BRB No. 88-2595 BLA 
                         

JACK M. STAMPER               )                        
                              )
          Claimant-Petitioner )
                              )
     v.                       )
                              )
WESTMORELAND COAL COMPANY     )   DATE ISSUED:05/15/1991      
                              )
          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 Ben L. O'Brien, Administrative Law Judge,
     United States Department of Labor.

     Joseph E. Wolfe (Wolfe & Farmer), Norton, Virginia, for claimant.

     Mary Jane Brown (Jackson & Kelly), Charleston, West Virginia,    for employer.

     Before:  STAGE, Chief Administrative Appeals Judge, McGRANERY, Administrative
     Appeals Judge, and LAWRENCE, Administrative Law Judge.*

     PER CURIAM:
     Claimant appeals the Decision and Order (87-BLA-1908) of Administrative Law
Judge Ben L. O'Brien 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 *Sitting as a temporary Board member by
designation pursuant to the Longshore and Harbor Workers' Compensation Act as
amended in 1984, 33 U.S.C. §921(b)(5) (Supp. V 1987).
seq. (the Act).  The administrative law judge reviewed this claim
pursuant to the provisions of 20 C.F.R. Part 718, and credited claimant with at
least fourteen and one-half years of qualifying coal mine employment.  The
administrative law judge found, however, that claimant failed to establish either
the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202, or total
disability pursuant to 20 C.F.R. §718.204(c).  Accordingly, benefits were
denied.  Claimant appeals, challenging the administrative law judge's findings
pursuant to Sections 718.202(a)(1) and (a)(4), 718.204(c)(4), and with respect to
length of coal mine employment.  Employer responds, urging affirmance.  The
Director, Office of Workers' Compensation Programs, has not participated in this
appeal.
     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 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 pursuant to 20 C.F.R. Part 718,
claimant must establish, by a preponderance of the evidence, that he is totally
disabled due to pneumoconiosis arising out of coal mine employment. 
See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204.  Failure
to establish any of these elements precludes entitlement.  Anderson v. Valley
Camp of Utah, Inc., 12 BLR 1-111 (1989); Trent v. Director,
OWCP, 11 BLR 1-26 (1987).
     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, consistent with applicable law, and must be affirmed.  Turning to the
issue of total disability, the administrative law judge properly determined that
none of the pulmonary function study or blood gas study results of record produced
qualifying results,[1]  and that the record
contained no evidence of cor pulmonale with right-sided congestive heart failure,
thus claimant failed to establish total disability pursuant to Section
718.204(c)(1) - (c)(3).  Decision and Order at 6, 7.  In determining that the
evidence failed to establish total disability pursuant to Section 718.204(c)(4),
the administrative law judge rationally found that none of the medical opinions of
record concluded that claimant suffered from a totally disabling respiratory or
pulmonary impairment.  Decision and Order at 7; Director's Exhibit 10; Claimant's
Exhibit 3;  Employer's Exhibit 1.  Contrary to claimant's arguments, the opinion
of Dr. Baxter, who indicated that there was no impairment of breathing at present
but that claimant should not be exposed to any further dust, is insufficient to
establish total disability pursuant to Section 718.204(c).  Decision and Order at
5; Claimant's Exhibit 3; see Taylor v. Evans and Gambrel Co.,
Inc., 12 BLR 1-83, 1-88 (1988).  The administrative law judge's findings
pursuant to Section 718.204(c) are supported by substantial evidence, and we hereby
affirm them.  Inasmuch as claimant has failed to establish a requisite element of
entitlement, i.e., total disability, claimant is precluded from
entitlement to benefits under Part 718, and we need not address the remaining
issues on appeal of whether claimant established the existence of pneumoconiosis
and the length of his qualifying coal mine employment.  See
Trent, supra.
     Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.
     SO ORDERED.

                                                 
                    BETTY J. STAGE, Chief
                    Administrative Appeals Judge



                                                 
                    REGINA C. McGRANERY
                    Administrative Appeals Judge



                                                 
                    LEONARD N. LAWRENCE
                    Administrative Law Judge

To Top of Document

Footnotes.
 1) 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 and C, respectively.  A "non-qualifying"
study yields values that exceed those values.
 Back to Text

To Top of Document