                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT



                             No. 95-2821



ELOISE Q. SMITH (Widow of Kirby A. Smith),

                                                          Petitioner,

          versus

EASTERN ASSOCIATED COAL 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.
(95-1236-BLA)

Submitted:   June 11, 1996                 Decided:   August 14, 1996


Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion.


Frederick K. Muth, HENSLEY, MUTH, GARTON & HAYES, Bluefield, West
Virginia, for Petitioner. Mark E. Solomons, Thomas H. Odom, ARTER
& HADDEN, Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.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

     Eloise Smith petitions for review of a decision of the Bene-

fits Review Board (Board) affirming an administrative law judge's

(ALJ) decision to deny her request for black lung benefits pursuant

to 30 U.S.C.A. § 901-45 (West 1986 & Supp. 1996). In his final
decision, the ALJ found the evidence of record sufficient to

establish invocation of the interim presumption of entitlement

pursuant to 20 C.F.R. § 727.203(a)(2) (1996), but also sufficient

to establish rebuttal pursuant to § 727.203(b)(3) and (4). The
Board affirmed the ALJ's finding of rebuttal under subsection

(b)(4) as unchallenged on appeal, and found it unnecessary to

address subsection (b)(3), as the ALJ's finding under subsection

(b)(4) precluded entitlement on both Smith's survivor's claim and

a miner's claim previously filed by Smith's deceased husband.

     Smith's failure to challenge the ALJ's finding of subsection
(b)(4) rebuttal before the Board results in waiver of her right to

review of that issue by this Court. See Big Horn Coal Co. v. Direc-
tor, 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. Benefits Review Bd., 791
F.2d 445, 446-47 (6th Cir. 1986). Because the ALJ's finding of

subsection (b)(4) rebuttal precludes entitlement, we affirm the

decision of the Board. We dispense with oral argument because the

facts and legal contentions are adequately presented in the mate-



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rials before the court and argument would not aid the decisional

process.




                                                       AFFIRMED




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