OPM Disability Retirements: The Veteran and the Medical Condition

Whether preferential consideration should be granted to Veterans in Federal and Postal employment is a moot point; it is, at its core, a recognition of service and appreciation shown for a duty completed, and in contrast to the sacrifices given in many instances, is relatively a minor advantage benefited. Service given to one’s country is often seen, in this age of modernity, lack of appreciation by this generation within a society of self-promoting insularity, as something outmoded and irrelevant. In terms of giving priority of access to limited jobs in the Federal Government and the U.S. Postal Service, it remains a pragmatic component in hiring and retention of valuable tools and talents already tested in the disciplined arena of military service.

But service to country has its residual effects, and the preferential considerations given by the Federal Sector will often have reverberating consequences appearing years after further service in the civilian sectors of Federal or Postal employment. Those very service-connected disabilities – whether identified, acquired or otherwise received through wartime experiences or other physical and psychiatric factors impacted by military service – may deteriorate over time and come to a point of debilitating factoring during, and in the course of, Federal Civilian Service under FERS.

That there is no “offset” or coordination of benefits between VA Disability benefits received, and a Federal Disability Retirement annuity obtained, is a further recognition of the conceptual distinction between VA compensation awarded for service-connected conditions and those recognized under FERS Disability Retirement. Is this fair, one may ask?  Isn’t there an offset and coordination of benefits between FERS Disability Retirement annuity and Social Security Disability benefits, and even between OWCP benefits and SSDI – and so, by parallel argument, why should the Federal Government (and, by extension, the U.S. Postal Service) not impose a similar “penalty” between the former?  The simple answer is that the laws governing Federal Disability Retirement benefits under FERS were specifically set up to intersect and be coordinated with SSDI, whereas the evolution of statutory implementation of VA Disability benefits and FERS Disability Retirement evolved separately, where the twain never met in a comprehensive overview of benefits allowed. The more complex explanation, of course, may encompass the recognition that, while there may be some overlap between service-connected medical conditions and those arising as the foundation for a Federal Disability Retirement application, not every condition identified in connection with the former will necessarily be included in the latter.

But aren’t many service-connected disabilities concurrently used in filing a Federal Disability Retirement application, and is it “fair” to do so? This author would argue that it is more than fair – precisely because, while the original basis of a medical condition that is service-connected may well be identified as emanating from one’s service to country, the minimal impact at the time of employment in the Federal sector or the U.S. Postal Service reveals, time and time again, that the exacerbation and increasing debilitation of the condition is closely connected to the factors of employment in the Federal or Postal job, and thus should be allowable because of the conceptually distinct deviation from being a mirror-reflection of the two.

The identification and treatment of a medical condition, service-connected or otherwise, will often increase in severity and chronicity of time. That is simply the nature of an ongoing medical condition. For VA Disability ratings, the initial hurdle is to have a medical condition proven as “service-connected” to begin with. Once accepted, an increase in ascribed ratings may occur over several years and decades, as the Veteran gets older, the medical condition worsens, and the factors of employment contributes to its exacerbation.  In VA Disability ratings, there is a numerical factor and methodology where individual ratings are ascribed to specific medical conditions, while the cumulative percentages assigned may in aggregate form be larger than the individual numbers assigned. This is a logical approach, as the sum of the individual parts may not properly reflect the totality of impact that the combined medical conditions can manifest.

Can VA Disability Ratings be used in a Federal Disability Retirement application, despite having already been used in acquiring VA Disability benefits? Yes, but with a caveat: while the U.S. Office of Personnel Management has been mandated to take into account such ratings, it is always merely persuasive in scope, and never determinative in evaluative conclusion. In practical terms, it should be used sparingly and as an additional component in arguing one’s Federal Disability Retirement case, and not relied upon as the sole basis in preparing a Federal Disability Retirement application.

In the well-known case of Simpkins v. Office of Personnel Management, 2010 MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010, the U.S. Merit Systems Protection Board stated that “OPM 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…” This holding, along with the Federal Circuit Court Holding of Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995), where the Court stated that ‘OPM and the Board must consider an award of Social Security disability benefits, and any underlying medical data provided to OPM by the Social Security Administration or the employee, along with any other evidence of disability, in determining entitlement to FERS benefits.’ Id. at 526 (emphasis added), together requires of OPM to consider a VA disability rating in conjunction with other medical evidence, even if there is an overlap between service-connected medical conditions and those arising in the course of Federal employment formed as a basis for one’s Federal Disability Retirement application.  The caution, of course, is in attempting to rely solely upon the DVA rating – it should not be, and cannot be the “only” basis used in filing a Federal Disability Retirement application.

Furthermore, note that a distinction always needs to be made between the numerical assignment involved in a “rating”, and the underlying medical basis for arriving at the number. Numbers are symbols implicitly referring to severity, and like statistical constructs, retain meaning only by reference to the underlying substantive basis. In other words, as the Federal Circuit Court stated, don’t just rely upon the “award” of a numerical ascription, but always provide the substantive medical foundation that resulted in the increase.

Filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS Offset must be accomplished by always meeting an evidentiary criteria – that of preponderance of the evidence set by statute and regulation by the U.S. Office of Personnel Management. Numerical ascriptions by the DVA and awards of benefits by the Social Security Disability Office should certainly be included in any evidentiary gathering in preparing an effective Federal Disability Retirement application. Never, however, rely upon the determinations of a separate Federal agency as the sole foundation in proving one’s Federal Disability Retirement application. Instead, it should be the “add-on” provision in arguing one’s Federal Disability Retirement application – just as the Federal Sector job or the U.S. Postal Service work “added on” to the originating medical condition through repetitive physical stress, greater triggers of psychological components, and the constant pressures of further service beyond the military service initially performed. In the end, it is the right approach that our government has taken – of first recognizing military service; then, compensating for medical conditions derived from such service; further, of giving preferential treatment for Federal and Postal positions; and finally, of keeping separate the conditions of originating service-connected medical disabilities from those which have progressively deteriorated over the years in awarding a Federal Disability Retirement annuity.

About the Author
Attorney Robert R. McGill specializes in Federal and Postal Disability Retirement under FERS.  McGill has been successful at all levels of the OPM Disability Retirement Application process — from the initial submission of disability applications to the second stage of appeal-the “Request for Reconsideration” stage to the final stage of appeal before the MSPB (Merit Systems Protection Board).

This article was originally published in the HG.org directory (01/22/17)