BRB No. 89-1158 BLA
                 
                                              

EDMOND PENNINGTON             )
                              )
          Claimant-Petitioner )
                              )
     v.                       )
                              )
                              )   DATE ISSUED:03/27/1992
DIRECTOR, OFFICE OF WORKERS'  )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR    )
                              )
          Respondent          )    DECISION and ORDER

     Appeal of the Decision and Order of Richard Mills, Administrative Law Judge,
     United States Department of Labor.

     Donnie C. Gadd, Berea, Kentucky, for claimant.           
     
     Nicholas J. Levintow (Marshall J. Breger, 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:  BROWN and McGRANERY, Administrative Appeals Judges,       and
BONFANTI, Administrative Law Judge.*  

     PER CURIAM:
     Claimant appeals, with the assistance of a lay representative, the Decision
and Order (87-BLA-2583) of Administrative Law Judge Richard Mills denying benefits
on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine
Health and Safety









*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).
Act of 1969, as amended, 30 U.S.C. §901 et seq. 
(the Act).  Based on the date of filing, March 19, 1986, the claim was adjudicated
pursuant to 20 C.F.R. Part 718.  After crediting claimant with nine years of coal
mine employment, the administrative law judge determined that claimant failed to
establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a). 
Accordingly, benefits were denied.  The Director, Office of Workers' Compensation
Programs, responds in support of the administrative law judge's Decision and Order.

     In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue to be whether the Decision and Order below is supported by
substantial evidence.  Stark v. Director, OWCP, 9 BLR 1-36 (1986). 
We must affirm the findings of the administrative law judge if they are supported
by substantial evidence, are rational, and are in accordance with applicable law. 
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, a claimant must establish that the miner
had pneumoconiosis, that such pneumoconiosis arose out of coal mine employment, and
that such pneumoconiosis is totally disabling.  See 20 C.F.R.
§§718.3, 718.202, 718.203, 718.204, 718.205; Anderson v. Valley
Camp of Utah, Inc., 12 BLR 1-111 (1989).  The existence of pneumoconiosis
may be established by x-ray, by biopsy or autopsy, by operation of a presumption
or by medical opinion evidence.  See 20 C.F.R. §718.202(a).

     With respect to the administrative law judge's finding pursuant to 20 C.F.R.
§718.202(a)(1), the record contains eleven interpretations of three x-rays. 
Of these eleven x-ray interpretations, ten were read by "B"-readers and only one
of these ten is positive for the existence of pneumoconiosis.  See
Director's Exhibit 20.  As the two most recent x-rays are negative for the
existence of pneumoconiosis and the weight of the x-ray evidence is negative for
pneumoconiosis, the administrative law judge permissibly determined that the x-ray
evidence fails to establish the existence of pneumoconiosis.  See
Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984).  As a result, the
administrative law judge's finding that claimant failed to establish the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1) is supported by
substantial evidence.

     There is no autopsy or biopsy evidence in the record in this case, thus
pneumoconiosis is not established pursuant to 20 C.F.R. §718.202(a)(2).  Also,
the existence of pneumoconiosis is not established pursuant to 20 C.F.R.
§718.202(a)(3) as there are no presumptions that apply in this case.[1] 

     The medical opinion evidence of record consists of the reports of Drs.
Jackson, Sembillo, Varney and Jarboe.  See Director's Exhibits 8, 20,
29; Claimant's Exhibit 1.  In his April 16, 1986 report, Dr. Jackson diagnosed
hypoxemia and stated that this condition was not related to claimant's coal mine
employment.  See Director's Exhibit 8.  Dr. Sembillo's report of
January 13, 1987 diagnoses pneumoconiosis "stages 2&3".  See
Director's Exhibit 20.  Dr. Varney's report of March 16, 1988 states that "[i]t is
my impression that Mr. Pennington did suffer from the occupational disease of coal
worker's pneumoconiosis with resultant pulmonary dysfunction."  See
Claimant's Exhibit 1.  Dr. Jarboe, in his report of May 10, 1988, diagnoses chronic
bronchitis with mild to moderate airway obstruction.  He states that there is "no
pneumoconiosis on film".  See Director's Exhibit 29.

     Upon considering this evidence, the administrative law judge determined that
Dr. Varney's report is not well reasoned because he failed to adequately explain
the rationale for his finding that claimant suffers from pneumoconiosis.  He then
found that Dr. Sembillo's report is outweighed by Dr. Jarboe's report which is both
the most recent and supported by the x-ray and other objective evidence of record. 
The administrative law judge then permissibly found that the weight of the evidence
failed to support a finding of pneumoconiosis.  See Decision and
Order at 7; Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190
(1989).  Consequently, the administrative law judge's finding that claimant failed
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(4) is affirmed as it is supported by substantial evidence.












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

     SO ORDERED.


                                                 
                    JAMES F. BROWN
                    Administrative Appeals Judge



                                                 
                    REGINA C. McGRANERY
                    Administrative Appeals Judge



                                                 
                    RENO E. BONFANTI
                    Administrative Law Judge


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Footnotes.
 1)The presumption at 20 C.F.R. §718.304 is not applicable
as there is no evidence that the deceased miner suffered from complicated
pneumoconiosis.  The fifteen year presumption contained in 20 C.F.R. §718.305
is inapplicable here as claimant's application for benefits was filed after January
1, 1982.  20 C.F.R. §718.305(e).  The presumption at 20 C.F.R. §718.306
applies only to survivor's claims filed prior to June 30, 1982 wherein the miner
died on or before March 1, 1978.  20 C.F.R. §718.306(a). 
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