Val McGowan v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VAL MCGOWAN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1891
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-844E-22-0044-I-1.
______________________
Decided: June 15, 2026
______________________
WAYNE J OHNSON, DeCiccio & Johnson, Winter Park,
FL, argued for petitioner.
T ANYA K OENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by T ARA
K. HOGAN, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before H UGHES , L INN, and STOLL , Circuit Judges.
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MCGOWAN v. OPM 2
HUGHES , Circuit Judge.
Val McGowan appeals a decision of the Merit Systems
Protection Board affirming the denial of his application for
disability retirement benefits by the Office of Personnel
Management. We affirm.
I
A
Mr. McGowan, a veteran, was employed as a medical
support assistant with the Department of Defense, Defense
Health Agency, at the Walter Reed National Military Med-
ical Center. On January 1, 2021, Mr. McGowan applied for
disability retirement benefits under the Federal Employ-
ees’ Retirement System (FERS) plan with the Office of Per-
sonnel Management. He alleged an onset date of
September 2019 for several disabling conditions, including
post-traumatic stress disorder. J.A. 2–3.
OPM denied Mr. McGowan’s application on March 26,
2021, after it found that Mr. McGowan’s evidence did not
show he was entitled to disability retirement, in part be-
cause OPM determined he was “not disabled within the
meaning of the retirement law.”1 See J.A. 380. OPM upheld
1 To be entitled to disability retirement under FERS,
an applicant must establish that: (1) they have completed
at least 18 months of creditable civilian service; (2) while
employed in a position subject to FERS, they became disa-
bled because of a medical condition, resulting in a defi-
ciency in performance, conduct, or attendance, or if there is
no such deficiency, the disabling medical condition is in-
compatible with either useful and efficient service or reten-
tion in the position; (3) the disabling medical condition is
expected to continue for at least one year from the date the
application for disability retirement is filed; (4) accommo-
dation of the disabling medical condition in the position is
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MCGOWAN v. OPM 3
its denial on reconsideration, finding that Mr. McGowan
failed to establish that he had a “disabling medical condi-
tion” or faced any “restrictions or limitations which inter-
fere[d] with the duties of [his] job requirements.” See
J.A. 375.
B
Mr. McGowan appealed OPM’s denial to the Merit Sys-
tems Protection Board on October 26, 2021. During these
proceedings, the Board issued a pre-hearing order noticing
a March 30, 2022, hearing date and requiring the parties
to, in relevant part, file a statement of facts and issues
along with copies of exhibits to be used at the hearing. This
pre-hearing order advised, “[i]n presenting evidence at the
hearing, [the parties] will be limited by [the parties’] pre-
hearing submissions, except for good cause shown.” J.A. 37.
Mr. McGowan submitted various medical records and evi-
dence of his employing agency’s denial of accommodations.
OPM’s pre-hearing submission argued Mr. McGowan
failed to formally request accommodations from the em-
ploying agency and that his “medical records show conflict-
ing diagnoses (drug use) that are inconsistent with his
alleged impairment.” See J.A. 51. OPM amended its sub-
mission to also argue that Mr. McGowan’s accommodations
request was unreasonable and that he failed to show his
PTSD was non-situational.
At the March 30, 2022, hearing, Mr. McGowan testi-
fied that his PTSD stemmed from his service in the United
States Navy from 1984 to 1988. Specifically, he testified
that he had been stationed aboard the U.S.S. Okinawa as
an operations specialist. He explained that, on May 17,
1987, while his ship had been conducting a minesweeping
unreasonable; and (5) they have not declined a reasonable
offer of reassignment to a vacant position. 5 C.F.R.
§ 844.103(a); see also 5 U.S.C. § 8451.
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MCGOWAN v. OPM 4
operation in the Strait of Hormuz, the U.S.S. Stark—an-
other U.S. Naval ship—was struck by missiles. He claimed
that he and other members of the U.S.S. Okinawa assisted
in offloading deceased and injured seamen from the
U.S.S. Stark. And Mr. McGowan testified that this inci-
dent was the source of his PTSD, which had then been “in
remission” until 2019, when he began experiencing issues
with his medication and stress at work. This testimony
aligned with what Mr. McGowan had informed his medical
providers. See J.A. 83 (psychiatric evaluation report stat-
ing Mr. McGowan “said he was responsible for off-loading
the dead from the U.S.S. Stark bombing”); J.A. 120 (“His-
tory of Present Problem” section noting that Mr. McGowan
reported he “[o]ff loaded dead from [S]tark”).
In its post-hearing brief, OPM argued that the official
reports on the U.S.S. Stark attack did not support
Mr. McGowan’s version of events. It explained that the
Navy’s official report did not mention the U.S.S. Okinawa
and that, on May 17, 1987, the U.S.S. Okinawa was sta-
tioned in the Indian Ocean, not the Persian Gulf where the
U.S.S. Stark attack occurred. J.A. 217–18. OPM included
new exhibits in support. Mr. McGowan did not directly ad-
dress or rebut OPM’s allegations. See, e.g., J.A. 321
(“[Mr. McGowan] never said that he served on the
U.S.S. Stark. He said he served on the Okinawa which of-
floaded the bodies from the Stark.”).
OPM filed an amended post-hearing brief, noting
Mr. McGowan’s response “confirmed his testimony [was]
that he and the USS Okinawa participated in the removal
of dead bodies from the USS Stark” but that “[a]bsolutely
nothing could be farther from the truth.” J.A. 328. At-
tached was further evidentiary support. OPM accused
Mr. McGowan of “intentionally falsif[ying] the causation of
his PTSD” and “intentionally deceiv[ing] his medical pro-
viders, OPM and the MSPB.” J.A. 329. Mr. McGowan’s sec-
ond response again did not dispute OPM’s evidence.
Instead, he stated that, if OPM’s amended brief was
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MCGOWAN v. OPM 5
accepted, he “would respond to show his service award
which acknowledged his service on the USS Okinawa as
[he] testified to and that he received combat medal, ribbon
and commendation,” and that the medical evidence shows
he was diagnosed with PTSD. J.A. 366–67.
On September 28, 2022, the Board issued an initial de-
cision affirming OPM’s reconsideration decision denying
Mr. McGowan’s application for disability retirement.
McGowan v. Off. of Pers. Mgmt., No. DC-844E-22-0044-I-1,
2022 MSPB LEXIS 3717, at *1 (Sep. 28, 2022) (Decision).
In its decision, the Board considered OPM’s argument re-
garding Mr. McGowan’s credibility given his testimony on
the origin of his PTSD. The Board found that OPM’s evi-
dence—that “the U.S.S. Okinawa was not even in the
Strait[ ] of Hormuz region” when the U.S.S. Stark attack
occurred—was unrebutted and thus found Mr. McGowan’s
testimony was not credible. Id. at *14–15. And since
Mr. McGowan had made the same claims to his medical
providers, the Board determined that “any of the infor-
mation [Mr. McGowan] provided to his treatment provid-
ers” was also not credible. Id. at *15–16 (“Given the gravity
and severity of the appellant’s fabrications, I find it impos-
sible to conclude that any of his statements to his treat-
ment providers were credible.”).
The Board then turned to the medical evidence. Id.
at *16–18. It found that “none of [Mr. McGowan’s] prof-
fered evidence provide a reasoned explanation of how cer-
tain aspects of his alleged condition render him unable to
perform specific work requirements.” Id. at *17. The Board
then recognized there was no “objective medical evidence,
such as tests or recognized psychiatric criteria against
which to measure his symptoms, that he suffers from a dis-
abling condition.” Id. While this lack of objective evidence
was not necessarily fatal to Mr. McGowan’s claim, all that
thus existed in the record was “subjective evidence pro-
vided directly by him and through his treatment provid-
ers.” Id. at *17–18. And since “most, if not all, of the
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MCGOWAN v. OPM 6
evidence he has provided constitutes his own ‘self report’ to
those who treated him,” the medical evidence also was not
credible. Id. at *18. The Board therefore affirmed OPM’s
reconsideration decision, denying Mr. McGowan’s applica-
tion for disability retirement benefits.
The Board denied Mr. McGowan’s petition for review
and the initial decision became final. Mr. McGowan timely
appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II
“Our review of a Board decision that affirms OPM’s de-
nial of a disability retirement application is extremely lim-
ited.” Davis v. Off. of Pers. Mgmt., 470 F.3d 1059, 1060
(Fed. Cir. 2006). Subject to limited exceptions not applica-
ble here, we are prohibited from reviewing the factual un-
derpinnings of a disability determination, including
findings of non-disability by OPM. Anthony v. Off. of Pers.
Mgmt., 58 F.3d 620, 624–25 (Fed. Cir. 1995) (“OPM’s fac-
tual findings and conclusions on disability may be reviewed
only by the Board (under [5 U.S.C. § 8461(e)(1)]) and not by
this court.”). Instead, we may consider only whether “there
has been a substantial departure from important proce-
dural rights, a misconstruction of the governing legislation,
or some like error ‘going to the heart of the administrative
determination.’” Lindahl v. Off. of Pers. Mgmt., 470 U.S.
768, 791 (1985) (citation omitted).
Procedural matters related to discovery and eviden-
tiary issues are reviewed under an abuse of discretion
standard. Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373,
1378 (Fed. Cir. 1988). “This court will not overturn the
board on such matters unless an abuse of discretion is clear
and is harmful.” Id. And, if the Board did abuse its discre-
tion, a petitioner must additionally “prove that the error
caused substantial harm or prejudice to his rights which
could have affected the outcome of the case” to prevail. Id.
at 1379.
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MCGOWAN v. OPM 7
III
Mr. McGowan primarily challenges the Board’s treat-
ment of evidence throughout the proceedings.
Mr. McGowan first suggests that the Board committed re-
viewable error in denying his disability retirement claim
by improperly focusing on the cause of his PTSD, to cate-
gorically ignore the medical evidence, when all that was
relevant under the proper analysis was that Mr. McGowan
had PTSD. Mr. McGowan then contends the Board erred
in allowing OPM to present additional evidence and argu-
ments not in OPM’s pre-trial submission, in violation of the
Board’s own pre-hearing order.
A
Mr. McGowan contends that the Board erred when
denying his disability retirement benefits by improperly fo-
cusing on the alleged cause of his PTSD, and then “flatly
refus[ing] to consider [Mr. McGowan’s] medical evidence”
after deeming it “subjective.” Reply Br. 3. Mr. McGowan
contends the cause of his disability is irrelevant under the
proper FERS entitlement analysis and that the undisputed
medical evidence showed he had PTSD. OPM argues that
Mr. McGowan’s challenge really concerns the factual un-
derpinnings of the determination that he was not disabled,
which we lack jurisdiction over.
To the extent Mr. McGowan challenges OPM’s disabil-
ity determination—namely, that Mr. McGowan failed to
show he has a disabling condition under the statutes gov-
erning retirement benefits—we agree with OPM that we
lack jurisdiction to review either OPM’s disability-related
factual findings or the Board’s affirmance of OPM’s find-
ings. See, e.g., Smith v. Off. of Pers. Mgmt., 784 F.2d 397,
399–400 (Fed. Cir. 1986). But, to the extent Mr. McGowan
alleges legal error, we disagree. See Vanieken-Ryals v. Off.
of Pers. Mgmt., 508 F.3d 1034, 1040 (Fed. Cir. 2007) (“Dis-
qualification of evidence because of its type is an imposition
of a legal standard because it inherently imposes a
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MCGOWAN v. OPM 8
categorical requirement. When the use of such a standard
is dispositive of disability retirement claims, they go to the
heart of the administrative determination . . . .”).
Mr. McGowan alleges that the Board excluded evi-
dence based solely on its type—because the evidence was
“subjective”—in a manner not grounded in statute or regu-
lation. He relies on Vanieken-Ryals, where the Board was
found to have committed legal error because it “reject[ed]
submitted medical evidence as entitled to no probative
weight at all solely because it lack[ed] so-called ‘objective’
measures such as laboratory tests.” Id. at 1042. Here, how-
ever, the Board did not categorically reject the medical ev-
idence simply because it was “subjective.” Instead, it noted
the lack of objective evidence and considered the subjective
evidence on its face. The Board recognized that the medical
evidence was based on medical providers’ assessments of
Mr. McGowan’s own statements, including the same back-
story on the cause of his PTSD. The Board then excluded
the subjective evidence not because of its type, but because
it was not entitled to any weight under its credibility as-
sessment of Mr. McGowan.
And to the extent Mr. McGowan alleges it was error for
the Board to consider the cause of his PTSD when as-
sessing his entitlement to disability retirement benefits,
the record reveals otherwise. As noted above, the Board
considered Mr. McGowan’s explanation of the cause of his
PTSD for the limited purpose of assessing Mr. McGowan’s
credibility, which in turn affected the credibility of the
medical evidence he provided. See Decision, 2022 MSPB
LEXIS 3717, at *14–18. The Board was entitled to do so.
See Frey v. Dep’t of Lab., 359 F.3d 1355, 1361 (Fed. Cir.
2004) (noting Board has discretion to make credibility
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MCGOWAN v. OPM 9
determinations). Therefore, we find no legal error in the
Board’s analysis.2
B
Mr. McGowan also argues that the Board abused its
discretion by allowing OPM to introduce new evidence in
its post-hearing brief—a purported breach of the pre-hear-
ing order. Mr. McGowan contends that he was prejudiced
by the Board’s consideration of this untimely evidence be-
cause he had relied on OPM’s pre-trial submissions in for-
mulating his approach.
Mr. McGowan, however, did not squarely object to the
evidence before the Board. See, e.g., Wallace v. Dep’t of the
Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (“[O]bjections
to the proceedings of an administrative agency [must] be
made while it has an opportunity for correction in order to
raise issues reviewable by the courts.” (alterations in orig-
inal) (quoting United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 37 (1952)). Mr. McGowan’s closing argu-
ment brief merely asserted that he “provided truthful,
hones[t] testimony during the hearing”; he did not move to
exclude or object to the evidence attached to OPM’s post-
hearing brief. J.A. 321. And while Mr. McGowan points to
2 Mr. McGowan also appears to suggest that the
Board’s characterization of his medical evidence as “subjec-
tive” was a consequence of its credibility finding. But these
are distinct concepts, and the record does not support that
contention. The subjective nature of the evidence does not
derive from any assessment of Mr. McGowan’s credibility.
See Vanieken-Ryals, 508 F.3d at 1041–42 (explaining that
“subjective” evidence in this context refers to medical evi-
dence that derives from testimony or written statements,
often of the patient’s experienced symptoms). The Board
therefore did not err in describing the evidence as subjec-
tive, irrespective of its separate credibility determination.
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MCGOWAN v. OPM 10
his response to OPM’s amended post-hearing brief, which
states “[i]f this amended brief is even permissible,”
J.A. 366, this statement is insufficient. See, e.g., Wallace,
879 F.2d at 832 (“[T]he issue must be raised with sufficient
specificity and clarity that the tribunal is aware that it
must decide the issue, and in sufficient time that the
agency can do so.”). The clause in question can hardly be
said to be a clear objection or statement seeking to exclude
the attached exhibits as untimely or in violation of the
Board’s pre-hearing order. We therefore find that
Mr. McGowan has forfeited this argument.3 See, e.g., Wal-
lace, 879 F.2d at 832–33; cf. Kievenaar v. Off. of Pers.
Mgmt., 421 F.3d 1359, 1363 (Fed. Cir. 2005) (finding issue
preserved because “the [reviewing tribunal was] able to
consider the issue and make thoughtful, reasoned decisions
regarding it”).
And, in any event, even if Mr. McGowan had preserved
this challenge to the Board’s treatment of OPM’s evidence,
it is within the Board’s broad discretion to permit such ev-
idence. Curtin, 846 F.2d at 1378 (citing 5 C.F.R.
§ 1201.41(a)–(b)). The Board found it could not “ignore com-
ments [Mr. McGowan] made under oath during the hear-
ing, as well as those he made to his treatment providers,
particularly in an appeal involving allegations of psychiat-
ric disability that turns . . . on subjective evidence provided
by the appellant.” Decision, 2022 MSPB LEXIS 3717,
at *18. Mr. McGowan had the opportunity to rebut OPM’s
evidence to seek to restore his credibility but did not do so.4
3 In its final order denying review, the Board also
found that Mr. McGowan was raising arguments about the
Board’s handling of evidence “for the first time despite hav-
ing had the opportunity to raise them below.” J.A. 24 n.2.
4 Mr. McGowan submitted evidence that he was sta-
tioned on the U.S.S. Okinawa, but this was not disputed.
The dispute concerned whether the U.S.S. Okinawa, and
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MCGOWAN v. OPM 11
We cannot say that the Board abused its discretion in al-
lowing OPM’s post-hearing arguments and evidence.
IV
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
thus Mr. McGowan, was involved in the aftermath of the
attacks on the U.S.S. Stark, which Mr. McGowan never di-
rectly addressed.
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