United States Department of Labor

Employees’ Compensation Appeals Board

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J.L., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

RAMSTEIN AIR FORCE BASE, Germany, 

Employer

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Docket No. 21-0440

Issued: June 23, 2022

Appearances: Case Submitted on the Record

Daniel DeCiccio, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 2, 2021 appellant, through counsel, filed a timely appeal from a December 7, 

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 met his burden of proof to establish intermittent 

disability from work for the periods January 11 to June 9, 2017 and June 28 to July 28, 2017 

causally related to his accepted employment condition. 

FACTUAL HISTORY

On September 27, 2016 appellant, then a 53-year-old military analyst, filed an occupational 

disease claim (Form CA-2) alleging that he developed an esophagus/gastrointestinal condition as 

a result of factors of his employment. He explained that he had a reaction from ingesting “malaria 

pills” while deployed in Afghanistan. Appellant indicated that he first became aware of his 

condition and realized its relationship to his federal employment on February 16, 2016.

Appellant submitted several employee health reports and hospital records dated June 3

through October 28, 2016, which indicated that he was treated for dysphagia and severe cervical 

stenosis. He also submitted diagnostic test reports, including a July 28, 2016 cervical spine 

computerized tomography (CT) scan, a September 9, 2016 cervical spine CT scan, a December 13, 

2016 magnetic resonance imaging (MRI) scan, a December 22, 2016 modified barium swallow 

test, and a December 23, 2016 cervical spine MRI scan. 

In reports dated December 12, 14, and 22, 2016, Dr. Mark E. Landau, a Board-certified 

neurologist and neurophysiologist, recounted appellant’s complaints of stiffness and difficulty 

coordinating hands bilaterally. He indicated that an electromyography (EMG) and nerve 

conduction velocity (NCV) study was abnormal and demonstrated findings in the upper extremity 

consistent with chronic, acute denervation most likely a manifestation of chronic cervical spine 

disease. Dr. Landau reported diagnoses of dysphagia and cervical myeloradiculopathy secondary 

to cervical spondylosis. 

In a January 3, 2017 report, Dr. Landau noted that evaluations of appellant’s 

gastrointestinal and speech language pathology demonstrated evidence of aspiration. He reported 

diagnoses of cervical myelopathy secondary to cervical spondylosis with spasticity, weakness, 

hyperreflexia, and dysphagia. Dr. Landau opined that, due to persistent neurological deficits, 

appellant would “unlikely be able to return to duty.”

In a February 9, 2017 letter, Dr. Landau explained that he had treated appellant from 

December 5, 2016 through January 31, 2017. He opined that appellant had two major problems 

that significantly interfered with his ability to work. Dr. Landau reported that appellant developed 

a condition called achalasia, which made it difficult to swallow and digest food. He opined that 

this developed while he was an employee at the employing establishment. Dr. Landau indicated 

that appellant also developed cervical spondylarthropathy and myeloradiculopathy, which led to 

neurological deficits. He recounted that appellant had undergone surgery to treat his neurological 

deficits, but saw no significant improvement. Dr. Landau reported that appellant currently 

complained of difficulty typing, lifting, and walking, which greatly interfered with any job 

performance.
3

In a March 10, 2017 report, Dr. Maresa Lugo, a neurologist, reported that appellant had 

been treated in the hospital since June 2016 when he was medically evacuated from Afghanistan 

due to severe swallowing difficulties and 40-pound weight loss. She explained that extensive 

evaluation revealed that appellant had achalasia and cervical stenosis leading to 

myeloradiculopathy. Dr. Lugo noted that appellant underwent neurosurgical intervention at the 

end of July 2016, but saw no significant improvement. She reported that appellant had permanent 

spinal cord damage (cervical myelopathy), pinched nerves in his neck (radiculopathy), and several 

neurological deficits. Dr. Lugo indicated that appellant had marked difficulty typing, lifting, and 

walking, which greatly interfered with any job performance. 

By decision dated March 20, 2017, OWCP denied appellant’s occupational disease claim 

finding that he had not established that his diagnosed medical condition was causally related to the 

accepted factors of his federal employment. 

On March 20, 2018 appellant, through counsel, requested reconsideration. By decision 

dated April 24, 2018, OWCP denied modification.3

On March 26, 2019 appellant, through counsel, requested reconsideration and submitted a 

March 9, 2019 report by Dr. Andres Velasco, a Board-certified family medicine physician, who 

recounted appellant’s history of injury and symptoms and opined that the conditions of dysphagia 

and esophageal problems were expected after taking doxycycline. He diagnosed esophageal druginduced esophagitis. 

By decisions dated April 11, 2019, OWCP vacated the March 20, 2017 decision and 

accepted appellant’s claim for drug-induced esophagitis. 

On May 29, 2019 appellant filed a claim for compensation (Form CA-7) for intermittent 

disability from work for the period May 26, 2016 through July 28, 2017. On the reverse side of 

the claim form, C.V., an injury compensation specialist for the employing establishment, noted 

that appellant stopped work on May 26, 2016. She also indicated that leave could not be verified 

at this time.

In a June 4, 2019 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish disability from work commencing May 26, 2016. It advised 

him of the type of additional evidence needed and provided a questionnaire for his completion. 

OWCP afforded appellant 30 days to provide the necessary evidence. 

In a July 30, 2019 letter, Dr. Dency Rivas, a Board-certified family medicine physician, 

indicated that he had reviewed appellant’s medical file in order to provide an opinion regarding 

appellant’s disability status from May 26, 2016 through July 28, 2017. He noted that appellant’s 

claim was accepted for drug-induced esophageal esophagitis and provided a detailed discussion of 

the medical treatment that appellant received from October 28, 2015 through July 18, 2017. 

Dr. Rivas indicated that on July 30, 2015 appellant passed predeployment medical and physical 

and was prescribed to take doxycycline hyclate daily for malaria. He explained that several oral 

medications may cause tissue damage if they remain in contact with the lining of the esophagus 

3 Appellant retired from federal employment, effective January1, 2019. 
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for too long, like the case of appellant who was given doxycycline and appeared to be dehydrated. 

Dr. Rivas opined that appellant’s esophagitis was caused by the ingestion of doxycycline. He 

indicated that appellant was on a percutaneous endoscopic gastrostomy (PEG) tube from 

approximately April 2016 through April 2017 and was severely malnourished between May 2016 

and July 2017 because he was unable to swallow. Dr. Rivas reported that appellant was unable to 

perform the required speech or talking functions of his job, such as giving comprehensive oral 

presentations and briefings. He also determined that, due to appellant’s weight loss, 

malnourishment, and depleted energy, appellant could not perform the physical demands of his 

job such as moving file cabinets, lifting computers and components, and wearing body armor. 

Dr. Rivas concluded that appellant was unable to work from May 26, 2016 through July 28, 2017 

due to his drug-induced esophagitis condition.

On August 16, 2019 appellant filed additional Form CA-7 claims for compensation for 

intermittent disability from work during the periods October 14, 2016 through July 18, 2017. On 

the reverse side of the claim forms C.V. indicated that the claimed disability had been verified.

4

In a letter dated August 20, 2019, OWCP informed the employing establishment that 

additional information was needed regarding appellant’s wage-loss compensation claim. It 

specifically requested that the employing establishment verify appellant’s pay status for the period 

February 16, 2016 through August 19, 2019 and provide a leave analysis or spreadsheet 

documenting the dates that appellant worked, was paid, or used leave.

In a letter dated October 31, 2019, OWCP informed the employing establishment that it 

had not received a response to its August 20, 2019 development letter. It again requested a leave

analysis for appellant. 

In a July 2, 2020 memorandum of telephone call (Form CA-110), the employing 

establishment indicated that appellant was paid his regular salary for the period of compensation 

claimed. It noted that appellant had an outstanding overpayment because he continued to receive 

hazardous duty pay even though he had left Iraq to go to the hospital in Germany. The employing 

establishment reported that appellant must resolve the overpayment issue before it could certify 

any other LWOP requests. 

In a July 21, 2020 letter, appellant’s attorney alleged that the employing establishment had 

ignored multiple requests for certification of payments made to appellant. He indicated that he 

was submitting appellant’s disability retirement application, which noted 250 hours of annual 

leave, 433 hours of sick leave, 1,228 hours of LWOP, and 176 hours absent without leave 

(AWOL). Counsel noted that appellant’s supervisor signed and certified the application on 

February 22, 2018. He submitted appellant’s disability retirement application. 

By decision dated July 21, 2020, OWCP denied appellant’s claim for compensation for

intermittent disability from work for the period October 14, 2016 through July 18, 2017. It noted 

that the medical evidence of record was insufficient to establish that appellant was unable to work 

4

In an attached time analysis (Form CA-7a), appellant claimed: 4.7 hours on October 14, 2016; 4 hours on 

December 1, 2016; 8 hours on December 2, 2016; 4 hours on January 10, 2017; and 4 hours on June27, 2017 for a 

total of 24.7 hours ofleave without pay (LWOP). He indicated that his reason for leave use was “doctor visit.” 
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during the claimed period due to the accepted condition(s). OWCP also indicated that it was 

unable to process appellant’s Form CA-7 claims until the employing establishment had verified 

appellant’s leave and certified his wage-loss compensation claim. 

On October 27, 2020 appellant, through counsel, requested reconsideration. 

Counsel submitted an undated and unsigned spreadsheet that included dates and hours of 

leave used and whether payment was issued a timeline of his correspondence with C.V., copies of 

e-mails with C.V. regarding the status of OWCP’s request for a leave analysis, and a signed 

affidavit from appellant.

By decision dated December 7, 2020, OWCP found that “the decision dated July 21, 2020 

is hereby modified and, thus, vacated in part, but also affirmed in part. As noted above, the dates 

of October 14, 2016; December 1, 2016; December 2, 2106; January 10, 2017; [and] June 27, 2017 

are vacated from further development which will be undertaken under separate cover. The period 

of January 11, 2017 to June 9, 2017 and June 28, 2017 to July 28, 2017 remain denied as discussed 

above.”

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 6 The term disability is 

defined as the incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of the injury.7 For each period of disability claimed, the employee has the 

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.8 

To establish causal relationship between the disability claimed and the employment injury, 

an employee must submit rationalized medical evidence.9 The opinion of the physician must be 

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

5

Supra note 2.

6 D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019); 

C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); CherylL. Decavitch, 50 ECAB 

397 (1999).

8 B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); AmeliaS. 

Jefferson, 57 ECAB 183 (2005).

9 L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017); 

KathrynE. DeMarsh, 56 ECAB 677 (2005).
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and must be supported by medical rationale explaining the nature of the relationship between the 

claimed disability and the specific employment factors identified by the employee.10

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.11

ANALYSIS

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

The record contains conflicting evidence from the employing establishment as to whether 

appellant was paid during the claimed period of disability or whether he was in an LWOP status. 

In a Form CA-7 dated May 29, 2019, the employing establishment indicated that leave could not 

be verified at this time. In CA-7 claim forms dated August 16, 2019, the employing establishment 

noted that LWOP had been verified. In a July 2, 2020 Form CA-110, an injury compensation 

specialist for the employing establishment advised OWCP that appellant was paid his regular 

salary for the period of compensation claimed. However, the evidence of record also contains a 

disability retirement application dated February 22, 2018 and certified by the employing 

establishment, which appears to indicate that appellant used 250 hours of annual leave, 433 hours 

of sick leave, 1,228 hours of LWOP, and was AWOL for 176 hours. Counsel also provided an 

undated and unsigned spreadsheet that included dates and hours of leave used and whether 

payment was issued.

OWCP’s procedures provide that the factual evidence must establish that the claimant 

actually lost time from work on the dates claimed and that clear verification of dates and hours lost 

should be provided by the employing establishment on the Form CA-7, Form CA-7a, and/or any 

other supporting documentation.12 It further notes that, if the employing establishment did not 

verify the claimed dates or if the verification is ambiguous, clarification is necessary. 13 

Accordingly, the evidence of record must be fully developed so that it contains accurate 

information regarding appellant’s claim in order to determine whether he was disabled from work 

for the period May 26, 2016 through July 28, 2017.14 

On remand OWCP shall request that a knowledgeable employing establishment official 

furnish documentation, such as earnings and leave statements, clarifying if appellant was in an 

LWOP status, used sick or annual leave, or was AWOL during the claimed period of disability. It 

10 V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11 See S.G., Docket No. 18-1076 (issued April11, 2019); WilliamA. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, 52 ECAB 291 (2001).

12 Federal (FECA) Procedure Manual, Part 2 --Claims, Compensation Claims, Chapter 2.901.5 (February 2013).

13 Id. 

14 See Order Remanding Case, M.E., Docket No. 19-1890 (issued December 23, 2020).
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shall also note whether appellant received any salary during the claimed period of disability. 

OWCP shall further advise the employing establishment of its responsibility for submitting all 

relative and probative factual evidence. Following this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: June 23, 2022

Washington, DC

Alec J. Koromilas, 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