United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 15-62 

Issued: June 11, 2015 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 14, 2014 appellant filed a timely appeal from a June 23, 20141

 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to the Federal 

Employees’ Compensation Act3

 (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 established binaural hearing loss or tinnitus causally 

related to his federal employment. 

 1

 Appellant stated that he was appealing an October 2, 2014 OWCP decision. The Board notes, however, that the 

record does not contain an adverse final decision issued by OWCP on that date. 

2

 Appellant filed a timely request for oral argument. By order dated April 23, 2015, the Board, after exercising its 

discretion, denied his request on the grounds that his arguments could be adequately addressed in a decision based 

on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-62 (issued 

April 23, 2015). 

3

 5 U.S.C. § 8101 et seq.
2

On appeal, appellant contends that he has hearing loss with severe ringing in his ears and 

that his tinnitus was worse than most due to his history of firearms usage. He further contends 

that the decision not to rate tinnitus by itself should be determined on an individual basis as his 

tinnitus is worse than the same condition in Juan A. Trevino.

4

 

FACTUAL HISTORY 

On April 17, 2012 appellant, then a 54-year-old supervisory special agent, filed an 

occupational disease claim alleging that on April 5, 2012 he first became aware of his hearing 

loss and first realized that his condition was caused or aggravated by his federal employment. In 

an April 17, 2012 narrative statement, he contended that his hearing had been declining for the 

past several years and it caused difficulties with his professional and personal life. 

Appellant provided a history of his noise exposure while working approximately 31 years 

at the employing establishment. In 1981, he started work as a border patrol agent and claimed 

that proper ear protection was not available when he had to qualify at a shooting range every 

quarter. In 1983, appellant became a customs inspector and was exposed to loud noise from 

tractor trailers, buses, other vehicles at a port of entry, and airplanes. He worked as a firearms 

instructor from 1985 through April 2005 and he was responsible for qualifying approximately 85 

customs inspectors every quarter at a pistol range. In January 1987, appellant became a customs 

criminal investigator and continued to qualify agents using various firearms on a quarterly basis. 

He did not stop work following the filing of his occupational disease claim. 

Appellant submitted an April 6, 2012 annual audiogram. 

By letter dated April 27, 2012, OWCP informed appellant that the evidence submitted 

was insufficient to establish his claim. It requested that he submit factual evidence in support of 

his claim. OWCP also requested that the employing establishment respond to appellant’s 

allegations and provide a copy of all medical examinations pertaining to his hearing or ear 

problems, including any preemployment examinations and audiograms. 

In a May 3, 2012 statement, appellant reiterated a history of his employment at the 

employing establishment and noted his military service from May 30, 1975 to May 30, 1980. He 

related that he was still exposed to hazardous noise at work and that his hearing loss had 

worsened. Appellant had no hobbies which exposed him to loud noise. 

In a statement also dated May 3, 2012, Scott Torpey, an assistant special agent in charge, 

concurred with appellant’s statements and allegations. He related that appellant was exposed to 

loud noise from the discharge of various calibers of firearms at close proximity approximately 

five hours a day, every three months during firearms qualifications. Appellant was given 

government-issued earmuffs. Mr. Torpey related that appellant would continue to be exposed to 

loud noise from various weapons during firearms qualification every quarter. 

In an April 22, 2012 medical report, Dr. Fred Rosenberg, an osteopath, advised that an 

audiogram showed abnormal baseline hearing. He further advised that appellant’s performance 

was outside the normal range. Dr. Rosenberg stated that no prior audiograms were available for 

 4

 54 ECAB 358 (2003) (the Board found that, as appellant did not have a ratable hearing loss, he was not entitled 

to a schedule award even though he had a percentage of hearing loss due to tinnitus). 
3

comparison. He recommended a complete evaluation of appellant’s hearing by an 

otolaryngologist or audiologist. 

By letter dated September 20, 2012, OWCP referred appellant, together with a statement 

of accepted facts and the medical record, to Dr. William C. Smith, a Board-certified 

otolaryngologist, for a second opinion evaluation. In an October 8, 2012 report, Dr. Smith noted 

that he evaluated appellant. Regarding appellant’s history, he stated that he did not have any 

data about appellant’s hearing at the beginning of his significant noise exposure in federal 

civilian employment. An October 8, 2012 audiogram, with an attached calibration certificate, 

showed hearing levels at 500, 1,000, 2,000, and 3,000 hertz (Hz) respectively of 100, 105, 95, 

and 100 decibels (dB) on the right and 90, 90, 90, and 95 dB on the left. Dr. Smith reported that 

the current audiometric findings were unreliable. During his audiological evaluation, appellant 

had to be reinstructed several times due to inconsistent responses. He was asked repeatedly to 

respond by pressing a button when he heard the beeps, even if they were very soft, barely there, 

or sounded like they were very far away. Speech reception testing was performed and appellant 

responded at a level well below the level at which he claimed to hear the tones. Dr. Smith stated 

that correctly identifying speech was more complicated than responding to pure tones, and, thus, 

he should not have been able to respond to speech at a lower level. Other testing also revealed 

that hearing was better than reported. Dr. Smith opined that the described workplace exposure 

was sufficient as to intensity and duration to have caused sensorineural hearing loss. He set forth 

findings on examination and stated that he could not make a diagnosis due to appellant’s 

inconsistent responses. Dr. Smith found no symptoms or signs related to either an acoustic 

neuroma or Ménière’s disease. He advised that it was at least more likely than not that appellant 

had normal or near normal hearing based on his speech reception threshold and word reception 

score. Dr. Smith determined that he had reached maximum medical improvement on the date of 

his examination. He recommended reevaluation in one month to see if more accurate thresholds 

could be obtained. Dr. Smith stated that, if appellant’s evaluation still had poor reliability, it may 

be necessary to obtain auditory brainstem response testing with a latency intensity search and 

otoacoustic emissions testing. 

On October 18, 2012 OWCP’s medical adviser reviewed Dr. Smith’s October 8, 2012 

findings. He stated that Dr. Smith’s recommendation for auditory brainstem response testing 

should be approved. 

On February 6, 2013 appellant underwent auditory testing performed by an audiologist, 

who found the test data difficult to analyze because appellant had caffeine approximately one to 

two hours before testing. The audiologist noted that caffeine could significantly decrease the 

latency of the Wave I, III, V, and I-V interpeak interval. 

On March 8, 2013 Dr. Henry Mobley, a Board-certified internist serving as an OWCP 

medical adviser, reviewed the audiologist’s February 6, 2013 report. He stated that this report 

did not meet OWCP requirements for a probative determination. Dr. Mobley noted that its 

regulations dictated that a schedule award for hearing loss be determined by a valid pure tone 

audiometry (PTA) and an evaluation by a Board-certified otologist. He noted that it was a 

claimant’s responsibility to present a valid physician’s evaluation and audiometry to OWCP. 

Dr. Mobley concluded that a probative schedule award could not be determined by an evaluation 

that was of questionable validity. He recommended that appellant be asked to submit the 

necessary information for a probative determination. 
4

By letter dated April 29, 2013, OWCP referred appellant, together with a statement of 

accepted facts and the medical record, to Dr. John D. Edwards, a Board-certified 

otolaryngologist, for another second opinion evaluation. In a May 21, 2013 report, Dr. Edwards 

noted that he evaluated appellant to determine whether he had hearing loss secondary to loud 

noise exposure during his federal employment. Regarding appellant’s history, he stated that he 

did not have any data about appellant’s hearing at the beginning of his significant noise exposure 

in federal civilian employment. A May 21, 2013 audiogram, with an attached calibration 

certificate, showed hearing levels at 500, 1,000, 2,000, and 3,000 Hz, respectively of 10, 15, 15, 

and 20 dB on the right and 10, 15, 15, and 15 dB on the left. Dr. Edwards stated that current 

audiometric findings revealed a pure tone average of 14 dB on the left and 15 dB on the right. 

Speech reception threshold was 20 dB on the left and 15 dB on the right. The word recognition 

score was 100 percent. There was type A tympanogranis with present ipsi lateral and 

contralateral reflexes bilaterally. Dr. Edwards advised that the audiogram was within normal 

limits. Appellant was above 20 dB at all frequencies on both sides. Dr. Edwards opined that he 

had workplace exposure for hearing loss, but he did not have any sensorineural hearing loss 

based on current audiometric findings. He set forth findings on examination and found no 

medical conditions, such as acoustic neuroma or Ménière’s disease. Dr. Edwards diagnosed 

bilateral tinnitus and normal hearing. He noted that appellant denied dizziness or vertigo. 

Hearing aids were not recommended. 

On August 22, 2013 Dr. Mobley reviewed the statement of accepted facts and 

Dr. Edwards’ May 21, 2013 findings. He advised that the date of maximum medical 

improvement was May 21, 2013, the date of Dr. Edwards’ examination. Dr. Mobley noted that 

the May 21, 2013 PTA was used because it was the most recent, it met all OWCP standards, and 

it was an integral part of the evaluation of the consulting otologist. Based on the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment and 

Dr. Edwards’s reports, he determined that the calculated binaural hearing loss was zero percent. 

Dr. Mobley concluded that there was no measurable hearing loss. 

In a September 17, 2013 decision, OWCP denied appellant’s hearing loss claim. It found 

that Dr. Edwards’ opinion constituted the weight of the evidence and established that he did not 

have hearing loss or tinnitus due to his accepted employment-related noise exposure. 

On September 24, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a June 23, 2014 decision, the hearing representative affirmed the September 17, 2013 

decision. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA5

 has the burden of establishing the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence,6 including that he or she is an employee within the meaning of FECA and that he or 

 5 Id. 

6 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 
5

she filed his or her claim within the applicable time limitation.7

 The employee must also 

establish that he or she sustained an injury in the performance of duty as alleged and that his or 

her disability for work, if any, was causally related to the employment injury.8

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.9

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

establish causal relationship is rationalized medical evidence. 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.10

OWCP procedures set forth requirements for the medical evidence used in evaluating 

hearing loss. These include that the employee undergo both audiometric and otologic 

examination; that the audiometric testing be performed by an appropriately certified audiologist; 

that the otologic examination be performed by an otolaryngologist certified or eligible for 

certification by the American Academy of Otolaryngology and that the audiometric and otologic 

examination be performed by different individuals as a method of evaluating the reliability of the 

findings. Further, all audiological equipment authorized for testing meet the calibration protocol 

contained in the accreditation manual of the America Speech and Hearing Association; that the 

audiometric test results include both bone conduction and pure tone air conduction thresholds, 

speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is 

to include: date and hour of examination, date and hour of employee’s last exposure to load 

noise, a rationalized medical opinion regarding the relation of the hearing loss to the 

employment-related noise exposure and a statement of the reliability of the tests.11 The 

physician should be instructed to conduct additional tests or retests in those cases where the 

initial tests were inadequate or there is reason to believe that the claimant is malingering.12

 7 See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951); 

see 5 U.S.C. § 8101(1). 

8 R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122. 

9 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

10 See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 345 (1989). 

11 Id.

12 Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995). 
6

ANALYSIS 

The record supports that appellant was exposed to occupational noise as a supervisory 

special agent. The Board finds, however, that the medical evidence does not establish that his 

hearing loss is causally related to the accepted employment-related noise exposure. 

The Board finds that the weight of medical opinion is represented by Dr. Edwards, 

OWCP second opinion specialist. In his May 21, 2013 report, Dr. Edwards advised that the 

audiogram of the same date showed no evidence of sensorineural hearing loss. He found that 

appellant had normal hearing. Dr. Edwards stated that, while he had workplace exposure for 

hearing loss, he did not have any sensorineural hearing loss based on his current audiometric 

findings. He explained that the audiogram was normal and that appellant was above 20 dB at all 

frequencies on both sides. The Board finds that Dr. Edwards’ opinion establishes that appellant 

did not meet his burden of proof to establish that he sustained hearing loss due to exposure to 

noise in the workplace.13 Further, although Dr. Edwards diagnosed bilateral tinnitus, he did not 

opine that this condition was caused by appellant’s work-related noise exposure. 

The April 6, 2012 audiogram indicated that it was obtained by a registered nurse. This 

audiogram is insufficient to establish appellant’s burden of proof as it does not comply with the 

requirements set forth under OWCP. It lacks speech testing and bone conduction scores and it 

was not prepared or certified as accurate by a physician as defined by FECA. The Board notes 

that a registered nurse is not included among the health care professionals recognized as 

physicians under FECA.14 The audiogram was not accompanied by a physician’s opinion 

addressing how appellant’s employment-related noise exposure caused or aggravated any 

hearing loss. It is appellant’s burden to submit a properly prepared and certified audiogram to 

OWCP.15 OWCP was not required to rely on this evidence in determining the degree of 

appellant’s hearing loss as it failed to constitute competent medical evidence.16

Dr. Rosenberg’s April 22, 2012 report found that appellant had abnormal baseline 

hearing. His report, however, offered no opinion regarding the cause of his hearing loss. 

Medical evidence which does not offer any opinion regarding the cause of an employee’s 

condition is of limited probative value on the issue of causal relationship.17

 13 See R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued 

December 20, 2007). 

14 See Vincent Holmes, 53 ECAB 468 (2002). See also Section 8101(2) of FECA which provides that physician 

includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). 

15 See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, 55 ECAB 570 (2004); Vincent 

Holmes, supra note 14 (OWCP does not have to review audiograms not certified by a physician and it is the 

claimant’s burden to submit a properly certified audiogram for review if he objects to the audiogram selected by 

OWCP for determining the degree of hearing loss). 

16 Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued 

December 6, 2012). 

17 S.E., Docket No. 08-2214 (issued May 6, 2009); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 

(2004); Michael E. Smith, 50 ECAB 313 (1999). 
7

On appeal, appellant contended that he had hearing loss with severe ringing in his ears 

and that his tinnitus was worse than most due to his history of firearms usage. He further 

contended that the decision not to rate tinnitus by itself should be determined on an individual 

basis as his tinnitus was worse than the same condition in Juan A. Trevino.

18 Appellant did not 

submit a rationalized medical opinion establishing a causal relationship between his accepted 

employment-related noise exposure and his hearing loss. Therefore, he has failed to meet 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. 

CONCLUSION 

The Board finds that appellant has failed to establish that he sustained binaural hearing 

loss or tinnitus causally related to his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 11, 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 

 18 Supra note 4.