United States Department of Labor

Employees’ Compensation Appeals Board

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R.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WHITE CITY DOMICILARY, White City, OR, 

Employer

__________________________________________

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Docket No. 18-0976

Issued: January 3, 2019

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 10, 2018 appellant filed a timely appeal from a March 22, 2018 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 to 

consider the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish a diagnosed medical 

condition causally related to the accepted employment-related asbestos exposure.

FACTUAL HISTORY

On January 10, 2017 appellant, then a 64-year-old retired hospital housekeeping officer, 

filed an occupational disease claim (Form CA-2) alleging that he developed lung cancer as a result 

 

1 5 U.S.C. § 8101 et seq.
2

of exposure to asbestos at the employing establishment. He noted that he first became aware of 

his claimed condition on July 24, 1985 and of its relationship to his federal employment on 

March 2, 2016. Appellant explained that he had not filed his claim within 30 days because he did 

not have medical documentation. On the reverse side of the claim form, a supervisor noted that 

appellant had retired on April 1, 2016 and the date of last exposure to the conditions alleged to 

have caused his condition was October 13, 1985.

By development letter dated April 7, 2017, OWCP noted that appellant had not provided 

documentation in support of his claim. It advised him of the type of factual and medical evidence 

needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to 

submit the necessary evidence.

In response, appellant submitted factual and medical evidence including a response to the 

provided questionnaire.

In a statement dated April 28, 2017, appellant explained that he was exposed to asbestos at 

work when he walked to his office down a hallway that was under construction.

In a May 19, 1982 asbestos screening questionnaire, appellant noted asbestos exposure for 

eight months at work. He checked “no” to the question of whether he had nonwork asbestos 

exposure.

Appellant submitted reports of various diagnostic tests. A July 24, 1985 pulmonary 

function study (PFS) reported mild obstructive ventilator defect. A January 29, 1986 x-ray 

interpretation revealed a normal chest. A May 15, 1987 PFS revealed evidence of mild diffuse 

obstructive disease. A March 14, 2014 computerized tomography (CT) scan revealed a 1.8 

centimeter pulmonary nodule, changes of remote granulomatous disease, and findings suspicious 

for primary or metastatic neoplasm. A January 21, 2016 CT scan of appellant’s left lung revealed 

a left upper nodule had increased in size from 3.66 to 6.91, changes of remote granulomatous 

disease, and findings suspicious for distant or regional metastasis. 

In an April 10, 2016 surgical report, Dr. Ross Michael Reul, a Board-certified thoracic 

surgeon, related that he had performed a lung resection on April 4, 2016.

Dr. Mary Schwartz, a Board-certified pathologist, reported findings of carcinoid tumor and 

left lung mass in an April 10, 2016 pathology report. She noted no interstitial fibrosis or 

pneumonia was identified in the lung parenchyma away from the tumor.

By decision dated July 20, 2017, OWCP denied appellant’s claim. It found that he had 

established that he was exposed to asbestos at work as alleged. However, appellant’s claim was 

denied as he failed to submit medical evidence establishing that his diagnosed medical condition 

was causally related to the accepted factors of his federal employment.

On August 14, 2017 OWCP received appellant’s request for an oral hearing before an 

OWCP hearing representative, which was postmarked on August 8, 2017. The oral hearing was 

held on January 17, 2017.
3

By decision dated March 22, 2018, OWCP’s hearing representative affirmed the July 20, 

2017 decision denying the claim. He found the medical evidence of record was insufficient to 

establish causal relationship.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of proof to establish 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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.5 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.7 The opinion of the physician must be based on a complete 

factual and medical background of the employee, 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.8 

 

2

Id. 

3 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5 D.U., Docket No. 10-0144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005).

6 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

7

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
4

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a diagnosed 

medical condition causally related to the accepted employment-related asbestos exposure.

Appellant submitted medical reports from his treating physicians which noted his cancer 

diagnosis and his lung resection, which was performed on April 4, 2016. However, neither

Dr. Reul nor Dr. Schwartz offered an opinion regarding the cause of the diagnosed cancer. 

Therefore, their reports are of no probative value in establishing causal relationship.9

OWCP also received diagnostic test reports. The Board has held, however, that such 

reports lack probative value as they do not provide an opinion on causal relationship between the 

accepted employment factor(s) and a diagnosed condition(s).

10

The Board has previously noted that lung cancer is a very broad diagnosis with many 

potential etiologies, but the only etiology claimed as work related by appellant was not noted by 

any physician. The lung cancer diagnosis therefore appears to be for a coincidental condition with 

several other potential causes not including exposure to asbestos.11 The Board finds that appellant 

has not established a diagnosis of asbestos-related lung cancer.

An award of compensation may not be based on surmise, conjecture, speculation, or on the 

employee’s own belief of causal relationship.12 Neither the fact that appellant’s claimed condition 

became apparent during a period of employment, nor his belief that the condition was caused by 

his employment, is sufficient to establish causal relationship.13 As appellant has not established

that his lung cancer was causally related to his exposure to asbestos, he has not met his burden of 

proof.

On appeal appellant asserts that his lung cancer was due to his asbestos exposure. For the 

reasons set forth above, the Board finds that appellant has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

 

9 Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is of 

no probative value on the issue of causal relationship. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).

10 See C.D., Docket No. 17-2011 (issued November 6, 2018). 

11 D.M., Docket No. 17-0677 (issued September 13, 2017). 

12 See B.A., Docket No. 17-1130 (issued November 24, 2017); S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 

(2007); Donald W. Long, 41 ECAB 142 (1989).

13 G.E., Docket No. 17-1719 (issued February 6, 2018); H.H., Docket No. 16-0897 (issued September 21, 2016).
5

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a diagnosed 

medical condition causally related to the accepted employment-related asbestos exposure.

ORDER

IT IS HEREBY ORDERED THAT the March 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 3, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board