BRB No. 98-1445 BLA

ANNA WILLIAMS                 )
(Widow of DELBERT WILLIAMS)        )
                         )
          Claimant-Petitioner           )
                                   )
     v.                            )
                         )
CLINCHFIELD COAL COMPANY      )    DATE ISSUED:08/05/1999            
                              
                         )
          Employer-Respondent      )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                                   )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of Stuart A. Levin, Administrative Law
     Judge, United States Department of Labor.

     Daniel Sachs, Springfield, Virginia, for claimant.

     Timothy W. Gresham (Penn, Stuart & Eskridge), Abingdon, Virginia, for
     employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (97-BLA-1186) of Administrative Law
Judge Stuart A. Levin denying benefits on a survivor's 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).  The administrative law
judge credited the miner with eighteen and one-half years of qualifying coal mine
employment and adjudicated this claim pursuant to 20 C.F.R. Part 718.  The
administrative law judge found the miner suffered from pneumoconiosis arising out
of coal mine employment, see 20 C.F.R. §§718.202(a), 718.203(b),
but found that the evidence of record failed to establish that the miner's death
was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).  Accordingly,
benefits were denied.  On appeal, claimant asserts that the administrative law
judge erred in his consideration of the medical opinion evidence pursuant to 20
C.F.R. §718.205(c)(2).  Employer responds, urging affirmance of the denial of
benefits.  The Director, Office of Workers' Compensation Programs, has not filed
a brief in this appeal.

     The Board's scope of review is defined by statute.  We must affirm the
findings of fact and conclusions of law of the administrative law judge if they 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 under 20 C.F.R. Part 718 in a
survivor's claim filed after January 1, 1982, claimant must establish that the
miner has pneumoconiosis, that the pneumoconiosis arose out of coal mine employment
and that the miner's death was due to, or hastened by, pneumoconiosis. See
20 C.F.R. §§718.3, 718.202, 718.203, 718.205.  Failure to establish any
element precludes entitlement. Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR
2-90 (4th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993); Trumbo v.
Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director, OWCP,
11 BLR 1-85 (1988).

     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 therein.  In adjudicating this claim which was
filed by the survivor after January 1, 1982, the administrative law judge properly
required claimant to establish that the miner's death was due to pneumoconiosis
pursuant to Section 718.205(c) in order to establish entitlement to survivor's
benefits. See 20 C.F.R. §§718.1, 718.205(c); Neeley;
supra.  In finding that the evidence of record was insufficient to establish
death due to pneumoconiosis pursuant to Section 718.205(c)(1) and (c)(2), the
administrative law judge permissibly relied upon the death certificate, autopsy
report of Dr. Ganote and medical reports of Drs. Muakata, Tomashefski, Caffrey,
Naeye and Fino, none of whom found that pneumoconiosis played a role in or hastened
the miner's death.[1]   Clark v. Karst-Robbins
Coal Co., 12 BLR 1-149 (1989)(en banc); Lucostic v. United States
Steel Corp., 8 BLR 1-46 (1985); Decision and Order at 3-5; Director's Exhibits
8-10, 22; Employer's Exhibits 3-4, 6-7.  In addition, claimant's assertion that the
administrative law judge erred in failing to specifically discuss Dr. Robinette's
March 20, 1992, medical opinion diagnosing "significant bronchitis and symptoms of
coal workers' pneumoconiosis with industrial related bronchitic type symptoms" is
without merit.  Contrary to claimant's assertion, Dr. Robinette did not diagnose
emphysema nor did he attribute claimant's emphysema to coal mine employment.  Thus,
the administrative law judge's failure to consider this report authored prior to
the miner's death in his discussion of whether death was due to pneumoconiosis does
not impact the outcome of this case. Larioni v. Director, OWCP, 6 BLR 1-1276
(1984).  The administrative law judge has broad discretion in weighing and
assessing the evidence of record in determining whether a party has met its burden
of proof and the Board is not empowered to reweigh the evidence nor substitute its
inferences for those of the administrative law judge. See Anderson v. Valley
Camp of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988).  Thus, we affirm the administrative law judge's
determination that the evidence of record was insufficient to establish that the
miner's death was due to pneumoconiosis pursuant to Section 718.205(c).  Claimant's
failure to establish death due to pneumoconiosis, a requisite element of
entitlement under 20 C.F.R. Part 718 in this survivor's claim, precludes
entitlement thereunder. Shuff, supra; Trent, supra.

     Accordingly, the Decision and Order of the administrative law judge denying
benefits in this survivor' claim 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 administrative law judge's finding that the record is devoid of evidence that would
establish the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304 and, thus, is insufficient to
establish that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c)(3) is unchallenged on
appeal and is therefore affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983); see Kuchwara
v. Director, OWCP, 7 BLR 1-167 (1984).
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