United States Department of Labor

Employees’ Compensation Appeals Board

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D.O., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

U.S. BORDER PATROL, Olmito, TX, Employer

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Docket No. 22-0557

Issued: October 24, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 March 5, 2022 appellant filed a timely appeal from a February 7, 2022 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 met his burden of proof to establish binaural hearing 

loss in the performance of duty, as alleged.

FACTUAL HISTORY

On December 27, 2021 appellant, then a 51-year-old border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he sustained binaural hearing loss due to

1

5 U.S.C. § 8101 et seq.
2

factors of his federal employment including exposure to hazardous noise during quarterly firearms 

qualifications at the firing range. He noted that he first became aware of his hearing loss on 

December 1, 2021 and first realized its relation to his federal employment on December 20, 2021. 

On the reverse side of the claim form, J.V., appellant’s supervisor, indicated that appellant had last 

been exposed to the identified work factors on December 29, 2021.

On December 27, 2021 OWCP received a December 20, 2021 employing establishment 

audiogram bearing an illegible signature. The audiogram demonstrated losses of 95, 100, 100, and 

95 decibels (dBs) on the right and 95, 100, 95, and 90 dBs on the left at the frequencies of 500, 

1,000, 2,000, and 3,000 Hertz (Hz) respectively.

In a development letter dated January 5, 2022, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. In a separate development letter of even date, OWCP 

requested that the employing establishment provide comments from a knowledgeable supervisor 

regarding appellant’s allegations. It afforded both parties 30 days to respond. No response was 

received.

By decision dated February 7, 2022, OWCP denied appellant’s hearing loss claim, finding 

that he had not established the implicated employment factors. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,3that an injury was sustained in the performance of duty as alleged, and that 

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

employment injury.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant 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 

2

Id.

3 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);

Joe D. Cameron, 41 ECAB 153 (1989).

4 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);

James E. Chadden, Sr., 40 ECAB 312 (1988).

5 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);

DeloresC. Ellyett, 41 ECAB 992 (1990).
3

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

causally related to the identified employment factors.6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).9

ANALYSIS

The Board finds that appellant has not established binaural hearing loss in the performance 

of duty, as alleged.

Appellant claimed that he sustained a binaural hearing loss causally related to occupational 

exposure to hazardous noise during quarterly firearms qualification at a firing range.

OWCP, in its January 5, 2022 development letter, informed appellant that the evidence 

submitted was insufficient to establish the factual elements of his claim. It requested additional 

factual evidence and provided a questionnaire for his completion that sought additional detail 

regarding the alleged occupational exposure and any nonoccupational ear or hearing conditions 

and exposure. Appellant did not answer the questionnaire or otherwise provide additional factual 

information.

The Board finds that the factual evidence of record lacks sufficient detail to establish 

appellant’s claim.10 Appellant has not described, with adequate detail, the duration and 

circumstances of the alleged exposure to hazardous noise.

As the factual evidence of record is insufficient to establish appellant’s claim, the Board 

finds that he has not met his burden of proof.11

6

J.J., Docket No. 17-0617 (issued September 26, 2019); C.T., Docket No. 21-1026 (issued January 19, 2022); R.G., 

Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005) Ruby I. Fish, 46 

ECAB 276, 279 (1994);Victor J. Woodhams, 41 ECAB 345 (1989).

7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8 Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989).

10 J.J., supra note 6; S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 

352 (1989).

11 J.J., id.
4

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 not established binaural hearing loss in the performance 

of duty, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 24, 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