The opinion
BOYCE F. MARTIN, Jr., Circuit Judge,
dissenting.
I respectfully dissent. I have no quarrel with Ansel v. Weinberger, 529 F.2d 304 (6th Cir.1976), the leading case on presumptions of pneumoconiosis. I object instead to the majority’s initial invocation of the presumption.
The presumption in this case is not the statutory presumption involved in Ansel , 30 U.S.C. § 921 (e)(4), but the Department of Labor’s interim presumption, 20 C.F.R. § 727.203 , which states in relevant part:
(a) Establishing interim presumption.
A miner who engaged in coal mine employment for at least ten years will be presumed to be totally disabled due to pneumoconiosis ... if one of the following medical requirements is met:
(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in § 410.-412(a)(2) of this title) as demonstrated by values which are equal to or less than the values specified in the following table:
FEVi MW
73" or more 2.7 108
The FEVi value, or forced expiratory volume in one second, measures the volume of air the claimant can expire in one second, while the MW value, or maximum voluntary ventilation, measures the total volume of air expelled over a period of one minute during repetitive maximal respiratory effort. Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of Its Unresolved Issues, 83 W.Va.L.Rev. 869, 879 nn. 33-34 (1981). Although ventilatory studies have been criticized in the legal literature as more subject to the claimant’s performance, age, and history of smoking than the presence or absence of pneumoconiosis, the validity of the interim presumption is not before us. See Lapp, A Lawyer’s Medical Guide to Black Lung Litigation, 83 W.Va.L.Rev. 721, 738-39 (1981) (smoking); Smith & Newman, The Basics of Federal Black Lung Litigation, 83 W.Va.L.Rev. 763, 782 (1981) (performance); Solomons, supra, at 880-81 (age).
No ventilatory study is sufficient to invoke the interim presumption unless it met the quality standards applicable at the time *206 it was submitted. 20 C.F.R. § 727.206 (a). The quality standards applicable to this case are set forth in 20 C.F.R. § 410.430 , which reads in relevant part:
The reported maximum voluntary ventilation (MW) or maximum breathing capacity (MBC) and 1-second forced expiratory volume (FEVi) should represent the largest of at least three attempts____ The three appropriately labeled spirometric tracings, showing distance per second on the abscissa and the distance per liter on the ordinate, must be incorporated in the file.
The laboratory test on which Combs relies was made by Howard Jones, a laboratory technician, on May 5, 1971, at the Appalachian Regional Hospital in Middlesboro, Kentucky. It produced an FEVi reading of 1.8 and an MW reading of 59.88. The attached tracing indicates that only one attempt was made on each test. According to the clear words of the regulations, Combs is not entitled to the presumption.
Although this is dispositive of Combs’s claim, the Director, Office of Workers Compensation Program, United States Department of Labor, also argues for reversal on the ground that the Jones ventilatory test should have been weighed against a later test by Dr. R.P. O’Neill, made on June 19, 1971, before invoking the presumption. The O’Neill test produced an FEVi of 3.62 and an MW of 114.58, which are within normal values. The proper tracings are attached, showing that three attempts were made for each value.
In Dickson v. Califano, 590 F.2d 616, 621 (6th Cir.1978), this Court applied the similar presumption in 20 C.F.R. § 410 .-490(b)(1)(h) on the basis of only one qualifying ventilatory study when two earlier studies did not qualify. But Dickson applied the presumption without discussion or analysis; thus, I cannot tell whether the court held that any qualifying test will invoke the presumption, or instead found the later test to be of greater weight than the earlier tests. The earlier tests were made nearly two years before the qualifying test and should in any case have been given less weight, because of the progressive nature of this disease.
This court has in the past ruled that a single qualifying X-ray will invoke the interim presumption under 20 C.F.R. § 410 .-490(b)(l)(i). E.g., Hatfield v. Secretary of Health & Human Services, 743 F.2d 1150, 1155 (6th Cir.1984). It has not, however, squarely confronted the issue whether ventilatory studies must be weighed before invoking the interim presumption under 20 C.F.R. § 727.203 (a)(2). Although it is unnecessary to decide that issue in this case, as there is no basis under the regulations for granting benefits in any event, I note that the Benefits Review Board and apparently the Fourth Circuit would require such a weighing of evidence. See Consolidation Coal Co. v. Sanati, 713 F.2d 480 (4th Cir.1983); Crapp v. United States Steel Corp., 6 Black Lung Rep. 1-476 (Benefits Rev.Bd.1983); Strako v. Zeigler Coal Co., 3 Black Lung Rev. 1-136, 1-143 (Benefits Rev.Bd.1981).
I would affirm the denial of benefits.