BRB No. 99-0109 BLA

DANIEL WILLIAM JAMES               )
                                   )
          Claimant-Petitioner           )
                                   )
     v.                            )         DATE ISSUED:08/20/1999 8/19/99 
             
                                                                      )
OSBORNE BROTHERS, INC.                     )
                                                                      )
          and                                                      )
                                                                     )
U.S. STEEL MINING COMPANY              )
                                                                    )
                   Employers                                )   
                                                                    )
DIRECTOR, OFFICE OF WORKERS'      )
COMPENSATION PROGRAMS, UNITED)
STATES DEPARTMENT OF LABOR        )
                                  )
          Respondent                         )    DECISION and ORDER

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

     Daniel William James, Bluefield, West Virginia, pro se.

     Barry H. Joyner (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, without the assistance of counsel, appeals the Decision and Order
(97-BLA-1107) of Administrative Law Judge Richard T. Stansell-Gamm denying benefits
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 fourteen years and seven months 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
4. The administrative law judge, after noting that the instant case was a duplicate
claim and finding a material change in conditions established, concluded that the
evidence of record  was  insufficient to establish total disability pursuant to 20
C.F.R. §718.204(c).  Accordingly, benefits were denied. On appeal, claimant
generally contends that he is entitled to benefits. Employer has not filed a
response brief. The Director, Office of Workers' Compensation Programs, responds,
urging affirmance of the denial of benefits.[2]  

     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 are 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).

     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
Decision and Order of the administrative law judge is supported by substantial
evidence and that there is no reversible error contained therein.  The
administrative law judge, in the instant case, permissibly determined that the
evidence of record was insufficient to establish total disability pursuant to
Section 718.204(c). Piccin v. Director, OWCP, 6 BLR 1-616 (1983). In
considering whether total disability was established under Section 718.204(c)(1)-(2), the administrative law judge properly found that inasmuch as the preponderance
of the pulmonary function studies were non-qualifying and all of the blood gas
study evidence was non-qualifying, total disability was not established pursuant
to Section 718.204(c)(1)-(2).[3]   See
Decision and Order at 15-16; Director's Exhibits 9, 11, 32; Employer's Exhibit 1;
Budash v. Bethlehem Mines Corp., 9 BLR 1-48 (1986), aff'd on recon. (en banc) 9 BLR 1-104
(1986); Gee v. W.G. Moore and Sons, 9 BLR 1-4 (1986); Perry, supra.  Furthermore,
the administrative law judge correctly determined that the record does not contain
evidence of cor pulmonale with right sided congestive heart failure necessary to
establish total disability pursuant to Section 718.204(c)(3). See Decision
and Order at 14; Newell v. Freeman United Coal Mining Co., 13 BLR 1-37
(1989).  Based on the foregoing, we affirm the administrative law judge's findings
that total disability was not established pursuant to Section 718.204(c)(1)-(3).

     In considering whether total disability was established pursuant to Section
718.204(c)(4), the administrative law judge reasonably determined that the
preponderance of the medical opinion evidence was insufficient to establish total
disability based on his conclusion that the opinion of Dr. Rasmussen, that claimant
was totally disabled due to his respiratory problem, was outweighed by the opinions
of Drs. Castle and Vasudevan, that claimant did not have a totally disabling
respiratory impairment.[4]   See Fields v.
Island Creek Coal Co., 10 BLR 1-19 (1987); Fuller v. Gibraltar Coal
Corp., 6 BLR 1-1291 (1984); Perry, supra; Decision and Order at 20;
Director's Exhibits 9, 10, 11, 32; Claimant's Exhibit 4; Employer's Exhibit 1. The
administrative law judge acted within his discretion, as factfinder, when he
accorded greater weight to the opinion by Dr. Castle, that claimant has the
respiratory capacity to return to his coal mine employment as a roof bolter, in
light of his superior qualifications. See Malcomb v. Island Creek Coal Co.,
15 F.3d 364, 18 BLR 2-113 (4th Cir. 1994); Bethlehem Mines Corp. v. Massey,
736 F.2d 120, 7 BLR 2-72 (4th Cir. 1984); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); Lucostic v. Director, OWCP,
8 BLR 1-46 (1985). 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);
White v. Director, OWCP, 6 BLR 1-368 (1983).  As the administrative law
judge permissibly found the only opinion diagnosing a totally disabling respiratory
impairment outweighed by the preponderance of the remaining contrary medical
opinions, claimant has not met his burden of proof on all the elements of
entitlement. Id.  The administrative law judge is empowered to weigh the medical opinion evidence
of record 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. See Clark,
supra;  Anderson v. Valley Camp of Utah, 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988).  Consequently, we affirm the administrative law judge's finding that the evidence of
record is insufficient to establish total disability pursuant to Section 718.204(c) as it is supported by substantial evidence
and is in accordance with law.[5]    

     Inasmuch as claimant has failed to establish total disability, a requisite element of entitlement pursuant to 20
C.F.R. Part 718, entitlement thereunder is precluded. Trent, supra; Perry, supra.








     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



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)     Claimant filed his initial claim for benefits on March 22, 1995, which was finally denied on August 23, 1995.
Director's Exhibit 32. Claimant took no further action until he filed the instant claim for benefits on November 15, 1996.
Director's Exhibit 1. 
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 2)As the administrative law judge's findings that the evidence of record was sufficient to establish
a material change in conditions and the existence of pneumoconiosis arising out of coal mine employment pursuant to
20 C.F.R.§§725.309, 718.202(a) and 718.203, as well as his responsible operator determination, are
favorable to claimant and unchallenged on appeal, they are affirmed. Skrack v. Island Creek Coal Co., 6
BLR 1-710 (1983). 
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 3)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, Appendices B, C, respectively. 
A "non-qualifying" study exceeds those values. See 20 C.F.R.  §718.204(c)(1), (2).
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 4)The administrative law judge rationally concluded that the finding of the West Virginia
Pneumoconiosis Board, that claimant suffered from a 15% pulmonary impairment due to pneumoconiosis, was
entitled to little probative value since it was the least documented and reasoned opinion due to the terse nature
of the report and as the evaluation was over ten years old. See Decision and Order at 20; Director's
Exhibit 3; Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989); Budash v. Bethlehem Mines
Corp., 9 BLR 1-48 (1986), aff'd on recon. (en banc) 9 BLR 1-104 (1986); Hutchens v. Director,
OWCP, 8 BLR 1-16 (1985).
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 5)Since the  administrative law judge properly found that the medical evidence was insufficient
to establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4), lay testimony alone cannot alter the
administrative law judge's finding.  20 C.F.R. §718.204(d)(2); Tucker v. Director, OWCP, 10 BLR
1-35 (1987). 
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