N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CESAR A. DELA ROSA, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______________________

2013

- 3078

______________________
Petition for review of the Merit Systems Protection
Board in No. SF831E120107 -I- 1.

______________________

Decided: October 15, 2013

______________________

C ESAR A. D ELA R OSA , of La Union, Philippines, pro se.

J OSHUA A. M ANDLEBAUM , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With
him on the brief were S TUART F. D ELERY , Acting Assis tant Attorney General, J EANNE E. D AVIDSON , Director, and
R EGINALD T. B LADES

, J R

. , Assistant Director.

______________________

Before N EWMAN

, P LAGER

, and C HEN
, Circuit Judges.DELA ROSA v. OPM 2

P ER C URIAM

. Cesar Dela Rosa seeks review of a final decision of the Merit Systems Protection Board ( the “Board”) finding that his application for disability retirement benefits was untimely

. Dela Rosa v. Office of Pers. Mgmt.

, 119 M.S.P.R. 244 ( 2013). Because s ubstantial evidence in the
record supports the Board’s decision, we affirm

.
I

Mr. Dela Rosa retired from the United States Navy on October 29, 1980

, after serving for twenty years. He then
work ed as a civilian for the Department of the Navy from December 18, 1981 until November 28, 1988, when he resigned and separated from federal service

. Id. at 2

. In early 2009, Mr. Dela Rosa suffered a stroke. In September 2010 , he filed an application for disability
retirement related to his federal civilian service with th e Office of Personnel Management (“OPM” ). After attempts to contact him, OPM sent Mr. Dela Rosa a letter in May
2011 to inform him that his request for disability retir ement was untimely because “[t]he law requires that [such] applications . . . be filed with OPM either prior to separ ation from the service or within one year thereafter.” Resp’t’s App. 36 (citing 5 U.S.C. § 8453). OPM also noted that it could waive the statutory filing deadline if Mr. Dela Rosa could provide evidence to show that (1) he was unable to handle his personal affairs due to either phys ical or mental disease or injury (in other words, “mentally incompetent”) at the time of or within one year of his separation, and (2) he remained mentally incompetent at least until one year befo re he filed for disability retir ement benefits.

In response, Mr. Dela Rosa stated that he was unable to file for disability retirement between 1988 and 2010 because he suffered from depression after a positive result from a Tuberculosis (“TB”) skin test that took place inDELA ROSA v. OPM 3

1984. Id. at 39. Mr. Dela Rosa further explained that he “cannot manage to [be] reemployed again due of [his] having ‘hypertension’ and the need to take a full rest in order to ease from [his] illness.” Id. at 40. His response
also s uggested he suffered from additional ailments as
well. Id.

Mr. Dela Rosa submitted medical records to support his disability claim . Those records indicated that he was

a “PPD convert er”— some one who experienced a positive skin test for TB after testing negative previously. The documentation did not reveal any further testing for TB

or any definitive TB diagnos is

. On June 21, 2011, OPM rejected Mr. Dela Rosa’s di sability retirement application because it was “not filed within the time limit set by law.” Id. at 48. It found “no objective medical findings to establish incompetence or
that [he] could not manage [his] affairs appropriately at the time of [his] separation on November 28, 1988, or within one year thereafter.” Id.

Mr. Dela Rosa requested reconsideration and submi tted additional medical records. OPM again found that the “evidence presented is not sufficient to show that [ Mr. Dela Rosa was] mentally incompetent during the period
No vember 28, 1988 to present, and [he] did not file an application for the disability retirement within the time limit provided by law.” Id. at 55.

Mr. Dela Rosa appealed OPM’s decision to the Board. The administrative judge (“AJ”) for the Board affirmed, finding that Mr. Dela Rosa’s disability application was untimely

, since there was insufficient evidence to esta blish that he was incompetent. The AJ quoted from a

recent medical report, dated August 16, 2011, which
stated that Mr. Dela Rosa’s “cognitive skills have r emained intact ,” despite his 2009 debilitating stroke.
Id. at 20. That same report also indicated that he tested positive for “mild depression,” but negative for depression.DELA ROSA v. OPM 4

Id. at 96

- 97. In the AJ’s view, the record did not support
Mr. Del a Rosa’s position that “ he was incompetent to manage his affairs between the date of separation and the date he filed his disability retirement application, Se ptember 16, 2010.” Id. at 21

.
T he Board declined Mr. Dela Rosa’s petition to re co nsider the AJ’ s decision

. It explained that there was no reason to disturb the AJ ’s findings and reasoning

. Id. at 55.

Mr. Dela Rosa filed a timely petition to review the Board’s final decision. We have jurisdict ion under

28 U.S.C. § 1295(a)(9).

II

Our review of Board decisions is limited. We must a ffirm the Board’s decision unless it was ( 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ( 2) obtained without procedures required by law, rule, or regulation ha ving been followed;

or ( 3) unsupported by substantial evidence.

5 U.S.C. § 7703(c) ; McLaughlin v. Office of Pers. Mgmt.

, 353 F.3d 1363, 1367

- 68 (Fed. Cir. 2004) (explaining that our standard of review is unaffected in cases concerning waiver of filing dea dlines due to mental incompetence ).

A n application for disability retirement ordinarily must be filed with OPM “ before [an] employee

. . . is separated from the service or within 1 year thereafter. ”

5 U.S.C. § 8337(b)

. That time limitation may be waived if

,

“ at the date of separation from service or within 1 year
thereafter ,” the applicant was “ mentally incompetent

, ”
and “ the application is filed with [OPM] within 1 year
from the date of restoration of . . . c ompetency .” Id.
M ental incompetence is “an inability to handle one’s personal affairs because of either physical or mental disease or injury.” Rapp v. Office of Pers. Mgmt

. , 483 F.3d 1339, 1341 (Fed. Cir. 2007).DELA ROSA v. OPM 5

III

There is no dispute that Mr. Dela Rosa’s application for retirement disability w as filed more than twenty years after his separation from federal service. Thus, a bsent mental incompetency during t he relevant time period , Mr. Dela Rosa’s disability claim may not be granted.

After reviewing the record, we see no error in the
Board’s fi nding that there was insufficient evidence to establish that Mr. Dela Rosa was mentally incompetent during the statutorily relevant time period

. Mr. Dela
Rosa claim s t hat he was mentally incompetent due to depression brought on by a combination of factors, inclu ding a positive TB skin test. However, despite that test result, Mr. Dela Rosa was never definit iv ely diagnosed
with TB

. In addition, that test occurred in 1984

— four years prior to his separation

, and during that time frame
he was cleared f or multiple subsequent service assig nments with the Department of the Navy.

Mr. Dela Rosa also states that he has suffered from
other maladies resulting from different causes, including exposure to asbestos and Agent Orange. Our thorough
review of t he r ecord found no evidence

, however, that any of these ailments rendered him mentally incompetent at any point between his No vember 28, 1988 separation date
and the date that he filed for disability benefits twenty

two years later

. The medical records he sub mitted do not mention any mental impairment

— only a reference to “mild depression ,” after his 2009 stroke

. Resp’t’s App. 20. Moreover, his medical provider found at that time

— and the administrative judge specifically noted— that Mr. Dela Rosa’s “cognitive skills

. . . remained in tact

. ” Id. at 20.

We therefore conclude that the Board’s finding that
Mr. Dela Rosa was not mentally incompetent during the
relevant statutory time period is supported by substantial
evidence. See Cons olidated Edison Co. v. NLRB

, 305 U.S. 197, 229 (1938) (explaining that substantial evidence isDELA ROSA v. OPM 6

that which a “ reasonable mind might accept as adequate to support a conclu sion ” ); Dowling v. Office of Pers. Mgmt. , 393 F.3d 1260, 1262 (Fed. Cir. 2004) (same). Accordingly, t he Board did not err by affirming OPM’s rejection of Mr. Dela Rosa’s retirement disability claim as untimely. The petition for review is denied.

AFFIRMED

C OSTS

No costs.