BRB No. 99-1250 BLA


CARLTON E. HOWARD

  Claimant-Petitioner

v.

DENVER A. HAWKINS

and

BIG GRASSY CREEK COAL
COMPANY

and

DLM COAL CORPORATION

and

WEST VIRGINIA COAL WORKERS'
PNEUMOCONIOSIS FUND

Employer/Carrier-
Respondents

DIRECTOR, OFFICE OF
WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

Party-in-Interest
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DATE
ISSUED:08/30/2000 























DECISION and
ORDER


Appeal of the Decision and Order Denying Benefits of Richard A.
Morgan, Administrative Law Judge, United States Department of Labor.

Carlton E. Howard, French Creek, West Virginia, pro se.

K. Keian Weld (West Virginia Coal Workers' Pneumoconiosis Fund),
Charleston, West Virginia, for DLM Coal Corporation.

Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
Administrative Appeals Judges.

PER CURIAM:

Claimant, without the assistance of counsel, appeals the Decision and Order
Denying Benefits (98-BLA-0185) of Administrative Law Judge Richard A. Morgan
rendered on a claim filed pursuant to the provisions of Title IV of the Federal
Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et
seq. (the Act).  Claimant's initial application for benefits filed on May
25, 1989 was finally denied by the district director on November 7, 1989 because
the medical evidence failed to establish any element of entitlement.  Director's
Exhibit 28.  Claimant filed a second claim on May 21, 1992, which the district
director denied on October 23, 1992 for the same reason.  Director's Exhibit 29. 
On April 4, 1995, claimant filed the current claim, which is a duplicate claim
because it was filed more than one year after the previous denial.  Director's
Exhibit 1; 20 C.F.R. §725.309(d).  The district director denied the claim,
and claimant requested a hearing, which was held on June 25, 1999.[1] 
In his Decision and Order, the administrative law judge accepted the
parties' stipulation to "at least twelve years" of coal mine employment,
Decision and Order at 3, and found that the medical evidence developed since the
prior denial established the existence of pneumoconiosis arising out of coal
mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), and
that claimant suffers from a totally disabling respiratory or pulmonary
impairment pursuant to 20 C.F.R. §718.204(c).  Consequently, the
administrative law judge found that claimant demonstrated a material change in
conditions as required by 20 C.F.R. §725.309(d). See Lisa Lee Mines v.
Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996),
rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995).  Considering
the merits of the claim, the administrative law judge found that claimant failed
to prove that his totally disabling respiratory impairment is due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b).  Accordingly, the
administrative law judge denied benefits.
On appeal, claimant generally challenges the denial of benefits.  Employer
responds, urging affirmance, and the Director, Office of Workers' Compensation
Programs (the Director), has declined to participate in this appeal.
In an appeal filed by a claimant without the assistance of counsel, the
Board considers the issue raised to be whether the Decision and Order below is
supported by substantial evidence. McFall v. Jewell Ridge Coal Co., 12
BLR 1-176, 1-177 (1989).  The Board's scope of review is defined by statute. 
The administrative law judge's Decision and Order must be affirmed if it is
supported by substantial evidence, is rational, and is in accordance with law. 
33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).
To be entitled to benefits under the Act, claimant must demonstrate by a
preponderance of the evidence that he is totally disabled due to pneumoconiosis
arising out of coal mine employment.  30 U.S.C. §901; 20 C.F.R.
§§718.3, 718.202, 718.203, 718.204.  Failure to establish any one of
these elements precludes entitlement. Anderson v. Valley Camp of Utah,
Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987).
The administrative law judge found and employer concedes that claimant
established the existence of pneumoconiosis arising out of coal mine employment
pursuant to Sections 718.202(a), 718.203(b) and that he suffers from a totally
disabling respiratory impairment pursuant to Section 718.204(c).  Therefore, we
turn to the administrative law judge's analysis of whether claimant demonstrated
that his total disability is due to pneumoconiosis pursuant to Section
718.204(b).
Pursuant to Section 718.204(b), the administrative law judge applied the
proper disability causation standard, that is, whether pneumoconiosis is at
least a contributing cause of claimant's totally disabling respiratory
impairment. Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195-96, 19 BLR 2-304, 2-320 (4th Cir. 1995); Robinson v. Pickands Mather and Co., 914 F.2d
35, 38, 14 BLR 2-68, 2-76 (4th Cir. 1990).  On this point, the administrative
law judge considered Dr. Hartman's 1999 letter stating that claimant is disabled
due to a 95% left lung function loss resulting from lung cancer "suspected" to
be due to pneumoconiosis.  Claimant's Exhibit 1.  The administrative law judge
permissibly found, however, as he had previously at Section 718.202(a), that Dr.
Hartman's opinion relating claimant's lung cancer to coal mine dust exposure was
not persuasive.[2]   Decision and Order at 24;
see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 21 BLR 2-323, 2-335
(4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441,
21 BLR 2-269, 2-275-76 (4th Cir. 1997).  The administrative law judge also found
within his discretion that Dr. Hartman's brief, 1996 letter suggesting that
claimant is disabled by coal dust-related COPD was unexplained.  Director's
Exhibit 40; see Hicks, supra; Akers, supra; Trumbo v. Reading
Anthracite Co., 17 BLR 1-85, 1-88-89 and n.4 (1993).  The administrative law
judge similarly found Dr. Stewart's reports, interpreted by the administrative
law judge as stating that claimant is disabled due to coal dust-related lung
cancer and COPD, to be unexplained.  Director's Exhibit 35.  Substantial
evidence supports these findings.
In sum, the administrative law judge permissibly found that the relevant
medical reports were "mostly conclusory," and did not "establish the etiology of
the total respiratory disability other than the miner's 95% loss of his left
lung," which, according to Dr. Hartman, was due to lung cancer and the required
radiation and chemotherapy treatments.  Decision and Order at 25.  Substantial
evidence supports the administrative law judge's finding that claimant did not
carry his burden to prove that his total disability is due to pneumoconiosis. 
Therefore, we affirm the administrative law judge's finding pursuant to Section
718.204(b).
Because claimant has failed to establish that he is totally disabled due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b), a necessary element of
entitlement under Part 718, we affirm the denial of benefits. See Trent,
supra; Perry v. Director, OWCP, 9 BLR 1-1, 1-2 (1986)(en
banc).
Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed.
SO ORDERED.




BETTY JEAN HALL, Chief
Administrative Appeals Judge




JAMES F. BROWN
Administrative Appeals Judge




REGINA C. McGRANERY
Administrative Appeals Judge



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Footnotes.
 1) Before the requested hearing could be held, the
administrative law judge found it necessary to twice remand the claim to the
district director for further development of the evidence regarding the
identification of the responsible operator.
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 2) The administrative law judge had found that claimant
established the existence of pneumoconiosis pursuant to Section 718.202(a)(2),
(4), but did not prove that his lung cancer was significantly related to or
substantially aggravated by dust exposure in coal mine employment.  Decision and
Order at 17-20.  The administrative law judge, within his discretion as fact-finder, was not persuaded by Dr. Hartman's opinion that the lung cancer was
"suspected" to be related to coal mine dust exposure, or by Dr. Husari's opinion
that claimant's lung cancer "could very well be related to" or was "probabl[y]"
related to coal mine dust exposure.  Director's Exhibit 61; Claimant's Exhibit
1. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533, 21 BLR 2-323, 2-335 (4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
441, 21 BLR 2-269, 2-275-76 (4th Cir. 1997).  On this issue, the administrative
law judge permissibly gave greater weight to the contrary opinion of Dr. Renn,
Employer's Exhibit 1, because Dr. Renn explained his opinion based upon medical
studies. Id.
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