BRB No. 00-1057 BLA
                                         
JAMES E. HOLCOMB                 )
                       )
        Claimant-Petitioner           )
                       )
   v.                            )
                       )
CARTER-ROAG COAL COMPANY,        )
INCORPORATED                     )    DATE ISSUED:08/30/2001        
                                        )
   and                           )
                       )
WEST VIRGINIA COAL WORKERS'      )
PNEUMOCONIOSIS FUND              )
                       )
        Employer/Carrier-             )
        Respondents                   )
                       )
DIRECTOR, OFFICE OF WORKERS'          )
COMPENSATION PROGRAMS, UNITED    )
STATES DEPARTMENT OF LABOR       )
                       )
        Party-in-Interest             )  DECISION and ORDER

   Appeal of the Decision and Order of Gerald M. Tierney, Administrative
   Law Judge, United States Department of Labor. 

   James E. Holcomb, Webster Springs, West Virginia, pro se.

   Robert Weinberger, Charleston, West Virginia, for carrier.

   Helen H. Cox (Howard M. Radzely, Acting Solicitor of Labor; Donald S.
   Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
   Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for
   Administrative Litigation and Legal Advice), Washington, D.C., for the
   Director, Office of Workers' Compensation Programs, United States
   Department of Labor.

   Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
   Administrative Appeals Judges.
   PER CURIAM:

   Claimant, without the assistance of counsel, appeals the Decision and Order
(2000-BLA-0238) of Administrative Law Judge Gerald M. Tierney denying benefits on
a claim[1]  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).  The administrative law judge found that
claimant did not establish the existence of pneumoconiosis pursuant to 20 C.F.R
§718.202(a)(2000).  Accordingly, the administrative law judge denied benefits. 
On appeal, claimant generally challenges the administrative law judge's denial of
benefits.  In response, employer argues that the administrative law judge's
decision is supported by substantial evidence.  The Director, Office of Workers'
Compensation Programs (the Director), responds on the merits addressing his role
in providing claimant an opportunity to substantiate his claim pursuant to 30 U.S.C
§923(b) and insuring that all tests comply with the appropriate regulatory
standards pursuant to 20 C.F.R. §725.406(b).  Claimant, in his reply brief,
reiterates that the evidence of record is sufficient to establish the existence of
pneumoconiosis.[2] 

   In an appeal filed by a claimant without the assistance of counsel, the Board will consider whether the Decision and
Order below is supported by substantial evidence. See McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989);
Stark v. Director, OWCP, 9 BLR 1-36 (1986).  We must affirm the administrative law judge's Decision and Order
if the findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with
applicable 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 (1985).

   In order to establish entitlement to benefits in a living miner's claim filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling.  20 C.F.R. §§718.3, 718.202,
718.203, 718.204(2000); Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986)(en
banc).  Failure to establish any one of these elements precludes entitlement.
See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc).

   After consideration of the Decision and Order and the relevant evidence of
record we  conclude that the administrative law judge's decision is supported by
substantial evidence and contains no reversible error.  Under Section
718.202(a)(1)(2000), claimant concedes that the majority of the interpretations of
the November 30, 1998 x-ray[3]  are negative, but
argues that the administrative law judge erred in finding that the existence of
pneumoconiosis was not established under Section 718.202(a)(1)(2000).  Claimant's
Brief at 3.  In weighing the x-ray evidence of record, the administrative law judge
properly found that although there were four positive readings by dually qualified
physicians,[4]  Drs. Patel and Alexander, there
were also four negative readings by equally qualified physicians.  Decision and
Order at 3; Director's Exhibits 25, 27-29; Claimant's Exhibit 1.  The
administrative law judge permissibly found that as the better qualified physicians
were equally divided on their interpretations of the x-ray evidence, the
preponderance of the x-ray evidence does not support a finding of pneumoconiosis
under Section 718.202(a)(1)(2000).  Decision and Order at 4; see Adkins v.
Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir 1992).

   Further, although the administrative law judge did not make a finding under
20 C.F.R. §718.202(a)(2)-(3)(2000), the record contains no biopsy evidence or
evidence of complicated pneumoconiosis, see 20 C.F.R. §718.304 (2000),
and the presumption contained in 20 C.F.R. §§718.305 and 718. 306 (2000)
are inapplicable in this miner's claim filed after January 1, 1982.  Therefore,
claimant may not establish, as a matter of law, the existence of pneumoconiosis
pursuant to Section 718.202(a)(2)-(3)(2000).

   Under Section 718.202(a)(4)(2000), claimant argues that the medical opinion
evidence is sufficient to establish that claimant suffers from chronic pulmonary
disease resulting in impairment that is significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.  Claimant's Brief at 6.  We
disagree.  The administrative law judge considered the medical opinion of Dr.
Bennett that claimant is totally disabled due to the secondary complications of
occupational pneumoconiosis.  However, he rationally found that while Dr. Bennett's
opinion "could merit special consideration as claimant's longtime treating
physician," its credibility is lessened because he does not address claimant's
approximately twenty-seven years smoking history. Decision and Order at 5;
Perry, supra.  Further, the administrative law judge reasonably discredited
the medical opinions of Drs. Rasmussen and Durham as unreasoned because the
physicians failed to adequately explain how their findings support whether
claimant's pulmonary impairment is significantly related to, or substantially
aggravated by, his coal mine dust exposure.[5]  
Id; Tackett v. Cargo Mining Co., 12 BLR 1-11 (1988)(en banc);
Clark v. Karsts-Robbins Coal Co., 12 BLR 1-149 (1989); Fields v. Island
Creek Coal Co., 10 BLR 1-19 (1987); Director's Exhibits 7, 12, 25, 26;
Claimant's Exhibits 1, 2.  Accordingly, substantial evidence supports the
administrative law judge's finding that after weighing all the evidence of record
together under Section 718.202(a)(2000), the x-ray and the medical opinion evidence
are insufficient to establish the existence of pneumoconiosis.[6]   Decision and Order at 5; Island Creek Coal
Co. v. Compton, 211 F.3d 203,    BLR    (4 th Cir. 2000).  

   Claimant has the general burden of establishing entitlement and bears the risk
of non-persuasion if his evidence is found insufficient to establish a crucial
element. See Oggero v. Director, OWCP, 7 BLR 1-860 (1985).  The
administrative law judge is empowered to weigh the medical evidence and to draw his
own inferences therefrom, see Maypray v. Island Creek Coal Co., 7 BLR 1-683
(1985), and the Board may not reweigh the evidence or substitute its own inferences
on appeal. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989);
Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988).  As the administrative
law judge permissibly concluded that the evidence does not establish that claimant
has pneumoconiosis, claimant has not met his burden of proof on this critical
element.

   Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.

   SO ORDERED.

                                                                   
                       BETTY JEAN HALL, Chief
                       Administrative Appeals Judge


                                                                   
                       ROY P. SMITH
                       Administrative Appeals Judge


                                                                   
                       NANCY S. DOLDER
                       Administrative Appeals Judge

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Footnotes.
 1)This claim was filed on October 29, 1998.  Director's Exhibit
1.
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 2)The Department of Labor has amended the regulations implementing the Federal Coal
Mine Health and Safety Act of 1969, as amended.  These regulations became effective on January 19, 2001, and
are found at 65 Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726).  All
citations to the regulations, unless otherwise noted, refer to the amended regulations.

     Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States
District Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and
stayed, inter alia, all claims pending on appeal before the Board under the Act, except for those in which
the Board, after briefing by the parties to the claim, determined that the regulations at issue in the lawsuit would
not affect the outcome of the case. National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction).  The Board subsequently issued an order requesting supplemental
briefing in the instant case.  On August 9, 2001, the District Court issued its decision upholding the validity of the
challenged regulations and dissolving the February 9, 2001 order granting the preliminary injunction. National
Mining Ass'n v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001).  The court's decision renders moot those
arguments made by the parties regarding the impact of the challenged regulations.

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 3)Contrary to claimant's assertion regarding the negative
readings of the x-ray taken on November 30, 1998, the rereadings to which claimant
objects were mostly obtained and submitted into evidence by the West Virginia Coal
Workers' Pneumoconiosis Fund, the insurer of Carter-Roag Coal Company, the
responsible operator and a party to this case.  Director's Exhibits 27-29.  The
Director obtained a single rereading by a B reader that the administrative law
judge did not rely on in finding that claimant did not establish the existence of
pneumoconiosis under 20 C.F.R. §718.202(a)(1)(2000).  Decision and Order at
3.  Therefore, claimants' arguments are without merit.
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 4)A dually qualified physician is a B reader and a Board-certified radiologist.  A "B-reader" is a physician who has demonstrated
proficiency in evaluating chest roentgenograms for roentgenographic quality and in
the use of the ILO-U/C classification for interpreting chest roentograms for
pneumoconiosis and other diseases by taking and passing a specially designed
proficiency examination given on behalf of or by the Appalachian Laboratory for
Occupational Safety and Health. See 20 C.F.R. §718.202(a)(1)(ii)(E)
(2000); 42 C.F.R. §37.51; Mullins Coal Co., Inc. of Virginia v. Director,
OWCP, 484 U.S. 135, 145 n. 16, 11 BLR 2-1, 2-16 n.16 (1987), reh'g
denied, 484 U.S. 1047 (1988); Roberts v. Bethlehem Mines Corp., 8 BLR
1-211 (1985).  A designation of "Board-certified" means certification in radiology
or diagnostic roentgenology by the American Board of Radiology, Inc. or the
American Osteopathic Association.  See 20 C.F.R. §718.202(a)(1)(ii)(C)
(2000).
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 5)Dr. Rasmussen stated that claimant suffers from a disabling
pulmonary insufficiency that is a "consequence of his cigarette smoking and coal
mine dust exposure."  Director's Exhibit 7.  Dr. Durham diagnosed chronic
obstructive pulmonary disease and coal workers' pneumoconiosis caused by tobacco
and coal dust exposure.  Director's Exhibit 12.
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 6)Dr. Zaldivar concluded that claimant does not have coal
workers' pneumoconiosis and that his severe pulmonary impairment is "not the result
of his occupation," but due to his smoking history.  Director's Exhibit 33.
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