BRB No. 97-1759 BLA

WESLEY MILLER                 )
                                   )
          Claimant-Petitioner           )
                                   )
     v.                            )    DATE ISSUED:09/10/1998            
    
                         )
WHITAKER COAL CORPORATION          )
                         )
     and                           )
                         )
SUN COAL COMPANY                   )
                         )
          Empoyer-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 Alfred Lindeman, Administrative Law
     Judge, United States Department of Labor.

     Edmond Collett, Hyden, Kentucky, for claimant.

     Ronald Gilbertson (Kilcullen, Wilson and Kilcullen), Washington, D.C.,
     for employer.

     Barry H. Joyner (Marvin Krislov, Deputy Solicitor for National
     Operations; 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, the
     United States Department of Labor.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (97-BLA-333) of Administrative Law
Judge Alfred Lindeman 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 seq. (the Act).  The administrative law judge credited
claimant with fourteen years of coal mine employment and adjudicated this claim
pursuant to 20 C.F.R. Part 718.  The administrative law judge found that the
evidence of record was sufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(4), but insufficient to establish total
disability pursuant to 20 C.F.R. §718.204(c)(1)-(4).  Accordingly, benefits
were denied.  On appeal, claimant contends that the administrative law judge erred
in failing to find total disability established pursuant to 20 C.F.R.
§718.204(c)(4) and to award benefits on the basis of the opinions of Drs.
Clarke and Baker.  Employer responds, urging affirmance of the denial of benefits. 
The Director, Office of Workers' Compensation Programs (the Director), responds,
urging the Board  to remand this case for further development of the evidence.[1] 

     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 the 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).

     In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204.  Failure of claimant to establish any of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry
v. Director, OWCP, 9 BLR 1-1 (1986).

     Claimant asserts that the administrative law judge erred in evaluating the
medical opinions of record.  In weighing the medical opinions of record, the
administrative law judge rationally concluded that this evidence failed to
establish total disability by a preponderance of the evidence.[2]   The administrative law judge permissibly did not
credit the opinion of Dr. Clarke or Dr. Baker's May 1993 opinion pursuant to
Section 718.204(c)(4) since he found that their diagnoses were not supported by the
objective evidence of record and the underlying documentation did not support the
physicians' conclusions. Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995); Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179,
12 BLR 2-121 (6th Cir. 1989);Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985);
Hutchens v. Director, OWCP, 8 BLR 1-16 (1985); Decision and Order at 5-6;
Claimant's Exhibits 1, 4.  The Director, however, urges remand because in
considering Dr. Baker's May 1996 opinion, that claimant's impairment was "mild,"
the administrative law judge found that total disability was not established. 
Decision and Order at 6; Director's Exhibit 10.  Dr. Baker did not comment on
whether claimant's mild impairment would preclude performance of claimant's usual
coal mine employment in light of the physical requirements of his duties.  Thus,
the Director argues for remand so that his statutory obligation to provide claimant
with a complete, credible pulmonary examination sufficient to constitute an
opportunity to substantiate the claim, as required by the Act, may be satisfied. 
30 U.S.C. §923(b); 20 C.F.R. §§718.101, 718.401, 725.405(b);
Newman v. Director, OWCP, 745 F.2d 1162, 7 BLR 2-25 (8th Cir. 1984);
Hodges v. Bethenergy Mines, Inc., 18 BLR 1-84 (1994); Pettry v. Director,
OWCP, 14 BLR 1-98 (1990)(en banc); Hall v. Director, OWCP, 14 BLR
1-51 (1990).  We agree with the Director that his obligation has not been satisfied
in this case as Dr. Baker failed to address whether claimant's condition would
prevent him from performing his usual coal mine employment and thus Dr. Baker's
1996 opinion is not relevant on the issue of total disability.  As the Director
concedes that he has not satisfied his statutory obligation in the instant case,
we vacate the administrative law judge's denial of benefits and remand the case to
the district director to afford the Director the opportunity to fulfill his
statutory obligation. Newman, supra; Pettry, supra;
Hall, supra.
     Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed in part, vacated in part and the case is remanded to the
district director to provide for a complete pulmonary examination of claimant and
for reconsideration of the merits of this claim in light of the new evidence.

     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) The Director has filed a Motion to Remand in this case
to which claimant has not responded.  The Board accepts the Director's
Motion to Remand as his response brief and herein decides the case on its
merits.
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 2) The administrative law judge's findings that the
evidence of record was sufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) and insufficient
to establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(3)
are unchallenged on appeal and are therefore affirmed. Skrack v. Island
Coal Creek Co., 6 BLR 1-710 (1983).
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