BRB No. 98-1659 BLA


BERNARD PHILLIPS

               Claimant-Petitioner

          v.

ROARING CREEK COAL COMPANY

          and

WEST VIRGINIA COAL WORKERS'
PNEUMOCONIOSIS FUND

               Employer/Carrier-
               Respondents

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

               Party-in-Interest)
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11/08/1999  
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)    DECISION AND ORDER
     Appeal of the Decision and Order - Denying Benefits of Michael P.
     Lesniak, Administrative Law Judge, United States Department of Labor.

     Bernard Phillips, Belington, West Virginia, pro se.

     Before:  HALL, Chief Administrative Appeals Judge, SMITH, and BROWN,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appears without the assistance of counsel and appeals the Decision
and Order - Denying Benefits (96-BLA-1822) of Administrative Law Judge Michael
P. Lesniak with respect to 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 seq. (the Act).  The administrative law judge credited
claimant with thirteen years of coal mine employment and noted that the record
contained a claim filed on March 14, 1973, which was finally denied by the
Department of Labor on January 2, 1980, on the ground that claimant did not
prove any of the elements of entitlement, and a duplicate claim filed on
November 27, 1995.  Director's Exhibits 1, 24.  The administrative law judge
initially considered, therefore, whether claimant demonstrated a material change
in conditions pursuant to 20 C.F.R. §725.309 in accordance with the
standard adopted by the United States Court of Appeals for the Fourth Circuit in
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).[1] 

     The administrative law judge weighed the newly submitted evidence and found
that it was sufficient to establish total disability under 20 C.F.R.
§718.204(c)(1)-(4).  The administrative law judge concluded that claimant
demonstrated a material change in conditions pursuant to Section 725.309 and
turned to a consideration of entitlement on the merits.  Based upon a review of
all of the evidence of record, the administrative law judge determined that
claimant failed to establish the existence of pneumoconiosis under 20 C.F.R.
§718.202(a)(1)-(4) and that his totally disabling impairment is due to
pneumoconiosis under 20 C.F.R. §718.204(b).  Accordingly, benefits were
denied.  Claimant asserts that the denial of benefits is in error and that the
x-ray readings focused upon his cardiac condition, rather than pneumoconiosis.[2]   Employer has not responded to claimant's
appeal.  The Director, Office of Workers' Compensation Programs, has filed a
letter indicating that he will not participate in the present appeal.[3] 

     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).  The Board's scope of review is defined by statute.  If the
findings of fact and conclusions of law of the administrative law judge 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 under 20 C.F.R. Part 718,
claimant must prove that he suffers from pneumoconiosis, that the pneumoconiosis
arose out of coal mine employment, and that the pneumoconiosis is totally
disabling.  20 C.F.R. §§718.3, 718.202, 718.203, 718.204.  Failure to
establish any one of these elements precludes entitlement. See Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Gee v. W.G. Moore & Sons, 9 BLR
1-4 (1986)(en banc); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).

     Upon review of the administrative law judge's findings and the evidence of
record, we affirm the administrative law judge's determination, on the merits,
that claimant has not demonstrated that pneumoconiosis is at least a
contributing cause of his total disability pursuant to Section 718.204(b), as it
is rational and supported by substantial evidence. See Robinson v. Pickands
Mather & Co., 914 F.2d 35, 14 BLR 2-68 (4th Cir. 1990); see also Roberts
v. West Virginia C.W.P. Fund, 74 F.3d 1233, 20 BLR 2-67 (4th Cir. 1996). 
The record contains the medical opinions of Drs. Piccirillo, Scattaregia,
Gaziano, Renn, and Fino.  Drs. Piccirillo's opinion was submitted with the 1973
claim and contains only a diagnosis of hypertension unrelated to dust exposure
in coal mine employment.  Director's Exhibit 24.  Dr. Gaziano reviewed an x-ray
dated January 16, 1996, and stated that it revealed pneumoconiosis which, in
light of claimant's ten year history of coal mine work, was caused by coal dust
exposure.  Director's Exhibits 11, 12.  Dr. Gaziano did not, however, offer any
opinion as to the issues of disability or disability causation.  Dr. Scattaregia
examined claimant at the request of the Department of Labor in conjunction with
the 1995 claim.  Director's Exhibit 6.  Dr. Scattaregia diagnosed possible
pleural plaques and determined that claimant does not have a respiratory
impairment. Id..  Dr. Renn examined claimant on April 15, 1997 and also
conducted a review of the record.  Employer's Exhibit 1.  Dr. Renn stated that
claimant does not have pneumoconiosis and that his mild ventilatory
insufficiency is attributable to cardiac failure, cardiomyopathy, and massive
abdominal ascites.  Employer's Exhibits 1, 4.  Dr. Fino performed a record
review and concurred with Dr. Renn's conclusions.  Employer's Exhibit 2.

     Inasmuch as none of the physicians of record concluded that pneumoconiosis
is at least a contributing cause of claimant's total disability, the
administrative law judge rationally determined that claimant did not establish
total disability due to pneumoconiosis under Section 718.204(b). See
Roberts, supra; Robinson, supra.  In light of the
administrative law judge's appropriate finding that claimant did not demonstrate
an essential element of entitlement, we must affirm the denial of benefits under
20 C.F.R. Part 718.[4]   See Trent,
supra; Perry, supra; Gee, supra.

     Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is     affirmed.

     SO ORDERED.
     


                         
                                
                      
BETTY JEAN HALL, Chief
Administrative Appeals Judge




                                
                      
ROY P. SMITH
Administrative Appeals Judge




                                
                      
JAMES F. BROWN
Administrative Appeals Judge


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Footnotes.
 1)This case arises within the jurisdiction of the United
States Court of Appeals for the Fourth Circuit as claimant's last year of coal
mine employment occurred in West Virginia.  Director's Exhibit 2; see Shupe
v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).  In 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), the
court held that in order to establish a material change in conditions pursuant
to 20 C.F.R. §725.309, a claimant must prove at least one of the elements
of entitlement previously adjudicated against him.
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 2)Claimant also indicates that he is in the process of
obtaining new evidence.  This evidence cannot be considered in conjunction with
his appeal of the administrative law judge's Decision and Order. See Bozick
v. Consolidation Coal Co., 732 F.2d 64, 6 BLR 2-23, remanded for
recon., 735 F.2d 1017, 6 BLR 2-119 (6th Cir. 1984).  It may, however, form
the basis of a request for modification under the terms of 20 C.F.R.
§725.310.
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 3)We affirm the administrative law judge's findings under 20
C.F.R. §§718.204(c)(1)-(4) and 725.309, as they are not adverse to
claimant and are unchallenged on appeal. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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 4)Because the administrative law judge's determination on
the merits pursuant to 20 C.F.R. §718.204(b) can be affirmed, we decline to
address the administrative law judge's findings under 20 C.F.R.
§718.202(a)(1)-(4), including any matter related to the x-ray evidence of
record, as error, if any, therein is harmless. See Johnson v. Jeddo-Highland
Coal Co., 12 BLR 1-53 (1988); Larioni v. Director, OWCP, 6 BLR 1-1276
(1984).
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