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Often we see letters from OPM denying an employee’s request for disability retirement based on the fact that there is no evidence that the disability resulted in any performance, conduct or attendance deficiencies. Usually, OPM’s analysis stops there.

However, this is not the only element that OPM must consider. When there is no performance. conduct or attendance deficiency, the relevant question is whether the appellant’s medical condition is incompatible with either useful and efficient service or retention in the employee’s former position.

If OPM fails to consider both of these elements, then you may have grounds to appeal OPM’s decision to the Merit Systems Protection Board (MSPB).

Before the MSPB, you will need to show evidence of a disability ( click here to link to our series of posts on disability retirement under FERS.

Most importantly, a determination of disability must be based on the probative value of all of the evidence, including: (1) Objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; and (4) all evidence relating to the effect of the employee’s condition on his ability to perform in the position he last occupied.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you believe that an OPM denial of disability retirement is improper, and would like to challenge the OPM decision on disability retirement to the MSPB, contact an MSPB attorney at the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.

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Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.

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