United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

DEPARTMENT OF THE AIR FORCE, BIEN 

HOA AIR BASE, Vietnam, Employer

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Docket No. 18-0315

Issued: October 5, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 27, 2017 appellant filed a timely appeal from an August 29, 2017 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 filed a timely claim for compensation under section 8122 of 

FECA.

FACTUAL HISTORY

On April 27, 2016 appellant, then an 83-year-old former distribution facilities manager, 

filed an occupational disease claim (Form CA-2) alleging that he sustained Type 2 diabetes 

mellitus, peripheral neuropathy, ischemic heart disease, a thyroid condition, dizziness/vertigo, and 

 

1 5 U.S.C. § 8101 et seq.
2

cholesterol problems causally related to exposure to herbicides and Agent Orange while in 

Vietnam in 1967. He related that he first became aware of his claimed condition on June 15, 2011 

and attributed it to his federal employment on October 1, 2011. Appellant had retired from the 

employing establishment on December 3, 1987.

Appellant submitted a letter of appreciation that he received from the employing 

establishment for his service in Vietnam from September 13 to December 16, 1967. He also 

submitted a December 2, 2011 letter from coworkers confirming that he volunteered to go to 

Vietnam in 1967 to support the Rapid Area Supply Support (RASS) team while working in 

distribution at the employing establishment.

By development letter dated May 2, 2016, OWCP requested that appellant submit 

additional factual and medical information in support of his claim, including evidence that his 

claim was filed within three years of the date he first became aware of the relationship between 

his claimed condition and his federal employment. It also advised appellant to provide a detailed 

description of his exposure to herbicides and Agent Orange while in Vietnam and reasoned 

medical evidence supporting that he sustained a diagnosed condition causally related to the 

identified employment factors.

In a May 31, 2016 statement, appellant related that he went to Vietnam on a temporaryduty assignment from September 13 until December 17, 1967. The area where he worked had 

been sprayed with Agent Orange and other herbicides. In June 2011, appellant communicated 

with veterans who had been exposed to Agent Orange and they recommended that he speak with 

the Department of Veterans Affairs (DVA). 

On October 19, 2011 appellant filed a DVA claim asserting that his Agent Orange exposure

in Vietnam caused vertigo, ischemic heart disease, prostate cancer, diabetes mellitus, Type 2, and 

post-traumatic stress disorder. By decision dated January 10, 2013, the DVA denied his claim

finding that the claimed conditions were unrelated to military service. 

By decision dated October 25, 2016, OWCP denied appellant’s claim, finding that it was 

untimely filed pursuant to 5 U.S.C. § 8122, as he failed to file his claim within three years of 

October 19, 2011. It noted that appellant’s filing of a claim for Agent Orange exposure with the 

DVA indicated that he was aware of the relationship between his claimed conditions and the work 

exposure no later than October 19, 2011. 

Appellant, on November 19, 2016, requested a telephone hearing before an OWCP hearing 

representative. During the telephone hearing, held on June 15, 2017, he testified that he first 

became aware of his claimed conditions on June 15, 2011 and attributed them to his federal 

employment on October 1, 2011. Appellant noted that he filed a claim with the DVA on 

October 19, 2011, but the DVA denied his claim in January 2013 after finding that his diagnosed 

conditions were not service related since he was a civilian employee in Vietnam, not a military 

service member. He noted that the DVA provided a presumption of exposure to Agent Orange 

only for military service members in Vietnam.

In a July 1, 2017 letter, appellant asserted that the military kept its use of Agent Orange 

secret. He submitted provisions related to the Defense Base Act.
3

By decision dated August 29, 2017, OWCP’s hearing representative affirmed the 

October 25, 2016 decision. She found that appellant’s claim was untimely as it was not filed within 

three years of the date that he was first aware that his condition was related to his federal 

employment. The hearing representative further determined that there were no exceptional 

circumstances under section 8122(d) that would excuse his failure to comply with the time 

limitation provisions. 

LEGAL PRECEDENT

For injuries occurring between December 7, 1940 and September 6, 1974, the time 

limitation provisions of FECA require that an injured employee file a claim for compensation 

within one year after the injury.2 The one-year requirement may be waived provided the claim is 

filed within five years after the injury or death and: (1) the failure to timely file was due to 

circumstances beyond the control of the employee; or (2) the employee has shown sufficient cause 

or reason in explanation of the failure to file within one year and material prejudice to the interest 

of the United States has not resulted.3

In 1974, section 8122(a) of FECA was amended to provide that, for injuries and deaths on 

or after September 7, 1974, an original claim for compensation for disability or death must be filed 

within three years after the injury or death.4 If the claim is not filed within three years, 

compensation may still be allowed if: (1) written notice of injury or death was given within 30 

days as specified in 5 U.S.C. § 8119; or (2) the immediate supervisor had actual knowledge 

(including verbal notification) of the injury or death within 30 days after occurrence. The 

knowledge or notification must be such as to put the immediate supervisor reasonably on notice 

of an on-the-job injury or death.5

In a case involving a claim for an occupational disease or illness, the time does not begin 

to run until the claimant is aware, or reasonably should have been aware, of causal relationship 

between his or her claimed condition and their federal employment.6 In situations where the 

exposure to an injurious employment factor continues after the employee gains such awareness, 

the time for filing a claim begins to run on the date of the employee’s last exposure to those 

 

2 5 U.S.C. § 8122 (1968); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3b 

(March 1993).

3

Id.; see also Allen E. Grether, 24 ECAB 76 (1972).

4 5 U.S.C. § 8122 (1974); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a

(March 1993).

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993). See Charles Walker, 

55 ECAB 238 (2002); William L. Gillard, 33 ECAB 265, 268 (1981).
4

factors.7 The time limitations do not run against an incompetent individual while he or she is 

incompetent and has no duly appointed legal representative.8 

ANALYSIS

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

Appellant filed an occupational disease claim on April 27, 2016 alleging that he sustained 

multiple conditions causally related to exposure to herbicides and Agent Orange during the time 

that he worked in Vietnam from September 13 to December 16, 1967. He reported that he first 

became aware of the relationship between his claimed conditions and factors of his federal 

employment on October 1, 2011. Appellant submitted a letter from the employing establishment 

confirming his work in Vietnam from September 13 to December 16, 1967. 

Under FECA, the date of injury governs which time limitation provision applies.

9

 Where 

an injury is sustained over a period of time, the date of injury is the date of last exposure to the 

work factors causing an injury.10 In this case, the date of injury is December 16, 1967, the date of 

appellant’s last exposure to the implicated work factors. 

OWCP’s hearing representative denied appellant’s claim, finding that it was not filed 

within three years of October 19, 2011, the date that appellant filed his DVA claim. OWCP’s 

procedures provide, however, that for injuries occurring between December 7, 1940 and 

September 6, 1974, a claim for compensation must be filed within one year after the injury or 

death, and as noted, the one-year requirement may be waived under certain circumstances if the 

claim is filed within five years and certain criteria are met.

11

 

The Board thus finds that OWCP’s hearing representative incorrectly applied the threeyear time limitation standard applicable to injuries or deaths after September 7, 1974. The case 

shall, therefore, be remanded for OWCP to apply the appropriate time limitation standard for 

injuries occurring between December 7, 1940 and September 6, 1974 and make a proper 

determination on the issue of whether appellant’s claim was timely filed.

12

 After such further 

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

CONCLUSION

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

 

7

Id.; see also Patricia K. Cummings, 53 ECAB 623 (2002); Jaried M. Bailey, 26 ECAB 9 (1974).

8 Allen E. Grether, supra note 3.

9 See J.R., Docket No. 07-2278 (issued May 19, 2008); J.B., 58 ECAB 468 (2007).

10 See Patricia K. Cummings, supra note 7.

11 See supra note 3.

12 See J.B., supra note 9.
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ORDER

IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: October 5, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board