BRB No. 00-0407 BLA

CAROLYN SUE VASS                        )
(Widow of CARL VASS)                    )
                                   )
          Claimant-Petitioner           )
                                   )
     v.                            )                                                           )    
MAPLE MEADOW MINING COMPANY   )    DATE ISSUED:01/05/2001                
                                   
                         )
          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 Edward Terhune Miller,
     Administrative Law Judge, United States Department of Labor.

     S. F. Raymond Smith (Rundle and Rundle, L.C.), Pineville, West Virginia,
     for claimant.

     Paul E. Frampton (Bowles, Rice, McDavid, Graff & Love), Fairmont, West
     Virginia, for employer.

     Before:  SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant[1]  appeals the Decision and Order
(99-BLA-0155) of Administrative Law Judge Edward Terhune Miller 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).  Based on the parties' stipulation, the
administrative law judge credited the miner with twenty-eight and three-quarter years of coal mine employment and
adjudicated this survivor's claim pursuant to the regulations contained in 20 C.F.R. Part 718.  The administrative law
judge found the evidence insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4).  The administrative law judge also found the evidence insufficient to establish that the miner's
death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).  Accordingly, the administrative law judge
denied benefits.

     On appeal, claimant challenges the administrative law judge's finding that the evidence is insufficient to establish
the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4).  Claimant also challenges the administrative law
judge's finding that the evidence is insufficient to establish that the miner's death was due to pneumoconiosis at 20
C.F.R. §718.205(c).  Employer responds, urging affirmance of the administrative law judge's Decision and Order. 
The Director, Office of Workers' Compensation Programs, has declined to participate in this appeal.[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 applicable law, they are
binding upon this Board and may not be disturbed.  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).

     Benefits are payable on survivor's claims filed on or after January 1, 1982 only when the miner's death was due
to pneumoconiosis. See 20 C.F.R. §§718.1, 718.205(c); Neeley v. Director, OWCP,
11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39 (1988).  However, before any finding of
entitlement can be made in a survivor's claim, a claimant must establish the existence of pneumoconiosis pursuant to 20
C.F.R. §718.202(a)(1)-(4). See Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993).  A claimant
must also establish that the miner's pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R.
§718.203. See Boyd, supra.

     Claimant contends that the administrative law judge erred in finding the evidence insufficient to establish the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4).  We disagree.  Whereas Drs. Gaziano, Mullins, Nazer,
Porterfield[3]  and the West Virginia Occupational Pneumoconiosis Board
(WVOPB) opined that the miner suffered from pneumoconiosis,[4] 
Director's Exhibits 5, 9, 11, 12; Employer's Exhibit 3, Drs. Fino and Tuteur opined that the miner did not suffer from
pneumoconiosis, Director's Exhibit 21; Employer's Exhibits 2, 4, 5.  Dr. Farid opined that the miner suffered from
black lung.  Employer's Exhibit 3.  The administrative law judge properly accorded greater weight to the opinions of
Drs. Fino and Tuteur than to the contrary opinions of Drs. Farid, Gaziano, Mullins, Nazer, Poterfield and the WVOPB,
because he found their opinions to be better reasoned and documented.[5] 
 See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields
v. Island Creek Coal Co., 10 BLR 1-19 (1987); Lucostic v. United States Steel Corp., 8 BLR 1-46
(1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (1984).  Thus, we reject claimant's assertion that the
administrative law judge erred in relying on the opinions of Drs. Fino and Tuteur.  Inasmuch as it is supported by
substantial evidence, we affirm the administrative law judge's finding that the evidence is insufficient to establish the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4).

     Since claimant failed to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a), an essential
element of entitlement under 20 C.F.R. Part 718 in a survivor's claim, see Trumbo, supra;
Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986), we
affirm the administrative law judge's denial of benefits.[6] 
















     Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.

     SO ORDERED.




                                                                          
                         ROY P. SMITH            
                         Administrative Appeals Judge




                                                                          
                         REGINA C. McGRANERY           
                         Administrative Appeals Judge




                                                                          
                         MALCOLM D. NELSON, Acting  
                         Administrative Appeals Judge
          

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Footnotes.
 1)Claimant is the widow of the miner, Carl Vass, who died on April 25, 1996.  Director's Exhibits
1, 11; Employer's Exhibit 3.
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 2)Inasmuch as the administrative law judge's length of coal mine employment finding and his
findings pursuant to 20 C.F.R. §718.202(a)(1)-(3) are not challenged on appeal, we affirm these findings. See
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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 3)In a hospital report dated September 20, 1991, Dr. Porterfield diagnosed probable
pneumoconiosis as an underlying condition.  Employer's Exhibit 3.  In a subsequent hospital report dated March 27,
1996, Dr. Poterfield noted that the miner "was seen in the office by Dr. Mullins for his COPD and pneumoconiosis." 
Director's Exhibit 9; Employer's Exhibit 3.
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 4)In a hospital report dated April 11, 1995, Dr. Bhalodi noted a "[h]istory of COPD and Black
Lung disease."  Employer's Exhibit 3.
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 5)The administrative law judge observed that a "finding of pneumoconiosis was made by members
of the West Virginia Occupational Pneumoconiosis Board, who concluded that the miner had a 10% impairment, but that
the miner's death was unrelated to occupational pneumoconiosis."  Decision and Order at 7-8.  The administrative law
judge also observed that "a diagnosis of pneumoconiosis is reported in some of the medical records, and is listed in the
death certificate." Id. at 7.  The administrative law judge further observed that "Dr. Gaziano reported
'CWP,' based upon the death certificate." Id.  The administrative law judge stated that "none of the
diagnoses or findings are (sic) well-reasoned." Id.  With regard to the hospital reports, the
administrative law judge specifically observed that "[o]n occasion, coal worker's pneumoconiosis was listed among the
diagnosed conditions." Id. at 4.  However, the administrative law judge observed that "most of the hospital
reports did not include a specific diagnosis of coal worker's pneumoconiosis."  Id. at 5.  The administrative
law judge stated that "[t]hose that did, like Dr. Nazer's, did not disclose reasoned explanations for the diagnoses."
Id.  In contrast, the administrative law judge stated that "Drs. Fino and Tuteur, two Board-certified
pulmonary specialists, provided detailed reports and deposition testimony which explained the bases for their conclusions
that the miner did not suffer from pneumoconiosis or any other respiratory or pulmonary impairment related to coal mine
employment." Id. at 8.  The administrative law judge observed that "[a]lthough the miner had an extensive
history of coal mine employment, and Dr. Mullins was one of the miner's treating physicians, the opinions of Drs. Fino
and Tuteur are better reasoned and documented than the opinions to the contrary and more consistent with the objective
medical evidence, including the overwhelming preponderance of the negative chest x-rays and the variable and reversible
nature of the miner's respiratory condition." Id.
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 6)In view of our disposition of the case at 20 C.F.R. §718.202(a), we decline to address
claimant's contentions with regard to 20 C.F.R. §718.205(c). See Trumbo v. Reading Anthracite
Co., 17 BLR 1-85 (1993); Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director,
OWCP, 9 BLR 1-1 (1986)(en banc).
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