UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOBERT C. ATKINS,

Petitioner,

v.

EASTERN ASSOCIATED COAL

No. 98-1388

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.

(97-953-BLA)

Submitted: September 15, 1998

Decided: October 23, 1998

Before MURNAGHAN, HAMILTON, and WILLIAMS,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West

Virginia, for Petitioner. Mark E. Solomons, Laura Metcoff Klaus,

ARTER & HADDEN, L.L.P., Washington, D.C., for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Hobert Atkins seeks review of a decision of the Benefits Review

Board ("Board") affirming the administrative law judge's ("ALJ")

decision to deny his application for black lung benefits. The ALJ

found that the evidence of record failed to establish pneumoconiosis,

total disability, or total disability due to pneumoconiosis. The Board

found that Atkins failed to allege that the ALJ committed any error

in finding no total disability, and therefore affirmed that finding as

unchallenged on appeal. The Board further determined that because

total disability is a critical element of entitlement, Atkins' failure to

challenge this finding obviated the need for the Board to address his

arguments relating to any other element of entitlement.

We must affirm the decision of the Board if the Board properly

decided that the ALJ's findings are supported by substantial evidence.

Doss v. Director, Office of Workers' Compensation Programs, 53

F.3d 654, 658 (4th Cir. 1995). We confine our review to the grounds

upon which the Board based its decision. See Grigg v. Director,

Office of Workers' Compensation Programs, 28 F.3d 416, 418 (4th

Cir. 1994). Moreover, appellate courts will not consider arguments

raised on appeal that were not raised before the Board. See Big Horn

Coal Co. v. Director, 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).

There is no dispute in this case that the challenges Atkins raises on

appeal to the ALJ's finding of no total disability were not raised

before the Board. We reject Atkins' contention that the fact that the

ALJ made disability findings only after assuming, arguendo, the existence of pneumoconiosis, somehow relieved him of the burden of

challenging the ALJ's disability findings. Moreover, the Board's

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opinion leaves no doubt that waiver is the basis for its decision. The

Board's general comment in a footnote that the ALJ discussed the relevant evidence and assigned it appropriate weight does not alter this

fact.

Accordingly, the decision of the Board is affirmed. 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.

AFFIRMED

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