UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHIRLEY J. ROBERTS, Estate of Clyde

Roberts,

Petitioner,

v.

OLGA COAL COMPANY; WEST

No. 97-1660

VIRGINIA COAL WORKERS'

PNEUMOCONIOSIS FUND; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(96-1436-BLA)

Submitted: October 20, 1997

Decided: November 3, 1997

Before HALL, 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Affirmed by unpublished per curiam opinion.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. K. Keian Weld, Senior Assistant Attorney

General, EMPLOYMENT PROGRAMS LITIGATION UNIT,
Charleston, West Virginia; Jeffrey Steven Goldberg, Christina P. Barber, 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Unpublished opinions are not binding precedent in this circuit.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:

For the second time Shirley Roberts, the widow of Clyde Roberts,

petitions for review of a decision of the Benefits Review Board

("Board") affirming an administrative law judge's ("ALJ") denial of

her husband's application for black lung benefits. The central facts

and procedural history of this case are set forth in our prior decision

in this case. Roberts v. West Virginia C.W.P. Fund, No. 95-1113 (4th

Cir. Jan. 12, 1996) (unpublished). After our decision, it was settled

that the miner suffered from pneumoconiosis and a totally disabling

respiratory impairment. Because the Board did not rule on the issue

of whether the miner's disabling respiratory impairment was "due to"

pneumoconiosis, we remanded for consideration of this remaining

critical element of entitlement. See Jewell Smokeless Coal Corp. v.

Street, 42 F.3d 241, 243 (4th Cir. 1994) (discussing claimant's burden

to prove that pneumoconiosis contributed to his totally disabling respiratory impairment).

On remand, the ALJ found that neither the death certificate nor any

of the reports submitted by five physicians in this case linked pneumoconiosis to the miner's respiratory problems. Three physicians,

Drs. Vasudevan, Naeye, and Hippensteel, explicitly addressed the etiology of the miner's impairment. None, however, found any connection to coal mine employment. Before the Board, Roberts argued that

the ALJ erred by relying on the reports of Drs. Naeye and Hippensteel

in finding no causation. The Board found that even assuming that this

were true, any error would be harmless, because Roberts bore the bur-

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den of proving that pneumoconiosis contributed to her husband's disability, and she did not even allege that the record contained any

evidence linking the disease to his impairment. Accordingly, benefits

were denied.

In this appeal, Roberts reiterates her contentions that the ALJ erred

by relying on the opinions of Drs. Naeye and Hippensteel. She avers

that Dr. Naeye's finding that the miner's pneumoconiosis was too

mild to have contributed to his respiratory problems is not well reasoned, and that Dr. Hippensteel's attribution of the miner's impairment to smoking relies on reasoning inimical to our decision in Warth

v. Southern Ohio Coal Co., 60 F.3d 173 (4th Cir. 1995).

We note that Roberts does not challenge the ALJ's reliance on Dr.

Vasudevan, who also found no connection between pneumoconiosis

and the miner's disability. Even excluding the opinions of Drs. Naeye

and Hippensteel, his opinion could support a finding of no causation.

Moreover, we agree with the Board that, regardless of whether the

ALJ erred by accepting the opinions of the coal company's physicians, the absence of any affirmative evidence of causation is fatal to

Roberts' claim. See Robinson v. Pickands Mather & Co., 914 F.2d 35,

38 (4th Cir. 1990). The closest the record comes to providing such

evidence is Dr. Naeye's finding that the miner's disability arose from

a "severe pulmonary fibrosis." Because Dr. Naeye did not connect the

fibrosis to the miner's coal mine employment, however, this finding

does not assist Roberts in carrying her burden. See id. at 39. Accordingly, the decision of the Board is affirmed. We deny Respondent's

motion for 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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