United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.N., widow of B.N., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, HILL 

AIR FORCE BASE, UT, Employer 

__________________________________________ 

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Docket No. 15-373 

Issued: April 24, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 9, 2014 appellant, through counsel, filed an appeal from a November 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 the employee’s death on July 17, 2012 was causally related to 

factors of his federal employment. 

On appeal counsel asserts that the November 3, 2014 decision is contrary to fact and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, widow of the deceased employee, filed a claim for death benefits on 

October 20, 2012.2

 The claim form indicated that the employee had died on July 17, 2012, and 

that the cause of death was prostate cancer. He had retired under Civil Service Retirement 

System and had applied for benefits with the Department of Veterans Affairs (VA). An attached 

attending physician’s report, signed by appellant, provided a history that the employee spent two 

tours of duty as a civilian employee in Vietnam where he was exposed to Agent Orange and had 

been treated for advanced prostate cancer for 20 years. Additional diagnoses included lung and 

bone cancer. The form included a statement that “there has been [a] direct link between Agent 

Orange and prostate cancer.” A physician named Dr. Nicholas Vogelzang, Board-certified in 

internal medicine and oncology, was identified. In an undated letter appellant related that the 

employee had been employed at the employing establishment in Utah. She stated that he served 

in Vietnam in 1970 and had received the Vietnamese Air Service Medal. 

In a December 2, 2013 letter, OWCP requested that the employing establishment provide 

information from a knowledgeable supervisor regarding the employee’s claimed Agent Orange 

exposure. This was to include a precise description of his work assignment and frequency and 

duration of any exposure. In a separate letter, appellant was asked to provide documentation of 

the employee’s work history and a comprehensive medical report from his physician that 

explained how the Agent Orange exposure or other employment incidents contributed to his 

prostate cancer. 

The employee’s death certificate, signed by Dr. Warren Wheeler,3

 noted the immediate 

cause of death was carcinoma of the prostate. No additional causes were listed. 

Appellant furnished information regarding awards given to the employee. This indicated 

that in July 1970 he was awarded the Vietnamese Air Service Medal for assistance in instructing, 

scheduling, and controlling the installation of specific guns and rocket launchers on three 

squadrons of helicopters at Bien Hoa, Nha Trang, and Da Nang, Vietnam.4

By decision dated January 23, 2014, OWCP denied the claim because appellant had 

failed to provide evidence to support or establish that the employee was exposed to Agent 

Orange during his federal employment or that the employee’s prostate cancer and subsequent 

death were causally related to his employment noting that, as she apparently had completed and 

signed the attending physician’s report, it did not constitute medical evidence. 

 2

 The record indicates that appellant, through counsel, had previously contacted OWCP regarding filing a claim. 

Correspondence dated August 22, 2013 noted that counsel wrote OWCP trying to obtain a claim number. A 

facsimile transmittal from a District Director to counsel on October 31, 2013 acknowledges his request. On 

November 7, 2013 OWCP requested information from appellant regarding the employee. Appellant was asked to 

provide the name and address of the employing establishment where he was employed prior to retirement. OWCP 

also requested that appellant provide an attorney authorization. 

3

 Dr. Wheeler’s credentials could not be ascertained. 

4

 Appellant also forwarded the employee’s military service record. This indicated that he served active duty in 

the Coast Guard from February 23, 1946 until he was honorably discharged on February 24, 1948. 
3

Appellant, through counsel, timely requested a hearing, which was held on 

August 15, 2014. At the hearing appellant testified that she had not completed the claim form.5 

Counsel noted that the employee had received the Vietnamese Air Service Medal and maintained 

that under VA rules, if you had “boots on the ground” in Vietnam, a presumption existed 

regarding Agent Orange exposure. He requested that the record be left open to submit a report 

from Dr. Vogelzang. Nothing further was submitted. 

In a November 3, 2014 decision, an OWCP hearing representative affirmed the 

January 23, 2014 decision. He noted that no evidence had been received to establish exposure by 

the employee to Agent Orange. 

LEGAL PRECEDENT 

An appellant has the burden of proving by the weight of the reliable, probative, and 

substantial evidence that the employee’s death was causally related to his or her employment.6

On February 6, 1991 Congress enacted Pub. L. No. 102-4, Stat. 11, which provided a 

statutory presumption of service connection for diseases sustained by veterans associated with 

exposure to certain herbicide agents.7 Pursuant to this legislation, regulations were promulgated 

with listed diseases for which the presumption of service connection would apply. The 

legislation was made applicable to veterans in military service only and not to civilian employees 

who also served in Vietnam. Therefore, under FECA, a claimant who is not a veteran in military 

service bears the burden of proof in establishing his or her claim for compensation due to alleged 

exposure to Agent Orange.8

OWCP procedures provide that upon receipt of a new death claim, OWCP should ask the 

employing establishment to assist in compiling and to submit evidence required.9 The 

procedures further provide that OWCP should also ask the employing establishment to submit 

evidence regarding causal relationship.10 The claimant should be asked to furnish evidence 

including a death certificate and, if appropriate, a marriage certificate.11

ANALYSIS 

The Board finds that this case is not in posture for decision. Appellant, widow of the 

employee, filed a claim for death benefits on October 20, 2012. She asserted that the employee’s 

 5

 Appellant did not indicate who had completed the form. 

6 L.R. (E.R.), 58 ECAB 369 (2007). 

7

 Agent Orange Act of 1991, Pub.L.No. 102-4 § 2, 105 Stat. 11 (1991) codified in part at 38 U.S.C. § 316 (2000). 

8 D.I., 59 ECAB 158 (2007). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.4(c) (August 1994). 

10 Id. at Chapter 2.700.5(f) (November 1996). 

11 Id. 
4

exposure to Agent Orange while deployed as a civilian to Vietnam in the 1970s caused his 

prostate cancer which resulted in his death. 

As noted above, OWCP procedures provide that, after a death claim is filed, it should 

obtain information from the employing establishment. The procedures instruct OWCP to assist 

in compiling and submitting evidence, including evidence regarding causal relationship.12 On 

December 2, 2013 OWCP requested that the employing establishment provide information 

regarding the employee’s employment, including time in Vietnam and exposure to Agent 

Orange, the employing establishment did not respond. 

Although it is a claimant’s burden to establish his or her claim, OWCP is not a 

disinterested arbiter but, rather, shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment or other government source.13 Once it has begun an investigation of a claim, it 

must pursue the evidence as far as reasonably possible. OWCP has an obligation to see that 

justice is done.14

For these reasons, the Board finds that the case must be remanded for further 

development. OWCP shall request that the employing establishment submit any and all 

personnel and medical records pertaining to appellant’s claim in its possession.15 After 

conducting such further development, it shall issue a de novo decision. 

CONCLUSION 

The Board finds this case is not in posture for decision. 

 12 Id. at Chapters 2.700.4(c) and 2.700.5(f). 

13 See N.S., 59 ECAB 422 (2008). 

14 A.A., 59 ECAB 726 (2008). 

15 See T.M., Docket No. 14-1631 (issued December 2, 2014). 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 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 decision of the Board. 

Issued: April 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board