BRB No. 98-1570 BLA

MOSE MIMS                     )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
DIRECTOR, OFFICE OF WORKERS'       )    DATE ISSUED:08/09/1999           

COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Respondent                    )    DECISION and ORDER

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

     Robert D. Whitfield, Chicago, Illinois, for claimant.

     Rita Roppolo (Henry L. Solano, 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, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits (97-BLA-1637) of
Administrative Law Judge Gerald M. Tierney 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).  The administrative law
judge found that claimant established almost thirty-seven years of coal mine
employment and based on the date of filing, adjudicated the claim pursuant to 20
C.F.R. Part 718.[1]   Decision and Order at 3. 
This case is a duplicate claim.  The administrative law judge considered all  the
evidence of record and concluded  that the evidence was insufficient to establish
total disability due to pneumoconiosis arising out of coal mine employment pursuant
to 20 C.F.R. Part 718, and thus insufficient to establish a material change in
conditions  pursuant to 20 C.F.R. §725.309(d).  Accordingly, benefits were
denied.  On appeal, claimant  contends that the evidence of record is sufficient
to establish total disability due pneumoconiosis arising out of coal mine
employment pursuant to Part 718 and a material change in conditions pursuant to 20
C.F.R. §725.309(d).  The Director, Office of Workers' Compensation Programs
(the Director), responds, urging remand for further development of the medical
evidence.

     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 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).

     Claimant contends that Dr. Clements diagnosis of impairment caused by chronic
bronchitis due to smoking and dust exposure, meets the legal definition of
pneumoconiosis and thus, is sufficient to establish the existence of pneumoconiosis
pursuant to Section 718.202(a).  Although Dr. Clements's diagnosis apparently meets
the legal definition of pneumoconiosis, see 20 C.F.R. §718.201, the
administrative law judge permissibly discredited the opinion as the physician
failed to explain his diagnosis and found it unsupported by the objective evidence
of record. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en
banc); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); King v.
Consolidation Coal Co., 8 BLR 1-167 (1985); Sabett v. Director, OWCP,
7 BLR 1-299 (1984).[2]   We therefore affirm the
administrative law judge's finding that the existence of pneumoconiosis was not
established pursuant to Section 718.202(a) as supported by substantial evidence.

     Claimant contends that Dr. Clements's opinion is sufficient to establish total
disability pursuant to Section 718.204(c)(4).[3] 
 We disagree.  The administrative law judge permissibly discredited Dr. Clements
opinion as insufficiently explained and unsupported by the objective evidence of
record.  The administrative law judge further found that Dr. Clements only
diagnosed a mild impairment.[4]   Clark,
supra; Fields, supra; King, supra;
Sabett, supra.  Further, the administrative law judge noted that Drs.
Goldstein and Risman found no impairment and Dr. Russakoff did not address total
disability. Budash v. Bethlehem Mines Corp., 9 BLR 1-48 (1986)(en
banc), aff'd on recon. en banc, 9 BLR 1-104 (1986); Gee v. W.G. Moore
and Sons,  9 BLR 1-4 (1986); Wright v. Director, OWCP, 8 BLR 1-245
(1985).  The administrative law judge's finding that claimant failed to establish
total disability under Section 718.204(c) based on the evidence of record is
therefore affirmed, as is his finding that a material change in conditions was not
established at 20 C.F.R. §725.309.

     However, as the Director concedes, based on the evidence of record, claimant
has not been provided a complete, credible pulmonary evaluation as he is entitled
to under the Act pursuant 20 C.F.R. §§718.101, 718.401; Newman v.
Director, OWCP, 745 F.2d 1162, 7 BLR 2-25 (8th Cir. 1984); Hall v. Director,
OWCP, 14 BLR 1-51 (1990)(en banc).  We, therefore grant the Director's
request to remand this case and vacate the administrative law judge's denial of
benefits.  The case is remanded, therefore, to the district director for further
development of the medical evidence.
     Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed in part, vacated in part, and the case is remanded for further
consideration consistent with this opinion.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)      Claimant filed three previous claims for benefits, which were denied by the district director, and never
appealed.  This instant claim was filed February 15, 1996.  Director's Exhibit 1.
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 2) Claimant's contention that his testimony is sufficient to establish total disability
lacks merit. Centak v. Director, OWCP, 6 BLR 1-1072 (1984); see Fields v. Island Creek Coal
Co., 10 BLR 1-19 (1987).
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 3) The administrative law judge's finding that the existence of pneumoconiosis was
not established pursuant to Sections 718.202(a)(1)-(a)(3) is affirmed as it is unchallenged on appeal. Skrack
v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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 4) The administrative law judge's findings pursuant to Sections 718.204(c)(1)-(c)(3)
are affirmed as unchallenged on appeal. Skrack, supra.
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