BRB No. 01-0475 BLA
                              
BILLY BLANKENSHIP                  )
                         )
               Claimant-Petitioner      )
                    )
     v.                            )
                                   )
OLGA COAL COMPANY             )    
                         )
               Employer-Respondent )
                         )
                    )   DATE ISSUED:02/08/2002
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED ) 
STATES DEPARTMENT OF LABOR         )
                    )    DECISION and ORDER
               Party-in-Interest        )     
     
     Appeal of the Decision and Order of Stuart A. Levin, Administrative Law
     Judge, United States Department of Labor.

     Billy Blankenship, Austinville, Virginia, pro se.
     
     Robert Weinberger (West Virginia Coal-Workers' Pneumoconiosis Fund), 
     Charleston, West Virginia, for employer.
     
     Michelle S. Gerdano (Eugene Scalia, 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:  DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

     PER CURIAM:
     Claimant,[1]  without the assistance of counsel,[2]  appeals the Decision and Order (99-BLA-1004) of Administrative Law
Judge Stuart A. Levin denying benefits on a miner'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).[3]   Applying the regulations pursuant to 20 C.F.R. Part 718, the
administrative law judge found the new evidence insufficient to establish total respiratory disability pursuant to
20 C.F.R. §718.204(c) (2000).[4]   Decision and Order at 2-3.  
Therefore, the administrative law judge found the new evidence insufficient to establish a material change in
conditions. Id.  Accordingly, benefits were denied.

     On appeal, claimant generally contends that the administrative law judge erred in denying benefits. 
Employer responds, urging affirmance of the denial of benefits. The Director, Office of Workers' Compensation
Programs (the Director), has declined to participate in this appeal.

     In an appeal filed by a claimant without the assistance of counsel, the Board will consider 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).  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 the Act, 30 U.S.C. §932(a); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     Because this case involves a duplicate claim, the administrative law judge, in accordance with 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), considered the new evidence to determine whether it was
sufficient to prove one of the elements of entitlement that formed the basis of the prior denial of the miner's claim.
See 20 C.F.R. §725.309 (2000).[5]   Claimant's most recent
claim was finally denied because he failed to establish total respiratory disability. See n.1, supra. 
Therefore, the administrative law judge considered the evidence submitted since the most recent denial of
claimant's prior claims to determine "whether the Claimant's pneumoconiosis has progressed to the point of total
disability."  Decision and Order at 2.

     The administrative law judge found that claimant failed to prove that his pneumoconiosis has become
totally disabling and, therefore, also found that claimant failed to establish a material change in conditions. 
Decision and Order at 3-4.  We vacate the administrative law judge's finding that the new evidence is insufficient
to establish total respiratory disability and a material change in conditions for the following reasons.  First, the
administrative law judge noted that the only new pulmonary function study, dated February 9, 1998, failed to
produce qualifying[6]  values.[7]  
Id.  However, the record contains two additional pulmonary function studies performed on December 11,
1998 and December 31, 1996[8]  which the administrative law judge did
not address.  Director's Exhibits 20, 21.  Accordingly, because the administrative law judge did not consider all
the relevant new evidence pursuant to 20 C.F.R. §718.204(b)(2)(i) as required by the Administrative
Procedure Act, see 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a)
by means of 33 U.S.C. §919(d) and 5 U.S.C. §554(c)(2); Wojtowicz v. Duquesne Light Co.,
12 BLR 1-162 (1989); Tenney v. Badger Coal Co., 7 BLR 1-589, 1-591 (1984), we instruct the
administrative law judge on remand to consider the December 11, 1998 and December 31, 1996 pulmonary
function studies and to reweigh all the newly submitted pulmonary function study evidence.

     Second, the administrative law judge mischaracterized  the December 10, 1996 blood gas study, Director's
Exhibit 21, when he stated that it did not qualify under the regulations.  See Beatty v. Danri Corporation and
Triangle Enterprises, 16 BLR 1-11 (1991); Tackett v. Director, OWCP, 7 BLR 1-703 (1985).  A
blood gas study with a PCO2 of 36 would need a PO2 value of 64 or less to qualify.[9]   See 20 C.F.R. Part 718, App. C.  Therefore, the December 10, 1996 blood gas study, with
a PCO2 of 36 and a PO2 of 61, does qualify to demonstrate total respiratory disability pursuant to 20 C.F.R.
§718.204(b)(2)(ii), see Tucker v. Director, OWCP, 10 BLR 1-35 (1987), and we instruct
the administrative law judge on remand to reconsider this blood gas study and to reweigh all the newly submitted
blood gas study evidence. 

     Next, the administrative law judge stated that "there is no contemporary medical opinion" demonstrating
that claimant is totally disabled due to pneumoconiosis because Dr. Forehand found that claimant "is not impaired
from a respiratory or pulmonary standpoint."  Decision and Order at 3.  Since Dr. Forehand opined that claimant
has no significant respiratory impairment,[10]   Director's Exhibit 9, the
administrative law judge permissibly found that Dr. Forehand's report is insufficient to support a finding of total
respiratory disability. See 20 C.F.R. §718.204(b)(2)(iv); Lane v. Union Carbide Corp., 105
F.3d 166, 21 BLR 2-34 (4th Cir. 1997); Gee v. W. G. Moore and Sons, 9 BLR 1-4 (1986)(en
banc).  Accordingly, we affirm the administrative law judge's finding that claimant failed to demonstrate total
respiratory disability by the newly submitted medical opinion evidence.  See Lane, supra; Gee,
supra; Maddaleni v. Pittsburg & Midway Coal Mining Co., 14 BLR 1-135 (1990); Kuchwara
v. Director, OWCP, 7 BLR 1-167 (1984).

     If, on remand, the administrative law judge finds the new evidence sufficient to establish total respiratory
disability pursuant to any of the subsections at 20 C.F.R. §718.204(b)(2)(i) or (ii),  he must then weigh all
the relevant evidence together, both like and unlike, to determine whether claimant has established total respiratory
disability pursuant to 20 C.F.R. §718.204(b). See Fields v. Island Creek Coal Co., 10 BLR
1-19 (1987); Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock v. Bethlehem
Mines Corp., 9 BLR 1-195 (1986), aff'd on recon., 9 BLR 1-236 (1987)(en banc).

     Finally, we instruct the administrative law judge that if he finds that claimant has established a material
change in conditions on remand by establishing total respiratory disability, then he must consider the entire
evidentiary record to determine if claimant has established entitlement to benefits. See Rutter,
supra.
     
     Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed in part and
vacated in part, and the case is remanded for further consideration consistent with this opinion.

     SO ORDERED.


                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.
 1)Claimant is Billy Blankenship, the miner, who filed his fourth and present claim for
benefits on January 12, 1998.  Director's Exhibit 1.  The miner's first claim for benefits, filed on April 27, 1987,
was finally denied on October 19, 1987 because claimant failed to establish the existence of pneumoconiosis
arising out of coal mine employment and total respiratory disability due to pneumoconiosis.  Director's Exhibit
25.  The miner's second claim, filed on August 2, 1990, was finally denied by Administrative Law Judge Charles
P. Rippey on May 18, 1992.  Director's Exhibit 26.  Judge Rippey found that claimant established the existence
of pneumoconiosis, but he denied the claim because claimant failed to establish total respiratory disability.
Id.  The miner's third claim, filed on December 23, 1993, was finally denied by the Benefits Review
Board on March 19, 1996.  Director's Exhibit 27.  In its decision, the Board affirmed Judge Rippey's finding that
claimant failed to establish total respiratory disability and a material change in conditions.  Id.
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 2)Ron Carson, a benefits counselor with Stone Mountain Health Services of Vansant,
Virginia, requested, on behalf of claimant, that the Board review the administrative law judge's decision, but Mr.
Carson is not representing claimant on appeal.  See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88
(1995)(Order).
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 3)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).  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, 160 F. Supp.2d 47 (D.D.C. 2001).  The court's decision
renders moot those arguments regarding the impact of the challenged regulations made by employer in its response
brief and the Director, Office of Workers' Compensation Programs, in his letter to the Board.
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 4)The parties stipulated to fourteen years of coal mine employment.  2000 Hearing
Transcript at 8.
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 5)The amended regulation regarding duplicate claims, see 20 C.F.R.
§725.309, applies only to claims filed after January 19, 2001.
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 6)A "qualifying" pulmonary function study yields values that are equal to or less than the
applicable table values, i.e., Appendix B to 20 C.F.R. Part 718.  A "non-qualifying" study yields values
that exceed those values.
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 7)Contrary to the administrative law judge's statement in his Decision and Order, the
February 9, 1998 pulmonary function study does not contain any post-bronchodilator results.  Decision and Order
at 3. 
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 8)Claimant's height is recorded as seventy inches on the February 9, 1998 pulmonary
function study and seventy-two inches on the December 11, 1998 study, but no height is listed on the December
31, 1996 study.  Director's Exhibits 8, 20, 21.
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 9)Although the administrative law judge noted in his Decision and Order the correct values
for the December 10, 1996 blood gas study and the correct values needed for this study to qualify under the
regulations, Decision and Order at 3, 3 n.3, he ultimately concluded that "[t]he December 1996 blood gas study
does not qualify," Decision and Order at 3. 
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 10)As support for his conclusion regarding claimant's respiratory impairment, Dr.
Forehand stated that the resting hypoxemia reflects deconditioning and that the exercise stress test is normal and
demonstrates no impairment.  Director's Exhibit 9.
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