BRB No. 01-0114 BLA

HARVEY J. COOPER                   )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
MAGGARD COAL COMPANY,              )    DATE ISSUED:08/30/2001            
                                                     
INCORPORATED                       )
                         )
          Respondent                    )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order - Denial of Benefits of Richard T.
     Stansell-Gamm, Administrative Law Judge, United States Department of
     Labor.

     Harvey J. Cooper, Jewell Ridge, Virginia, pro se.

     Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
     employer.

     Before:  HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals, without the assistance of counsel, the Decision and Order -
Denial of Benefits (98-BLA-1301) of Administrative Law Judge Richard T. Stansell-Gamm 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).[1]   Based on the date of filing, the
administrative law judge adjudicated the claim pursuant to 20 C.F.R. Part 718.[2]   In considering this duplicate claim, the
administrative law judge concluded that the newly submitted evidence of record was
insufficient to establish the existence of pneumoconiosis and total disability and,
therefore, insufficient to establish a material change in conditions.[3]   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), cert denied, 510 U.S. 1090 (1997). 
Accordingly, benefits were denied.

     On appeal, claimant generally contends that he is entitled to benefits. 
Employer  responds, urging affirmance of the denial of benefits.  The Director,
Office of Workers' Compensation Programs, has filed a letter indicating that he
will not participate in this appeal.

     Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief and stayed, for the duration of the lawsuit, 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, determines that the
regulations at issue in the lawsuit will not affect the outcome of the case.
National Mining Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction).  In the present case, the Board
established a briefing schedule by order issued on July 10, 2001, to which the West
Virginia Coal-Workers' Pneumoconiosis Fund (the Fund) and the Director have
responded.  The Director asserts that the regulations at issue in the lawsuit do
not affect the outcome of this case.  Employer, however, asserts that application
of the challenged regulation at 20 C.F.R. §718.201(a)(2), (c)(defining
pneumoconiosis as both a restrictive and obstructive pulmonary disease arising out
of coal mine employment and as a latent and progressive disease) will alter the
outcome of this case.

     Having reviewed the briefs submitted by the Fund and the Director, and
reviewed the record, we hold that the disposition of this case is not altered by
the challenged regulations.  Revised Section 718.201(a)(2), (c) will not alter the
outcome of this case since the United States Court of Appeals for the Fourth
Circuit, within whose jurisdiction this case arises, has recognized the progressive
nature of pneumoconiosis and that obstructive impairments can fall within the
definition of pneumoconiosis. Richardson v. Director, OWCP, 94 F.3d 164,
167-68, 21 BLR 2-373, 379 (4th Cir. 1996); 65 Fed. Reg. 79937, 79971-72. 
Additionally, based on our review, we conclude that none of the other challenged
regulations affect the outcome of this case.  Therefore, we will proceed with the
adjudication of 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 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 rational, supported by substantial evidence, and in
accordance with law.  33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).

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

     After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error.  The administrative law judge rationally
determined that the newly submitted evidence was insufficient to establish the
existence of pneumoconiosis. Piccin v. Director, OWCP, 6 BLR 1-616 (1983). 
The administrative law judge permissibly found the newly submitted x-ray evidence
was insufficient to establish the existence of pneumoconiosis based on the
preponderance of negative x-ray interpretations by physicians with superior
qualifications.  Director's Exhibits 17, 18, 24, 27; Employer's Exhibits 1, 2, 4,
6; Decision and Order at 10; Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR
2-61 (4th Cir. 1992); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1988); Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990); see Director,
OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267. 18 BLR 2A-1 (1994),
aff'g sub nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR
2-64 (3d Cir. 1993).  In addition, the administrative law judge  properly found
that the existence of pneumoconiosis was not established pursuant to Section
718.202(a)(2) and (3)(2000) as there was no biopsy or autopsy evidence in the
record, this is a living miner's claim filed after January 1, 1982, and there is
no evidence of complicated pneumoconiosis in the record.  Decision and Order at 6;
20 C.F.R. §§718.304, 718.305, 718.306 (2000); Langerud v. Director,
OWCP, 9 BLR 1-101 (1986).  Turning to the new medical opinion evidence, the
administrative law judge found that Dr. Forehand's opinion diagnosing
pneumoconiosis was outweighed by the contrary opinions of Drs. Fino and Hippensteel
because they were better supported by the objective evidence of record.  This was
rational.  Director's Exhibit 13; Employer's Exhibits 1, 6. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Dillon v. Peabody
Coal Co., 11 BLR 1-113 (1988); Fields v. Island Creek Coal Co., 10 BLR
1-19 (1987); Minnich v. Pagnotti Enterprises, Inc., 9 BLR 1-89 (186);
King v. Consolidation Coal Co., 8 BLR 1-262 (1985).  Considering the x-ray
and medical opinion evidence together, the administrative law judge properly found
that it failed to establish the existence of pneumoconiosis. Island Creek Coal
Co. v. Compton, 211 F.3d 203, 211,      BLR       (4th Cir. 2000).

     Turning to the issue of total disability, the administrative law judge
rationally found the newly submitted evidence insufficient to establish a total
respiratory disability. Piccin, supra.  The administrative law judge
found the newly submitted evidence insufficient to establish total disability
pursuant to Section 718.204(c)(1)-(3)(2000) as none of the pulmonary function
studies produced qualifying values, one out of three blood gas studies produced
qualifying values[4]  and there was no evidence of
cor pulmonale with right-sided congestive heart failure in the record.  This was
rational.  20 C.F.R. §718.204(b)(2)(i)-(iii); Director's Exhibits 12, 14;
Employer's Exhibit 1; Decision and Order at 13; Schetroma v. Director, OWCP,
18 BLR 1-19 (1993); Newell v. Freeman United Coal Mining Co., 13 BLR 1-37
(1989); Fields, supra.  Further, the administrative law judge
permissibly found the newly submitted medical opinions insufficient to establish
total respiratory disability as all of the physicians opined that claimant was not
totally disabled due to a respiratory impairment.  Director's Exhibit 13;
Employer's Exhibits 1, 6; Decision and Order at 14.  Jewell Smokeless Coal Corp.
v. Street, 42 F.3d 241, 19 BLR 2-1 (4th Cir. 1994).  Because claimant failed
to establish the existence of pneumoconiosis and total disability by the newly
submitted evidence, we affirm the administrative law judge's finding that claimant
failed to establish a material change in conditions and must affirm the denial of
benefits.
     Accordingly, the administrative law judge's Decision and Order - Denial of
Benefits is affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) 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.
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 2) Claimant's prior claims filed June 26, 1973, October 31, 1988,
and December 5, 1990, were denied.  Director's Exhibits 33, 34, 35.  Claimant's
December 5, 1990 claim was denied March 4, 1991.  Claimant filed the instant claim
on December 23, 1997.  Director's Exhibit 1.
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 3) Claimant failed to establish any elements of entitlement in
his prior claim.
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 4) A "qualifying" pulmonary function study or blood gas study
yields values that are equal to or less than the appropriate values set out in the
tables at 20 C.F.R. Part 718, Appendix B, C respectively.  A "non-qualifying" study
exceeds those values. See 20 C.F.R. §718.204(c)(1), (2).
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