                          PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


SEWELL COAL COMPANY,                   
                         Petitioner,
                v.
DIRECTOR, OFFICE OF WORKERS’                   No. 06-1592
COMPENSATION PROGRAMS; WILLIAM
DEMPSEY,
                      Respondents.
                                       
               On Petition for Review of an Order
                 of the Benefits Review Board.
                         (05-0614-BLA)

                     Argued: January 29, 2008

                     Decided: April 22, 2008

  Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge,
   and Liam O’GRADY, United States District Judge for the
       Eastern District of Virginia, sitting by designation.



Vacated and remanded by published opinion. Judge O’Grady wrote
the opinion, in which Chief Judge Williams and Judge Niemeyer
joined.


                           COUNSEL

ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Petitioner. Raya Jarawan, WASHING-
TON AND LEE UNIVERSITY, Legal Clinic, School of Law, Lex-
2               SEWELL COAL CO. v. DIRECTOR, OWCP
ington, Virginia; Barry H. Joyner, UNITED STATES
DEPARTMENT OF LABOR, Office of the Solicitor, Washington,
D.C., for Respondents. ON BRIEF: Kathy L. Snyder, JACKSON &
KELLY, P.L.L.C., Charleston, West Virginia, for Petitioner. Renae
Reed Patrick, Mary Z. Natkin, Virginia H. Rogers, WASHINGTON
AND LEE UNIVERSITY, Legal Clinic, School of Law, Lexington,
Virginia, for Respondent William Dempsey. Jonathan L. Snare, Act-
ing Solicitor of Labor, Patricia M. Nece, Counsel for Appellate Liti-
gation, UNITED STATES DEPARTMENT OF LABOR, Office of
the Solicitor, Washington, D.C., for Respondent Director, Office of
Workers’ Compensation Programs.


                              OPINION

O’GRADY, District Judge:

   William O. Dempsey filed his second claim for Benefits under the
Black Lung Benefits Act (the BLBA), 30 U.S.C. §§ 901-945, on Feb-
ruary 8, 2001. The district director awarded benefits under Dempsey’s
claim on May 29, 2002, and an Administrative Law Judge (ALJ) sub-
sequently reviewed the claim, finding Dempsey totally disabled sub-
stantially due to pneumoconiosis. Having also found the claim timely
after concluding that the statute of limitations did not apply to subse-
quent claims1 for benefits, the ALJ issued a decision awarding bene-
fits. The Benefits Review Board (the Board) vacated the ALJ’s
decision awarding benefits and remanded for further consideration on
evidentiary issues. The ALJ again awarded benefits and the Board
affirmed. Sewell Coal Company (Sewell Coal), the mine operator
responsible for paying benefits, now petitions for review of the
Board’s Order. Because the ALJ failed to apply the three year statute
of limitations to Dempsey’s subsequent claim for benefits in making
its timeliness determination, we vacate the Board’s Order and remand
to the ALJ for further proceedings.
    1
   A claim filed after denial of a previous claim under the old regula-
tions is referred to as a "duplicate claim" and under the amended regula-
tions as a "subsequent claim".
                SEWELL COAL CO. v. DIRECTOR, OWCP                    3
                                  I.

   William Dempsey worked in the coal mine industry for approxi-
mately twenty-three years. He worked specifically for Sewell Coal for
more than eleven years, most recently as a belt repairman. After leav-
ing Sewell Coal, Dempsey worked for Dale and Tina Coal Company
for approximately three months and for DC&M Coal Company for
nearly five months, before retiring from the coal mine industry in
1989. Dempsey filed his first claim for benefits under the BLBA on
April 27, 1989. That claim was denied on August 15, 1989, because
the evidence did not then establish that Dempsey was totally disabled
by pneumoconiosis. Dempsey filed his second claim, the subject of
the instant action, on February 8, 2001.

   The record contains numerous X-rays and CT scans from the years
1976 through 2002. All radiologists and readers have found that
Dempsey has interstitial lung disease, although some differ in opinion
as to the etiology of the disease. Upon review of the record, the dis-
trict director awarded benefits and the ALJ affirmed, finding that
Dempsey was totally disabled and that pneumoconiosis was a sub-
stantial contributing cause of his disability. The Board vacated and
remanded this decision finding that the ALJ erred in ruling on discrete
evidentiary issues. On remand, the ALJ addressed these evidentiary
issues and again awarded benefits to Dempsey. On March 31, 2005,
the Board upheld the ALJ’s award of benefits to Dempsey for a final
time.

   Sewell Coal Company now petitions this Court for review arguing
that the ALJ: erred in consideration of the timeliness issue by relying
on invalid case law and failing to weigh the relevant evidence in vio-
lation of the Administrative Procedure Act; engaged in prohibited
selective analysis of the evidence; erred in finding the existence of
coal workers’ pneumoconiosis; erred in finding a totally disabling
pulmonary or respiratory impairment due to pneumoconiosis; erred in
making rulings on evidentiary issues that are irrational, arbitrary,
capricious, and contrary to applicable law; and finally erred in arbi-
trarily setting the onset dates as the month in which the claim was
filed.
4                SEWELL COAL CO. v. DIRECTOR, OWCP
                                   II.

   We consider first Sewell Coal’s argument that the ALJ erred in
finding that Dempsey’s subsequent claim was timely under the statute
of limitations. Section 725.308 provides that, "[a] claim for benefits
shall be filed within three years after a medical determination of total
disability due to pneumoconiosis, which has been communicated to
the miner. . . ." 20 C.F.R. § 725.308(a). The ALJ considered Sewell
Coal’s argument that Dempsey’s claim was untimely under the statute
of limitations. However, relying on an earlier decision of the Board
in Andryka v. Rochester & Pittsburgh Coal Co., 14 B.L.R. 1-34
(1990), the ALJ found that the statute of limitations under
§ 725.308(a) does not apply to subsequent claims, and thus Demp-
sey’s claim was timely. The Board affirmed this holding and no alter-
native holding was offered as to the timeliness of Dempsey’s claim
by either the Board or the ALJ.

  When we review a claim for benefits under the BLBA, "[w]e
undertake an independent review of the record, as in the place of the
Board, to determine whether the ALJ’s factual findings are based on
substantial evidence in the record. We review questions of law de
novo." Toler v. Eastern Associated Coal Co., 43 F.3d 109, 114 (4th
Cir. 1995)(citation omitted).

   In this case, the ALJ found that the statute of limitations period in
Section 725.308(a) does not apply to subsequent claims. However, we
have held in an unpublished opinion that the statute of limitations
applies to both initial and subsequent claims. Westmoreland Coal v.
Amick, 123 App’x 525, 528 (4th Cir. 2004). As we discussed in West-
moreland Coal v. Amick, neither the statute, 30 U.S.C.A. § 932(f), nor
the regulation makes any distinction between initial or subsequent
claims. Id. Specifically, the statute and the regulation simply refer to
"any" or "a" claim for benefits, respectively. Id. Thus, neither the stat-
ute nor the regulation on their face allow for an interpretation that
makes a distinction between initial and subsequent claims. As such,
we vacate the Decision and Order of the Board affirming the ALJ’s
award of benefits in regard to Dempsey’s claim, and we remand to the
ALJ for further proceedings on the issue of timeliness.2 Because we
    2
    Given that the ALJ and Board failed to offer an alternative holding as
to timeliness, we make no finding as to whether Dempsey’s subsequent
                SEWELL COAL CO. v. DIRECTOR, OWCP                      5
vacate the award of benefits and the finding of timeliness, we need
not reach the evidentiary issues raised by Sewell Coal at this time.

                                  III.

   In conclusion, we find that the three year statute of limitations
under Section 725.308(a) applies to subsequent claims for benefits.
As such, we vacate the Decision and Order of the Board affirming the
award of benefits to Respondent William Dempsey, and remand to
the ALJ for further proceedings on whether the claim was timely
under the three year statute of limitations, as it applies to subsequent
claims.

                                         VACATED AND REMANDED

claim is timely filed under the statute of limitations, including whether
or not the statute of limitations has been tolled. See S.E.C. v. Chenery
Corp., 332 U.S. 194, 196 (1947)(concluding that "a reviewing court in
dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency").
