United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., widow of W.H., Appellant

and

DEPARTMENT OF DEFENSE, NATIONAL 

SECURITY AGENCY, Fort Meade, MD, 

Employer

__________________________________________

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Docket No. 20-1140

Issued: June 15, 2021

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 14, 2020 appellant, through counsel, filed a timely appeal from a January 30, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has established entitlement to the death gratuity benefit 

under 5 U.S.C. § 8102a. 

FACTUAL HISTORY

OWCP, under OWCP File No. xxxxxx885, accepted that the employee’s death on 

September 28, 2016 was related to Agent Orange and dioxin exposure while stationed in Vietnam 

in the early 1970’s.3It found that appellant, the deceased employee’s surviving spouse, was an 

eligible dependent for the consideration of survivor benefits under FECA. OWCP paid appellant

compensation on the periodic compensation rolls for the employee’s death commencing 

March 31, 2019.

On May 1, 2019 appellant filed a survivor benefits claim (Form CA-41) claiming death 

gratuity benefits under 5 U.S.C. § 8102a. She indicated that the employee was exposed to Agent 

Orange at Bien Hoa Air Base while the Armed Forces were conducting a contingency operation 

in the region in the early 1970’s. The employee died on September 28, 2016. 

OWCP created a death gratuity claim, which it assigned the claim OWCP File No. 

xxxxxx041. In a May 3, 2019 development letter, it requested that appellant provide information 

regarding whether the employee died of injuries incurred in connection with the employee’s 

service with an Armed Force in a contingency operation. OWCP also noted that 20 C.F.R. 

§ 10.903 allows the death gratuity payment to be retroactively applied if “the employee died on or 

after October 7, 2001 and before January 28, 2008,

4

if the death was the result of injuries incurred 

in connection with the employee’s service with an Armed Force in the theater of operations of 

Operation Enduring Freedom or Operation Iraqi Freedom.”

Also on May 3, 2019, under separate cover, OWCP provided the employing establishment 

with the Form CA-42 and requested that it complete the form. It also requested any information 

that established that the employee was serving with an Armed Force as set forth under the criteria 

noted for a death gratuity claim. 

In a May 10, 2019 letter, counsel advised that the employee died on September 28, 2016 

due to injurious exposure of Agent Orange in Vietnam in 1970-1971. He argued that appellant 

was entitled to the death gratuity benefits because the employee died on September 28, 2016, after 

the new section 8102a was adopted, and there was no limitation enumerated in the statue, public 

law, regulation or Federal (FECA) Procedural Manual for employees who died after the law was 

adopted. Counsel further noted that the section pertaining to retroactive awards applied only to 

 

3 The record reflects that the employee, an Integrated Analyst, was assigned to the Army’s 175th Radio Research 

Field Station at Bien Hoa Air Force Base, Vietnam in the early 1970’s. 

4 The National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, was enacted on 

January 28, 2008. Section 1105 of Public Law 110-181 amended FECA, creating a new section 8102a. 
3

deaths that happened before the law was adopted and was not applicable in this case as the 

employee died well after the adoption of the law.

In a June 25, 2019 letter, the employing establishment indicated that the employee was 

retired. It further advised that it did not have the employee’s file/information records, which had 

been sent to the Department of Labor. 

By decision dated July 2, 2019, OWCP denied appellant’s claim for death gratuity benefits. 

It found that the evidence failed to establish that the employee’s death was incurred in connection 

with service with an Armed Force in the contingency operations of Operation Enduring Freedom 

or Operation Iraqi Freedom.

On July 31, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. In briefs dated October 22 and 

November 5, 2019, counsel set forth several arguments as to why appellant’s death gratuity 

benefits claim should be accepted. He asserted that, by definition under 20 C.F.R. 

§ 10.912(d)(1)(A), the Vietnam War was a contingency operation. Counsel argued that the 

retroactive provision was not relevant as the employee’s death was after the enactment of the 2008 

law. He also argued that the death gratuity provision was not limited to deaths related to Operation 

Enduring Freedom or Operation Iraqi Freedom. 

A telephonic hearing was held on November 15, 2019. Counsel testified that the employee 

was assigned to the Army’s 175

th Radio Research Field Station at Bien Hoa Air Force Base during 

the Vietnam War from 1971 to 1972. He indicated that the employee was in Vietnam during 

Operation Ranch Hand where he was exposed to Agent Orange. Counsel also presented 

arguments, as set forth in his briefs, that appellant should be entitled to the claimed death gratuity 

benefit under 5 U.S.C. § 8102a. 

By decision dated January 30, 2020, an OWCP hearing representative affirmed OWCP’s 

July 2, 2019 decision. The hearing representative found that there was no provision under the law 

to provide death gratuity benefits to deaths sustained from other military contingency operations

and concluded that the Vietnam War was not a contingency operation. The hearing representative 

further found that the death gratuity benefit was only for injuries as identified in the operation of 

Operation Enduring Freedom or Operation Iraqi Freedom. The hearing representative instructed 

OWCP to combine the current claim with OWCP File No. xxxxxx885, with OWCP File No. 

xxxxxx885 serving as the master file. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA5 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 

 

5 See supra note 2.
4

period of FECA,6that 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.7

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.8 Under FECA an “employee” means, but is not limited to, “a civil officer or employee” in 

any branch of the government of the United States, including an officer or employee of an 

instrumentality wholly owned by the U.S.9 The definition also includes an individual rendering 

personal service to the U.S. similar to the service of a “civil officer or employee” of the U.S.,

without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or 

authorizes payment of travel or other expenses of the individual.10

Chapter 2.0700.21 of OWCP’s procedures11 discusses the FECA Death Gratuity as 

follows: 

“The National Defense Authorization Act for Fiscal Year 2008, Public Law 110-

181 amended the FECA, creating a new section 8102(a). The section establishes a 

new FECA benefit for eligible survivors of federal employees and NonAppropriated Fund Instrumentality (NAFI) employees who die of injuries incurred 

in connection with service with an Armed Force in a contingency operation. 

“Section 8102a states that the United States will pay a death gratuity of up to 

$100,000[.00] to those survivors upon receiving official notification of the 

employee’s death. Section 8102a also states that the United States will pay the 

death gratuity to the eligible survivors ‘immediately upon receiving official 

notification’ of an employee’s death. There is a retroactive payment provision, 

stating that the death gratuity will be paid for employees of certain agencies who 

died on or after October 7, 2001, due to injuries incurred in connection with service 

with an Armed Force in the theater of operations of Operation Enduring Freedom 

and Operation Iraqi Freedom. Regulations implementing the FECA death gratuity 

are set forth at 20 C.F.R. [§] 10.900-916. The $100,000[.00] death gratuity is offset 

and reduced by any other death gratuity paid for the same death.”

 

6 See H.S., Docket No. 19-1183 (issued December 19, 2019); T.C., Docket No. 19-0227 (issued July 11, 2019); 

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

7 See H.S., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, 

Sr., 40 ECAB 312 (1988).

8 5 U.S.C. § 8102(a).

9

Id. at § 8101(a)(A); 20 C.F.R. § 10.5(h)(1).

10 Id. at § 8101(a)(B); id. at § 10.5(h)(2).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.0700.21 (September 2020). 
5

Part 10, Claims for Compensation under the FECA, as amended, subpart J., Death Gratuity 

states: 

Under 20 C.F.R. § 10.902 an employee’s death due to injuries incurred in 

connection with his or her service with an Armed Force in a contingency operation 

qualifies for the death gratuity administered by this subpart if the death occurs on 

or after January 28, 2008, the date of enactment of Public Law 110-181 (2008). 

Under 20 C.F.R. § 10.903, an employee’s death qualifies for the death gratuity if 

the employee died on or after October 7, 2001 and before January 28, 2008, if the 

death was the result of injuries incurred in connection with the employee’s service 

with an Armed Force in the theater of operations of Operation Enduring Freedom 

or Operation Iraqi Freedom.

Under 20 C.F.R. § 10.904, if an employee’s death results from an occupational 

disease incurred in connection with the employee’s service in a contingency 

operation, the death qualifies for payment of the death gratuity under this subpart. 

Under 20 C.F.R. § 10.905, if an employee incurs a covered injury in connection 

with his or her service with an Armed Force in a contingency operation, but does 

not die of the injury until years later, the death qualifies for the death gratuity of 

this subpart regardless of how long after the injury the employee’s death occurs.

ANALYSIS -- ISSUE 1

The Board finds that appellant has established entitlement to the death gratuity benefit 

under 5 U.S.C. § 8102a. 

The employee, a retired Integrated Analyst who died on September 28, 2016, was exposed 

to Agent Orange at Bien Hoa Air Base, Vietnam in the early 1970’s while the Armed Forces were 

conducting the contingency operation of Operation Ranch Hand in the region. He passed away on 

September 28, 2016. Under OWCP File No. xxxxxx885, OWCP accepted that the employee’s 

death on September 28, 2016 was related to Agent Orange and dioxin exposure while stationed in 

Vietnam in the early 1970’s. Appellant subsequently filed a survivor benefits claim (Form CA41) for death gratuity benefits under 5 U.S.C. § 8102a. OWCP, however, denied the death gratuity 

benefit claim based on a misinterpretation of 5 U.S.C. § 8102a and the retroactive payment 

provision of 20 C.F.R. § 10.903. 

Counsel argues, that OWCP ignored the plain language of section 8102a of FECA, 

20 C.F.R. §§ 10.902, 10.904, and 10.905 of the implementing regulations, and OWCP procedures, 

which allows for employees’ deaths that occur in connection with service with an Armed Force in 

a contingency operation to qualify for a death gratuity if the date of death is after January 28, 2008, 

the date section 8102a was enacted. 20 C.F.R. § 10.904 covers an employee’s death which results 

from an occupational disease incurred in connection with the employee’s service in a contingency 

operation. 20 C.F.R. § 10.905 indicates that when the employee, who incurs a covered injury, dies

of the injury years later, the death qualifies for the death gratuity regardless of how long after the 

injury the employee’s death occurs.
6

OWCP previously accepted that the employee’s death on September 28, 2016 was related 

to Agent Orange exposure in Vietnam in the early 1970’s. At the time of the employee’s exposure 

to Agent Orange, the employee’s record supports that the Armed Forces were also conducting the 

contingency operation of Operation Ranch Hand in the region. There is no evidence to the 

contrary. Thus, the employee’s death on September 28, 2016 occurred in connection with service 

with an Armed Force in a contingency operation of Operation Ranch Hand and appellant is entitled 

to the death gratuity benefit under 5 U.S.C. § 8102a. 

The Board also finds that OWCP erred in finding that the death gratuity provision was 

limited only to deaths related to Operation Enduring Freedom or Operation Iraqi Freedom. The 

retroactive provision of 20 C.F.R. § 10.903 applies only to those cases where the employee died 

before 2008 if they died in connection with Operation Enduring Freedom or Operation Iraqi 

Freedom. In this case, the retroactive provision under 20 C.F.R. § 10.903 is not applicable as the 

employee’s death occurred on September 28, 2016. 

CONCLUSION

The Board finds that appellant has established entitlement to the death gratuity benefit 

under 5 U.S.C. § 8102a. 

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board