BRB No. 99-0481 BLA

ALBERT CONCINI                )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )    
                         )
DIRECTOR, OFFICE OF WORKERS'  )    DATE ISSUED:   01/28/2000                
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
               Respondent                    )     DECISION and ORDER

     Appeal of the Decision and Order Denying Living Miner's Benefits of
     Thomas M. Burke, Administrative Law Judge, United States Department of
     Labor.

     Jonathan Wilderman (Wilderman & Linnet, P.C.), Denver, Colorado, for
     claimant.

     Jennifer U. Toth (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 Living Miner's Benefits (97-BLA-1747)
of Administrative Law Judge Thomas M. Burke on a duplicate 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).  Adjudicating this duplicate claim[1]  pursuant to 20 C.F.R. Part 718, the administrative law judge credited the parties'
stipulation that claimant established twenty-seven years of qualifying coal mine employment and the existence of
pneumoconiosis under 20 C.F.R. §718.202(a).  However, the administrative law judge found that claimant failed
to demonstrate a material change in conditions under 20 C.F.R. §725.309(d) because claimant failed to establish
total respiratory disability pursuant to 20 C.F.R. §718.204(c)(1)-(4).  Accordingly, the administrative law judge
denied benefits. 

     On appeal, claimant argues that the medical evidence of record establishes a material change in his condition
because the evidence is supportive of total disability.  The Director, Office of Workers' Compensation Programs (the
Director) responds, filing a Motion to Remand the case to the district director on the basis that he failed to provide
claimant with a complete, credible pulmonary examination as required by the Act.  Therefore, the Director requests that
the Board vacate the Decision and Order of the administrative law judge and remand the case for further proceedings.[2]   

     The Board's scope of review is defined by statute.  If the administrative law judge's findings of fact and
conclusions of law are supported by substantial evidence, are rational, and are consistent with the applicable law, they
are binding upon this Board and may not be disturbed.  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).  

     The Director contends that, notwithstanding the administrative law judge's permissible weighing of Dr. Montner's
opinion, claimant was not afforded a reliable and complete pulmonary examination as required by Section 413(b) of the
Act, 30 U.S.C. §923(b). See 20 C.F.R. §§718.101, 725.405(b).  Specifically, the
Director argues that the administrative law judge found the opinion of Dr. Montner, the physician who examined
claimant on behalf of the Department of Labor, not probative because Dr. Montner did not explain his conclusion that
claimant's respiratory condition is coal dust related or his opinion that the pulmonary condition played a "small part"
in claimant's disability. See Decision and Order at 9; Director's Exhibit 34.  The Director asserts, therefore,
that he has not fulfilled his statutory obligation of providing claimant with a complete and credible pulmonary evaluation
associated with this claim. 

     It is well established that the Department of Labor (DOL) has a statutory duty to arrange and pay for a miner's
complete pulmonary examination pursuant to 30 U.S.C. §923(b). Hodges v. Bethenergy Mines, Inc.,
18 BLR 1-84 (1994); see Newman v. Director, OWCP, 745 F.2d 1162, 7 BLR 2-25 (8th Cir. 1984);
accord Cline v. Director, OWCP, 917 F.2d 9, 14 BLR 2-102 (8th Cir. 1990).  Likewise, the
Board has held that DOL must provide claimant with a complete, credible pulmonary examination sufficient to constitute
an opportunity to substantiate the claim, as required by the Act. See Pettry v. Director, OWCP,
14 BLR 1-98 (1990); Hall v. Director, OWCP, 14 BLR 1-51 (1990) (en banc).  As the Director
correctly avers, the administrative law judge found that Dr. Montner's opinion, that claimant's chronic obstructive
pulmonary disease was "probably" due to coal dust exposure and constituted a "small part" of claimant's impairment,
was not probative because he did not explain his opinion.  Decision and Order at 9; Director's Exhibit 34.  Inasmuch
as Dr. Montner did not render a credible examination and opinion sufficient to substantiate this claim, we agree with the
Director that DOL has failed to provide claimant with a complete pulmonary examination as required by Section 413(b)
of the Act, 30 U.S.C. §923(b). See 20 C.F.R. §§718.101, 725.405(b).  Hence, we grant
the Director's request, vacate the Decision and Order of the administrative law judge in part, and remand this case to
the district director to provide claimant with a credible, complete pulmonary evaluation in accordance with Section 413(b)
of the Act. See Pettry, supra;  Hall, supra.

     Accordingly, the Decision and Order Denying Living Miner's Benefits of the administrative law judge is affirmed
in part and vacated in part, and this case is remanded to the district director for proceedings consistent with this
opinion.[3]   
     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 is Albert Concini, the miner, who filed eight applications for benefits as follows:
June 15, 1979, March 8, 1982, August 2, 1983, September 17, 1984, September 12, 1985, October 2, 1986, October
3, 1987, and February 8, 1988.  Director's Exhibits 1, 42-45.  Except for the September 1984 claim that claimant
withdrew, all of these claims were denied.  Of the most recent claims, the application filed on October 3, 1987 was
denied by the district director on October 21, 1987.  Director's Exhibit 45.  Claimant took no further action on this claim
and filed the pending application for benefits on February 8, 1988, Director's Exhibit 1; this claim is the subject of the
case sub judice.
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 2) We affirm the administrative law judge's findings regarding length of coal mine employment
and the existence of pneumoconiosis inasmuch as these determinations are unchallenged on appeal. See Coen v.
Director, OWCP, 7 BLR 1-30, 1-33 (1984); Skrack v. Director, OWCP, 6 BLR 1-710 (1983);
Decision and Order at 2.
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 3) Our decision to vacate the administrative law judge's Decision and Order and remand the case
for further proceedings obviates the need to address claimant's arguments on appeal.
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