UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SIMON CASTLE,
Petitioner,

v.

HINKLE AND SON, INCORPORATED;
                                                                         No. 95-3130
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(94-2365-BLA)

Submitted: October 3, 1996

Decided: October 15, 1996

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. George D. Blizzard, II, SHAFFER & SHAF-
FER, Madison, West Virginia; J. Davitt McAteer, Acting Solicitor of
Labor, Donald S. Shire, Associate Solicitor, Patricia May Nece, Eliza-
beth A. Goodman, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Simon Castle, a former coal miner, appeals from a decision of the
Benefits Review Board (Board) affirming an Administrative Law
Judge's (ALJ) decision to deny his application for black lung benefits.
The ALJ originally awarded benefits following a hearing that was
unattended by any representative for the Respondent, Hinkle and Son,
Inc. (employer). Employer appealed to the Board, contending that it
did not receive proper notice of the hearing, and the Board vacated
the ALJ's decision and remanded for further fact finding concerning
the notice issue. On remand, the ALJ found notice deficient and
ordered a new hearing. Employer subsequently submitted a report by
Dr. Zaldivar which was admitted into evidence and ultimately relied
on by the ALJ in denying benefits on remand.

In this appeal, Castle contends that the Board and ALJ erred by
finding that notice of the first hearing was deficient and by ordering
a new hearing. Castle avers that this action prejudiced him by permit-
ting admission of Dr. Zaldivar's report, but also contends that Dr. Zal-
divar's report is unreasoned in any event and therefore insufficient to
defeat his entitlement to benefits. We, however, agree with the posi-
tion of the Director, Office of Workers' Compensation Programs
(Director), that even assuming that Castle is correct, any error is
harmless in this case because, even excluding Dr. Zaldivar's report,
the record contains no affirmative evidence that any disability Castle
might have is attributable to coal dust exposure.

The only physicians of record who addressed disability, Drs. Ras-
mussen and Zaldivar, both found that Castle possesses normal respira-
tory function. Thus, their opinions can not establish total disability
due to pneumoconiosis. Castle bore the burden of establishing this
critical element of entitlement. See Robinson v. Pickands Mather &
Co., 914 F.2d 35, 36 (4th Cir. 1990). Because the record is devoid of

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any affirmative evidence relating to this critical element, his entitle-
ment to benefits is precluded as a matter of law.

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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