United States Department of Labor

Employees’ Compensation Appeals Board

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S.N., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

El Paso, TX, Employer

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Docket No. 18-0077

Issued: May 29, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 12, 2017 appellant filed a timely appeal from an October 4, 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 has established ratable hearing loss, warranting a schedule 

award. 

FACTUAL HISTORY

On December 14, 2015 appellant, then a 51-year-old retired border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging permanent hearing loss and tinnitus due to

 

1 5 U.S.C. § 8101 et seq.
2

exposure to noise at work. He noted working for over 25 years and being exposed to noise from 

quarterly qualifications and training with firearms, which created hearing loss and tinnitus in his 

left ear. Appellant noted that he first became aware of his hearing loss on July 28, 2015, and also

realized that it was causally related to factors of his federal employment on the same date. He

retired on December 31, 2013.

By development letter dated December 18, 2015, OWCP advised appellant of the type of

evidence needed to establish his claim. In a letter of the same date, it requested that the

employing establishment address the sources of appellant’s noise exposure, including decibel

and frequency level, period of exposure, and hearing protection provided.

Appellant submitted a January 14, 2016 report from Dr. Jorge Contreras, a Board-certified 

otolaryngologist, who treated him for tinnitus and hearing loss. He reported a gradual onset of 

symptoms beginning nine months prior, which followed a 25-year career as a border patrol agent

where he was exposed to noise from weapons. Dr. Contreras noted findings on examination of 

normal external auditory canals and tympanic membranes, grossly normal pinnae, nontender 

mastoid bones, grossly normal external nose, clear nasal mucosa, no masses, and benign 

turbinates. He diagnosed hypertension, tinnitus, and bilateral sensorineural high frequency 

hearing loss. Dr. Contreras noted that the audiogram revealed down sloping high frequency 

sensorineural hearing loss in the moderate-to-moderate severe range. Appellant reported working 

as a border patrol agent and was exposed to loud noise from firearms. Dr. Contreras opined that 

it was at least 50 percent likely that appellant’s symptoms were due to his work exposure and 

recommended hearing protection and yearly audiograms.

By decision dated January 20, 2016, OWCP denied appellant’s claim for compensation, 

finding that the evidence of record was insufficient to establish that the events occurred as alleged. 

It indicated that appellant failed to submit a detailed employment history which included 

information about his exposure to loud noise.

The employing establishment submitted a January 7, 2016 statement from J.S., chief patrol 

agent, who noted that appellant was exposed to various firearms shooting ranges. J.S. noted that 

the source of the exposure was multiple gunshots from various caliber weapons. He indicated that 

firearm qualifications were conducted in one day on a quarterly basis throughout the year and 

varied from four-to-six hours of exposure. J.S. noted that appellant was provided hearing 

protection from disposable foam earplugs and earmuffs.

On January 28, 2016 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. In a separate statement dated January 28, 2016, he 

noted that as a border patrol agent he was required to qualify with several firearms on a quarterly 

basis. Appellant indicated that the firearms ranged from handguns, shotguns to fully automatic 

weapons. He noted that in the 25 years he worked in the border patrol, he was exposed to at least 

15,000 shots fired from weapons.

In an undated employee statement, appellant reported that he first became a border patrol 

agent on September 25, 1988. He indicated that the basic requirement of the position was to train 

and work around firearms at least once every three months, which entailed qualifications with 

specific firearms and training with others. Appellant noted that each quarterly training session 
3

involved eight hours of training and the firing of hundreds of rounds of ammunition. He further 

noted events where firearms were used in the field and he did not wear hearing protection. 

Appellant indicated experiencing bilateral hearing loss and tinnitus. He noted that tinnitus caused 

constant ringing in his ears which did not diminish and affected his concentration, focus, and sleep. 

Appellant submitted an audiogram dated July 28, 2015 in which the author’s signature was 

illegible. He submitted a Notification of Personnel Action (SF-50), which indicated that he 

voluntarily retired on December 31, 2013.

By decision dated May 16, 2016, an OWCP hearing representative set aside the decision 

dated January 20, 2016 and remanded the case for further medical development. He noted 

receiving additional evidence indicating that appellant was exposed to work-related noise while 

employed as a border patrol agent for 25 years.

A statement of accepted facts (SOAF) dated June 2, 2016 noted that appellant was 

employed as a border patrol agent from September 1988 to December 2013. Appellant attended 

quarterly firearms training, which lasted eight hours and entailed qualifying and training with 

different types of firearms. He was provided ear protection in the form of earplugs and earmuffs. 

Appellant was also exposed to firearms in the field where hearing protection was not worn. He

did not have hobbies which involved exposure to loud noises. Appellant retired on 

December 31, 2013.

On December 7, 2016 OWCP referred appellant, together with the SOAF, to

Dr. Edward M. Goldman, a Board-certified otolaryngologist, for an otologic examination and an 

audiological evaluation. In a January 26, 2017 report, Dr. Goldman noted examining appellant 

on January 26, 2017 and referenced appellant’s exposure to workplace noise. Examination of the 

ears revealed normal canals and drums, normal drum motility, normal tuning forks test, and no 

asymmetry. Dr. Goldman diagnosed bilateral sensorineural hearing loss with bilateral tinnitus. 

He noted that the sensorineural hearing loss was in part if not all due to the noise encounter in 

appellant’s federal civilian employment. Dr. Goldman noted that appellant had excessive work

history of noise exposure to firearms and traffic checks. He noted that the workplace exposure 

as described was sufficient in intensity and duration to have caused the loss in question. 

Dr. Goldman opined that appellant had monaural impairment of zero percent in the left ear, zero

percent in the right ear, and five percent binaural impairment for tinnitus. He indicated that 

hearing aids were not indicated. Audiometric testing was performed for Dr. Goldman on

January 6, 2017. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second 

revealed the following: right ear 20, 20, 10, and 25 decibels; left ear 20, 15, 20, and 30 decibels.

On September 21, 2017 an OWCP medical adviser reviewed Dr. Goldman’s report dated 

January 26, 2017 and the audiometric test of January 6, 2017. He concluded that, in accordance 

with the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment,

2

(A.M.A., Guides), appellant had zero percent monaural hearing loss in 

each ear and zero percent binaural hearing loss. The medical adviser determined that appellant’s 

hearing loss was not severe enough to be ratable for a schedule award after applying OWCP’s 

standards for evaluating hearing loss to the results of the January 6, 2017 audiogram. He noted 

 

2 A.M.A., Guides (6th ed. 2009).
4

that appellant reached maximum medical improvement on January 6, 2017. The medical adviser 

indicated that Dr. Goldman assigned five percent impairment for tinnitus. He, however, found

no documentation to support that the tinnitus interfered with daily activities, so he did not assign

impairment for tinnitus.

On September 25, 2017 OWCP accepted appellant’s claim for bilateral sensorineural

hearing loss due to noise exposure.

By decision dated October 4, 2017, OWCP found that, although appellant’s hearing loss 

was employment related, it was not severe enough to be considered ratable for purposes of a 

schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA3and its implementing regulations

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set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results and 

to ensure equal justice under the law to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by FECA’s implementing regulations as the appropriate 

standard for evaluating schedule losses.5

OWCP evaluates industrial hearing loss in accordance with the standards contained in the 

A.M.A., Guides.

6

 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the 

losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted 

because, as the A.M.A., Guides notes, losses below 25 decibels result in no impairment in the 

ability to hear everyday speech under everyday conditions.8 The remaining amount is multiplied 

by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is 

determined by calculating the loss in each ear using the formula for monaural loss. The lesser loss 

is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the 

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404 (1999).

5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6 A.M.A., Guides 250 (6th ed. 2009).

7

Id.

8

Id.

9

Id.
5

amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this 

standard for evaluating hearing loss.11

Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a 

symptom that may be the result of disease or injury.12 The A.M.A., Guides also provides that if 

tinnitus interferes with activities of daily living, including sleep, reading (and other tasks requiring 

concentration), enjoyment of quiet recreation, and emotional well-being, up to five percent may 

be added to a measurable binaural hearing impairment.13

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.14 OWCP may follow the advice of its medical 

adviser or consultant where he or she has properly utilized the A.M.A., Guides.

15

ANALYSIS

OWCP accepted that appellant sustained binaural hearing loss due to noise exposure from 

his federal employment. The issue is whether appellant has proven a schedule award by 

establishing that he sustained a ratable impairment in accordance with the A.M.A., Guides. The 

Board finds that the evidence of record does not establish that appellant has a ratable impairment 

based on his accepted binaural hearing loss. The January 6, 2017 audiogram results did not 

demonstrate ratable values in accordance with the sixth edition of the A.M.A., Guides.

OWCP properly referred appellant to Dr. Goldman for an examination relative to his 

hearing loss. Dr. Goldman’s January 26, 2017 examination found that appellant’s binaural 

sensorineural hearing loss was due to his workplace noise exposure. On September 21, 2017 an 

OWCP medical adviser reviewed Dr. Goldman’s report and found that the hearing loss was not 

ratable for schedule award purposes. He applied the standardized procedures to the January 6, 

2017 audiogram performed for Dr. Goldman to determine whether appellant’s hearing loss was 

ratable for schedule award purposes. 

 

10 Id.

11 Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 

01-1570 (issued August 13, 2002).

12 A.M.A., Guides 249 (6th ed. 2009). 

13 Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13, 

2011); Robert E. Cullison, 55 ECAB 570, 573 (2004). 

14 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6(f) (March 2017). 

15 See Ronald J. Pavlik, 33 ECAB 1596 (1982).
6

Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per 

second revealed decibels losses of 20, 20, 10, and 25, respectively. These decibels were totaled at 

75 and were divided by 4 to obtain an average hearing loss at those cycles of 18.75 decibels. The 

average of 18.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted 

as discussed above) to equal zero percent hearing loss for the right ear. 

Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per 

second revealed decibels losses of 20, 15, 20, and 30 respectively. These decibels were totaled at 

85 and were divided by 4 to obtain the average hearing loss at those cycles of 21.25 decibels. The 

average of 21.25 decibels was then reduced by 25 decibels (the first 25 decibels were discounted 

as discussed above) to 0 which was multiplied by the established factor of 1.5 to compute a zero 

percent hearing loss for the left ear. Thus, OWCP’s medical adviser concluded that appellant did 

not have ratable permanent impairment of his hearing, warranting a schedule award. 

Consequently, the Board finds that appellant does not have a ratable hearing loss under OWCP’s 

standardized procedures thereby warranting a schedule award.

16

 

The Board notes that Dr. Goldman diagnosed tinnitus. The A.M.A., Guides allows for 

compensation of up to five percent for tinnitus in the presence of measurable hearing loss if the 

tinnitus impacts the ability to perform activities of daily living.17 The Board has held that, in the 

absence of a ratable hearing loss, a schedule award for tinnitus is not appropriate.18 As explained 

above, appellant has not established a ratable hearing loss. He is therefore not entitled to a schedule 

award. 

On appeal appellant asserts that he sustained sensorineural hearing loss and tinnitus and 

should have been granted a schedule award. For the reasons set forth above, appellant has not 

established his claim for a schedule award.

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment. 

CONCLUSION

The Board finds that appellant has not established ratable hearing loss, warranting a 

schedule award. 

 

16 See W.T., Docket No. 17-1723 (issued March 20, 2018).

17 A.M.A., Guides, supra note 6 at 246; see Leslie M. Mahin, 55 ECAB 311 (2004). 

18 L.S., 57 ECAB 725 (2006).
7

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 29, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board