UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOBERT C. ATKINS,
Petitioner,

v.

EASTERN ASSOCIATED COAL
                                                                   No. 98-1388
CORPORATION; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-953-BLA)

Submitted: September 15, 1998

Decided: October 23, 1998

Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. Mark E. Solomons, Laura Metcoff Klaus,
ARTER & HADDEN, L.L.P., Washington, D.C., for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Hobert Atkins seeks review of a decision of the Benefits Review
Board ("Board") affirming the administrative law judge's ("ALJ")
decision to deny his application for black lung benefits. The ALJ
found that the evidence of record failed to establish pneumoconiosis,
total disability, or total disability due to pneumoconiosis. The Board
found that Atkins failed to allege that the ALJ committed any error
in finding no total disability, and therefore affirmed that finding as
unchallenged on appeal. The Board further determined that because
total disability is a critical element of entitlement, Atkins' failure to
challenge this finding obviated the need for the Board to address his
arguments relating to any other element of entitlement.

We must affirm the decision of the Board if the Board properly
decided that the ALJ's findings are supported by substantial evidence.
Doss v. Director, Office of Workers' Compensation Programs, 53
F.3d 654, 658 (4th Cir. 1995). We confine our review to the grounds
upon which the Board based its decision. See Grigg v. Director,
Office of Workers' Compensation Programs, 28 F.3d 416, 418 (4th
Cir. 1994). Moreover, appellate courts will not consider arguments
raised on appeal that were not raised before the Board. See Big Horn
Coal Co. v. Director, Office of Workers' Compensation Programs,
897 F.2d 1052, 1054 (10th Cir. 1990); South Carolina v. United
States Dep't of Labor, 795 F.2d 375, 378 (4th Cir. 1986); Cox v. Ben-
efits Review Bd., 791 F.2d 445, 446-47 (6th Cir. 1986).

There is no dispute in this case that the challenges Atkins raises on
appeal to the ALJ's finding of no total disability were not raised
before the Board. We reject Atkins' contention that the fact that the
ALJ made disability findings only after assuming, arguendo, the exis-
tence of pneumoconiosis, somehow relieved him of the burden of
challenging the ALJ's disability findings. Moreover, the Board's

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opinion leaves no doubt that waiver is the basis for its decision. The
Board's general comment in a footnote that the ALJ discussed the rel-
evant evidence and assigned it appropriate weight does not alter this
fact.

Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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