The opinion
RYAN, Circuit Judge,
concurring in part and dissenting in part.
While I agree with the majority opinion insofar as it affirms the Benefits Review Board’s decision that Peabody Coal Company should not be permitted to present new rebuttal evidence under 20 C.F.R. § 727.203 (b)(2), I must nonetheless dissent in part.
The majority remands the case to allow Peabody to submit new rebuttal evidence under subsection (b)(3). It does so on the ground that our decision in York v. Benefits Review Board, 819 F.2d 134 (6th Cir.1987), necessarily resulted in a change of litigation strategy for Peabody. The majority correctly notes that prior to York , (b)(2) was the preferred rebuttal route, while after York , (b)(3) became the easier standard to meet. See Peabody Coal Co. v. Greer, 62 F.3d 801, 804, 806 (6th Cir.1995). It further correctly notes that there is some analytical tension between the two rebuttal routes. From there it reasons that Peabody initially pursued (b)(2) rebuttal, but had York been the prevailing standard, it would have pursued (b)(3) rebuttal. Thus, the majority reasons, Peabody “could not have been expected on the one hand to argue under (b)(2) that the employee had no respiratory impairment and then argue under (b)(3) that the supposedly *421 non-existent respiratory impairment was not caused, in whole or in part, by the employment.” (Maj. op. at 419.)
Perhaps Peabody should not have been expected to argue that way, but the fact is, it did argue that way. The record clearly shows that Peabody consistently and vigorously pursued (b)(2) and (b)(3) rebuttal simultaneously; at every stage, and in every appeal, Peabody articulated arguments with respect to both standards, which arguments were thoroughly discussed and rejected. And in this appeal, Peabody has never enunciated what, precisely, it would have done differently, or what it will do on remand. In theory, then, I agree with the majority’s reasoning; the application of that reasoning to this particular set of circumstances, however, I find wanting.
In short, notwithstanding Peabody’s importuning regarding changes in strategy, the fact is that there is nothing different Peabody would have or could have done, and a remand will only serve to delay the inevitable. There is, accordingly, no fundamental unfairness in not allowing Peabody to present new evidence; on the contrary, allowing Peabody to present new evidence will result in a windfall for it, as it will further postpone the time for it to pay the black-lung benefits for which it will, sooner or later, be held accountable. Accordingly, I respectfully dissent in part.