UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM F. FARKAS,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                      No. 94-2082
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
VALLEY CAMP COAL COMPANY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(91-2038-BLA)

Submitted: March 14, 1995

Decided: September 30, 1996

Before WIDENER and HALL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William F. Farkas, Petitioner Pro Se. Patricia May Nece, Dorothy L.
Page, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C.; Ronald Bruce Johnson, MCDERMOTT, BONENBERGER,
MCDERMOTT & GALLAWAY, Wheeling, West Virginia, for
Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William Farkas petitions for review of a decision of the Benefits
Review Board (Board) affirming an Administrative Law Judge's
(ALJ) denial of his claim for black lung benefits. In his ultimate deci-
sion in this case, the ALJ found the evidence of record sufficient to
invoke the interim presumption of entitlement pursuant to 20 C.F.R.
§ 727.203(a)(2) (1996), but also sufficient to establish rebuttal under
§ 727.203(b)(4) (1996). We must affirm the Board's decision if it is
supported by substantial evidence and is in accordance with law. See
Doss v. Director, Office of Workers' Compensation Programs, 53
F.3d 654, 658 (4th Cir. 1995).

The evidence in this case relevant to the issue of subsection (b)(4)
rebuttal consisted of three negative X-rays and two physicians'
reports, prepared by Drs. Lapp and Hannon, respectively. Negative
X-rays, however, are insufficient, alone, to defeat a claimant's entitle-
ment to benefits. See 30 U.S.C. § 923(b) (1988); Usery v. Turner/
Elkhorn Mining Co., 428 U.S. 1, 12 (1976). Hence, the Respondent,
Valley Camp Coal Company (employer) could only rebut the pre-
sumption if the medical opinion evidence also demonstrated the
absence of pneumoconiosis, as that term is legally defined. See
Barber v. Director, Office of Workers' Compensation Programs, 43
F.3d 899, 901 (4th Cir. 1995).

We agree with the position of the Director, Office of Workers'
Compensation Programs (Director), that Dr. Lapp's opinion is insuffi-
cient as a matter of law to disprove the presence of legal pneumoconi-
osis. His finding that the miner's chronic bronchitis is "most likely"
attributable to cigarette smoking fails to address the possibility that
coal dust exposure was also a causal factor which contributed to or
aggravated the miner's condition, and therefore fails to prove the
absence of pneumoconiosis as a matter of law. Id. at 901.

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We also agree with the Director, though not for every reason she
provides, that Dr. Hannon's report is ultimately insufficient to estab-
lish rebuttal. After conducting a complete pulmonary exam, Dr. Han-
non found that the miner's pulmonary function study results were
substandard due to lack of maximum effort, and that blood gas studies
revealed mild hypoxia and a significant ventilation, perfusion abnor-
mality. He opined, however, that these problems were not related to
coal dust exposure and found no coal workers' pneumoconiosis.

The Director asserts that Dr. Hannon could not render a credible
opinion regarding the cause of the miner's impairment when he erro-
neously failed to recognize its existence in the first place. We note,
however, that Dr. Hannon never specifically found the absence of a
pulmonary impairment. Rather, he merely noted the presence of
abnormalities on blood gas testing without elaborating as to whether
such abnormalities indicated the presence of an impairment, and, in
another section of his report, stated that the miner's ability to walk,
climb, lift, and carry were unaffected by pulmonary disease. In any
event, we note that the Director's brief concedes that a finding of no
impairment would not necessarily be inconsistent with invocation of
the interim presumption under subsection (a)(2). Thus, even if we
assumed that Dr. Hannon found the absence of any impairment, this
fact would not necessarily discredit his report.

More crucial to our analysis of Dr. Hannon's report, however, are
his comments relating to whether coal dust exposure contributed to or
aggravated the respiratory conditions he diagnosed. Dr. Hannon com-
pleted his report on a Department of Labor form designed for the
medical assessment of black lung claimants. Section 7(c) of that
report asks the physician for a diagnosis pertaining to the miner's car-
diopulmonary system. Dr. Hannon responded to this section by refer-
encing the results of the miner's ventilatory and blood gas test results,
and finding no coal workers' pneumoconiosis. Section 7(d) of the
report then asks whether any of the conditions diagnosed in the pre-
ceding section were related to coal dust exposure, and requests the
physician to provide a medical rationale for his"yes" or "no" answer.
Dr. Hannon checked the "no" box, but provided no rationale.

The Respondent, Valley Camp Coal Company (employer), argues
that Dr. Hannon properly provided no further explanation because his

                     3
comments regarding the results of the blood gas studies did not con-
stitute a diagnosis pertaining to the miner's cardiopulmonary system.
As noted, however, the comments were made in the"Diagnosis" sec-
tion of his report, and the fact that those comments noted abnormali-
ties magnified the need for Dr. Hannon to provide a rationale for his
opinion that coal dust exposure did not contribute to any diagnosed
condition. Absent such explanation, Dr. Hannon's opinion on this
critical opinion is entirely conclusory, and therefore insufficient to
rebut the presumption of entitlement.

Accordingly, the decision of the Board is reversed, and the case is
remanded with directions to enter an appropriate award of benefits.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

REVERSED AND REMANDED WITH INSTRUCTIONS

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