Citation Nr: 21015804 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 20-00 434 DATE: March 18, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran’s right ear hearing loss is related to his active military service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2020. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand in July 2020. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for right ear hearing loss. In an April 2020 brief, and at the April 2020 Board hearing, the Veteran’s representative argued that the rationale provided in the January 2019 VA opinion regarding the Veteran’s bilateral hearing loss was not adequate. The Board notes that the examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or the result of an event in military service and provided as rationale for his opinion “As per medical records, the separation medical exam revealed normal hearing bilaterally.” However, the Board also notes that the examiner opined that the Veteran’s tinnitus was at least as likely as not related to service providing “The Veteran’s MOS was passenger services. As per the Veteran, his job duties included ‘meeting and welcoming passengers on incoming flights on the flight line while in the air force, my job as a passenger service required all the noise from air crafts.’ Therefore, if his job required him wot [sic] work on the flight line without hearing protection, then he would have been exposed to excessive hazardous noise exposure while in the service which could cause tinnitus.” A review of the Veteran’s STRs revealed several audiograms which were not discussed by the VA examiner. Moreover, as in-service excessive hazardous noise was conceded by the examiner with regard to tinnitus, the January 2019 examiner should have also explained why such noise exposure did not also cause the Veteran’s bilateral hearing loss. Accordingly, the Board remanded the claim in July 2020 to obtain an addendum opinion regarding the Veteran’s bilateral hearing loss. The Veteran was given another VA examination for his bilateral hearing loss in December 2020. Here, the examiner diagnosed the Veteran with sensorineural hearing loss and opined that it was at least as likely as not caused by or the result of an event in military service. As rationale for this finding, the examiner wrote “Veteran reports he was a passenger services specialist for 4 years. He spent his time on the flight line greeting and instructing passengers. He was exposed to all the noise from the aircraft and did not wear hearing protection. He also reports exposure to noise from firearms while training. Exposure to loud hazardous noise is known to cause hearing loss.” The Board finds this opinion to be well-reasoned and consistent with the evidence of record, entitling it to significant weight. In a January 2021 rating decision, the RO only granted service connection for left ear hearing loss because hearing loss for VA purposes was not shown in the right ear at the December 2020 VA examination. See 38 C.F.R. § 3.385. The Veteran, however, demonstrated hearing loss for VA purposes in the right ear on VA examination in January 2019. Thus, a current disability was shown during the course of the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Accordingly, the Veteran has a current disability, in-service noise exposure, and a positive nexus opinion; entitlement to service connection for right ear hearing loss is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.