UNPUBLISHED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.

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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 determination 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 pneumoconiosis 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 disabled by it, or that the disease, having previously existed, has progressed, subsequent to the prior denial, to the point where it is totally

disabling. See Lisa Lee Mines v. Director, Office of Workers' Compensation 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 evidence 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 benefits.

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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 claimant 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 ventilatory 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 argument would not aid the decisional process.

VACATED AND REMANDED

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