United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

DEPARTMENT OF THE ARMY, 

TRAINING & DOCTRINE COMMAND, 

Kandahar Province, Afghanistan, Employer 

__________________________________________ 

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Docket No. 15-296 

Issued: April 9, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 21, 2014 appellant, through counsel, filed a timely appeal from a 

September 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he sustained an 

employment-related injury on July 14, 2012. 

On appeal counsel asserts that the September 3, 2014 OWCP decision is contrary to law 

and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a March 19, 2014 decision, the Board 

found the case not in posture for decision. The Board found the opinion of Dr. Paul M. Joslin, a 

Board-certified internist, was sufficient to require further development of the medical record and 

remanded the case to OWCP to refer appellant, an updated statement of accepted facts, and the 

medical evidence of record to an appropriate Board-certified specialist for an examination, 

diagnosis, and a rationalized opinion as to whether appellant established that employment factors 

caused or aggravated his back or left lower extremity condition.2

 The law and facts of the 

previous Board decision are incorporated herein by reference. 

Subsequent to the Board’s March 19, 2014 decision, OWCP requested that the employing 

establishment provide a copy of appellant’s position description and information regarding his 

deployment to Afghanistan, the date he stopped work, and the reason for his departure. It also 

referred appellant to Dr. John J. Sand, a Board-certified neurologist, for a second opinion 

evaluation. Dr. Sand was provided a statement of accepted facts and a set of questions. 

On May 13, 2014 the employing establishment forwarded a position description and two 

Notifications of Personnel Action (Form 50). The first Form 50, effective August 29, 2011, 

indicated that appellant’s appointment on that date was “excepted” and not to exceed October 28, 

2013 and was subject to completion of 14 months. The second Form 50, effective October 28, 

2012, indicated that appellant was terminated due to the expiration of appointment. 

In a May 21, 2014 report, Dr. Sand noted his review of the medical record and the 

July 2012 incident. He indicated that neurological examination revealed that appellant was 

awake, alert, and oriented. Mental status was intact, and speech and language were normal. 

Pseudobulbar affect was not noted during the evaluation, and cranial nerves II through XII were 

intact. Motor examination revealed minimal weakness of the left hip and knee flexors with 

otherwise normal strength and tone throughout. Sensory examination was normal to touch, pin 

and stereognosis. Gait was normal on heels, on toes, and in tandem. Romberg test was 

negative. Finger to nose and heel to shin were normal, and rapid alternating movements were 

minimally slowed in the left foot. Dr. Sand diagnosed generalized muscle weakness. He advised 

 

 2 Docket No. 13-1409 (issued March 19, 2014). Appellant filed a traumatic injury claim, alleging that on July 14, 

2012 he sustained mono peripheral neuropathy of the lower left leg and foot. He indicated that, after sitting for 45 

minutes at a remote Afghanistan location while in full combat gear, his left foot became numb and he could not walk 

normally when he stood, which caused him to fall. Appellant was treated by an Army medic that day and did not 

receive treatment from a physician until July 20, 2012. He was medically evacuated to the United States on 

August 15, 2012. In reports dated January 15 and 16, 2013, Dr. Joslin described the history of injury. He diagnosed 

left lower extremity paresis and numbness, lumbar radiculopathy and cerebrovascular disease. Dr. Joslin indicated 

that his medical opinion and explanation as to how the reported work incident caused or aggravated the diagnosed 

conditions would include two possibilities, both related to appellant’s work in Afghanistan: first, that appellant’s 

left lower extremity weakness, numbness, and foot drop were due to lumbar radiculopathy which would presumably 

be caused by disc bulging related to carrying an 80- to 100-pound pack. He opined that this would be a less likely 

explanation, in light of the absence of focal disc protrusion, spinal stenosis or foraminal encroachment shown on a 

September 11, 2012 lumbar magnetic resonance imaging (MRI) scan, indicating that the most likely explanation was 

that appellant’s left lower extremity paresis, sensory deficit and foot drop were caused by an ischemic 

cerebrovascular accident in the right middle cerebral artery distribution, due to dehydration and hypovolemia in 

combination with extreme heat while on patrol in Afghanistan. Dr. Joslin concluded that appellant had recovered 

completely. 
3

that appellant had a slowly resolving left lower extremity weakness syndrome, with 

symptomatology that had been stable for approximately one year, with minimal residual. 

Dr. Sand opined that appellant’s history was consistent with a small right frontal cerebral 

infarction with sudden onset, stability for a few days or weeks, and then slow improvement over 

3 to 12 months. He also stated that the history would also be consistent with peripheral nerve 

injury, stating that if this were the case, he would expect more sensory symptoms including pain 

and numbness. Dr. Sand indicated that it was difficult to reconstruct “this unusual situation” 

almost two years after the onset of symptoms, especially since neurologic evaluation and 

subsequent testing did not occur for weeks or months after the onset of symptoms. He stated that 

there would always be some question as to the diagnosis and causes of appellant’s left leg 

weakness, but felt that the most likely diagnosis was a small right frontal cerebral infarction. 

Dr. Sand indicated that this was not due to dehydration because appellant would have had 

additional symptoms and bilateral findings. He concluded that the diagnosis of probable stroke 

was not related to work activities and indicated that a less likely alternative diagnosis was a 

peripheral nerve injury such as an L6 radiculopathy, which would be related to his work 

activities. 

On May 27, 2014 appellant forwarded copies of an award presented to appellant and of a 

photograph of him with the gear he wore when traveling in Afghanistan from one command 

outpost to another. He also provided a Department of Defense Directive dated January 23, 2009 

concerning civilian expeditionary workforce. This included the employing establishment’s 

policy regarding employees who became ill or when injured while deployed. 

In a supplemental report dated July 2, 2014, Dr. Sand indicated that appellant had a high 

likelihood that his left leg weakness was due to a stroke and was unrelated to work. He 

concluded, “I cannot be completely certain as to the cause of [appellant’s] difficulties, but feel a 

diagnosis of stroke with reasonable certainty.” On July 28, 2014 Dr. Sand indicated that there 

were no clear test results indicating a stroke and electrodiagnostic testing suggested lumbar 

radiculopathy which would be a lower back problem. He stated that the minimal findings on 

examination revealed weakness most consistent with stroke or other upper motor neuron cause, 

rather than radiculopathy. Dr. Sand further opined that the sudden onset of symptoms was much 

more stroke-like rather than a radiculopathy. He concluded that uncertainty remained as to the 

diagnosis of either stroke or radiculopathy or both but that the findings on examination and the 

sudden onset of symptoms were more suggestive of stroke and were therefore unrelated to 

appellant’s employment. 

In a merit decision dated September 3, 2014, OWCP found that, based on Dr. Sand’s 

opinion that appellant’s condition was likely caused by suspected stroke, unrelated to 

employment, appellant did not establish that he sustained an employment-related medical 

condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim including the fact that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged 
4

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury. Regardless of whether the asserted claim involves traumatic 

injury or occupational disease, an employee must satisfy this burden of proof.3 

 OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the 

body caused by a specific event or incident or series of events or incidents within a single 

workday or shift.4

 To determine whether an employee sustained a traumatic injury in the 

performance of duty, OWCP must determine whether “fact of injury” is established. First, an 

employee has the burden of demonstrating the occurrence of an injury at the time, place, and in 

the manner alleged, by a preponderance of the reliable, probative, and substantial evidence. 

Second, the employee must submit sufficient evidence, generally only in the form of medical 

evidence, to establish a causal relationship between the employment incident and the alleged 

disability and/or condition for which compensation is claimed. An employee may establish that 

the employment incident occurred as alleged, but fail to show that his or her disability and/or 

condition relates to the employment incident.5

 

 Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.6

 The opinion of the physician must be 

based on a complete factual and medical background of the claimant, must be one of reasonable 

medical certainty, and must be supported by medical rationale explaining the nature of the 

relationship between the diagnosed condition and the specific employment factors identified by 

the employee.7 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.8 

ANALYSIS 

The Board finds this case is not in posture for decision as to whether appellant sustained 

an employment-related injury on July 14, 2012. In its September 3, 2014 decision, OWCP found 

that the weight of the medical evidence rested with Dr. Sand who provided a second opinion 

evaluation. The Board finds, however, that a conflict exists in the medical evidence with respect 

to whether appellant’s diagnosed conditions were caused or aggravated by the July 12, 2012 

incident. 

In reports dated January 15 and 16, 2013, Dr. Joslin, an attending internist, diagnosed left 

lower extremity paresis and numbness, lumbar radiculopathy, and cerebrovascular disease. He 

indicated that there were two possibilities regarding how the July 2012 incident caused or 

 3 Gary J. Watling, 52 ECAB 278 (2001). 

4

 20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004). 

5 Supra note 3. 

6 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

7 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

8 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
5

aggravated the diagnosed conditions, both related to appellant’s work in Afghanistan: first that 

his left lower extremity weakness, numbness, and foot drop were due to lumbar radiculopathy 

which would presumably be caused by disc bulging related to carrying an 80- to 100-pound 

pack. Dr. Joslin opined that this would be a less likely explanation, in light of the absence of 

focal disc protrusion, spinal stenosis, or foraminal encroachment shown on a September 11, 2012 

lumbar MRI scan, and that the most likely explanation was that appellant’s left lower extremity 

paresis, sensory deficit, and foot drop were caused by an ischemic cerebrovascular accident in 

the right middle cerebral artery distribution, due to dehydration and hypovolemia in combination 

with extreme heat while on patrol in Afghanistan. He concluded that appellant had recovered 

completely. 

In reports dated May 21, July 2 and 28, 2014, Dr. Sand diagnosed generalized muscle 

weakness, stating that appellant had a slowly resolving left lower extremity weakness syndrome, 

with symptomatology that had been stable for approximately one year, with minimal residual. 

He opined that the history would be consistent with a small right frontal cerebral infarction with 

sudden onset, stability for a few days or weeks, and then slow improvement over 2 to 12 months. 

However, the history would also be consistent with peripheral nerve injury, and that, if this were 

the case, he would expect more sensory symptoms including pain and numbness. Dr. Sand 

indicated that it was difficult to reconstruct “this unusual situation” almost two years after the 

onset of symptoms, especially since neurologic evaluation and subsequent testing did not occur 

for weeks or months after the onset of symptoms. He stated that, while there would always be 

some question as to the diagnosis that caused appellant’s left leg weakness, there was a high 

likelihood that he had a small right frontal cerebral infarction. Dr. Sand opined that this was not 

due to dehydration because then appellant would have had additional symptoms and bilateral 

findings and concluded that the diagnosis of probable stroke was not related to work activities. 

He indicated that a less likely alternative diagnosis was a peripheral nerve injury such as lumbar 

radiculopathy, which would be related to his work activities. In a supplemental report dated 

July 2, 2014, Dr. Sand indicated that appellant had a high likelihood that his left leg weakness 

was due to a stroke and was unrelated to work, indicating that the minimal findings on 

examination revealed weakness most consistent with stroke or other upper motor neuron cause, 

rather than radiculopathy. He further opined that the sudden onset of symptoms was much more 

stroke-like rather than a radiculopathy. Dr. Sand concluded that uncertainty remained as to the 

diagnosis of either stroke or radiculopathy or both but that the findings on examination and the 

sudden onset of symptoms were more suggestive of stroke and were therefore unrelated to 

appellant’s employment. 

If there is disagreement between OWCP’s referral physician and the employee’s treating 

physician, OWCP will appoint a third physician who shall make an examination.9

 For a conflict 

to arise, the opposing physicians’ viewpoints must be of virtually equal weight and rationale.10 

Dr. Joslin and Dr. Sand are in agreement that the most likely cause of appellant’s lower 

extremity weakness was a stroke. They, however, disagree as to whether the stroke was caused 

by the July 14, 2012 employment incident. The Board finds their opinions to be of equal weight 

as to whether the diagnosed stroke was caused by the July 14, 2012 employment incident. The 

 9

 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

10 Darlene R. Kennedy, 57 ECAB 414 (2006). 
6

Board will set aside the September 3, 2014 decision and remand the case for OWCP to refer 

appellant to an impartial medical specialist to resolve the conflict. The impartial medical 

specialist should review the reports of both Dr. Joslin and Dr. Sand, along with the case record 

and statement of accepted facts, and provide a rationalized opinion as to whether appellant’s 

diagnosed condition was caused or aggravated by the July 14, 2012 incident. After such further 

development as it deems necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds this case is not in posture for decision as there is an unresolved conflict 

in medical evidence regarding whether appellant met his burden of proof to establish that he 

sustained an employment-related injury on July 14, 2012. 

ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: April 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board