the lands.

- From Fables Long Lost

Laws serve both as restrictive devices, as well as refining the boundaries of

acceptable argumentation.  Thus, where a statute or Court opinion through a

case has "opened up" the doors for certain evidentiary admissibility where

previously such submissions were precluded, the lawyer who argued for such

greater flexibility has done his or her job well.  For, ultimately, it is

the job of the attorney, through argument, logic, persuasion and interpretive

creativity, to test the boundaries of statutes, rules and regulations in

advocating the position of his or her client.

Whether the practice of law is nearer to science, or to art, is certainly a

debatable question.  If to science, then flexibility and creativity are

lost; if to art, then logic and validity are compromised.  Whatever the

answer, in determining the applicability of a legal opinion, the "art" side of

practicing law must come into play when deciding the type, extent, and volume of

supporting medical and other documentation which must be submitted in an

application for Federal Disability Retirement benefits.

In attempting to obtain Federal Disability Retirement benefits under FERS or

CSRS, certain discretionary decisions must be made throughout the process. 

The extent of medical documentation to be submitted along with a Federal

Disability Retirement application (Standard Forms 2801, along with Schedules A,

B & C for CSRS individuals; SF 3107, along with Schedules A, B & C for

FERS individuals; and SF 3112A, Applicant's Statement of Disability for both

FERS & CSRS -- are the "minimally required" forms to be submitted) is a

matter to be decided based upon multiple factors.  In the end, the guiding

legal principle to be followed is that one must prove, by a preponderance of the

evidence, that one has met the eligibility criteria for Federal Disability

Retirement benefits.

Beyond meeting the basic eligibility criteria, of course, are the "legal

tools" which should be accessed:  The Bruner Presumption; arguments on

Accommodation using the Bracey standard; the Trevan rule concerning Social

Security approvals; the Vanieken-Ryals v. OPM  and the false distinction

used by OPM between "objective" medical evidence versus "subjective" medical

evidence -- and many others, the significance and utility of which have been

previously discussed in other articles. The point here is that, with the

plethora, complexity and almost infinite volume of legal, medical, and factual

documentation which can be gathered as supporting attachments to a Federal

Disability Retirement application, how does one strike the "right balance"

between underproving, proving, and overproving one's case?

In the modern age, of course, the parallelism is with the information found

on the Internet.  One needs only to begin with a basic Google search on any

subject, to come to the conclusion that finding information about a certain

subject is never the problem; rather, the problem is, once the information is

tapped into, which information can and should be used?  Thus, in a Federal

Disability Retirement application, on the one extreme would be to attach any and

all medical records (no matter if it comprises 10,000+ pages) to the

application; and on the other extreme, to attach a prescription note from the

doctor stating, "X is hereby disabled".  Somewhere in between comprises the

"right balance". 

The "world of law" is an ever-expanding universe of legal precedents creating

greater flexibility and boundaries determined by more recent interpretations and

legal holdings which both clarify and reset the formal buttons of law. 

This was certainly the case in the recent holding set forth by the Merit Systems

Protection Board in the case of Simpkins v. Office of Personnel Management, 2010

MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010.   There, the

three Judge Administrative Board held that the Merit Systems Protection Board

and the Office of Personnel Management "must consider an award of benefits by

the DVA (Department of Veterans Affairs) based on the same medical conditions as

the appellant's disability retirement application, although this evidence may be

outweighed by other evidence."  This is both an interesting case, and

impactful upon Federal and Postal employees who have filed for Federal

Disability Retirement benefits under FERS or CSRS, and who are, coincidentally,

veterans. 

For, the case of Simpkins tends to "coordinate" the findings of various

Federal Agencies.  Thus, for example, Trevans v. OPM, 69 F.3d 520

(Fed.  Cir. 1995) mandated that OPM and the Board must review, along with

other medical evidence, a Social Security Disability approval -- and this makes

sense.  Ultimately, where one Federal Agency determines that a Federal or

Postal worker is deemed as "disabled", some sort of reciprocity of

acknowledgement between agencies should occur.  Trevans thus stands for the

proposition that, because eligibility for Social Security Disability benefits

requires a higher standard of "total disability", such considerations should at

a minimum be acknowledged as persuasive evidence in a FERS Federal Disability

Retirement case (I exclude CSRS only because, in most such cases, CSRS

individuals would not be eligible, and are not required to file for, SSDI

benefits).   Simpkins takes the step taken in Trevans one step further

-- by acknowledging that disability determinations by other Federal Agencies (in

this case, the Department of Veterans Affairs) should also have a persuasive

impact upon Federal Disability Retirement determinations.  In this manner,

the "world of law" has been expanded, and the applicant who files for Federal

Disability Retirement benefits under FERS or CSRS is certainly the beneficiary

of such expansion.

The question remains, however, as to whether to use the determination of the

SSA or DVA, and that is a discretionary judgment by an applicant or the attorney

representing the applicant in a Federal Disability Retirement case.  This

is where a careful reading of the opinion in Simpkins must be engaged; for the

three Judge Administrative Board did not simply state that a DVA rating must be

"considered" -- they further stated that (A) consideration should occur if the

award of benefits was "based on the same medical conditions as the appellant's

disability retirement application" and (B) such evidence "may be outweighed by

other evidence."  What does "same" mean?  Does it require strict

identity?  Or, can there be sufficient similarity of the underlying medical

evidence?  Further, what kind of "other evidence" can outweigh the rating

ascribed by the Department of Veteran's Affairs?  These are all questions

which must be answered within the context of attempting to strike the "right

balance" in submitting the proper evidence in winning a Federal Disability

Retirement annuity, both in qualitative and quantitative means. 

Ultimately, the question of striking the right evidentiary balance in

proving, by a preponderance of the evidence, that one is entitled to Federal

Disability Retirement benefits should be based upon a full review of the

factual, medical, and legal arsenal of information gathered.  There has to

be a careful scrutiny, however, in determining the extent, volume and quality of

the evidence to be submitted.  The "bridging" between the land of medical

documentation, and the land of sufficient legal proof, should be left to the

discretion of an attorney; for, in the end, eligibility for Federal Disability

Retirement benefits under FERS or CSRS is a legal issue.  Ask any Federal

or Postal worker who thought that it was merely an administrative issue of

filing for a benefit, and got denied at the Initial Application Stage of the

process.

About the Author

Robert R. McGill is an attorney who specializes in federal disability

retirement, a practice area he dedicates 100% of his time helping Federal and

Postal workers secure their disability retirement benefits under both FERS and

CSRS. For more information about his legal services, publications and forum,

please visit his CSRS

and FERS Disability Retirement Website.