period that began at the initiation of the performance improvement plan. Neither party disputes that, 

without this error, Mr. Puaca’s performance quality 

rating would not have fallen below 85%. This argument, 

however, appears to be based on a misunderstanding of 

the record. The VA placed Mr. Puaca on the 90-day 

performance improvement plan on March 21, 2011. 

Therefore, the one-year period ended, at the earliest, on 

March 20, 2012. According to the record, the disputed 

tenth error occurred on March 19, 2012, not on March 21, 
 6 PUACA v. DVA

2012, as Mr. Puaca now contends. Thus, the Board correctly determined that this error was properly included in 

the VA’s calculation of Mr. Puaca’s performance quality 

rating.

In light of the foregoing, the record demonstrates that 

the Board fully considered Mr. Puaca’s arguments and 

that each of the Board’s determinations is supported by 

substantial evidence. We have considered Mr. Puaca’s 

remaining arguments and find them without merit.

CONCLUSION

We find no basis on which to reverse the Board’s conclusion and therefore affirm the Board’s decision sustaining Mr. Puaca’s removal.

AFFIRMED