                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-2031


DONALD ARSENAULT,

                Petitioner,

           v.

BAE SYSTEMS NORFOLK SHIP REPAIR;             DIRECTOR,   OFFICE   OF
WORKERS’ COMPENSATION PROGRAMS,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(07-0305)


Argued:   December 2, 2008                    Decided:   March 18, 2009


Before GREGORY and AGEE, Circuit Judges, and Rebecca Beach
SMITH, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P.,
Norfolk, Virginia, for Petitioner. Gerard E. W. Voyer, TAYLOR &
WALKER, P.C., Norfolk, Virginia, for Respondents.     ON BRIEF:
Charlene A. Morring, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk,
Virginia, for Petitioner. Audrey Marcello, Natalie Pavon Mann,
TAYLOR & WALKER, P.C., Norfolk, Virginia, for Respondent BAE
Systems Norfolk Ship Repair.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Donald Arsenault appeals the decision of the Department of

Labor     Benefits    Review       Board    (“BRB”)          denying   his   claim    for

compensation from his employer, BAE Systems Norfolk Ship Repair

(“BAE”), for occupational hearing loss under the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (the

“Act”).     Arsenault v. BAE Systems Norfolk Ship Repair, No. 07-

0305 (BRB Sept. 18, 2007) (unpublished).                        The BRB reversed the

earlier    Decision    and        Order    of    the    Administrative        Law    Judge

(“ALJ”), concluding that Arsenault failed to carry his burden of

proof that his hearing loss was work-related.                          For the reasons

stated below, we affirm the decision of the BRB.



                                            I.

     Arsenault       began        working       as   an      electrical      calibration

specialist for BAE in 1986.               In October, 2002, he filed a claim

for worker’s compensation benefits under the provisions of the

Act, alleging a 26.9% bilateral hearing loss, as diagnosed by an

audiogram    conducted       at    BAE’s    workplace         clinic    on   August   21,

2002.       BAE   accepted         the     claim       and    compensated     Arsenault

$22,607.30 for his hearing loss.

     The current dispute arises out of Arsenault’s second claim

for compensation.       An audiogram administered at BAE’s clinic on

November 3, 2004, revealed a 29.4% binaural impairment, which

                                            2
represents a 2.5% increase in hearing impairment over the loss

for which he was previously compensated.                Alleging that this

increase was caused by exposure to work-related injurious noise

subsequent to the August 21, 2002, audiogram, Arsenault claimed

compensation    for   occupational     hearing    loss    incurred    between

August, 2002, and November, 2004.           BAE contested this claim on

two grounds: (1) that Arsenault had no compensable increase in

his hearing impairment; and (2) that he did not sustain exposure

to injurious noise levels at his workplace.

                                     A.

     During a hearing held on April 18, 2006, ALJ Richard K.

Malamphy   considered     the   testimony        of   several      witnesses,

including Arsenault; two other BAE employees; Dr. John Erdreich,

a   physiological     acoustician;        and   Dr.     Brian   Deutsch,     a

otolaryngogly   and   neck   surgery      specialist.      Apart     from   the

testimony and reports of Drs. Erdreich and Deutsch, no other

medical evidence was presented.

     Arsenault testified that he was exposed to injurious noise

on his walk between his vehicle and where he worked, 1 and from


     1
       Arsenault also testified that, due to knee problems, he
was allowed to park near his work station, but that he had to
walk slowly.    During his walk, which could take as long as
twenty to forty minutes, he was exposed to various noises in the
shipyard, including machine noises from sandblasting operations
and compressors on the pier. (J.A. 39.)



                                     3
equipment operating near his work station in the calibration

lab, located in the machine shop.                    While he was “not exposed to

any     constant        noise”       while     in     the        calibration        lab,    he

occasionally heard noise from two nearby cranes.                                  (J.A. 36.)

Two BAE employees also testified that, when the compressors are

running      on   the    pier    and    sandblasting            operations    are    ongoing

outside,      individuals        working      in    the     calibration      lab    need     to

raise    their     voices       in    order    to    be     heard.        (J.A.    32;     74.)

Finally, Arsenault testified that he was exposed to high-pitched

grinding and welding noises during each of the trips he made

across the shipyard to the marine electrical shop.                                 Arsenault

made    approximately       six       trips    to     the       marine    electrical       shop

between August, 2002, and November, 2004.                        (J.A. 37-38.)

       Dr.   Erdreich      was       hired    by    BAE    to    conduct    an    acoustical

analysis of the BAE facility.                  He measured noise levels in the

machine shop, with the cranes in operation, as well as on the

path Arsenault walked from his vehicle to the building.                                     Dr.

Erdreich      testified,        based    on    these       measurements       and    on     the

noise-exposure          standards      set    by     the    Occupational         Safety    and

Health Administration, that the noise to which Arsenault was

exposed would not likely cause hearing loss.                             In Dr. Erdreich’s

words, “the amount of exposure from the measurements would not

be sufficient to produce noise-induced hearing loss.”                                    (J.A.

100.)     After considering these results, as well as Arsenault’s

                                               4
audiograms and testimony, Dr. Erdreich further concluded that

Arsenault was not exposed to injurious noise levels at BAE’s

facility between August, 2002, when he brought his original,

successful claim for compensation, and November 3, 2004, when

the   audiogram    that     forms    the   basis      for    this    claim     was

administered.     (J.A. 101.)

      BAE also submitted the report and deposition testimony of

Dr. Brian Deutsch, as well as his four audiometric evaluations

of Arsenault. 2   Dr. Deutsch testified that Arsenault suffers from

two types of hearing loss:          (1) inner ear hearing loss; and (2)

conductive   hearing   loss,    related    to   his     Eustachian     tube    and

eardrum issues, 3 which is “superimposed on top” of the inner ear

hearing loss.     (J.A. 419-20.)       The combination of all of these

factors   led   Dr.   Deutsch   to    characterize       Arsenault’s    overall

hearing loss as “pretty significant.”           (Id.)

      Dr. Deutsch further stated that the audiometric evaluations

he performed on Arsenault recorded both air-conduction and bone-

conduction values.        Air-conduction studies measure the noise an

individual can actually hear through the external and middle

ears, and the results of these studies represent an individual’s

      2
       Arsenault was examined in Dr. Deutsch’s office on December
9, 2002; January 19, 2005; April 13, 2005; and May 24, 2005.
      3
        Arsenault    underwent        surgery      for      Eustaschian       tube
dysfunction in 1987.



                                      5
“entire    hearing    loss”   and     “overall         hearing    ability   when    you

combine the noise exposure, the [E]ustachian tube, his age, his

genetics,    [and]     anything      else       that   may   be   playing   a    role.”

(J.A. 416; 421.)          In contrast, bone-conduction studies isolate

the inner ear and auditory nerve, and measure the sensorineural

hearing     loss,    or    hearing     loss       attributed      solely    to    noise

exposure.      Noise      exposure    will       “very   specifically”      cause    an

inner ear hearing loss, which will be “reflected in the bone

line.” 4   (J.A. 418.)      Based on the results of the bone-conduction

testing, Dr. Deutsch concluded that Arsenault did not sustain

any increase in his noise-induced hearing loss between 2002 and

2005. 5

      In a decision and order issued November 15, 2006, the ALJ

awarded additional benefits of $5,212.16 to Arsenault for his

increased hearing loss.           The ALJ determined that Arsenault was

entitled to the invocation of the presumption, established in

Section 20(a) of the Act, that his hearing loss was linked to

      4
       Arsenault does not dispute Dr. Deutsch’s explanation of
air-conduction and bone-conduction studies, and the types of
hearing loss they measure.
      5
       Dr. Deutsch testified that petitioner “certainly has had
some noise induced hearing loss” (J.A. 450), but that, based on
the bone-conduction studies, there was no increase in noise-
induced hearing loss between 2002, when petitioner filed his
first, successful claim for compensation, and 2005. (J.A. 429-
30.)   This time period would necessarily include the audiogram
administered in November, 2004, upon which this claim is based.



                                            6
his employment. 6              The ALJ further concluded that the opinions of

Dr. Erdreich and Dr. Deutsch, submitted by BAE, sufficiently

rebutted the presumption.                   (J.A. 465.)             However, the ALJ then

characterized Dr. Erdreich’s test results as “speculative” in

light       of     Arsenault’s         testimony         regarding       the    noises   he    was

exposed to at the workplace.                    (J.A. 466.)          The ALJ further found

that        Dr.    Deutsch       conceded       that       Arsenault          has   work-related

hearing loss, even though he attributed most of the loss to

other factors.                 (Id.)     Thus, after weighing all the relevant

evidence          and    the    record    as    a       whole,    the    ALJ    concluded     that

Arsenault          had    established       a   causal           relationship       between    his

hearing loss and his employment, and that he was entitled to

additional compensation.

                                                    B.

        BAE appealed to the BRB, alleging that the ALJ erred in

invoking the Section 20(a) presumption, and by concluding that

Arsenault established additional work-related hearing loss from

August, 2002, to November, 2004.                         The BRB issued an opinion and

order       on     September       18,   2007,          reversing       the    ALJ’s   award   of

compensation.


        6
       Section 20(a) of the Act creates a presumption that an
individual’s disabling condition is causally related to his
employment.   See 33 U.S.C. § 920(a).     See infra Part II for
discussion of this presumption and its legal effect.



                                                    7
       The BRB upheld both the determination that Arsenault was

entitled to the invocation of the Section 20(a) presumption, as

well as the conclusion that BAE presented sufficient evidence to

rebut the presumption.          The only point on which the BRB reversed

the ALJ was the propriety of the ALJ’s ultimate determination

that, based on the record as a whole, Arsenault’s 2.5% increase

in hearing loss was causally related to noise-exposure in the

workplace.

       In    determining       that    Arsenault        was    not    entitled    to

additional     compensation,          the       BRB   noted   that    Dr.     Deutsch

expressly opined, based on the bone-conduction study results,

that Arsenault did not sustain any increase in his noise-induced

hearing loss between 2002 and 2004.                   Further, because Arsenault

“did   not    introduce    any    medical         evidence    that   his    increased

hearing loss is due to noise exposure at his employment,” the

BRB held that he “did not carry his burden of proof to show that

noise exposure contributed to his increased hearing loss during

this period.”       (J.A. 528.)         The BRB concluded that the ALJ’s

finding that Arsenault was entitled to additional benefits for

hearing     loss   was   not   supported         by   substantial    evidence,    and

reversed the ALJ’s award of compensation.                 This appeal followed.




                                            8
                                                       II.

       We review BRB decisions for errors of law and for adherence

to the statutory standard governing an ALJ’s factual findings.

See Norfolk Shipbuilding & Drydock Corp. v. Faulk, 228 F.3d 378,

380 (4th Cir. 2000).                 Factual findings in the decision under

review     by    the        BRB     “shall             be     conclusive      if      supported         by

substantial evidence in the record considered as a whole.”                                              33

U.S.C. § 921(b)(3).                The BRB, and this court, will uphold the

factual findings of an ALJ, as long as they are supported by

substantial          evidence.           We    will          not   disregard       those         findings

merely because other inferences might have been more reasonable.

See Faulk, 228 F.3d at 380 (further characterizing substantial

evidence        as        “more     than           a        scintilla     but      less          than    a

preponderance,” and “such relevant evidence as a reasonable mind

must   accept         as    adequate          to       support     a    conclusion”          (internal

quotations omitted)).               In short, we review decisions of the BRB

to   assess     whether         substantial             evidence        supported          the    factual

findings of the ALJ, and whether the legal conclusions of the

BRB and the ALJ are rational and consistent with applicable law.

See Sidwell v. Va. Int’l Terminals, Inc., 372 F.3d 238, 241 (4th

Cir.   2004)         (noting       further         that        review    of     the    BRB’s        legal

conclusions          is    de     novo    and          without     deference          to    the     BRB’s

interpretation of the Act).



                                                        9
       As previously stated, Section 20(a) of the Act creates a

presumption that an individual’s disabling condition is causally

related to his employment.          See 33 U.S.C. § 920(a).           An employee

seeking to have the benefit of the Section 20(a) presumption

must allege “(1) an injury or death (2) that arose out of and in

the course of (3) his maritime employment.”               Universal Maritime

Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997).                     After the

presumption is invoked, the burden shifts to the employer to

produce substantial evidence to rebut the presumption that the

injury is causally connected to the claimant’s employment.                     Id.

If the employer does offer evidence sufficient to justify denial

of the claim, the presumption disappears from the case and “all

relevant   evidence     must   be   weighed    to    determine   if     a   causal

relationship has been established, with [the] claimant bearing

the ultimate burden of persuasion.”                 Am. Stevedoring Ltd. v.

Marinelli, 248 F.3d 54, 65 (2d Cir. 2001); accord Am. Grain

Trimmers, Inc. v. Office of Workers’ Comp. Programs, 181 F.3d

810,    816-17   (7th   Cir.    1999);      Director,    OWCP    v.     Greenwich

Collieries, 512 U.S. 267, 280-81 (1994) (rejecting “true doubt

rule,” under which burden of persuasion, not merely burden of

production, shifts to party opposing benefits claim).




                                       10
                                      III.

       Arsenault contends that the BRB erred in determining that

the ALJ’s finding was not supported by substantial evidence.               He

raises three separate arguments in support of this claim.

                                       A.

       Title 33 U.S.C. § 908(c)(13)(E) provides: “Determinations

of loss of hearing shall be made in accordance with the guides

for the evaluation of permanent impairment as promulgated and

modified from time to time by the American Medical Association.”

The American Medical Association’s Guides to the Evaluation of

Permanent Impairment (5th ed. 2001) (the “AMA Guides”) direct

that       air-conduction   studies   shall   be   used   when     evaluating

hearing loss, and that audiometric readings shall be taken at

four specific frequencies.        Arsenault first asserts that the BRB

erred in relying on Dr. Deutsch’s opinion, which was based on

audiograms that, he alleges, did not conform to the AMA Guides.

       Arsenault argues that Dr. Deutsch’s testing was flawed in

two respects, only one of which merits discussion. 7             Although Dr.



       7
       Arsenault argues that some of Dr. Deutsch’s audiograms
performed on petitioner failed to produce an audiometric reading
at the 3,000 Hertz level, as required by the AMA Guides. Based
on the information provided by Arsenault, however, the only
audiogram that failed to produce a reading at this level was
performed on January 19, 2005. Because the claim here at issue
is solely based on an audiogram conducted November 3, 2004,
which demonstrated the 2.5% increase in hearing loss, failure of
(Continued)
                                       11
Deutsch used both air-conduction and bone-conduction studies to

determine the hearing loss, his conclusions about the cause of

the hearing loss were based on the bone-conduction studies.                            He

explained    that       a    noise-induced        hearing        loss    will     “very

specifically” cause “an inner ear hearing loss, which will be

reflected in the bone line.”              (J.A. 418.)            Arsenault contends

that this opinion was flawed because it did not follow the AMA

Guides, which call for air-conduction studies to “determin[e]”

hearing loss, and that the BRB erred in relying on this opinion.

      The BRB held that “determination,” as used in 33 U.S.C.

§ 903(c)(13)(E), refers to the extent of a claimant’s hearing

impairment, not the cause thereof.                   (J.A. 528 n.4.)            Further

noting    that    the       Longshore    Procedure        Manual 8      directs      that

audiograms must reflect both air-conduction and bone-conduction

studies, and that a finding as to the extent of the impairment

should be made with reference to the air-conduction results, the

BRB   concluded   that       reliance    on    Dr.   Deutsch’s       opinion    is    not




subsequent  audiograms           to     conform      to    the     AMA    Guides       is
irrelevant.
      8
       The manual is a publication of the Department of Labor’s
Employment Standards Administration.  The chapter cited by the
BRB contains the procedures for developing and adjudicating
claims for loss of hearing allegedly due to employment covered
by the Act. See Longshore and Harbor Workers’ Compensation Act
Procedure Manual, 3-401.1.



                                          12
precluded by the AMA Guides or the Longshore Procedure Manual. 9

(Id.)

       As the BRB is not a policymaking agency, its interpretation

of    the    Act   is    not   entitled    to     any   special     deference.         See

Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278

n.18       (1980).        As   noted      above,     this       court     reviews      such

interpretations de novo, Sidwell, 372 F.3d at 241, and we find

that the BRB did not err in its interpretation of the Act.                             The

AMA    Guides      “provide    the   methods       employed       under    the   Act   for

measuring hearing loss,” while the statute provides the formula

for determining how such losses shall be compensated.                            Baker v.

Bethlehem       Steel     Corp.,     24   F.3d     632,     634     (4th    Cir.    1994)

(emphasis added).           The AMA Guides themselves refer to measuring

and    computing        hearing   impairment,      not    determining       its     cause.

See AMA Guides, 247 (5th ed. 2001).                 We concur with the BRB that

reliance on Dr. Deutsch’s opinion is precluded by neither the

AMA Guides, nor, therefore, the Act.

                                            B.

       Next, Arsenault alleges that the BRB erred when it relied

on    Dr.    Deutsch’s      opinion,      which    used     a   baseline     comparison

audiogram administered on December 9, 2002--almost four months


       9
       The ALJ did not address the propriety of Dr. Deutsch’s
reliance on the bone-conduction studies.



                                            13
after     the    audiogram         that      formed       the       basis       for     Arsenault’s

original, successful claim for compensation.                                Because this case

turns on the causation of the increased hearing loss between

August    21,    2002,       when      the    first       claim      for    compensation              was

brought, and November, 2004, when the instant claim was filed,

Arsenault       alleges       that      Dr.        Deutsch       relied         on     an       improper

baseline    audiogram            and   failed       to     account       for         the    increased

hearing loss that may have occurred between August 21, 2002, and

December 9, 2002.

     Arsenault’s            argument         that       “there      is     no        evidence         from

Deutsch    that       Mr.     Arsenault        did       not    suffer      a        noise       induced

hearing    loss       during      the     period         of    August       21,       2002       through

December 9, 2002” misses the point.                           (Appellant’s Br. 27.)                    The

claimant    bears       the      ultimate      burden          of   persuasion             as    to   the

causation of the injury.                  See Marinelli, 248 F.3d at 65.                          Thus,

Arsenault       bears      the    burden       of       presenting       evidence           regarding

causation       and   he    has     not      put    forth      substantial            evidence         or,

indeed, any evidence of his own, showing that the increase was

work-related.          See infra III.C.                  The absence of such evidence

from Dr. Deutsch is not sufficient to meet Arsenault’s burden. 10


     10
        Because Dr. Deutsch concluded the increased hearing loss
was not noise-induced, it necessarily follows that there was “no
evidence from Deutsch that Mr. Arsenault did not suffer a noise
induced hearing loss . . .”     (Appellant’s Br. 27.)    Such an
absence does not indicate that the hearing loss was noise-
(Continued)
                                                   14
       For the foregoing reasons, the BRB did not err in relying

on    Dr.   Deutsch’s    opinion.         Dr.    Deutsch      presented   unrebutted

testimony that Arsenault did not sustain noise-induced hearing

loss between at least December, 2002, and November, 2004, and

Arsenault      has    presented    nothing       else   in    the   way   of   medical

evidence to show that he did sustain noise-induced hearing loss,

either      between   August,     2002,    and    December,      2002,    or    between

December, 2002, and November, 2004.               See infra Part III.C.

                                          C.

       Finally, Arsenault contends that the BRB erred in finding

that he failed to provide medical evidence supporting his claim

that his hearing loss was caused by work-related noise.                          There

was    substantial      evidence,    he     argues,      to    support    the    ALJ’s

finding that his increased hearing loss was due to occupational

noise.

       Arsenault argues that the audiograms conducted by the BAE

clinic and Dr. Deutsch, coupled with the testimony of the BAE

employees and Arsenault himself, are sufficient evidence to show



induced, and to assert otherwise perverts Dr. Deutsch’s
testimony and takes it out of context.      As discussed above,
supra Part I.A, Dr. Deutsch recognized that Arsenault had a
“pretty significant” overall hearing loss.   (J.A. 419-20.)  He
concluded, however, that there was no new or increased noise-
induced loss between 2002 and 2005.         See supra n.5 and
accompanying text.    Logically and factually, there can be no
cause absent an effect.



                                          15
that    conditions     were    present      that    could      cause       his    increased

hearing loss.        However, Dr. Deutsch, the only medical expert to

opine as to the cause of Arsenault’s hearing loss, concluded

that the increased hearing loss was not due to noise exposure in

the    workplace.      As     outlined   above,         the    BRB    did    not    err    in

relying on Dr. Deutsch’s opinion, and Arsenault himself did not

put forth any medical evidence regarding the causation of his

hearing loss.        See supra Parts III.A and B.                    Consequently, the

BRB did not err in holding there was not substantial evidence

before the ALJ to find that the 2.5% increase in hearing loss

was caused by work-related injurious noise.



                                         IV.

       For   the     foregoing      reasons,       we    conclude          that    the    BRB

properly     found    that    the   ALJ’s    decision         was    not    supported     by

substantial evidence.            Accordingly, we affirm the decision of

the BRB, reversing the ALJ’s award of compensation.

                                                                                   AFFIRMED




                                         16
