United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Edinburg, TX, Employer

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Docket No. 21-0165

Issued: April 5, 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

JANICE B. ASKIN, Judge

JURISDICTION

On November 12, 2020 appellant filed a timely appeal from an October 29, 2020 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 ratable hearing loss 

for schedule award purposes.

FACTUAL HISTORY

On November 15, 2019 appellant, then a 45-year-old border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors of 

1

5 U.S.C. § 8101 et seq.
2

his federal employment including continuing exposure to loud gun fire. He noted that he first 

became aware of his condition and its relationship to his federal employment on 

September 1, 2014. Appellant did not stop work.

In an undated response to a hearing loss questionnaire, appellant noted that he worked for 

the employing establishment from December 1998 to the present. He indicated that he was 

exposed to moderate occupational noise from 1998 through 2005 related to firearms training. 

Appellant further stated that he worked as a border patrol firearms instructor at the employing 

establishment’s U.S. Border Patrol Agent Academy from 2006 through 2014 and was exposed to 

extremely loud firearms noise when training at both indoor and outdoor firearms ranges, 8 to 12

hours per day, five days per week. He lastly indicated that he has worked as a border patrol agent

at the employing establishment’s U.S. Border Patrol Agent Weslaco Station since January 2012

and continues to be exposed to noise while qualifying 500 agents each quarter in the proficient use 

of handguns, shotguns, and rifles. Appellant indicated that he did not have a history of any 

previous ear or hearing issues and did not engage in any hobbies which involved exposure to loud 

noises. He asserted that the constant exposure to loud noises while working as a border patrol 

agent caused his gradual hearing loss.

On December 4, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), to Dr. Charles Theivagt, an otolaryngologist, for a second opinion evaluation.

In a report dated February 4, 2020, Dr. Theivagt reviewed the SOAF, performed a physical 

examination, and completed OWCP’s questionnaire. He indicated that there was no significant 

variation from the SOAF. Dr. Theivagt diagnosed mild sensorineural hearing loss in both ears and 

opined that this was due to noise exposure related to appellant’s federal employment. He reviewed 

an audiogram conducted by an audiologist on that same date, which demonstrated losses of 15, 15, 

20, and 25 decibels (dBs) on the right and 20, 25, 25, and 30 dBs on the left at 500, 1,000, 2,000, 

and 3,000 Hertz (Hz), respectively. Utilizing the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),

2 Dr. Theivagt 

calculated that appellant had a monaural loss of zero percent in each ear for a binaural loss of zero 

percent. He completed a tinnitus handicap inventory (THI) and rated the tinnitus diagnosis at one 

percent permanent impairment to arrive at a total binaural hearing impairment rating of one 

percent.

By decision dated February 20, 2020, OWCP accepted appellant’s claim for binaural 

sensorineural hearing loss. 

On February 21, 2020 appellant filed a claim for a schedule award (Form CA-7).

On February 25, 2020 OWCP referred a copy of the medical record and SOAF to

Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as a district medical adviser 

(DMA), for calculation of appellant’s percentage of permanent hearing impairment and 

assignment of the date of maximum medical improvement (MMI).

2 A.M.A., Guides(6th ed. 2009).
3

In a March 9, 2020 report, Dr. Israel noted that he reviewed the SOAF and medical record, 

including Dr. Theivagt’s February 4, 2020 report.3 He reviewed appellant’s February 4, 2020 

audiogram and concurred with Dr. Theivagt’s assessment of zero percent monaural loss in each 

ear. Dr. Israel noted that the February 4, 2020 THI corresponded to a one percent tinnitus 

impairment. However, he opined that, under the sixth edition of the A.M.A., Guides, a tinnitus 

award could not be given when there was zero percent binaural hearing impairment. As such,

Dr. Israel found that the total binaural loss was zero percent. He recommended yearly audiograms, 

use of noise protection, and authorization for a left-sided hearing aid. Dr. Israel determined that 

appellant had reached MMI on February 4, 2020, the date of the most recent audiogram and

Dr. Theivagt’s examination.

By decision dated March 31, 2020, OWCP denied appellant’s schedule award claim, 

finding that his hearing loss was not sufficiently severe to demonstrate ratable impairment, and he 

was, therefore, not entitled to schedule award compensation.

On April 27, 2020 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

OWCP thereafter received audiometric testing dated June 29, 1998 indicating that 

appellant had normal hearing at that time. It also received a July 6, 2018 letter of Dr. Andrew L. 

Phillips, an occupational medicine specialist, noting abnormal hearing based upon a June 14, 2018 

employing establishment examination. 

A hearing was held on September 21, 2020. 

OWCP subsequently received a September 21, 2020 report from Dr. Ann Wang, an 

audiologist, indicating that appellant’s audiological testing results revealed mild high frequency 

sensorineural hearing loss in the left ear and normal hearing in the right ear.

By decision dated October 29, 2020, OWCP’s hearing representative affirmed the

March 31, 2020 denial of appellant’s schedule award claim.

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations5 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 for all claimants, OWCP has adopted the A.M.A., Guides as 

3 Dr. Israel’s report appears to contain a typographical error indicating Dr. Theivagt’s report is dated 

February24, 2020.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.
4

the uniform standard applicable to all claimants.6 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.7

A claimant seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim.8 With respect to a schedule award, it is the claimant’s burden 

of proof to establish permanent impairment of a scheduled member or function of the body as a 

result of his or her employment injury.9

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

A.M.A., Guides.

10

 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are averaged. Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides

point out, losses below 25 dBs result in no impairment in the ability to hear everyday speech under 

everyday conditions. The remaining amount is multiplied by a factor of 1.5 to arrive at the 

percentage of monaural hearing loss. 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 amount of binaural hearing loss. 11 

The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.12

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.13 If tinnitus interferes with activities of daily 

living, including sleep, reading, and other tasks requiring concentration, up to five percent may be 

added to a measurable binaural hearing impairment.14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish ratable hearing 

loss for schedule award purposes.

6

Id. at § 10.404(a); see also JacquelineS. Harris, 54 ECAB 139 (2002).

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

2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and 

Exhibit 1 (January 2010).

8 A.M., Docket No. 20-1041 (issued December 7, 2020); D.H., Docket No. 20-0198 (issued July 9, 2020); JohnW. 

Montoya, 54 ECAB 306 (2003).

9 R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

10 A.M.A., Guides 250.

11 Id.

12 G.T., Docket No. 19-1705 (issued April16, 2020); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 

ECAB 462 (2001).

13 See A.M.A., Guides 249.

14 Id. 
5

OWCP referred appellant to Dr. Theivagt for a second opinion examination to evaluate his 

hearing loss. In his February 4, 2020 report, Dr. Theivagt diagnosed mild sensorineural hearing 

loss in both ears and tinnitus due to noise exposure related to appellant’s federal employment. He 

calculated that appellant had a monaural loss of zero percent in each ear for a binaural loss of zero 

percent. Dr. Theivagt then rated appellant’s tinnitus at one percent permanent impairment to arrive 

at a total binaural hearing impairment of one percent.

In a March 9, 2020 report, Dr. Israel, serving as a DMA, reviewed Dr. Theivagt’s report 

and determined that appellant had zero percent monaural hearing loss in each ear. He noted that

the February 4, 2020 testing revealed losses of 15, 15, 20, and 25 decibels (dBs) on the right and 

20, 25, 25, and 30 dBs on the left at 500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively.

Dr. Israel totaled the dB losses to 75 on the right and 100 on the left. These values, when divided 

by four, resulted in an average hearing loss of 18.75 on the right and 25 on the left, which when 

reduced by the 25 dB fence, were reduced to zero. When multiplied by 1.5, the resulting monaural 

hearing loss in each ear was zero percent.

The Board finds that the DMA properly concluded that appellant did not have a ratable 

permanent impairment of his hearing warranting a schedule award. Although appellant has an 

employment-related hearing loss, it is not significant enough to be ratable for schedule award 

purposes.15

Appellant submitted a June 29, 1998 audiogram, which indicated normal hearing and a 

July 6, 2018 letter from Dr. Phillips noting abnormal hearing, but providing no audiological testing 

results. Neither document contained evidence of impairment due to industrial hearing loss in 

accordance with the standards contained in the A.M.A., Guides. Therefore, neither document has 

any probative value.16 Similarly, the September 21, 2020 report from Dr. Wang, an audiologist, 

has no probative medical value because an audiologist is not considered a physician as defined 

under FECA.17

While Dr. Theivagt added a one percent impairment rating based on appellant’s tinnitus, 

the DMA correctly explained that tinnitus may not be added to an impairment rating for hearing 

loss under the sixth edition of the A.M.A., Guides unless such hearing loss is ratable.18 

Accordingly, as appellant does not have a ratable hearing loss, the Board finds that he is not entitled 

to a schedule award for the established tinnitus.

15 K.P., Docket No. 20-0349 (issued July 1, 2020); G.T., supra note 12.

16 See R.R.,supra note 9.

17 5 U.S.C. § 8101(2); M.P., Docket No. 13-1790 (issued December 17, 2013) (an audiologist is not considered a 

physician under FECA, and the audiologist’s opinion regarding the medical cause of a claimant’s hearing loss is of 

no probative medical value).

18 K.P., supra note 15; G.T., supra note 12.
6

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 met his burden of proof to establish ratable hearing 

loss for schedule award purposes.

ORDER

IT IS HEREBY ORDERED THAT the October 29, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 5, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board