UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES E. WELLS,
Petitioner,

v.

DEHUE COAL COMPANY; DIRECTOR,
                                                                   No. 95-2712
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(93-1846-BLA, 92-441-BLA)

Submitted: July 31, 1996

Decided: November 12, 1996

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

George A. Mills, III, Huntington, West Virginia, for Petitioner.
John P. Scherer, FILE, PAYNE, SCHERER & FILE, Beckley, West
Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Charles Wells petitions for review of an order of the Benefits
Review Board ("Board") affirming an administrative law judge's
("ALJ") denial of black lung benefits. We previously placed this
appeal in abeyance pending our decision on rehearing in Lisa Lee
Mines v. Director, Office of Workers' Compensation Programs, No.
94-2523, slip opinion (4th Cir. June 19, 1996). Our ultimate decision
in Lisa Lee requires remand of this appeal.

The ALJ's denial of benefits in this case was based upon his deter-
mination that Wells failed to prove a material change in conditions
pursuant to 20 C.F.R. § 725.309 (1995). The ALJ determined that
Wells's newly submitted evidence relating to the existence of pneu-
moconiosis or a totally disabling respiratory or pulmonary impairment
failed to prove the existence of such disease or condition. The Board's
affirmance relied on our original holding in Lisa Lee that to establish
a material change in conditions in duplicate claims cases, a claimant
must show that he did not have pneumoconiosis at the time his prior
claim was denied but has since contracted it and become totally dis-
abled by it, or that the disease, having previously existed, has prog-
ressed, subsequent to the prior denial, to the point where it is totally
disabling. See Lisa Lee Mines v. Director, Office of Workers' Com-
pensation Programs, 57 F.3d 402, 406 (4th Cir. 1995).

Under this standard, a claimant's new evidence must establish all
essential elements of a black lung claim which were not previously
established. Thus, even though the Board, in its first consideration of
this case, determined that the ALJ erred by finding Wells's new evi-
dence insufficient to establish total disability, it nonetheless affirmed
the ALJ's finding of no material change based on its affirmance of the
ALJ's determination that Wells's new evidence could not establish
pneumoconiosis. Hence, the Board affirmed the ALJ's denial of bene-
fits.

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On rehearing in Lisa Lee, however, we adopted the "one-element"
standard proposed by the Director, Office of Workers' Compensation
Programs ("Director"), for purposes of determining whether a claim-
ant establishes a material change in conditions in duplicate claims
cases. That standard merely requires the claimant to prove, by means
of evidence of his medical condition subsequent to the prior denial,
at least one element previously adjudicated against him. See Lisa Lee
Mines, No. 94-2523, slip op. at 8. Under this standard, Wells could
establish a material change, despite his inability to prove the existence
of pneumoconiosis through new evidence, if his new evidence proves
that he has a totally disabling respiratory or pulmonary impairment.

The record contains conflicting evidence relating to the issue of
disability, but we agree with the Board's finding in its first decision
in this case that Dr. Rasmussen's opinion could, if fully credited,
establish total disability. Dr. Rasmussen opined that the miner's venti-
latory impairment would render him totally disabled to perform heavy
and very heavy manual labor. The ALJ made no findings regarding
the exertional requirements of the miner's job. Depending on those
requirements, Dr. Rasmussen's opinion could support a finding of
total disability. See Eagle v. Armco, Inc., 943 F.2d 509, 512-13 (4th
Cir. 1991); Walker v. Director, Office of Workers' Compensation
Programs, 927 F.2d 181, 183-84 (4th Cir. 1991).

We therefore vacate the decision of the Board and remand this case
to the Board for further remand to the ALJ so that he may reconsider
whether Wells can establish a material change in conditions under the
new standard announced in our decision on rehearing in Lisa Lee. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED

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