VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01786
Package ID: USCOURTS-cofc-1_19-vv-01786
Petitioner: Edwin Weiss
Filed: 2019-11-20
Decided: 2025-07-10
Vaccine: influenza
Vaccination date: 2016-11-29
Condition: Guillain-Barré syndrome
Outcome: denied
Award amount USD: 

AI-assisted case summary:
On November 20, 2019, Edwin Weiss, a 73-year-old cardiologist, filed a petition for compensation under the National Vaccine Injury Compensation Program. He alleged that an influenza vaccine received on November 29, 2016, caused him to develop Guillain-Barré syndrome (GBS), specifically the Miller Fisher variant, and that he experienced residual effects for more than six months. Petitioner's medical records indicated that eleven days after vaccination, on December 10, 2016, he experienced a fainting spell. He was hospitalized on December 22, 2016, with symptoms including headaches, dizziness, ataxia, and left-sided weakness. Diagnostic tests were consistent with GBS, and he received a five-day course of intravenous immunoglobulin (IVIG) therapy. He was discharged on December 26, 2016, with mild improvement in his facial droop, normal strength, gait, coordination, and sensation, and continued decreased reflexes. Petitioner did not seek care for GBS sequelae in 2017. An ophthalmologist noted on April 2, 2017, that his GBS was "back to normal." Medical records from 2018 indicated recovery from alleged GBS-related symptoms, with a nurse practitioner noting a "full recovery" from GBS on July 23, 2018. On October 24, 2018, an infectious disease specialist noted his GBS had improved but he still had balance issues, though his neurological examination was normal. On November 14, 2018, his neurologist noted "mild gait ataxia, most likely due to cerebellar dysfunction, perhaps related to the history of LGBS," and that it had improved and not worsened recently. By November 6, 2019, his neurologist noted the mild gait ataxia had not worsened and could be within normal limits for age. Petitioner's own affidavit stated that while his condition improved at discharge, GBS had not completely resolved, and balance issues became a "real issue" shortly after discharge. He stated he did not seek immediate medical attention for these issues, believing they were residuals of GBS for which nothing could be done. He later sought care from his neurologist in November 2018. Petitioner's expert, Dr. Salvatore Q. Napoli, opined that ataxia is a known residual of GBS and that Petitioner's GBS lasted more than six months, citing the 2018 and 2019 records. Respondent's expert, Dr. Mark B. Bromberg, disagreed with the GBS diagnosis and opined that the balance issues were subjective findings, not clinical ataxia, and could be related to age. Special Master Herbrina D. Young dismissed the petition, finding Petitioner failed to prove by a preponderance of the evidence that his GBS or its residual effects lasted for more than six months. The Special Master noted a significant gap in medical records between December 2016 and October 2018, and that Petitioner's affidavit alone was insufficient to overcome contrary medical evidence. The Special Master found it unclear whether the balance issues were a new injury or age-related changes rather than ongoing GBS sequelae. On review, the United States Court of Federal Claims, Judge Ryan T. Holte presiding, affirmed the Special Master's decision. The court found that the Special Master considered the relevant evidence, including the notations from 2018 and 2019, and that the decision was not arbitrary or capricious. The court noted that while Petitioner's expert believed the balance issues were residuals of GBS, the contemporaneous medical records and the significant gap in treatment records did not preponderantly demonstrate the six-month severity requirement was met. The court concluded that Petitioner's balance issues could be attributed to age rather than GBS, and that Petitioner's affidavit was insufficient to overcome the contrary medical evidence. The petition was denied.

Theory of causation field:
Influenza vaccine on November 29, 2016, age 73, followed by alleged Miller Fisher variant/GBS around 10-11 days later. DENIED. Petitioner Edwin Weiss argued a Table GBS claim with residual effects lasting more than six months. Respondent disputed diagnosis/severity. Special Master Young found petitioner failed to prove the six-month severity requirement, emphasizing improvement by discharge, records describing GBS as back to normal/full recovery, and a long treatment gap. Judge Ryan T. Holte affirmed July 10, 2025. No injury compensation awarded.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01786-0
Date issued/filed: 2025-01-21
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 12/27/2024) regarding 77 DECISION of Special Master. Signed by Special Master Herbrina D S Young. (kis) Service on parties made. Modified on 1/21/2025 to correct original filed date (sw).
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Case 1:19-vv-01786-RTH Document 78 Filed 01/21/25 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 27, 2024
* * * * * * * * * * * * * * *
EDWIN WEISS, * No. 19-1786V
*
Petitioner, * Special Master Young
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Michael Andrew London, Douglas & London, P.C., New York, NY, for Petitioner.
Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON SIX-MONTH SEVERITY REQUIREMENT1
On November 20, 2019, Edwin Weiss (“Petitioner”) filed a petition for compensation in
the National Vaccine Injury Compensation Program (“the Program”).2 Pet., ECF No. 1.
Petitioner alleged that the influenza (“flu”) vaccine he received on November 29, 2016, caused
him to suffer a Table injury of Guillain-Barré syndrome (“GBS”). Id. at 1.
After carefully analyzing and weighing all the evidence presented in this case in
accordance with the applicable legal standards,3 I find that Petitioner has failed to provide
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims’ website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act”
or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2018).
3 While I have reviewed all of the information filed in this case, only those filings and records that are
most relevant to the Decision will be discussed. Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d
1322, 1328 (Fed. Cir. 2016) (“We generally presume that a special master considered the relevant record
evidence even though he does not explicitly reference such evidence in his decision.”) (citation omitted);
see also Paterek v. Sec’y of Health & Hum. Servs., 527 F. App’x 875, 884 (Fed. Cir. 2013) (“Finding

Case 1:19-vv-01786-RTH Document 78 Filed 01/21/25 Page 2 of 11
preponderant evidence that he suffered a vaccine-related injury for more than six months.
Accordingly, the petition must be dismissed.
I. Relevant Procedural History
Petitioner filed his petition on November 20, 2019. Pet. This case was assigned to the
special processing unit (“SPU”) on May 19, 2020. The parties engaged in settlement discussions
beginning in February of 2021; however, they reported an impasse in October of 2021 and
requested a deadline for Respondent’s Rule 4(c) report. ECF No. 44. Respondent filed his Rule
4(c) report, opposing compensation, on December 4, 2021. Resp’t’s Rept., ECF No. 45.
Specifically, Respondent argued that: (1) Petitioner has failed to demonstrate that he suffered the
residual effects of GBS for more than six months after the administration of his flu vaccine; (2)
Petitioner has not established a Table injury; and (3) Petitioner has not established causation-in-
fact claim.4 Id.
The case was transferred out of SPU and reassigned to me in February of 2022.
Petitioner’s claim was transferred out of SPU because Respondent argued Petitioner failed to
demonstrate that he suffered the residual effects of GBS for more than six months after the
administration of the vaccine, Petitioner had not established a Table injury, and Petitioner had
not established actual causation. ECF No. 46 at 1–2. In the transfer order, the chief special
master noted that Petitioner’s “medical records fail to reflect that [he] suffered from bilateral
ophthalmoparesis, as required to establish a Table injury[]” for the Miller Fisher variant of GBS.
Id. at 1. The chief special master also noted that “Petitioner may [] need a medical expert to
demonstrate that his alleged continued symptoms are the residual effects of his GBS.” Id. at 2.
On August 17, 2022, Petitioner filed an expert report from Dr. Salvatore Q. Napoli.
Pet’r’s Ex. 15. On November 30, 2022, Respondent filed an expert report from Dr. Mark B.
Bromberg. Resp’t’s Ex. A. Petitioner filed a supplemental expert report from Dr. Napoli on April
17, 2023, and Respondent filed a supplemental expert report from Dr. Bromberg on June 28,
2023. Pet’r’s Ex. 27; Resp’t’s Ex. C.
The medical records up to this point indicate that Petitioner did not report or exhibit GBS
symptoms between December of 2016 and October of 2018. Accordingly, on September 27,
2023, I ordered Petitioner to file objective evidence that his injury or the residual effects of his
injury lasted for at least six months (demonstrating that Petitioner continued experiencing
symptoms of his alleged GBS in the months between December of 2016 and June of 2017). ECF
No. 63. Petitioner was given the opportunity to provide this evidence in the form of witness
affidavits, medical records, or other evidence.
On April 22, 2024, Petitioner filed physical therapy records from March 25, 2024, to
support the contention that the residual effects of his injury lasted for at least six months. Pet’r’s
Ex. 28. Respondent filed a status report, indicating Petitioner’s additional medical records did
not contain evidence that is helpful to Petitioner in satisfying the Vaccine Act’s severity
certain information not relevant does not lead to—and likely undermines—the conclusion that it was not
considered.”).
4 Petitioner did not assert a causation-in-fact claim in his petition.
2

Case 1:19-vv-01786-RTH Document 78 Filed 01/21/25 Page 3 of 11
requirement. ECF No. 70. Accordingly, I ordered the parties to brief the issue regarding the six-
month severity requirement. ECF No. 71. On August 30, 2024, Petitioner filed his brief, an
affidavit, and an additional handwritten medical record. Pet’r’s Br., ECF No. 74; Pet’r’s Exs. 29–
30. On October 14, 2024, Respondent filed a responsive brief. Resp’t’s Response, ECF No. 75.
Petitioner filed a reply brief on October 29, 2024. Pet’r’s Reply, ECF No. 76. This matter is now
ripe for adjudication.
II. Factual Background
a. Relevant Medical Records5
Prior to vaccination, Petitioner had a past medical history of hypertension. See Pet’r’s Ex.
8 at 4. Petitioner’s medical records show that prior to the onset of his GBS, he was independent
with all ambulation and activities of daily living, was active in his community, and exercised
regularly including jogging. See Pet’r’s Ex. 13 at 21. Petitioner was 73 years old and a practicing
cardiologist at NYU Langone Health System when he received the subject flu vaccination on
November 29, 2016. Pet’r’s Ex. 1; Pet’r’s Ex. 2 at 21.
Eleven days following his flu vaccination, while out to dinner on December 10, 2016,
Petitioner experienced a fainting spell, described as him “slumping” at the table, becoming pale,
and “black[ing] out,” which also involved a headache and dizziness. Pet’r’s Ex. 8 at 4–5. He
presented to the emergency department (“ED”) at White Plains Hospital with the chief
complaints of syncope and collapsing. Id. at 4. He was discharged home the next day in stable
condition. Id. at 5.
On December 19, 2016, Petitioner visited neurologist, Dr. Andreas N. Neophytides, for
dizziness and headaches. Pet’r’s Ex. 4 at 1–5. Upon physical examination of the cranial nerve,
Dr. Neophytides noted “left ptosis[6] and exotropia[7] without diplopia.”8 Id. at 4. Regarding
sensation, Petitioner was noted to have “vibration diminished bilaterally at the toes. Pinprick
slightly diminished at the toes bilaterally.” Id. As to the decreased sensation in his toes, at the
time, Dr. Neophytides noted it to be “mild sensory polyneuropathy, possibly age-related.” Id. at
5.
Four days later, on December 22, 2016, Petitioner visited his ophthalmologist, Dr. Munro
Levitsky. Pet’r’s Ex. 14 at 4. Dr. Levitsky’s notes indicate a diagnosis of left early facial nerve
palsy as well as a proposed diagnosis of GBS. Id. Later that day, Petitioner returned to Dr.
Neophytides who noted that Petitioner “had shown earlier mild vibratory loss in his toes” and
5 Only the medical records relevant to the issue subject to this Decision are discussed.
6 Ptosis refers to drooping of the upper eyelid. Ptosis, DORLAND’S MED. DICTIONARY ONLINE,
https://www.dorlandsonline.com/dorland/definition?id=42014 (last visited Dec. 26, 2024).
7 Exotropia is “strabismus in which there is permanent deviation of the visual axis of one eye away from
that of the other.” Exotropia, DORLAND’S MED. DICTIONARY ONLINE,
https://www.dorlandsonline.com/dorland/definition?id=17892 (last visited Dec. 26, 2024).
8 Diplopia refers to double vision. Diplopia, DORLAND’S MED. DICTIONARY ONLINE,
https://www.dorlandsonline.com/dorland/definition?id=14354 (last visited Dec. 26, 2024).
3

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now “complained of being ‘out of balance’ and he could not tandem well, teetering as he tried it.
He had a few missing reflexes.” Pet’r’s Ex. 2 at 15.
That same day, on December 22, 2016, Petitioner was admitted to NYU Langone with
impaired left eye gaze in all directions, left-sided facial weakness, left-sided ptosis, and
headaches for a few days. Id. at 9–14. Petitioner had reduced reflexes and decreased vibratory
sensation in his lower extremities, but normal coordination and muscle strength. Id. at 12–13.
Other than slight ataxia when tandem walking, his gait and mobility were not impaired. Id. at 13.
He had normal brain magnetic resonance imaging (“MRI”) and a normal blood test. Id. at 14. A
diagnostic lumbar puncture was attempted for a suspected diagnosis of the Miller Fisher variant
of GBS; the sample was bloody and difficult to interpret but did show an elevated protein level.
Id. at 8. An electromyography (“EMG”) showed “findings consistent with [acute inflammatory
demyelinating polyneuropathy (“AIDP”)].” Id. at 5. A ganglioside antibody test showed an
elevated level of asialo-GM1 antibodies. Id. at 63. However, his other antibody levels were
normal. Id. Physicians tentatively diagnosed Petitioner with the Miller Fisher variant of GBS and
began intravenous immune globulin (“IVIG”) therapy. Id. at 8, 15.
During his hospital stay, Petitioner complained of headaches with mild nausea and facial
weakness. Id. at 32. He remained independent with ambulation and activities of daily living
throughout his stay and was noted to be frequently walking around the hospital unit. Id. at 15, 23,
31. Petitioner was discharged on December 26, 2016, after five days of IVIG treatment, and his
final diagnoses included GBS and trigeminal neuropathy. Id. at 3–6. By the time of discharge, he
had mild improvement in his left-sided facial droop; normal strength, gait, coordination, and
sensation; and continued to have some decreased reflexes in his upper and lower extremities. Id.
at 4-5.
After his discharge and through 2017, Petitioner did not seek any care for any ongoing
GBS sequelae. See Pet’r’s Ex. 11 at 17; Pet’r’s Ex. 14 at 4. The only medical record mentioning
Petitioner’s alleged GBS from 2017 was a note from his visit with his ophthalmologist. Pet’r’s
Ex. 14 at 4. The note, dated April 2, 2017, provided that Petitioner had been diagnosed with GBS
but was, “back to normal.” Id. at 4.
The records of Petitioner’s medical care in 2018 indicate that he had recovered from any
alleged GBS-related symptoms. See Pet’r’s Ex. 9 at 4–6 (January 3, 2018 visit with his internist,
in anticipation of a cataract surgery, during which it was noted that Petitioner’s hypertension was
well-controlled, he was performing aerobic exercise daily with no chest pain or shortness of
breath, that he denied any dizziness, muscle weakness, or tremors, and that his examination was
normal, with no focal neurologic deficits); Pet’r’s Ex. 2 at 229–36 (March 4, 2018 ED visit for
dizziness and palpitations associated with an irregularly-fast heart rate, during which Petitioner
had a normal neurological examination and did not mention any allegedly GBS-related
symptoms); Pet’r’s Ex. 2 at 301 (July 23, 2018 visit to the electrophysiology department at NYU
for outpatient cardiac care, to follow-up on the episode of heart arrhythmia that precipitated
Petitioner’s ED visit in March 2018, during which a nurse noted that Petitioner had a history of
GBS but had a “full recovery” and his examination showed no focal neurologic deficits).
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On October 24, 2018, 22 months after vaccination, Petitioner saw infectious disease
specialist Dr. Eddie Louie who noted Petitioner’s condition was “[i]mproved but still with
balance issues.” Pet’r’s Ex. 3 at 1–3. Petitioner’s neurologic examination was normal. Id. at 3.
Given Petitioner’s history of GBS, Dr. Louie advised Petitioner to forego further vaccination. Id.
On November 14, 2018, nearly two years after his hospitalization and IVIG treatment,
Petitioner returned to his neurologist, Dr. Neophytides. Pet’r’s Ex. 4 at 24. Petitioner complained
of poor balance. Id. By that point, he was 75 years old. See id. His balance difficulties were
described as “able to walk well but when he would find himself in a narrow corridor such as a
theater[,] he would stumble and lose his balance.” Id. Petitioner noted that he had recently
undergone cataract surgery in both eyes, and his vision had substantially improved. Id. His
neurological examination was normal, apart from Petitioner’s “slightly poor balance,” including
some impairment with tandem walking and balancing on one foot. Id. at 25. Dr. Neophytides
diagnosed Petitioner with “mild gait ataxia, most likely due to cerebellar dysfunction, perhaps
related to the history of LGBS [Landry Guillain-Barré syndrome].” Id. at 27. He ordered an MRI
and a videonystagmography (“VNG”) study. Id. at 23, 27; see also id. at 31 (noting on
November 6, 2019 that a brain MRI “a year ago” was normal and “[o]ther possibilities such as
[benign paroxysmal positional vertigo] and [v]estibular hypofunction ha[d] been ruled out with a
VNG”).
Petitioner next sought care one year later, on November 5, 2019, when he presented to his
internist for an annual wellness examination. Pet’r’s Ex. 9 at 10. Petitioner did not report any
weakness or fatigue, and stated he had “good exercise tolerance” and the ability to perform his
usual activities. Id. at 11. His physical examination was normal, with no neurological or
musculoskeletal abnormalities. Id. at 12. Petitioner’s bloodwork was also normal, apart from a
high vitamin B12 level. Id. at 23–27. Petitioner returned to his neurologist, Dr. Neophytides, on
November 6, 2019, and his assessment was “mild gait ataxia, most likely due to cerebellar
dysfunction perhaps related to the history of LGBS but it could still be within normal limits for
age.” Pet’r’s Ex. 4 at 28–40. He noted “[t]here ha[d] been no worsening since last year, which
[was] reassuring.” Id. at 35. Dr. Neophytides advised Petitioner to follow up again in one year.
Id.
On March 25, 2024, Petitioner saw Jie Lin, a physical therapist (“PT”) at Rusk
Rehabilitation at NYU Langone Ambulatory Care Center. See generally Pet’r’s Ex. 28. During
this visit, Petitioner reported unsteadiness on his feet. Id. at 3. He was 80 years old at the time,
and PT Lin recorded Petitioner’s gait issues impacted some leisure activities. Id. at 3, 6 (“The
patient’s current condition for which they are seeking care is affecting their ability to participate
in the following life situations: hobbies/leisure activities”). PT Lin neither offered an
independent assessment of the cause of Petitioner’s unsteadiness, nor stated it was a residual
symptom of Petitioner’s alleged vaccine injury; rather, PT Lin simply recorded Petitioner’s
retrospective reporting of events, including being admitted to the hospital for GBS after the flu
shot, “think[ing] his imbalance [was] slightly worsening over the years, and fe[eling] imbalance
when walking down steps and curbs.” Id. at 3.
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b. Petitioner’s Affidavit
Petitioner executed an affidavit on August 30, 2024. Pet’r’s Ex. 29. Prior to the
vaccination at issue, Petitioner reported he was a “healthy individual.” Id. at ¶ 2. He did not
suffer from a neuroimmunologic condition or any balance issues prior to receiving the vaccine.
Id. Rather, he averred he “exercised regularly and would go jogging without incident.” Id.
Petitioner described his GBS onset in December 2016, including passing out at dinner
and being admitted to the hospital. Id. at ¶ 4. At the time of his discharge, his condition had
greatly improved “but the GBS had not completely resolved.” Id. at ¶ 5. Petitioner also stated
that he still had facial issues. Id. “As to [his] walking and balance, that had seemed to improve
and [he] believed at the time of discharge that it had been resolved. However, that was not the
case.” Id. Petitioner’s balance issues started shortly after discharge and “became a real issue” for
him. Id. at ¶ 6. He recalled being unsteady, feeling imbalanced, and almost falling. Id. Petitioner
reported that he “did not go see a doctor for it immediately because [he] knew it was a residual
from [his] GBS and that there was likely nothing they could do about it, and [he] would have to
deal with it.” Id.
After dealing with balance issues for two years, he felt they were getting worse and
decided to see his neurologist Dr. Neophytides. Id. at ¶ 7. Dr. Neophytides told him to follow up
in a year which Petitioner stated that he did. Id. Petitioner also started physical therapy. Id. at ¶ 8.
Petitioner averred that his counsel informed him of medical records from 2017 and 2018
that indicated Petitioner was not experiencing any residuals of his GBS. Id. at ¶ 9. As to the April
2017 visit with his ophthalmologist Dr. Levitsky, Petitioner stated he did not report that his GBS
was back to normal, because it was not—he was still experiencing balance issues. Id. at ¶ 11. He
explained that Dr. Levitsky was his doctor related to his congenital cataracts and that is what that
2017 visit was for. Id. Thus, Petitioner did not discuss his GBS with Dr. Levitsky then. Id. At
that time, Petitioner was still experiencing balance issues, and he reported those issues to his
neurologist Dr. Neophytides.9 Id.
As to the July 2018 ED visit for atrial fibrillation, Petitioner averred he does not know
why it was noted that he was “fully recovered” from his GBS. Id. at ¶ 10. Petitioner did “not
know where that information would have been obtained[,] and [he] d[id] not recall reporting that
to any healthcare provider at all or any particular provider at that visit.” Id. He stated he “would
especially not have reported to anyone that [he] was fully recovered[,] because [he] was still
experiencing balance issues.” Id. While Petitioner was still experiencing balance issues at that
time, that hospital visit was related to atrial fibrillation, and Petitioner was focused on getting
that resolved. Id. Instead, Petitioner reported his balance complaints to his neurologist.10 Id.
9 There is no evidence Petitioner saw Dr. Neophytides in 2017.
10 Petitioner did not return to his neurologist until November 2018.
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c. Expert Reports11
i. Petitioner’s Expert, Salvatore Q. Napoli
Dr. Napoli is a board-certified neurologist. Pet’r’s Ex. 15 at 2. He provides clinical care
for patients with multiple sclerosis (“MS”) and other neuroimmunologic conditions. Id. In the
past five years, Dr. Napoli has treated approximately five cases of GBS. Id. While Dr. Napoli
conducts research and has publications, he has never published on GBS or the residuals of GBS.
Id.
Dr. Napoli asserted that Petitioner was appropriately diagnosed with the Miller Fisher
variant of GBS. Pet’r’s Ex. 15 at 5–6. The classical features of the Miller Fisher variant include
ophthalmoplegia, ataxia, and areflexia. Id. at 5. Dr. Napoli defined ataxia as “difficulties with
walking and balance and discoordination and clumsiness of movements.” Pet’r’s Ex 27 at 2.
Dr. Napoli wrote “there have been studies showing that residual deficits can undoubtedly
occur and remain more than [six] months.” Pet’r’s Ex. 15 at 6. He did not state what these
residual deficits are, and Petitioner did not file these studies. Dr. Napoli also stated the National
Institute of Neurological Disorders and Stroke “notes that while the prognosis for most
individuals with Miller Fisher syndrome is good, some individuals are left with residual
deficits.” Id.
Dr. Napoli wrote that the records from Dr. Louie and Dr. Neophytides support the
contention that Petitioner’s GBS lasted for more than six months. Id. at 8; Pet’r’s Ex. 27 at 3.
Petitioner saw both doctors in Fall of 2018, and it was reported that Petitioner’s GBS had
improved but he still had balance issues and “gait ataxia.” Pet’r’s Ex. 15 at 8 (citing Pet’r’s Ex. 3
at 1, 3; Pet’r’s Ex. 4 at 15–19). Petitioner saw Dr. Neophytides again in Fall of 2019 where it
was noted that Petitioner had recovered well from his GBS but was “left with minimal
impairment in his balance.” Id. (citing Pet’r’s Ex. 4 at 28–32).
He noted that “[a]taxia is a known residual [effect] of GBS that can linger even if the
individual has recovered for the most part.” Id. at 8. Dr. Napoli opined that Petitioner “for the
most part recovered from his GBS, but [was] still experiencing ataxia as of November 2019”
which supports the residual effects of GBS. Id. at 7 (citing Pet’r’s Ex. 4 at 28–32).
ii. Respondent’s Expert, Mark B. Bromberg
Dr. Bromberg is a board-certified neurologist. Resp’t’s Ex. A at 1. In his clinical role, Dr.
Bromberg frequently diagnoses demyelinating neuropathies such as GBS, including the Miller
Fisher variant. Id. Dr. Bromberg has published articles on the diagnosis of peripheral
neuropathies. Id.
Dr. Bromberg disagreed with Dr. Napoli that Petitioner’s “clinical history and
examination include[d] features of GBS, and that he has the triad of the [Miller] Fisher
syndrome.” Id. at 6.
11 Only the opinions relevant to the six-month severity issue are discussed here.
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As to the six-month severity, Dr. Bromberg merely opined that because Petitioner did not
have GBS, he could not have residuals of it, specifically ataxia, for more than six months. See id.
at 8. Discussing Petitioner’s November 6, 2019 medical records, Dr. Bromberg noted that Dr.
Neophytides wrote “[i]mpaired tandem. Has difficulty standing on one leg. Has difficulty
standing with [one] foot in front of the other.” Id. at 6 (quoting Pet’r’s Ex. 4 at 31). Dr.
Bromberg opined that “[t]hese are subjective findings and do not constitute clinical ataxia, which
is manifested by difficulty with walking (wide based gait, staggering positive Romberg) and
clumsy arm and leg movements.” Id. He further noted that Petitioner was 73 years old when he
received the vaccination at issue, and “it is not unreasonable for there to be difficulty with
tandem gait at that age[.]” Id.
III. Parties’ Contentions
Petitioner argues he meets the six-month severity requirement because he experienced
residual effects of his GBS, balance issues, for more than six months and continues to experience
them to this day. Pet’r’s Br. at 14. For support, he cites the 2018, 2019, and 2024 medical
records.
Respondent argues there is insufficient evidence to prove that Petitioner’s alleged GBS
lasted six months. Resp’t’s Response at 1, 11. Respondent notes that no treater recorded ongoing
GBS symptoms from December of 2016 to October of 2018 and this 22-month gap in care or
treatment undercuts the claim that Petitioner’s condition was an ongoing residual effect of GBS
rather than a natural result of aging. Id. at 12.
IV. Discussion
a. Standards for Adjudication
Petitioners not asserting a vaccine-related death or other injury requiring a surgical
intervention and inpatient care must demonstrate that they suffered the residual effects or
complications from their vaccine-related injury for more than six months. Section 11(c)(1)(D);
Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1335 (Fed. Cir. 2011).
It is the petitioner’s burden to prove his case, including the six-month severity
requirement, by a preponderance of the evidence. Song v. Sec’y of Health & Hum. Servs., 31
Fed. Cl. 61, 65–66 (1994), aff’d, 41 F.3d 1520 (Fed. Cir. 1994). A petitioner cannot establish the
length or ongoing nature of an injury solely through his or her own statements, but rather is
required to “submit supporting documentation which reasonably demonstrates that the alleged
injury or its sequelae lasted more than six months.” Black v. Sec’y of Health & Hum. Servs., 33
Fed. Cl. 546, 550 (1995), aff’d, 93 F.3d (Fed. Cir. 1996).
While even mild symptoms that do not require intensive medical care may satisfy the
severity requirement, ongoing medical treatment for conditions unrelated to the alleged vaccine
injury do not. Compare Wyatt v. Sec’y of Health & Hum. Servs., No. 14-706V, 2018 WL
7017751, at *22–23 (Fed. Cl. Spec. Mstr. Dec. 17, 2018) (petitioner’s post-vaccination GBS
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resolved within three months; subsequent ongoing medical treatment for upper respiratory and
gastrointestinal infections did not satisfy six-month requirement), with Herren v. Sec’y of Health
& Hum. Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014)
(ongoing mild GBS symptoms that did not require active medical care nevertheless satisfied
severity requirement).
b. Finding of Facts
Petitioner’s medical records indicate that he received the flu vaccination at issue on
November 29, 2016, and that he began experiencing symptoms of his alleged GBS in December
of 2016. Petitioner was admitted to the hospital and discharged on December 26, 2016, following
IVIG treatment. He was noted to have normal gait at the time of his discharge.
In order to establish by preponderant evidence that his injury lasted for at least six
months, Petitioner must show that he continued experiencing the residual effects of his injury
until June of 2017, but Petitioner’s medical records fail to provide preponderant evidence that he
was experiencing symptoms in 2017. On April 2, 2017, Petitioner’s ophthalmologist noted that
Petitioner had been diagnosed with GBS but was “back to normal.” Pet’r’s Ex. 14 at 4. On July
23, 2018, a nurse practitioner noted that Petitioner had a history of GBS but that he had a “full
recovery.” Pet’r’s Ex. 2 at 301. Issues with gait or balance were not mentioned in the medical
records again until October 24, 2018, when infectious disease specialist Dr. Louie noted that
Petitioner’s GBS was “[i]mproved[,] but [he] still [had] balance issues.” Pet’r’s Ex. 3 at 3.
However, Dr. Louie noted that Petitioner had a normal neurologic examination. Id. On
November 14, 2018, Petitioner’s neurologist Dr. Neophytides assessed Petitioner with “mild gait
ataxia, most likely due to cerebella dysfunction, perhaps related to the history of [GBS].” Pet’r’s
Ex. 4 at 27. When Petitioner next returned to his neurologist on November 6, 2019, Dr.
Neophytides noted that Petitioner’s mild gait ataxia had not worsened since 2018 and that “it
could still be within normal limits for age.” Id. at 35.
Because the filed medical records indicate that Petitioner did not report or exhibit GBS
symptoms between December of 2016 and October of 2018, it is unclear whether Petitioner
suffered a new injury or age-related changes during that approximately 22-month gap.
Moreover, Petitioner’s expert did not address this gap in symptoms. Although Dr. Napoli
stated that ataxia is a possible residual symptom of GBS, he has not linked Petitioner’s 2018 and
2019 mild gait ataxia with his 2016 GBS. And he does not address the lack of related treatment
in 2017. Dr. Napoli’s opinion must be weighed against multiple notations in Petitioner’s medical
record of a full recovery, for a determination of which scenario is more likely than not.
In his affidavit, Petitioner explained why he did not report his ongoing GBS symptoms
with his ophthalmologist in 2017, and I find that reasonable. But, while he said that he instead
reported these issues to his neurologist, there are no records that Petitioner saw his neurologist in
2017. Petitioner then attempted to clarify the 2018 ED visit notes by stating that he did not report
he was fully recovered from his GBS and did not know why that was in the notes because he was
still experiencing balance issues. Petitioner also explained that he did not seek treatment for his
balance issues in the 22-month gap, because he knew there was nothing that could be done.
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Although such evidence is entitled to consideration and has some probative value, this kind of
testimonial evidence has been deemed insufficient by itself to establish severity – especially
when it is countered by contrary evidence in the medical record. See, e.g., Uetz v. Sec’y of Health
& Hum. Servs., No. 14-29V, 2014 WL 7139803, at *3–4 (Fed. Cl. Spec. Mst. Nov. 21, 2014)
(finding affidavits contrary to the contemporaneous medical record did not establish a finding
that the six-month requirement had been satisfied); see also Vogler v. Sec’y of Health & Hum.
Servs., No. 11-424V, 2014 WL 1991851, at *4, 8–10 (Fed. Cl. Spec. Mstr. Apr. 25, 2014)
(recognizing that filed affidavits can “bulwark” a claim that an injury meets the six-month
requirement, but not in the face of a medical record to the contrary). Here, the medical records
and expert reports do not provide preponderant evidence that Petitioner suffered GBS for more
than six months. Instead, the contemporaneous records reflect that Petitioner recovered from his
GBS. While there are records from 2018, 2019, and 2024 that reference balance issues, there is
no preponderant evidence that it is from his GBS. Furthermore, there is no explanation for the
gap of GBS-related treatment beyond Petitioner’s own words. Petitioner did not see his
neurologist for almost two years. Therefore, it is unclear whether Petitioner suffered a new injury
or age-related changes during that approximately 22-month gap rather than ongoing GBS
sequala. And although Petitioner was provided with the opportunity to secure other evidence
documenting his residual effects for the relevant timeframe, he failed to do so.12
It is true that mild residuals of an injury may not require active medical attention due to
their mild nature. See Herren, 2014 WL 3889070, at *3. But here, not only did Petitioner’s
alleged mild gait ataxia not require active medical care, but Petitioner was also not actively
seeing his treating neurologist during the relevant timeframe. See id. (finding petitioner satisfied
the severity requirement because the vaccinee was still under the medical care of her
neurologist).
I am aware that a variety of evidence can be used to satisfy issues like severity, and I am
reluctant to dismiss a case simply on this basis, especially given the Program’s emphasis on
generosity in reaching entitlement decisions. See Watts v. Sec’y of Health & Hum. Servs., No.
17-1494, 2019 WL 4741748, at *6 (Fed. Cl. Spec. Mstr. Aug. 13, 2019) (recognizing the
generosity of the Vaccine Program and how this policy concern impacts interpretation of the
Act’s severity requirement). However, severity is a claim requirement, and cases may
legitimately be dismissed if the record does not preponderantly reveal sufficient evidentiary
support for this claim element. Ojeda Colon v. Sec’y of Health & Hum. Servs., No. 18-1065V,
2021 WL 2809582 (Fed. Cl. June 3, 2021), review den’d, decision aff’d sub nom. Colon v. Sec’y
of Health & Hum. Servs., 156 Fed. Cl. 534 (2021); see also Prepejchal v. Sec’y of Health &
Hum. Servs., No. 15-1302V, 2018 WL 5782865, at *15-16 (Fed. Cl. Spec. Mstr. Oct. 5, 2018)
mot. for review den’d, 141 Fed. Cl. 519 (2019) (finding petitioner’s failure to satisfy the severity
requirement as a basis for the claim’s dismissal). Here, I have conducted a thorough record
review in reaching my determination, and even giving Petitioner’s affidavit some weight, I
cannot find that severity is met.
12 Instead, Petitioner filed physical therapy records from 2024.
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V. Conclusion
Based on the record as a whole, Petitioner has failed to prove by preponderant evidence
that his GBS or its residual effects lasted for more than six months. Accordingly, Petitioner has
not established entitlement to an award of damages, and I must DISMISS his claim.
IT IS SO ORDERED.
s/Herbrina Sanders Young
Herbrina Sanders Young
Special Master
11

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-01786-1
Date issued/filed: 2025-07-10
Pages: 28
Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 85 Unreported Judge Vaccine Opinion denying petitioner's 79 Motion for Review and sustaining the Special Master's Decision. Signed by Judge Ryan T. Holte. (AJK) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01786-RTH Document 87 Filed 07/10/25 Page 1 of 28
In the United States Court of Federal Claims
No. 19-1786
(Filed: 10 July 2025*)
***************************************
EDWIN WEISS, *
*
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH AND HUMAN *
SERVICES, *
*
Respondent. *
*
***************************************
Virginia E. Anello, with whom was Michael London, both of Douglas & London, P.C., of
New York, NY, for petitioner.
Ryan Miller, Trial Attorney, Civil Division, Department of Justice, of Washington, DC,
for respondent.
OPINION AND ORDER
HOLTE, Judge.
“‘[W]hile most of the Nation[] . . . enjoy[s] a great[] benefit from immunization
programs, a small but significant number have been gravely injured.’” Cloer v. Sec’y of Health
& Hum. Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (quoting H.R. REP. No. 99-908, at 4
(1986)); see also Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1364 (Fed. Cir.
2019) (Newman, J., dissenting) (quoting National Childhood Vaccine-Injury Compensation Act:
Hearing on S.2117 Before the S. Comm. on Labor & Human Res., 98th Cong. 2 (1984)
(statement of Sen. Orrin Hatch, S. Comm. on Labor & Human Res.) (“Senator Hatch cautioned,
there is ‘a small but significant public health problem—the incidence of harmful and
occasionally even fatal reactions to vaccines administered’”). “These few but important injuries
create doubts and fears in our National Childhood Vaccination Programs.” Boatmon, 941 F.3d at
1364 (quoting National Childhood Vaccine-Injury Compensation Act: Hearing on S.2117 Before
the S. Comm. on Labor & Human Res., 98th Cong. at 3–4) (statement of Sen. Edward Kennedy,
S. Comm. on Labor & Human Res.). Congress, therefore, established the Vaccine Program to
* This opinion was initially filed under seal on 24 June 2025 pursuant to Vaccine Rule 18(b) of the Rules of the
Court of Federal Claims. The Court provided the parties 14 days to submit proposed redactions, if any, before the
opinion was released for publication. Neither party proposed redactions. This opinion is now reissued for
publication in its original form.
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“compensate injured persons quickly and fairly” for injuries “either presumed or proven to be
causally connected to vaccines.” Cloer, 654 F.3d at 1325. Congress established the Vaccine
Program to “compensate injured persons quickly and fairly” for injuries “either presumed or
proven to be causally connected to vaccines.” Id. “‘[F]or the relatively few who are injured by
vaccines,’” Congress determined the “‘opportunities for redress and restitution [were] limited,
time-consuming, [and] expensive.’” Id. (quoting H.R. REP. No. 99-908, at 6 (1986)). “[T]o limit
the availability of the compensation system to those individuals who are seriously injured from
taking a vaccine,” Congress implemented a six-month severity rule requiring the injured persons
to show, by a preponderance of evidence, the persons suffered injury for more than six months.
Id. at 1335 (quoting H.R. REP. No. 100–391(I), at 699 (1987)). This case involves the review of
a special master’s decision dismissing a petitioner’s case for failure to satisfy the six-month
severity requirement.
Petitioner Edwin Weiss, MD moved for review of Special Master Young’s decision
holding he is not entitled to compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §§ 300aa-1–300aa-34 (“Vaccine Act”). Dr. Weiss, a generally healthy
cardiologist, received an influenza (“flu”) vaccination on 29 November 2016. Ten days later, Dr.
Weiss fainted while out to dinner with his wife. On 22 December 2016, after experiencing
headaches, dizziness, ataxia, and left-sided weakness, Dr. Weiss was admitted to the hospital and
diagnosed with Guillain-Barré syndrome. Dr. Weiss completed a standard five-day course of
treatment and was discharged with a marked improvement in his symptoms. Dr. Weiss alleges
his Guillain-Barré syndrome was caused by the flu vaccination, and he experienced residual
symptoms for longer than six months. On 27 December 2024, Special Master Young denied Dr.
Weiss’ petition for compensation because “[Dr. Weiss] failed to prove by preponderant evidence
that his GBS or its residual effects lasted for more than six months.” Decision on Six-Month
Severity Requirement (“SM Dec.”) at 1–2, 11, ECF No. 77.
Pursuant to the Vaccine Act, a “petition for compensation under the Program for a
vaccine-related injury or death shall contain . . . an affidavit, and supporting documentation,
demonstrating that the person who suffered such injury . . . suffered the residual effects or
complications of such illness, disability, injury, or condition for more than 6 months after the
administration of the vaccine.” 42 U.S.C. § 300aa-11(c). If the Special Master finds “on the
record as a whole” the petitioner did not demonstrate this six-month severity by “a
preponderance of the evidence,” 42 U.S.C. § 300aa-13(a)(1), this finding will be set aside only if
“arbitrary, capricious, [or] an abuse of discretion.” 42 U.S.C. § 300aa-12(e)(2). The Special
Master in this case “considered the relevant evidence of record,” “dr[ew] plausible inferences,”
and stated “a rational basis for the decision.” Hines v. Sec’y of Dept. of Health & Hum. Servs.,
940 F.2d 1518, 1528 (Fed. Cir. 1991). For this reason, as further explained below, the Court
denies petitioner’s Motion for Review and sustains the Special Master’s decision.
I. Petitioner’s Medical History and Flu Vaccination
The Court’s recitation of the background facts draws from the Special Master’s Public
Decision on Six-Month Severity Requirement and petitioner’s medical records pertinent to the
six-month severity issue.
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On 29 November 2016, petitioner Dr. Edwin Weiss received an influenza vaccination
from his employer. See Vaccination Record from NYU Langone (“Vaccination Record”),
Pet’r’s Ex. 1 at 1, ECF No. 6-1. At the time of vaccination, Dr. Weiss was a 73-year-old
practicing cardiologist at NYU Langone Health System and lived an active, independent
lifestyle. SM Dec. at 3. His only remarkable medical history was a diagnosis of hypertension.
See Pet’r’s Medical Records from NYU Langone (“NYU Langone Records Vol. I”), Pet’r’s Ex.
2 at 1, ECF No. 6-2. On 9 December 2016, Dr. Weiss was out to dinner with his wife and
experienced a fainting spell which caused him to “slump down on the table” and “black[] out.”
See Pet’r’s Medical Records from NYU Neurology (“Neurology Records”), Pet’r’s Ex. 4 at 2,
ECF No. 10-2. An ambulance took Dr. Weiss to White Plains Hospital, where he remained
overnight and was discharged the following day after an “unremarkable” stay. See Pet’r’s
Medical Records from White Plains Hospital (“WPH Records”), Pet’r’s Ex. 8 at 4–5, ECF No.
15-1.
On 19 December 2016, Dr. Weiss visited his neurologist, Dr. Neophytides, with
complaints of recurrent headaches and dizziness. See Neurology Records at 1–3. Dr.
Neophytides noted that Dr. Weiss had “syncope most likely due to medication-related
hypotension” as well as new “left ptosis” and “mild sensory polyneuropathy, possibly age-
related” leading to diminished sensation in his toes. Id. at 9. Dr. Neophytides ordered brain
imaging which came back normal and recommended Dr. Weiss follow up with his
ophthalmologist regarding the ptosis. Id.
On 22 December 2016, Dr. Weiss followed up with his ophthalmologist, Dr. Levitsky,
who noted “L[eft] [e]arly facial nerve palsy” and mentioned Guillain-Barré syndrome (“GBS”).
See Pet’r’s Medical Records from Dr. Levitsky (“Ophthalmology Records”), Pet’r’s Ex. 14 at 4,
ECF 32-4. Dr. Weiss then returned to see Dr. Neophytides with complaints of left “facial
weakness,” headaches, ataxia and feeling “out of balance.” See NYU Langone Records Vol. I at
16. Dr. Neophytides subsequently admitted Dr. Weiss for further testing. Id. at 9, 16.
Upon admission, Dr. Weiss underwent a lumbar puncture and electromyography testing,
and the results “w[ere] consistent with GBS.” Id. at 4, 25. After a tentative diagnosis of the
Miller-Fisher variant of GBS, he completed a five-day course of intravenous immunoglobulin
(“IVIG”) while inpatient. Id. at 3, 15. During his time in the hospital, Dr. Weiss continued to
experience headaches which were treated with pain medication and frequent “ambulat[ion] in
hallways.” Id. at 30, 40. Dr. Weiss was discharged on 26 December 2016 with a noted “mild
improvement in left-sided facial droop” and instructions to follow up with Dr. Neophytides. Id.
at 3.
After discharge, Dr. Weiss saw Dr. Levitsky for an ophthalmology follow-up on 4 April
2017, and Dr. Levitsky noted that his GBS was “back to normal.” See Ophthalmology Records
at 4. Dr Weiss’ next medical records are from 2018 and detail a variety of encounters unrelated
to his hospitalization for GBS. See Pet’r’s Medical Records from Dr. Harris Bearnot (“Dr.
Bearnot Records”), Pet’r’s Ex. 9 at 5, ECF No. 15-2 (pre-operative appointment in January 2018
with primary care doctor prior to cataract surgery noting nothing abnormal); see also Pet’r’s
Medical Records from Eye Center of New York, Pet’r’s Ex. 10 at 1, ECF No. 32-1 (cataract
surgery in January and February 2018); Pet’r’s Medical Records from NYU Langone (“NYU
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Langone Records Vol. II”), Pet’r’s Ex. 2 at 89–95, ECF No. 6-3 (emergency room visit for atrial
fibrillation in March 2018). On 23 July 2018, Dr. Weiss had a loop recorder implanted to
monitor his heart, and the admitting nurse practitioner noted “Guillain-Barre syndrome following
flu vaccine in 2016 (full recovery).” Pet’r’s Medical Records from NYU Langone (“NYU
Langone Records Vol. III”), Pet’r’s Ex. 2 at 301, ECF No. 6-4.
On 24 October 2018, Dr. Weiss saw Dr. Louie, an infectious disease physician, for a
consultation about receiving vaccinations after recovering from GBS because he needed an
influenza vaccination for work at the hospital, per hospital policy. See Pet’r’s Medical Records
from Dr. Louie (“Dr. Louie Records”), Pet’r’s Ex. 3 at 1, ECF No. 10-1. Dr. Louie noted that
Dr. Weiss was “stable but given his [history of] Guillain Barre in 2016[,] he should not receive
any vaccinations including flu vaccine [sic].” Id. at 3. Dr. Louie also added a diagnosis of
“history of Guillain-Barre syndrome” to Dr. Weiss’ medical record. Id. at 4.
On 14 November 2018, Dr. Weiss followed up with Dr. Neophytides for the first time
since the 2016 admission, complaining of “poor balance” noticed during his recovery from GBS,
primarily complaining when “in a narrow corridor . . . he stumbles, and he loses his balance.”
See Neurology Records at 15. After examination, Dr. Neophytides noted Dr. Weiss had “mild
gait ataxia, most likely due to cerebellar dysfunction, perhaps related to the history of LGBS
[Landry Guillain-Barré syndrome],” and “it has improved since then and it has not gotten worse
recently.” Id. at 18. Dr. Neophytides ordered a brain MRI and videonystagmography (“VNG”),
which showed a normal brain and ruled out Benign Paroxysmal Positional Vertigo (“BPPV”)
and vestibular hypofunction as possible causes for gait ataxia. Id. at 35 (notes from 6 Nov. 2019
visit discussing results of the tests “a year ago”); see also id. at 46–47 (MRI report noting the
brain appeared normal).
Dr. Weiss saw his primary care physician, Dr. Bearnot, for an annual physical on 5
November 2019. See Dr. Bearnot Records at 10–12. Dr. Bearnot noted Dr. Weiss’ physical
exam was within normal limits and ordered routine lab work. Id. Dr. Bearnot also added
“[h]istory of atrial fibrillation,” vitamin “B12 deficiency” and “[h]istory of Guillain-Barre
syndrome” to Dr. Weiss’ medical record. Id. at 12.
On 6 November 2019, Dr. Weiss returned to Dr. Neophytides to follow up on his gait
ataxia. Neurology Records at 28. Dr. Neophytides mentioned that Dr. Weiss recovered well
since his GBS in 2016 but has “been left with minimal impairment in his balance, which has not
progressed.” Id. Upon examination, Dr. Neophytides noted “Dr. Edwin Weiss has mild gait
ataxia, most likely due to cerebellar dysfunction, perhaps related to the history of LGBS, but it
could still be within normal limits for age.” Id. at 31.
On 25 March 2024, at age 80, Dr. Weiss saw physical therapist Jie Lin for “imbalance,”
citing a history of GBS. See Pet’r’s Medical Records from Rusk Rehabilitation, Pet’r’s Ex. 28 at
3, ECF No. 69-1. Dr. Weiss noted he “thinks his imbalance is slightly worsening over the years
and feels imbalance when walking down the steps and curbs” as well as “when bending
forward.” Id. at 3. Lin’s evaluation noted impairments related to “balance sensory integrity
and/or sensory processing” and a treatment diagnosis of “imbalance.” Id. at 11. Lin
recommended testing for BPPV and a 12-week treatment plan. Id. at 12.
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II. The Petition and Procedural History Before the Special Master
On 20 November 2019, Dr. Weiss filed a petition for compensation, alleging he “suffered
from and continues to suffer from Guillain-Barre Syndrome” as a direct result of his flu
vaccination. Petition Against Secretary of Health and Human Services (“Pet.”) at 1, ECF No. 1.
Dr. Weiss alleged his illness was a “Table Injury” under 42 C.F.R. § 100.3(a) and lasted more
than six months. Id. at 1–2. The petition was assigned to the Special Processing Unit (SPU) on
19 May 2020, and parties engaged in settlement discussions before “reaching an impasse” in
October 2021. SM Dec. at 2.
After respondent filed his Rule 4(c) report opposing compensation, “[p]etitioner’s claim
was transferred out of SPU because [r]espondent argued [p]etitioner failed to demonstrate that he
suffered the residual effects of GBS for more than six months after the administration of the
vaccine, [p]etitioner had not established a Table injury, and [p]etitioner had not established
actual causation.” SM Dec. at 2, see Reassignment Order at 1–2, ECF No. 46 (“[T]he medical
records fail to reflect that Petitioner suffered from bilateral ophthalmoparesis, as required to
establish a Table injury” and thus “[p]etitioner will likely need to proceed solely on a causation-
in-fact claim.”). Chief Special Master Corcoran noted “[p]etitioner may also need a medical
expert to demonstrate that his alleged continued symptoms are the residual effects of GBS,”
referencing a “nearly two-year gap in treatment for any GBS symptoms.” Reassignment Order
at 2, n.2.
After reassignment to Special Master Young and submission of expert reports, Special
Master Young ordered petitioner to submit “objective evidence to support his contention that the
residual effects of his injury lasted for at least six months” and subsequently requested
supplemental briefings “addressing the factual issues relating to the six-month severity
requirement.” Scheduling Order, ECF No. 71.
A. Supplemental Briefings on Six-Month Severity Requirement
On 30 August 2024, Dr. Weiss submitted supplemental briefing on the six-month severity
requirement. See Scheduling Order, ECF No. 71. Petitioner argues his “medical records are
limited for two years because he did not seek treatment for his balance issues understanding
them to be a residual from his GBS and that there was likely nothing his physicians could do
about it,” and explained medical records “should not be presumed to be ‘accurate and complete’
as to ‘all the patient’s physical conditions.’” Pet’r’s Suppl. Br. at 13, 20, ECF No. 74 (quoting
Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021)). Petitioner goes
on to state, “he did not mention his issues to the other providers that he did see during this two-
year time period because those visits were unrelated to the condition for which he was seeing
treatment,” which he alleges explains the lack of GBS evaluation in his medical records. Id. at
20. Finally, petitioner argues when he did seek further care for GBS from Dr. Neophytides in
2018, he complained of “two years of balance issues” following his GBS diagnosis, and Dr.
Neophytides noted abnormalities on exam, showing petitioner’s residual effects from GBS
greater than six-months post-vaccination. Id. at 17–18.
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Respondent filed a response on 14 October 2024, arguing petitioner failed to establish by
preponderant evidence “he continued experiencing the residual effects of his injury until June of
2017.” Resp’t’s Suppl. Br. at 11, ECF No. 75. Respondent acknowledges the evidence shows
petitioner did not seek any treatment for GBS between December 2016 and October 2018, but
argues the medical records either not mentioning GBS or stating symptoms “had resolved” were
entitled to greater weight than “petitioner’s later testimonial statements that were generated in
the context of litigation.” Id. at 12–13. Specifically, respondent argues petitioner’s gait ataxia
recorded in 2018 could just as easily be a result of “natural aging” than of his GBS. Id. at 12.
B. The Special Master’s Decision Denying Compensation
On 27 December 2024, Special Master Young filed a “Decision on Six-Month Severity
Requirement,” concluding “[p]etitioner has failed to provide preponderant evidence that he
suffered a vaccine-related injury for more than six months,” and dismissed the petition. SM Dec.
at 1–2. The Special Master did not discuss causation in the opinion. See generally id. After
laying out the procedural history of Dr. Weiss’ petition, the Special Master recapped Dr. Weiss’
medical records, drawing heavily from the summary provided in Respondent’s Supplemental
Brief filed on 14 October 2024. Compare SM Dec. at 3–5, with Resp’t’s Suppl. Br. at 3–7. The
Special Master then summarized Dr. Weiss’ affidavit filed on 30 August 2024 and expert reports
submitted by both parties. See SM Dec. at 6–8.
The Special Master, after discussing the factual and procedural background of the case,
commenced an analysis to determine if Dr. Weiss met his “burden to prove his case, including
the six-month severity requirement, by the preponderance of the evidence.” SM Dec. at 8 (citing
Song v. Sec’y of Health & Hum. Servs., 31 Fed. Cl. 61, 65–66 (1994), aff’d, 41 F.3d 1520 (Fed.
Cir. 1994)). The Special Master concluded Dr. Weiss’ medical records “fail to provide
preponderant evidence that he was experiencing symptoms in 2017,” referencing
ophthalmologist medical records from 2017 stating he was “back to normal” and the cardiology
records from 2018 noting his history of GBS and full recovery. SM Dec. at 9 (citing
Ophthalmology Records at 4; NYU Langone Records Vol. III at 301). Special Master Young
then referenced additional medical records from 2018. Id. The Special Master explained, Dr.
Weiss’ infectious disease doctor, Dr. Louie, noted Dr. Weiss’ GBS had improved but left him
with balance issues, and Dr. Weiss’ neurologist, Dr. Neophytides, found Dr. Weiss had “mild
gait ataxia, most likely due to cerebella dysfunction, perhaps related to the history of [GBS].” Id.
(citing Dr. Louie Records at 2; Neurology Records at 27). Special Master Young also noted Dr.
Neophytides’ 2019 assessment that “petitioner’s mild gait ataxia had not worsened since 2018”
and that it “could still be within normal limits for age.” Id. (citing Neurology Records at 35).
The Special Master thus found “it is unclear whether [p]etitioner suffered a new injury or age-
related changes during that approximately 22-month gap.” Id.
In considering petitioner’s expert Dr. Napoli’s opinion, Special Master Young stated,
“[a]lthough Dr. Napoli stated that ataxia is a possible residual symptom of GBS, he has not
linked [p]etitioner’s 2018 and 2019 mild gait ataxia with his 2016 GBS,” noting his opinion must
be weighed against the medical record to determine “which scenario is more likely than not.” Id.
Special Master Young considered Dr. Weiss’ affidavit and found his rationale for not reporting
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his ongoing symptoms to his ophthalmologist in 2017 “reasonable,” but found no records
correlating Dr. Weiss’ statement that he reported the issues to his neurologist in 2017. Id.
While the Special Master admitted the affidavit has some value, “this kind of testimonial
evidence [is] insufficient by itself to establish severity—especially when it is countered by
contrary evidence in the medical record.” Id. at 10 (citing Uetz v. Sec’y of Health & Hum.
Servs., No 14-29V, 2014 WL 7139803, at *3–4 (Fed. Cl. Spec. Mstr. Nov. 21, 2014) (finding an
affidavit insufficient to overcome a lack of contemporaneous medical records to establish the
six-month severity); Vogler v. Sec’y of Health & Hum. Servs., No. 11-424V, 2014 WL 1991851,
at *4, 8–10 (Fed. Cl. Spec. Mstr. Apr. 25, 2014) (recognizing affidavits can bolster existing
medical records but cannot overcome contrary medical records)). Despite giving Dr. Weiss’
affidavit some weight, Special Master Young did not find preponderant evidence balance issues
referenced in the 2018, 2019, and 2024 medical records were from Dr. Weiss’ GBS, and thus “it
is unclear whether [Dr. Weiss] suffered a new injury or age-related changes during the
approximately 22-month gap rather than ongoing GBS sequala.” Id. Special Master Young
acknowledged “mild residuals of an injury may not require active medical attention,” but noted
Dr. Weiss was “not actively seeing his treating neurologist during the relevant timeframe.” Id.
(citing Herren v. Sec’y of Health & Hum. Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed.
Cl. Spec. Mstr. July 18, 2014) (“residual effects of vaccine-caused injuries persisted at least six
months after the petitioner’s vaccination date because [petitioner] was still under the medical
care of her neurologist until [greater than six months after vaccination]”)).
The Special Master was “reluctant to dismiss a case simply on [severity], especially given
the Program’s generosity in reaching entitlement decisions,” but noted “severity is a claim
requirement, and cases may legitimately be dismissed if the record does not preponderantly
reveal sufficient evidentiary support.” Id. at 10 (citing Ojeda Colon v. Sec’y of Health & Hum.
Servs., No. 18-1065V, 2021 WL 2809582 (Fed. Cl. June 3, 2021), review den’d, decision aff’d
sub nom. Colon v. Sec’y of Health & Hum. Servs., 156 Fed. Cl. 534 (2021)). Thus, after
conducting “a thorough record review” and “giving Petitioner’s affidavit some weight,” the
Special Master “could not find that severity is met,” dismissing Petitioner’s claim. Id.
III. The Parties’ Expert Reports
The Court’s recitation of the parties’ expert reports draws from the Special Master’s
Public Decision on Six-Month Severity Requirement and the portions of the parties’ expert
reports related to the Six-Month Severity Requirement.
A. Petitioner’s Expert Report from Dr. Salvatore Q. Napoli
Dr. Napoli, a board-certified neurologist, provides clinical care for patients with multiple
sclerosis (“MS”) and other neuroimmunologic conditions. Pet’r’s Ex. 15 at 2 (Petitioner’s
Expert’s Report), ECF No. 53-1. He has “never published on GBS or residuals of GBS,” but
“[i]n the last five years, [he] ha[s] treated approximately five cases of [non-vaccine-induced]
GBS.” Id. Despite not treating vaccine-induced GBS, Dr. Napoli has “seen in the last five years
patients with neurological/autoimmune injuries, such as brachial neuritis, neuromyelitis
optica . . . [,] and tumafactive multiple sclerosis, that were caused by vaccinations.” Id.
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After reciting a medical synopsis on petitioner, Dr. Napoli stated “Dr. Weiss does qualify
for the diagnosis of GBS and he presents with the clinical triad of the Miller Fisher variant.” Id.
at 5. Specifically, Dr. Napoli found petitioner “experienced left-sided ophthalmoplegia,
inclusive of ptosis, left-sided facial weakness, ataxia, and bilateral reduced and absent reflexes,”
and “[h]is laboratory testing, including elevated proteins, abnormal EMG results and increased
asialo-GM1 antibodies further support the diagnosis.” Id. Thus, Dr. Napoli concluded petitioner
was correctly diagnosed with Miller Fisher variant of GBS. See id. at 5–6 (detailing Dr. Napoli’s
conclusion petitioner was correctly diagnosed with GBS).
Dr. Napoli noted “there have been studies showing that residual deficits [of GBS] can
undoubtedly occur and remain more than 6 months.” Pet’r’s Ex 15 at 6 (Petitioner’s Expert’s
Report). In support of this conclusion, Dr. Napoli stated “Verboon et al reports that in 13
patients with Miller Fisher syndrome, 2 out of 5 (40%) patients treated with intravenous
immunoglobulin had residual deficits at 6 months compared to 5 out of 8 (63%) patients who
were left untreated.” Id.
Dr. Napoli found the records from Dr. Louie and Dr. Neophytides support petitioner’s
GBS lasted for more than six months. Id. at 8. Specifically, Dr. Napoli explained petitioner
“saw both doctors in the Fall of 2018 and they both noted that his GBS had improved but he still
had balance[] issues and gait ataxia,” and when petitioner “saw Dr. Neophytides again in the Fall
of 2019[,] . . . it was again noted that he had recovered well from his GBS but has been left with
minimal impairment in his balance.” Id.
Finally, Dr. Napoli explained “[a]taxia is a known residual of GBS that can linger even if
the individual has recovered for the most part.” Id. It was Dr. Napoli’s “opinion to a reasonable
degree of medical certainty and more probably than not that Dr. Weiss’ GBS lasted longer than
six months as supported by his medical records from Dr. Louie and Dr. Neophytides.” Id.
B. Respondent’s Expert Report from Dr. Mark B. Bromberg
Dr. Bromberg, a board-certified academic neurologist with training in neuromuscular
medicine and electrodiagnosis, “frequently make[s] the diagnosis of primary demyelinating
neuropathies such as the spectrum of Guillain Barré Syndrome (including Fisher variant) and
chronic demyelinating disorders.” Gov’t’s Ex. A at 1 (Gov’t’s Expert Report), ECF No. 56-1.
Dr. Bromberg has published articles and written a textbook on the diagnosis of peripheral
neuropathies. Id.
In Dr. Bromberg’s summary of petitioner’s medical records, he noted the “clinical
symptoms and signs are sparsely described.” Id. at 5. Dr. Bromberg disagreed with Dr. Napoli’s
conclusion petitioner’s “clinical history and examination includes features of GBS, and that he
has the triad of the Fisher syndrome.” Id. at 6. Dr. Bromberg explained “account must be taken
of [petitioner’s] age, 73 years old at time of presentation, as it is not unreasonable for there to be
difficulty with tandem gait at that age.” Id. Dr. Bromberg further explained “there is
considerable variability in finding by different examiners” as to petitioner’s alleged residual GBS
symptoms. Id. at 7 (detailing the various findings of petitioner’s symptoms from various
providers).
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Although Dr. Bromberg’s expert report did not specifically address the six-month
severity requirement, Dr. Bromberg opined petitioner’s “issues were limited in duration, and
subtle issues with challenging gait testing are related to normal changes with age.” Id. at 8. As
to petitioner’s balance and gait issues, Dr. Bromberg noted petitioner’s “gait disturbance
represents subjective findings, which are inconsistent across time and by examiners.” Id.
IV. Petitioner’s Affidavit
On 30 August 2024, petitioner submitted an affidavit. See Pet’r’s Affidavit, Ex. 29, ECF
No. 73. Petitioner explained he received an influenza vaccine and “was caused to suffer
Guillain-Barre Syndrome (GBS) including the pain, suffering and sequelae associated therewith,
which includes balance issues [he] still experience[s] to this day.” Id. at 1. Petitioner reported
he was a “healthy individual” and “did not suffer from a neuroimmunology condition” or “suffer
from any balance issues” prior to receiving the vaccine. Id. Petitioner instead claims he
“exercised regularly and would go jogging without incident.” Id.
Petitioner claims the onset of his GBS occurred in December 2016 and the “first thing
[he] remember[s] is being out to dinner when [he] passed out.” Id. at 2. Petitioner explains he
was admitted to the hospital “for five days because Dr. Neophytides suspected GBS and [Dr.
Neophytides] wanted [petitioner] to undergo a lumbar puncture and be treated with IVIG.” Id.
Petitioner explains at the time of his discharge his “condition had greatly improved, but the GBS
has not completely resolved and [he] was still experiencing minor facial issues. As to [his]
walking and balance, that had seemed to improve and [he] believed at the time of discharge that
it had been resolved. However, that was not the case.” Id.
Petitioner goes on to explain his “balance became the real issue,” and the “balance issues
started shortly after [his] discharge but they did not happen all of the time.” Id. Petitioner noted
he “continued to walk fine for the most part, but often times, [he] would lose [his] balance and
almost fall; [he] felt unsteady walking which is the same as what [he] experienced when [he] first
experienced the symptoms of GBS.” Id. Despite the balance issues, petitioner explains he “did
not go see a doctor for it immediately because [he] knew it was a residual from [his] GBS and
that there was likely nothing [the doctors] could do about it, and [he] would have to deal with it.”
Id.
“After two years of dealing with these balance issues, however, [petitioner] felt they were
starting to get worse, so [he] decided to see [his] neurologist, Dr. Neophytides, . . . who thought
the balance issues could be related [petitioner’s] GBS” and told him to follow-up in a year.
Pet’r’s Affidavit, Ex. 29 at 2–3. Petitioner followed up as instructed, but explained his “balance
issues still continued to persist and they are present today,” and he “feel[s] they are worsening.”
Id. at 3. Petitioner noted from March to June 2024, he “decided to try physical therapy to assist
with [his] balance issues” and explained “he will likely be continuing with [his] physical therapy
in the future. Id.
Petitioner also noted his “attorney made [him] aware of two medical records that indicate
that [he] was not experiencing any residuals of [his] GBS in 2017 or 2018.” Id. Petitioner
explained, “[a]s to the April 2017 visit with [his] ophthalmologist, Dr. Levitsky, [petitioner] did
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not report to [his ophthalmologist] that [his] GBS was back to normal because it was not; [he]
was still experiencing balance issues.” Id. Petitioner further explained Dr. Levitsky was his
doctor related to congenital cataracts and the visit was related to the cataracts—not GBS—and he
would not have reported to Dr. Levitsky he was normal because he was not. Id. at 3–4.
Petitioner claims he “was still experiencing balance issues and [his] complaints regarding these
issues went to Dr. Neophytides, [his] neurologist.” Id. at 4. As for the July 2018 record,
petitioner explained he “d[id] not know where that information would have been obtained and
[he] d[id] not recall reporting that to any healthcare provider at all or any particular provider at
that visit.” Id. at 3. Petitioner further notes he “would especially not have reported to anyone
that [he] was fully recovered because [he] was still experiencing balance issues.” Id. Petitioner
further notes this “visit was related to paroxysomal atrial fibrillation, and [he] was focused on
getting that resolved,” and he “would not have made any complaints related to [his] balance
issues from GBS at that visit.” Id. Petitioner once again maintained all his “complaints
regarding balance went to Dr. Neophytides, [his] neurologist.” Id.
V. Petitioner’s Motion for Review and Respondent’s Arguments
On 27 January 2025, petitioner moved for review of the Special Master’s Decision on
Six-Month Severity Requirement. See Mot. for Rev., ECF No. 79. Disputing the Special
Master’s finding “petitioner failed to provide preponderant evidence that he suffered a vaccine-
related injury for more than six months,” petitioner contends the Special Master’s decision was
“not in accordance with the law and/or was, at a minimum arbitrary and capricious because
Special Master Young improperly disregarded three highly relevant notations that support that he
had suffered the residuals of his vaccine-related injury for at least two years.” Mot. for Rev. at 2.
Petitioner identifies these “three highly relevant notations” as: (1) a 24 October 2018
notation by Dr. Louie noting “History of GBS” as an active problem “because Dr. Weiss had
been left with balance issues relating to his GBS diagnosed in 2016;” (2) a 14 November 2018
notation from Dr. Neophytides stating petitioner “had recovered well but has been left with
minor impairment in his balance;” and (3) a 6 November 2019 note from Dr. Neophytides stating
petitioner had “recovered well but he has been left with minimal impairment in his balance,
which has not progressed since then.” Id. at 2 (quoting Dr. Louie Records at 4, Neurology
Records at 15, 28). While petitioner concedes “the Special Master did acknowledge the
existence of these three records in the decision,” petitioner asserts Special Master Young
“inappropriately ‘donned blinders’” to these notations which purportedly show Dr. Weiss
satisfied the six-month severity requirement.” Id. at 2–3.
Petitioner argues the appropriate standard of review is “not in accordance with the law”
because he believes Special Master Young “did not review the record as a whole,” which is in
contravention of the Special Master’s requirement to “weigh the ‘record as a whole’ in
determining the severity requirement.” Id. at 11–12, 14 (quoting Kirby v. Sec’y of Health &
Hum. Servs., 997 F.3d 1378, 1382 (Fed. Cir. 2021)). Petitioner argues a special master should
weigh contemporaneous evidence similarly and “should not limit the practical use of other
evidence such as affidavits/oral testimony” but has “no license to ignore entirely significant
evidence that contradicts a finding.” See id. at 12–14 (citing Shapiro v. Sec’y of Health & Hum.
Servs., 101 Fed. Cl. 532 (2011); Hodge v. Sec’y of Health & Hum. Servs., 164 Fed. Cl. 633
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(2023)). Petitioner first points to Kirby, where the Federal Circuit stated “medical records should
not be presumed to be ‘accurate and complete’ as to ‘all the patient’s physical conditions,’”
listing a variety of reasons why information may not be in a patient’s medical record including “a
patient being seen for one condition . . . is not likely to mention another condition . . . nor is the
physician likely to record it.” Id. at 12 (citing Kirby, 997 F.3d at 1383).
Petitioner then discusses Shapiro v. Secretary of Health and Human Services and Hodge
v. Secretary of Health and Human Services: in both cases, the court found the respective Special
Masters selectively reviewed and disregarded certain pieces of highly relevant evidence in
medical records, so-called “donning blinders,” leading the court to vacate the Special Masters’
decisions denying compensation. See Mot. for Rev. at 13–15 (first quoting Shapiro, 101 Fed. Cl.
at 540 (“[T]he Special Master was not at liberty to don blinders to the portion of the letter that
contradicted his findings . . .”); and then quoting Hodge, 164 Fed. Cl. at 646 (“[T]he special
master’s failure to consider these medical records . . . violates the Vaccine Act’s mandate to
consider the record as a whole, and therefore his conclusion on this issue was not in accordance
with law.”)). Petitioner highlights how the court in Hodge found the Special Master’s “fact
findings regarding timing were arbitrary and capricious” because “the special master had not
considered all of the relevant evidence in the record.” Id. at 14 (citing Hodge, 164 Fed. Cl. at
646).
Petitioner argues, as in Hodge and Shapiro, “Special Master Young did not review the
record as whole because she improperly disregarded three highly relevant notations in the
records of the two physicians that actually treated Dr. Weiss specifically for his GBS” and
“provided no weight to these notations at all.” Id. at 14–15. Petitioner points to four records
which the Special Master “improperly gave substantial weight” because petitioner “was not
seeing these physicians for his GBS.” Id. at 16–17 (citing Dr. Bearnot Records at 4–8, 11; NYU
Langone Records Vol. II at 230) (discussing two primary care appointments and an emergency
room visit for an unrelated cardiac issue). Petitioner asserts these records “do not conflict with
the three notations” disregarded by the Special Master, or with Dr. Weiss’ affidavit, thus “it was
erroneous for Special Master Young to find otherwise.” Id. at 17. While petitioner notes a
“record in which a nurse practitioner noted that he had a ‘full recovery’ of his GBS” may
“arguably conflict[]” with other records, petitioner had seen the provider for atrial fibrillation,
not GBS, and did not make “any complaints related to his residual balance issues,” so “he does
not know why the record would say he was ‘fully recovered’ when he was not,” suggesting the
provider “likely entered the information incorrectly.” Id at 17–18. As records from petitioner’s
GBS doctors discuss residual balance issues three to four months later, Petitioner argues “the
weight given . . . to [the nurse practitioner record] should have diminished greatly” due to the
contemporaneous conflicting medical records. Mot. for Rev. at 18.
Petitioner next refers to Griswold v. Sec’y of Health & Hum. Servs., where the petitioner
also experienced GBS after a flu vaccination, recovered remarkably well, and the special master
found evidence of GBS sequelae seven months post-vaccination even when “physical exams had
come back arguably normal,” leading the Special Master to grant compensation. Id. at 19 (citing
Griswold v. Sec’y of Health & Hum. Servs., No. 19-1674V, 2022 WL 1529489 at *7 (Fed. Cl.
Spec. Mstr. Mar. 30, 2022)). Petitioner notes the Special Master in Griswold found it relevant
when the petitioner’s provider “included GBS on [p]etitioner’s list of active problems despite the
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results of muscular and neurologic examinations performed during that visit being normal.” Id.
(citing Griswold, 2022 WL 1529489 at *7) (emphasis in original). While petitioner states “he
did not seek treatment for two years [after GBS hospitalization] believing there was likely
nothing his physicians could do,” after seeking treatment in 2018, petitioner’s providers added
GBS to petitioner’s “active problem list,” like the petitioner in Griswold. Id. at 19–20.
Respondent disputes petitioner’s assertion the “not in accordance with the law” standard
of review applies, arguing petitioner “attempt[s] to benefit from the less deferential de novo
standard” by “argu[ing] . . . the Special Master engaged in legal error in her ruling.” Resp’t’s
Resp. at 13. Instead, respondent asserts “all of the issues petitioner raised for review were
clearly questions of fact, entitled to the arbitrary and capricious standard of review.” Id.
Respondent argues the Special Master “conducted a thorough review of the record” and
“[t]here is no indication the Special Master ignored notations in the records or failed to consider
them in weighing the record as a whole.” Id. at 14. Respondent noted the Special Master gave
petitioner “multiple opportunities” to supplement the record with additional documentation
showing residual effects of GBS “during the relevant time period, and he did not.” Id.
Responding to petitioner’s “three specific notations” to which petitioner argues the Special
Master “should have accorded more weight,” the government points out how the Special Master
“explicitly addressed those visits and records multiple times throughout [the] Decision, and
clearly and carefully considered them.” Id. at 14–15 (emphasis in original).
Respondent then discusses how rather than being “simply silent on petitioner’s status”
during the gap in care, “there were explicit notations that petitioner had a normal gait upon
discharge” and petitioner “had a ‘full recovery’ from GBS and was ‘back to normal’ following
GBS.” Id. at 15 (citing SM Dec. at 4, 9). Respondent further notes how gait ataxia could be “a
residual symptom of GBS” or “within normal range for petitioner’s age or more likely the
natural result of aging,” according to the parties’ experts. Id. (citing SM Dec. at 7–8).
Respondent also disagrees with the case law proffered by petitioner. First, respondent
distinguishes this case from Shapiro because review of the Special Master’s decision “makes
clear” the Special Master did not ignore evidence, as was the case in Shapiro. Id. Similarly,
respondent distinguishes Hodge because there, “the [S]pecial [M]aster had not considered all the
evidence in the record;” yet here, “Special Master Young rendered her [d]ecision in light of the
record as a whole.” Id. at 16. Finally, the government characterizes the dispute at hand as
“simple disagreements with the Special Master’s factual determinations and the weighing of
evidence,” where petitioner “asks this Court to reconsider evidence . . . but reach a different
conclusion.” Id. at 17.
VI. Legal Standards
A. The Court’s Standard of Review of a Special Master’s Decision
The Vaccine Act provides this court jurisdiction to review a Special Master’s decision
upon timely motion of either party. See 42 U.S.C. § 300aa-12(e)(1)–(2). In reviewing the record
of the proceedings before the Special Master, the Court may: (1) “uphold the findings of fact
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and conclusions of law of the special master and sustain the special master’s decision;” (2) “set
aside any findings of fact or conclusion of law of the special master found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own
findings of fact and conclusions of law;” or (3) “remand the petition to the special master for
further action in accordance with the court’s direction.” Id. § 300aa-12(e)(2). “Fact findings are
reviewed . . . under the arbitrary and capricious standard; legal questions under the ‘not in
accordance with law’ standard; and discretionary rulings under the abuse of discretion standard.”
Saunders v. Sec’y of Dept. of Health & Hum. Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994)
(quoting Munn v. Sec’y of Dept. of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir.
1992)).
It is not the Court’s role “to reweigh the factual evidence, or to assess whether the special
master correctly evaluated the evidence.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d
1357, 1360 (Fed. Cir. 2000) (quoting Munn, 970 F.2d at 871). The Court also does “not examine
the probative value of the evidence or the credibility of the witnesses. These are all matters
within the purview of the fact finder.” Id. (quoting Munn, 970 F.2d at 871). “Reversal is
appropriate only when the special master’s decision is arbitrary, capricious, an abuse of
discretion, or not in accordance with the law.” Snyder v. Sec’y of Health & Hum. Servs., 88 Fed.
Cl. 706, 718 (2009). The arbitrary and capricious standard “is a highly deferential standard of
review:” “[i]f the special master has considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision, reversible error will be extremely
difficult to demonstrate.” Hines v. Sec’y of Dept. of Health & Hum. Servs., 940 F.2d 1518, 1528
(Fed. Cir. 1991).
B. The Six-Month Severity Requirement
A petitioner seeking compensation for a vaccine injury must submit a petition containing
“supporting documentation, demonstrating that the person who suffered [a vaccine-related
injury] . . . suffered the residual effects or complications of such illness, disability, injury, or
condition for more than 6 months after the administration of the vaccine.” 42 U.S.C. § 300aa-
11(c)(1)(D)(i). This six-month severity is “a condition precedent to filing a petition for
compensation” and is a “petition content requirement.” Cloer v. Sec’y of Health & Hum. Servs,
654 F.3d 1322, 1335 (Fed. Cir. 2011) (en banc) (citing 42 U.S.C. §300aa-11(c)(1)(D)(i)).
Petitioner must meet the severity requirement by a preponderance of the evidence. 42 U.S.C.
§300aa-13(a)(1)(A); see Song v. Sec’y of Dept. of Health & Hum. Servs., 31 Fed. Cl. 61, 65–66
(1994), aff’d, 41 F.3d 1520 (Fed. Cir. 1994) (unpublished table decision). A special master “may
not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical
records or by medical opinion.” 42 U.S.C. §300aa-13(a)(1)(A). Such claims may, however,
have “‘probative value.’” See Colon v. Sec’y of Health & Hum. Servs., 156 Fed. Cl. 534, 538
(2021) (quoting Porter v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011)).
A special master must base their finding of severity “on the record as a whole,” or such findings
will not be “in accordance with the law.” 42 U.S.C. § 300aa-13(a)(1); Hodge v. Sec’y of Health
& Hum. Servs., 164 Fed. Cl. 633, 646 (2023).
VII. Whether Six-Month Severity Must Be Proven by a Preponderance of the Evidence
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As an initial matter, the parties agreed the only issue before the Court is to determine
whether the Special Master’s finding on severity was proper and supported by evidence in the
record.1 See 13 May 2025 Oral Arg. Tr. (“Tr.”) at 6:16–7:1, ECF No. 84 (“THE COURT: [T]he
Court understands that both Petitioner and the Government agree that the only issue is whether
the Special Master properly determined that [p]etitioner did not meet the six-month severity
requirement under 11(c)(1)(D)(i). Is that correct? [PETITIONER:] That is correct . . . .
[RESPONDENT:] Yes, Your Honor.”); Tr. at 7:10–7:16 (“[THE COURT:] So the Court’s role
now is to determine whether the Special Master’s factual finding that [p]etitioner did not meet
the six-month requirement is supported by the evidence in the record. [PETITIONER:] That is
correct. . . . [RESPONDENT:] Yes, Your Honor.”). For this purpose, the parties agreed it is
irrelevant whether the six months for satisfying the six-month severity requirement are measured
from date of vaccination, or date of onset. See Tr. at 13:04–14:12 (“THE COURT: So for the
six-month severity requirement to be met, [p]etitioner must show he continued experiencing
residual effects of GBS at least until June of 2017. Is that correct? [PETITIONER:] I believe
that the Special Master held six months from date of onset, but like I said, here[] it’s not relevant.
… [RESPONDENT:] [G]iven the parties’ disparate readings of what’s appropriate, it would be
anywhere from May 29th through mid-June, would be where the six months would fall. Again,
as Your Honor referenced, I don’t think it’s terribly relevant here.”)
The parties agreed this severity requirement is jurisdictional—a threshold matter
condition precedent to a petition for compensation.2 See supra Section V.B; see also Tr. at
1 The issue of whether the six-month severity requirement is jurisdictional was not raised by the parties and
therefore not before the Court. The Court notes the only case cited by the Special Master to support dismissal is
Black v. Secretary of Health and Human Services, which determined the six-month severity requirement is
jurisdictional. See 33 Fed. Cl. 546, 550 (1995) (holding the requirements of subsection 11(c), including the six-
month severity requirement, “are indeed jurisdictional”). According to Cloer v. Secretary of Health and Human
Services, the six-month severity requirement is perhaps not jurisdictional; rather, “the 6 month requirement is a
condition precedent to filing a petition for compensation,” or in other words, is a “petition content requirement.”
654 F.3d at 1335. A “petition content requirement” necessitates petitioners adequately plead an injury longer than
six months and “submit supporting documentation which reasonably demonstrates that a special master has
jurisdiction to hear the merits of the case.” Id. The Court also understands “[d]ue to the informal style of many
Vaccine Act cases, the line between determining jurisdiction and deciding the merits becomes blurred,” id., but the
six-month severity requirement is neither a heightened pleading standard nor a jurisdictional bar to a claim under the
Vaccine Act; instead, a petitioner must adequately plead an injury longer than six months and provide
documentation supporting such. See id. The six-month severity requirement is a “petition content requirement”
(i.e., pleading requirement) that must be proven by record evidence. See id.; see also 42 U.S.C. § 300aa-13(a)(1)(A)
(explaining compensation shall be awarded under the Vaccine Act if the Special Master finds “on the record as a
whole” the “petitioner has demonstrated by a preponderance of the evidence the matters required in the petition by
section 300aa-11(c)(1),” including the six-month severity requirement).
2 The Court notes this is a rare case of dismissal for failure to show six-month severity, in which a large gap
separates records of treatment and records of residual effects. For examples of the severity requirement being
jurisdictional, respondent cited three cases: Song, 1993 WL 534746, aff’d, 31 Fed. Cl. 61, aff’d, 4 F.3d 1520; Colon,
2021 WL 2809582, aff’d, 156 Fed. Cl. 534; and Stavridis v. Secretary of Health & Human Services, 2009 WL
3837479 (Fed. Cl. Spec. Mstr. Oct. 29, 2009). See Tr. at 29:23–30:23 (citing Song, Colon, and Stavridis). In Song,
a new-born had seizures after vaccination, but these stopped after just one week. 1993 WL 534746 at *1. Three
years later, a neurological report showed some evidence of delayed language functions, which petitioner alleged was
vaccine-related. Id. at *2. The Special Master found no six-month severity, but did not treat it as a jurisdictional
issue—the Special Master denied the claim after holding a hearing and receiving expert testimony. Id. at *1. In
Colon, a 70-year-old had GBS-related left foot drop and numbness, and unrelated gastrointestinal symptoms. 1993
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8:14–8:18 (“THE COURT: And the parties agree, beginning with [p]etitioner, that the
requirements under subsection 11(c) are a threshold matter? [PETITIONER:] That is correct.
[RESPONDENT:] Yes, Your Honor.”); Tr. at 7:17–7:22 (“THE COURT: And to confirm
regarding the requirement, the six-month severity requirement is a condition precedent to filing a
petition for compensation. [PETITIONER:] Yes, Your Honor. [RESPONDENT :] Yes, Your
Honor.”); Tr. at 29:14–29:19 (“THE COURT: And I think we already established that you both
agree that this requirement, this six-month requirement from 11(c), is jurisdictional to be met.
[PETITIONER:] Correct. [RESPONDENT:] Yes.”).
As the Special Master found the six-month severity requirement not met, the Special
Master did not make a determination as to whether petitioner’s “illness . . . injury, condition, . . .
in the petition [was] due to factors unrelated to the administration of the vaccine described in the
petition” and therefore entitled to compensation. 42 U.S.C. § 300aa-13(a)(1)(B); see Tr. at 7:25–
8:5 (“THE COURT: And the Special Master in this case did not make any causation
determination because she found that the six-month severity requirement was not met.
[PETITIONER:] That is correct. [RESPONDENT:] Yes, Your Honor.”); Tr. at 8:14–8:18
(“THE COURT: And the parties agree, beginning with [p]etitioner, that the requirements under
subsection 11(c) are a threshold matter? [PETITIONER:] That is correct. [RESPONDENT:]
Yes, Your Honor.”).
The parties further agreed petitioner must prove six-month severity by a preponderance
of the evidence, or “50 percent and a feather.” See supra Section V; see also Tr. at 8:19–8:23
(“THE COURT: And under 11(c) requirements, including the six-month severity
requirement, . . . that must be proven by a preponderance of the evidence. [PETITIONER:] That
is correct. [RESPONDENT:] Yes, Your Honor.”); Tr. at 27:11–27:18 (“[RESPONDENT:]
[T]he standard is more likely than not.”).3
WL 534746 at *3. Some records showed the GBS-related symptoms improved, but did not show they stopped. Id.
at *3–4. The last record of GBS was two months short of the statutory requirement and was not mentioned again
until six years later: records of gastrointestinal symptoms continued however, and petitioner argued these showed
severity. Id. at *4–5. The Special Master disagreed—on the record alone and without a hearing—and ‘dismissed’
for lack of severity. Id. at *1. In Stavridis, petitioner’s son was diagnosed with autoimmune hemolytic anemia days
after vaccination, but a treatment of steroids appeared to resolve the issues after about four months. 2009 WL
3837479 at *1. Beyond a low white blood cell count that was within normal range, petitioner offered no medical
record of injury after six months. Id. Like Colon, the Special Master in Stavridis dismissed without a hearing. 2009
WL 3837479 at *2. The case before the Court is distinguishable from all three cases. Unlike Stavridis, a medical
record of injury after six months has been produced. SM Dec. at 5. Unlike Colon, the gap in vaccine-related
symptoms is much shorter—22 months compared to six years—but petitioner produced no contemporary records of
other symptoms to bridge the gap. SM Dec. at 9. Unlike Song, where later delayed language development is
different than the original onset seizure symptoms, petitioner’s later and onset symptoms are the same symptoms of
balance issues. SM Dec. at 3–5. More to the point, unlike Song—the only example affirmed by the Federal
Circuit—the finding under review here was made without a hearing. SM Dec. at 2–3.
3 To support this principle, respondent cited Song v. Secretary of Health & Human Services and Uetz v. Secretary of
Health & Human Services. 1993 WL 534746, aff’d, 31 Fed. Cl. 61, 65-66 (1994) (“Petitioner must establish by a
preponderance of the evidence the matters required in the Petition Content section, § 11(c).”), aff’d, 41 F.3d 1520
(Fed. Cir. 1994); 2014 WL 7139803 at *3 (Fed. Cl. Spec. Mstr. Nov. 21, 2014) (“As with all elements of a vaccine
claim, the conditions precedent must be proven by preponderant evidence.”); see also Tr. at 9:22–10:9. Petitioner
cited Tackett v. Secretary of Health & Human Services which also used the preponderance standard. 2023 WL
6995391 at *8 (Fed. Cl. Spec. Mstr. Sept. 25, 2023).
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The parties conceded petitioner’s testimony can have probative value to support severity
but cannot stand alone. See supra Section V.B; see also Tr. at 28:13–28:25 (“THE COURT: So
the statement from Black is correct [that ‘Petitioner is required to “submit supporting
documentation which reasonably demonstrates that the alleged injury, or its sequelae, lasted for
more than six months”’]? [PETITIONER:] Correct. . . . [RESPONDENT:] I agree that
Petitioner cannot establish Petitioner has met the severity requirement based on his statements
alone, and that’s in the statute as well. [THE COURT:] … do you disagree that statements from
the [p]etitioner can also be allowed? [RESPONDENT:] Are permitted to be considered as
evidence? Yes.”).
Petitioner agreed the only evidence supporting the six-month severity requirement
besides contemporaneous records were (1) the affidavit and (2) the 2024 physical therapy
records, which petitioner set aside for the issues under review. See Tr. at 26:12–26:16 (“THE
COURT: [T]he only other items, other than contemporaneous medical records, were the March
2024 physical therapy records and the affidavit from Petitioner. [PETITIONER:] That is
correct.”); Tr. at 23:23–24:1 (“[PETITIONER:] [F]or purposes of this [motion for review], I’m
not focusing on the 2024 medical records.”). No records supporting severity were submitted
during the 22-month gap. See Tr. at 26:17–26:21 (“THE COURT: Related to what we’ll call the
22-month gap, you agree that there are no medical records from the 22-month gap that support
GBS. [PETITIONER:] That there are no medical records, that is correct.”).4
VIII. The Proper Legal Standard for the Court to Use in Reviewing the Special Master’s
Decision
The Special Master must consider the record as a whole to be in accordance with the law;
if not, the Court would review the Special Master’s decision de novo. Hodge v. Sec’y of Health
& Hum. Servs., 164 Fed. Cl. 633, 641 (2023) (explaining Federal Circuit precedent requires a
special master “must not focus on individual pieces of evidence at the expense of determining
what is depicted by the record as a whole”). Petitioner initially argued the Court should find the
4 As the Special Master did not clarify the case was being dismissed for lack of jurisdiction, the Court questions the
dismissal procedure used by the Special Master for failure to meet the six-month severity requirement, rather than
holding a hearing on the merits. See SM Dec. at 10 (“I am aware that a variety of evidence can be used to satisfy
issues like severity, and I am reluctant to dismiss a case simply on this basis, especially given the program’s
emphasis on generosity in reaching entitlement decisions. However, severity is a claim requirement, and cases may
legitimately be dismissed if the record does not preponderantly reveal sufficient evidentiary support for this claim
element.” (citations omitted)). As the Special Master determined petitioner did not meet the six-month severity
requirement “claim element,” the Court doubts the Special Master’s dismissal was on jurisdictional grounds. See
id.; see also supra note 3. The Court does not address whether the dismissal procedure used by the Special Master
was proper because petitioner did not argue a procedural issue with respect to the Special Master’s dismissal versus
denial of petitioner’s claim. See generally Pet’r’s Mot. for Rev. Additionally, there is no practical difference in the
outcome of the case if the Special Master dismissed the case on jurisdictional grounds or if the Special Master
factually determined the six-month severity requirement was not satisfied by a preponderance of the evidence—
either way petitioner would not be able to sustain a claim for compensation. Finally, given petitioner did not raise a
due process claim as to the Special Master’s dismissal procedure, if petitioner is unable to identify something from
the record which the Special Master did not review or consider, the Court cannot overturn the Special Master’s
decision. See Hines v. Sec’y of Dept. of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991) (“If the
special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational
basis for the decision, reversible error will be extremely difficult to demonstrate.”).
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Special Master’s decision “not in accordance with the law” and review the decision de novo
because the Special Master, having disregarded three notations from 2018 and 2019, did not
review “the record as a whole.” See Tr. at 41:16–41:20 (“[PETITIONER:] [B]ecause the
Special Master disregarded records in making a finding as to this particular medical record, … it
was a disregard of the record as a whole and would violate the legal mandate to do so.”); Tr. at
49:23–51:3 ([PETITIONER:] Again, I don’t think that the Court properly gave weight [] or, . . .
properly considered, didn’t even mention, disregarded the three notations … [and] by
disregarding that record, which … Petitioner was clearly relying upon, it was, again, not in
accordance with the law.”).
At oral argument petitioner agreed if the Special Master did consider the record as a
whole, the Court may reverse the finding only for being arbitrary and capricious. See supra
Section V.A; see also Tr. at 40:12–40:15 (“THE COURT: What is the standard that the Court
needs to use in order to review the Special Master’s consideration of these records?
[RESPONDENT:] Arbitrary and capricious.”); Tr. at 48:11–48:17 (“THE COURT: Isn’t the
role of the Special Master then to take the gap, plus the mixed records, reviewing everything as a
whole, and make a conclusion of fact that I then review for arbitrary and capricious?
[PETITIONER:] So long as she has reviewed the record as a whole, yes.”). Petitioner, on the
other hand, maintained even under an arbitrary and capricious standard, the Special Master’s
finding should be reversed. Tr. at 17:6–17:9 (“[PETITIONER:] However, I do believe that
under even the arbitrary and capricious standard, that has not been met here because the Court
has not reviewed the record as a whole.”).
IX. Whether the Special Master Considered the Record as a Whole
As discussed in Section V, supra, petitioner argues the Special Master “improperly
disregarded three highly relevant notations . . . that support that [petitioner] had suffered the
residuals of [a] vaccine-related injury for at least two years.” Mot. for Rev. at 1. Specifically,
the “three highly relevant notations” petitioner relies on are: (1) a 24 October 2018 notation by
Dr. Louie noting “History of GBS” as an active problem “because Dr. Weiss had been left with
balance issues relating to his GBS diagnosed in 2016;” (2) a 14 November 2018 notation from
Dr. Neophytides stating petitioner “had recovered well but has been left with minor impairment
in his balance;” and (3) a 6 November 2019 note from Dr. Neophytides stating petitioner had
“recovered well but he has been left with minimal impairment in his balance, which has not
progressed since then.” Id. at 2. Respondent argues the Special Master “conducted a thorough
review of the record” and “[t]here is no indication the Special Master ignored notations in the
records or failed to consider them in weighing the record as a whole.” Resp’t’s Resp at 14.
Specifically, respondent argues the Special Master “explicitly addressed those visits and records
multiple times throughout [the] Decision, and clearly and carefully considered them.” Id. at 14–
15 (emphasis in original). The Court, therefore, analyzes whether the Special Master properly
considered the record as a whole.
To begin, the Court looked at whether the Special Master considered the 24 October 2018
notation. Respondent explained the 24 October 2018 notation was “cited twice and discussed
thoroughly.” Tr. at 32:15–17. Petitioner agreed the Special Master cited and directly quoted the
24 October 2018 notation in the decision. See Tr. at 32:19–33:2 (“[THE COURT:] [L]ooking at
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the October record, it was cited . . . on page 5 [of the Special Master’s decision] and [was]
directly quoted, and then was again mentioned by the Special Master on page 9 and directly
quoted as well. [PETITIONER:] Correct.”). Specifically, petitioner agreed the Special Master
concluded the 24 October 2018 notation found petitioner “had a normal neurological
examination.” See Tr. at 33:3–19 (“[THE COURT:] [T]he Special Master concluded at page 9
of the decision, related to [the 24 October 2018] notation, ‘Noted that [p]etitioner had a normal
neurological examination. . . .’ [PETITIONER:] Yes, I would agree that there was a normal
neurological examination. THE COURT: That’s what the Special Master concluded.
[PETITIONER:] Correct.”). While respondent agrees the 24 October 2018 notation was “one of
the records in which alleged ongoing residuals were actually mentioned,” Tr. at 34:7–10, and
petitioner’s provider “is noting symptoms relating back to GBS,” Tr. at 35:2–10, respondent
maintains the Special Master “view[ed] the record as a whole, which is [a Special Master’s]
obligation under the standards of the Act,” Tr. at 35:22–36:5. Accordingly, the Special Master
considered the 24 October 2018 notation. See Hines v. Sec’y of Health and Hum. Servs., 940
F.2d 1518, 1527 (Fed. Cir. 1991) (explaining a Special Master’s task is to “consider[] the
relevant evidence of record as a whole”).
As to the 14 November 2018 notation, petitioner agreed the Special Master again quoted
this notation twice in the decision. See Tr. at 37:6–11 (“THE COURT: Moving on to the next
notation, November 2018, [does] [p]etitioner[] agree that the Special Master once again directly
quotes this twice? [PETITIONER:] [Petitioner] agree[s] that [the Special Master] quotes the
record, not all of it, but she quotes portions of the records twice.”). Specifically, petitioner
agreed the Special Master concluded the 14 November 2018 notation explained petitioner was
able to walk well but was still experiencing some balance issues, which the Special Master
found—directly quoting the notation—were attributable to age-related issues. See Tr. at 37:19–
38:8 (“THE COURT: So for [the 14 November 2018] record the Special Master concluded,
‘[p]etitioner complained of poor balance,’ but then noted . . . , ‘[p]etitioner was 75 years old by
that point,’ and directly quoted the notation describing poor balance difficulties applicable to
age-related issues. . . . So the conclusion for the Special Master on this notation of November
2018, ‘able to walk well, but when he would find himself in a narrow corridor, such as a theater,
he would stumble and lose his balance.’ Those were trumped up to age-related issues.
[PETITIONER:] By the Special Master, yes.”). Respondent acknowledged the 14 November
2018 notation indicated petitioner’s balance issues could have been related to petitioner’s history
of GBS, but maintained the Special Master did not ignore this when deciding if petitioner
satisfied the six-month severity requirement. See Tr. 38:25–39:19 (“[THE COURT:] [The
government] agree[s] that there are aspects of [the 14 November 2018] medical record that
directly indicate symptoms and even ‘perhaps related to LGBS’? [RESPONDENT:] [The
government] agree[s] that the provider considered it’s possible [petitioner’s] gait issues were
related to his history of GBS and that the Special Master explicitly noted that in [the] decision,
showing clearly [the Special Master] did not disregard that notation and there’s case law that
actually says a Special Master, even if they don’t weigh a piece of evidence heavily, their mere
discussion of it shows that they did not disregard it in a way that would be inappropriate. So [the
Special Master] not only cites to this record, [but] cites [t]o that evidence, clearly took it into
consideration in considering the record as a whole, and so that completely undercuts any
argument that [the Special Master] disregarded the evidence.”). The Special Master therefore
considered the 14 November 2018 notation, drew plausible inferences from the notation, and
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used it to articulate a rational basis for the decision. See Hines, 940 F.2d at 1527 (explaining a
Special Master’s task is to “consider[ ] the relevant evidence in the record as a whole, draw[ ]
plausible inferences and articulate[ ] a basis for his decision which is rational”).
For the 6 November 2019 notation, petitioner agreed the Special Master considered
petitioner’s neurological examination noting petitioner’s symptoms could have been related to a
history of GBS, but also could have still been within normal limits for petitioner’s age. See Tr.
at 42:16–22 (“[THE COURT:] [T]he Special Master even went so far as to note the neurological
assessment . . . . The Special Master quoted, ‘most likely due to cerebral dysfunction, perhaps
related to the history of LGBS, but it could still be within normal limits for age.’
[PETITIONER:] That was the November 2019 record.”). Even though petitioner agreed the
Special Master cited to the 6 November 2019 notation, petitioner maintains the Special Master
“ignored everything” in the record indicating petitioner was still suffering balance issues form
GBS. See Tr. at 44:10–23 (“[THE COURT:] [The Special Master’s] conclusion related to . . .
not age-related Guillain-Barre, just age-related mobility, as opposed to ongoing LGBS
symptoms. [PETITIONER:] But still . . . one of the problems with [the Special Master’s]
decision is that . . . [the] decision and [] findings indicate that [petitioner’s symptoms] had been
not happening for the last two years. . . . [The Special Master] ignored everything that says that
[petitioner’s symptoms are] still ongoing and that it was just kind of happening and that’s why
[petitioner] was seeking treatment for it.”). In petitioner’s view, the Special Master’s decision
“focuses so much on the fact that there were no records of treatment in t[he] 22-month” gap, it
“disregard[ed] the record[s] that indicated that [petitioner] was experiencing these balance issues
during that two-year period and that [the balance issues] cannot be related to his GBS.” Tr. at
45:12–19. When pressed as to whether petitioner believed the Special Master was “doing
anything more than making a factual finding after weighing the evidence,” petitioner agreed this
was not the case. See Tr. at 45:20–46:16. Petitioner agreed the Special Master considered the 6
November 2019 notation, in conjunction with the other records, and concluded “‘[i]t is unclear
whether [p]etitioner suffered a new injury or age-related changes during that 22-month gap.’”
Tr. at 46:19–22. Despite petitioner’s argument to the contrary, the Special Master did consider
the 6 November 2019 notation. See Hines, 940 F.2d at 1527 (explaining a Special Master’s task
is to “consider [ ] the relevant evidence in the record as a whole”).
Although petitioner agrees the Special Master acknowledged, cited, and quoted the 24
October 2018, 14 November 2018, and 6 November 2019 notations, see Tr. 31:22–32:1 (“THE
COURT: You agree that the Special Master related to the three records did acknowledge the
existence of the records, correct? [PETITIONER:] Correct, and I put that in my motion as
well.”), petitioner maintains the Special Master “ignored everything” in the record supporting
petitioner still had ongoing GBS symptoms and residuals, see Tr. at 44:14–23 (“[PETITIONER:]
[O]ne of the problems with [the Special Master’s] decision is . . . her findings indicate that [GBS
residuals] had not been happening for the last two years. . . . [The Special Master] ignored
everything that says that [GBS residuals are] still going and that it was just kind of happening.”).
Petitioner argues the Special Master was “in violation of the law” because the Special Master did
not include “helpful” notes from those notations. See Tr. at 45:12–19 (“[PETITIONER:] [The
Special Master] focuses so much on the fact that there were no records of treatment in th[e] 22-
month . . . period[] that she’s not acknowledging and disregarding the record that indicated that
[petitioner] was experiencing these balance issues during that two-year period and that it cannot
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be related to his GBS.”). As established supra—and admitted to by petitioner—the Special
Master did not ignore the three notations; rather, the Special Master cited, quoted, and
considered the notations in reaching a decision. Petitioner even agrees the special master was
“making a factual finding after weighing the evidence.” See Tr. at 45:20–23 (“THE COURT:
Do[es] [petitioner] think that the Special Master was doing anything more than making a factual
finding after weighing the evidence? [PETITIONER:] I don’t think so.”). Additionally,
petitioner acknowledged the briefs before the Special Master included petitioner’s reliance on
“helpful” material from the notations. See Tr. at 40:19–41:13 (“[PETITIONER:] [Petitioner]
wasn’t only referring to [the Special Master’s disregard] of the findings of the doctor about the
history of GBS, and it could possibly be related. . . . [Petitioner] called the Court’s attention to it
in [the] brief. The Court knew I was relying upon this statement that has been completely
disregarded.”). The Special Master was therefore not “ignoring” or “disregarding” the three
notations; instead, the Special Master was “consider[ing] the relevant evidence in the record as a
whole” as required under law. Hines, 940 F.2d at 1527.
Respondent further argues the Special Master could not have reached a decision without
considering all the notations in petitioner’s medical records. See Tr. at 39:14–19, 40:5–40:15.
Petitioner disagrees with respondent’s notion the Special Master reviewed the record as a whole.
See Tr. at 40:16–41:20 (“THE COURT: Does Petitioner disagree [ ] that [the Special Master
reviewed the record as a whole]? . . . [PETITIONER:] [Petitioner] wasn’t only referring to [the
Special Master’s] disregard of the findings of the doctor about the history of GBS, and it could
be possibly related. [Petitioner] was referring to the fact that [the doctor] actually, right after one
sentence where he talks about . . . [petitioner’s] difficulties in narrow corridors, that it’s been
going on for two years since his GBS bout, [petitioner] would say . . . that notation was
disregarded with . . . intentional[ ] disregard[ ], because [petitioner] called the [Special Master]’s
attention to it in [the] brief. The [Special Master] knew [petitioner] was relying upon this
statement that has been completely disregarded.”). Supporting the Special Master reviewed the
record as a whole, the Special Master in the “Finding of Facts” section of the decision detailed
the Special Master’s factual findings based on petitioner’s medical records. See SM Dec. at 9–
11. Specifically, just as with the three notations discussed supra, the Special Master cited and
quoted numerous other records: (1) 26 December 2016 discharge notation explaining petitioner
“was noted to have normal gait at the time of his discharge,” id. at 9; (2) 2 April 2017
ophthalmology notation explaining petitioner “had been diagnosed with GBS but was ‘back to
normal,’” id. (citing Ophthalmology Records at 4); (3) 23 July 2018 notation from a nurse
practitioner noting petitioner “had a history of GBS but that he had a ‘full recovery,’” id. (citing
NYU Langone Records Vol. III at 301). The Special Master also considered petitioner’s expert
report, see id. (explaining how petitioner’s expert did not address the gap in petitioner’s
symptoms, link petitioner’s post-gap balance issues with the 2016 GBS diagnosis, and the
multiple notations noting petitioner had a full recovery) and petitioner’s affidavit, id. (detailing
petitioner’s statements from the affidavit). The Special Master explained “the medical records
and expert reports do not provide preponderant evidence that [p]etitioner suffered GBS for more
than six months” because “the contemporaneous records reflect that [p]etitioner recovered from
his GBS.” Id. at 10. The Court “generally presume[s] that a special master considered the
relevant record evidence even though [the decision] does not explicitly reference such evidence
in [the] decision.” Moriarty v. Sec’y of Health and Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir.
2016) (citing Hazlehurst v. Sec’y of Health and Hum. Servs., 604 F.3d 1343, 1352 (Fed. Cir.
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2010)). As the Court determined the Special Master considered the 24 October 2018, 14
November 2018, and 6 November 2019 notations, and the Special Master explained all records
were reviewed in making a determination, the Court finds the Special Master reviewed the
record as a whole. See id. (explaining the Court “generally presume[s] that a special master
considered the relevant record evidence even though [the decision] does not explicitly reference
such evidence in [the] decision”); Hines, 940 F.2d at 1527 (explaining a Special Master’s task is
to “consider . . . the relevant evidence in the record as a whole”).
X. Whether the Special Master’s Decision Finding Petitioner Did Not Satisfy the Six-
Month Severity Requirement Was Arbitrary and Capricious
Although petitioner requests the Court review the Special Master’s decision de novo,
petitioner maintains the Special Master’s decision should be vacated even under the arbitrary and
capricious standard. See Tr. at 47:6–16 (“[PETITIONER:] [B]ecause of [the Special Master]
not considering everything as a whole, it would be a violation of the legal mandate . . . .
However, even under the arbitrary and capricious standard, [petitioner] think[s] it would be the
same finding that this decision needs to be set aside as incorrect.”). Having determined the
Special Master reviewed the record as a whole, see supra Section IX, the Court reviews the
Special Master’s decision under the arbitrary and capricious standard to analyze whether the
Special Master erred in concluding petitioner did not satisfy the six-month standard by a
preponderance of the evidence, see supra Section VIII (explaining petitioner agreed if the
Special Master reviewed the record as a whole then the Court should use the arbitrary and
capricious standard in reviewing the decision).
Petitioner argues the Special Master “improperly disregarded” notations in petitioner’s
medical records. Mot. for Rev. at 1–2. The Vaccine Act does not require the Special Master to
“quote explicitly to” a specific notation, see Tr. at 41:23–42:2; rather, the Vaccine Act only
requires the Special Master to make a determination “on the record as a whole” that “petitioner
has demonstrated by a preponderance of the evidence matters required in the petition.” 42
U.S.C. § 300aa-13(a)(1)(A). Petitioner, therefore, is “equating disregarded with not quoting
explicitly to.” Tr. at 41:23–24. Here, the Special Master directly quoted and cited the three
notations petitioner argues were “disregarded.” See Section IX. The Special Master further
noted petitioner’s neurological examination in November 2019 contemplated the balance issues
were “perhaps related to the history of LGBS, but it could still be within normal limits for age,”
demonstrating the record was considered as a whole. See SM Dec. at 9 (citing Neurology
Records at 28–40). Additionally, following the twenty-two-month gap in petitioner’s medical
records denoting balance issues, the record contained “mixed” notations (i.e., GBS residuals
versus age related changes), which the Special Master had to review, weigh, and make a
conclusion of fact—and the Court reviews to determine whether the Special Master’s conclusion
was arbitrary and capricious. See Tr. at 48:8–17 (“[THE COURT:] [A]fter the 22-month gap,
there’s mixed records. [PETITIONER:] Correct. . . . [THE COURT:] [I]sn’t the role of the
Special Master then to take the gap, plus the mixed records, reviewing everything as a while, and
make a conclusion of fact that [the Court] then review[s] for arbitrary and capricious[ness]?
[PETITIONER:] So long as [the Special Master] has review the record as a whole, yes.”). As
such, the Court cannot “reweigh the factual evidence or [] assess whether the special master
correctly evaluated the evidence.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,
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1360 (Fed. Cir. 2000) (quoting Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 871 (Fed.
Cir. 1992).
Petitioner challenges the Special Master’s decision arguing the “evidence in the record,
when reviewed as a whole, supports that Dr. Weiss has met the six-month severity requirement
in that he has experienced the residual effects of GBS (i.e. balance issues) for the more than six
months.” Mot. for Rev. at 14. Specifically, as discussed supra Section IX, petitioner only
challenges the Special Master’s review of the record as to the three 24 October 2018, 14
November 2018, and 6 November 2019 notations, which petitioner argues “standing alone
support the ongoing nature of Dr. Weiss’ GBS-related balance issues between 2016 and 2018.”
See id. at 2. In petitioner’s view, the Special Master “donned blinders” and ignored these
notations, which supports petitioner suffered GBS residuals for at least six months. See id. at 3.
Petitioner relies on Shapiro v. Secretary of Health and Human Services to support the Special
Master “donned blinders,” but such reliance is misplaced. In Shapiro, the Special Master
“when . . . refer[ring] to ‘preponderant evidence’ as supporting the early onset of petitioner’s
symptoms the only document . . . cited was [a provider]’s letter—and as it turns out, [the Special
Master] was only citing the first page of that document.” See Shapiro v. Sec’y of Health and
Hum. Servs., 101 Fed. Cl. 532, 540 (2011). The court found the “Special Master was not at
liberty to don blinders to the portion of the letter that contradicted [the] findings.” Id. In other
words, Shapiro was binary—the evidence is either ignored or not ignored—and disallowed
completely disregarding portions of a record contradicting a Special Master’s finding. The
Special Master in this case, however, did not completely disregard portions of the record; rather,
the Special Master acknowledged some of the records contained notes petitioner was suffering
from balance issues. See SM Dec. at 9 (“On November 14, 2018, Petitioner’s neurologist Dr.
Neophytides assessed Petitioner with ‘mild gait ataxia, most likely due to cerebella dysfunction,
perhaps related to the history of [GBS].’ When Petitioner next returned to his neurologist on
November 6, 2019, Dr. Neophytides noted that Petitioner’s mild gait ataxia had not worsened
since 2018 and that ‘it could still be within normal limits for age.’” (citations omitted)). As
Shapiro was a binary issue—whether medical records were ignored or not ignored by the Special
Master—it is inapplicable to this case where the Special Master considered all notations in the
record, including notations supporting petitioner had GBS residuals, and weighed the evidence to
make a factual determination petitioner did not prove the six-month severity requirement by a
preponderance of the evidence. See Lampe, 219 F.3d at 1360 (explaining it is not the Court’s
role “to reweigh the factual evidence, or to assess whether the special master correctly evaluated
the evidence” (quoting Munn, 970 F.2d at 871)).
Petitioner argues the “Special Master improperly gave substantial weight” to “four
records of Dr. Weiss; providers who did not treat him for his GBS” even though “three of these
records do not conflict with his GBS-treating physicians’ notations and his Affidavit; rather they
are simply silent as to Dr. Weiss’ ongoing balance issues.” Mot. for Rev. at 16–17; see id. at 17
(explaining the 3 January 2018, 4 March 2018, and 5 November 2019 notations were from
providers not related to petitioner’s GBS and did not accurately address his symptoms).
Respondent, however, maintains the Special Master correctly weighed the evidence and argues
these records were not simply silent as to petitioners’ status and recovery; rather, the medical
record as a whole contained explicit notations that petitioner was not suffering from GBS and/or
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its residuals.5 See Resp’t’s Resp. at 15 (“[P]etitioner had a normal gait upon his discharge in
December 2016, and his treaters documented explicitly that he had a ‘full recovery’ from GBS
and was ‘back to normal’ following GBS.” (citations omitted)). Contrary to petitioner’s position,
the Special Master did not focus just on the records from providers not treating petitioner for
GBS, but looked at all the records in making a determination. See supra Section IX (detailing
how the Special Master reviewed not only the three notations petitioner relies upon but all
petitioner’s medical records); see also SM Dec. at 9–11 (detailing the Special Master’s findings
of fact. The Special Master therefore thoroughly reviewed the evidence, and ultimately came to
a conclusion: because “the filed medical records indicate that [p]etitioner did not report or
exhibit GBS symptoms between December of 2016 and October of 2018, it is unclear whether
[p]etitioner suffered a new injury or age-related changes during that approximately 22-month
gap.” See id. Petitioner disagrees with the Special Master’s factual findings based upon the
weighing of evidence to determine petitioner did not satisfy the six-month severity requirement.
Such disagreements, however, seek the Court to reweigh evidence already considered by the
Special Master. “[I]t is not ... the role of this court to reweigh the factual evidence, or to assess
whether the special master correctly evaluated the evidence.” Munn, 970 F.2d at 871.
“‘[A]rbitrary and capricious’ is a highly deferential standard of review. If the special master has
considered the relevant evidence of record, drawn plausible inferences and articulated a rational
basis for the decision, reversible error will be extremely difficult to demonstrate.” Hines, 940
F.2d at 1528; see also Lampe, 219 F.3d at 1360 (“The arbitrary and capricious standard of
review is difficult for an appellant to satisfy with respect to any issue, but particularly with
respect to an issue that turns on the weighing of evidence by the trier of fact.”). The Special
Master thoroughly reviewed the evidence, but plausibly and rationally concluded petitioner did
not meet the six-month severity requirement. Hines, 940 F.2d at 1527.
At oral argument the Court extensively discussed the medical records, or lack thereof,
considered by the Special Master with the parties. As to the twenty-two-month gap between
petitioner’s discharge and his next visit related to GBS, petitioner agreed there were no medical
records during that time, only petitioner’s affidavit and the expert report. See Tr. at 48:4–48:7
(“THE COURT: Well, just to confirm, in the 22-month gap, what records were missed? . . .
[PETITIONER:] In the 22-month gap, there were no records.”). Petitioner’s only explanation
for the gap in the medical records was petitioner did not seek treatment because he thought there
was nothing more the doctors could do for him. See Tr. at 60:20–61:1 (“THE COURT: Any
5 Although not in the briefing or the Special Master’s decision, respondent explained there is evidence in the record
petitioner had balance issues prior to receiving the vaccine. See Tr. at 77:3–22 (“[RESPONDENT:] [p]etitioner’s
counsel said twice now, the second time being just a moment ago, that [p]etitioner had no previous gait or balance
issues, and particularly referred to single-leg stance, and [the government] direct[s] [the Court’s] attention to a
record that [p]etitioner cited in the slide, but not this portion of it, and it is Exhibit 2 at page 23, and in that record it
discusses the single-leg stance, and this is a physical therapist’s assessment from December 23rd of 2016, so while
he is still hospitalized. And it says, “Patient demonstrates single-limb stance and dynamic high-level balance deficits
as described above; however, these deficits may be preexisting to patient’s current condition, especially due to his
report of self-recognition of impaired single-leg stance over the last two to three years he attributes to older age.”).
Since this issue was not raised prior to oral argument, the Court does not consider this evidence in determining
whether the Special Master’s decision was arbitrary or capricious, but presumes the Special Master considered this
evidence when making a determination on the six-month severity requirement. See Moriarty v. Sec’y of Health and
Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (citing Hazlehurst v. Sec’y of Health and Hum. Servs., 604 F.3d
1343, 1352 (Fed. Cir. 2010) (explaining the Court “generally presume[s] that a special master considered the
relevant record evidence even though [the decision] does not explicitly reference such evidence in [the] decision”).
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explanation in the record for why there was a 22-month gap for seeing a neurologist for GBS
treatment? [PETITIONER:] Yes. . . . [H]e was basically told there’s nothing more that you can
do. . . . [I]t was in his affidavit, about just being residuals of GBS.”). Petitioner, because he did
not see his neurologist or seek treatment for GBS symptoms for almost two years, acknowledged
the only thing in the record related to balance issues or GBS residuals is petitioner’s Affidavit.
See Tr. 63:24–64:9 (“THE COURT: But [petitioner] agree[s], the only thing in the record for the
22-month gap regarding symptoms is [petitioner’s] affidavit. [PETITIONER:] In the record,
yes. . . . Regarding his symptoms in the 22-month gap, there is no treatment . . . records in which
he complained of the balance issues during that 22-month period.”). Petitioner also
acknowledges there are no therapy records until March 2024 because the symptoms did not
“worsen” enough to warrant therapy until this point. See Tr. at 66:23–67:3 (“THE COURT:
And the only reason why [petitioner] went in March of 2024 to physical therapy for the first time
is because he felt symptoms were worsening? . . . [PETITIONER:] Correct.”). Petitioner,
however, notes he is not relying on the therapy records to supplement the lack of records during
the twenty-two-month gap. See Tr. at 67:4–67:16 (THE COURT: And to confirm, the physical
therapy records are in no way related to the 22-month time period. . . . [PETITIONER:]: That is
correct.”). Given the gap in records denoting petitioner’s GBS symptoms, the Special Master
was required to examine the record and make a factual determination whether petitioner suffered
from GBS symptoms for more than six months. In doing so, the Special Master rationally
determined “it is unclear whether Petitioner suffered a new injury or age-related changes during
that approximately 22-month gap.” SM Dec. at 9. As the Special Master “has considered the
relevant evidence of record, drawn plausible inferences and articulated a rational basis for the
decision,” the Special Master’s decision finding petitioner did not suffer from GBS residuals
during the twenty-two-month gap was neither arbitrary nor capricious. Hines, 940 F.2d at
1528; see also Lampe, 219 F.3d at 1360 (“The arbitrary and capricious standard of review is
difficult for an appellant to satisfy with respect to any issue, but particularly with respect to an
issue that turns on the weighing of evidence by the trier of fact.”).
The Special Master also gave petitioner the opportunity to supplement the record with
“objective” evidence petitioner suffered symptoms from GBS for more than six months. See SM
Dec. at 2–3 (“I ordered [p]etitioner to file objective evidence that his injury or the residual
effects of his injury lasted for at least six months (demonstrating that [p]etitioner continued
experiencing symptoms of his alleged GBS in the months between December of 2016 and June
of 2017). Petitioner was given the opportunity to provide this evidence in the form of witness
affidavits, medical records, or other evidence. On April 22, 2024, [p]etitioner filed physical
therapy records from March 25, 2024, to support the contention that the residual effects of his
injury lasted for at least six months. Respondent filed a status report, indicating Petitioner’s
additional medical records did not contain evidence that is helpful to [p]etitioner in satisfying the
Vaccine Act’s severity requirement.”). When asked, petitioner confirmed the Special Master
gave petitioner an opportunity to submit additional evidence supporting his GBS symptoms
lasted longer than six months, and petitioner only submitted an affidavit. See Tr. at 25:23–26:8
(“THE COURT: Now, as part of the proceedings with the Special Master, she did provide the
opportunity to admit evidence in the form of witness affidavits, medical records, or other things
related to that six month severity requirement, in that [p]etitioner provided a physical therapy
record, but the physical therapy record was from March of 2024? [PETITIONER:] That is
correct. . . . THE COURT: And [p]etitioner also provided an affidavit. [PETITIONER:] That
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is correct.”). In making a determination, the Special Master considered both of these additional
records to make a finding of fact. See SM Dec at 9, 10 n.2 (explaining why the Special Master
deemed petitioner’s affidavit “insufficient by itself to establish severity” and noting the
petitioner’s physical therapy records were from 2024). As the Special Master considered both
additional submissions, drew plausible inferences, and articulated a rational basis for the
decision, the Special Master’s determination the affidavit was insufficient to overcome the
medical records was not arbitrary or capricious. See Hines, 940 F.2d at 1528 (explaining the
Special Master is to “consider[] the relevant evidence of record, draw[] plausible inferences and
articulate[] a rational basis for the decision”); see also Lampe, 219 F.3d at 1360 (“The arbitrary
and capricious standard of review is difficult for an appellant to satisfy with respect to any issue,
but particularly with respect to an issue that turns on the weighing of evidence by the trier of
fact.”).
As discussed supra, the Special Master thoroughly reviewed the evidence, but ultimately
reached a conclusion petitioner did not satisfy the six-month severity requirement to pursue a
claim under the Vaccine Act. Petitioner is seeking the Court to reweigh the evidence and make a
factual determination different than the Special Master. “[I]t is not . . . the role of this court to
reweigh the factual evidence, or to assess whether the special master correctly evaluated the
evidence.” Munn, 970 F.2d at 871. “‘[A]rbitrary and capricious’ is a highly deferential standard
of review. If the special master has considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision, reversible error will be extremely
difficult to demonstrate.” Hines, 940 F.2d. at 1528; see also Lampe, 219 F.3d at 1360 (“The
arbitrary and capricious standard of review is difficult for an appellant to satisfy with respect to
any issue, but particularly with respect to an issue that turns on the weighing of evidence by the
trier of fact.”). As such, the Court determines the Special Master’s determination petitioner did
not satisfy the six-month severity was not arbitrary and capricious. See Cedillo v. Sec’y of Dept.
of Health & Human Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010) (quoting Lampe, 219 F.3d at
1363) (“We ‘do not sit to reweigh evidence. [If] the Special Master’s conclusion [is] based on
evidence in the record that [is] not wholly implausible, we are compelled to uphold that finding
as not arbitrary or capricious.’”) (alterations in original).
XI. Whether the Special Master Properly Considered Petitioner’s Later Medical
Records Supporting GBS Residuals
Petitioner argued the Special Master did not review the record as a whole because the
three notations, despite being contemplated in the decision, were not given sufficient weight. Tr.
at 18:22–18:25 (“THE COURT: Stated differently, is it that the Special Master did not properly
[]count certain levels of evidence in accordance with the law? [PETITIONER:] Yes, that is
correct.”); Tr. at 87:7–87:9 (“THE COURT: [Y]ou agree that the Court cited it and looked at it,
just didn’t cite the helpful parts or wrestle with it enough. [PETITIONER:] … [L]oosely, yes.”).
Specifically, petitioner argues the Special Master did not properly “wrestle with the notations” or
correctly consider them. See Tr. at 87:3–17 (“[PETITIONER:] I don’t think that the [Special
Master] considered the relevant evidence of the record. . . . [THE COURT:] [Petitioner]
agree[s] that the [Special Master] cited [evidence] and looked at it, just didn’t cite the helpful
parts or wrestle with it enough. . . . [PETITIONER:] [L]oosely, yes. I think there was a lot in
those records discussing how far [the symptoms] dated back and the similarities between the
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symptoms from GBS . . . .”). To support the Special Master did not properly “wrestle with the
evidence” or properly review the record as a whole, petitioner relies on Kirby v. Secretary of
Health and Human Services, 997 F.3d 1378, 1381 (Fed. Cir. 2021). See Tr. at 85:18–86:20
(“[THE COURT:] [If the Court] said, ‘Well, there’s a gap, [and then] there’s nothing,’ that’s
fine, but in our instance, the Special Master wrestled with the three medical records in order to
determine what was or was not going on and what the causes were. . . . [PETITIONER:] I
would just disagree that [the Special Master] wrestled [with the evidence], because [the Special
Master] . . . disregarded notations of the two-year period . . . . [THE COURT:] [B]ut that’s
different than Kirby. [PETITIONER:] Different than Kirby, yes, but . . . there’s no argument in
Kirby that records were disregarded.”). Petitioner, however, agreed Kirby was factually different
than this case. See Tr. at 82:6–82:23 (“[PETITIONER:] [T]here are differences in the facts of
this case that were [not] present in Kirby, although the[re] are similarities, but . . . Kirby is really
important because the [c]ourt says that there’s no presumption and explains . . . why there cannot
be a presumption . . . . A patient may not report every ailment he is experiencing. A doctor may
not accurately record everything he observes.”). Respondent, on the other hand, relies on
Cucuras v. Secretary of Health and Human Services to demonstrate medical records should be
given greater weight than affidavits. See Tr. at 90:12–91:6 (“[RESPONDENT:] [T]he law does
say . . . that contemporaneous medical records that are in conflict with a later testimonial
statement, [ ] the contemporaneous medical records should be given greater weight, and . . . the
Special Master here clearly considered the record as a whole.”). Petitioner disagreed and argued
“every situation is unique and you can’t make that blanket statement without looking at the facts
of each case to see what’s in conflict and when it was created . . . timing is very important as to
when the documents were created.” Tr. at 91:3–25.
To the extent petitioner is arguing the Court should review the Special Master’s weighing
of the evidence, the Court cannot do so. “[I]t is not . . . the role of this court to reweigh the
factual evidence, or to assess whether the special master correctly evaluated the evidence.”
Munn v. Sec’y of Dept. of Health & Hum. Servs., 970 F.2d 863, 871 (Fed. Cir. 1992). It is the
task of the Special Master—not the Court—to “consider[] the relevant evidence of record, draw[]
plausible inferences and articulate[] a rational basis for the decision.” Hines v. Sec’y of Dep’t of
Health & Hum. Servs., 940 F.2d 1518, 1527–28 (Fed. Cir. 1991). The Court is to uphold a
special master’s findings of fact unless they are arbitrary and capricious, but petitioner does not
articulate how any of the factual disagreements or the Special Master’s weighing of evidence
was arbitrary or capricious. See Munn, 970 F.2d at 870 (“The Claims Court owes [fact] findings
and conclusions by the special master great deference—no change may be made absent first a
determination that the special master was ‘arbitrary and capricious.’”). Kirby also does not
support petitioner’s position; rather, it supports the Court does not reweigh factual evidence. See
997 F.3d at 1381 (“‘We do not reweigh the factual evidence, assess whether the special master
correctly evaluated the evidence, or examine the probative value of the evidence or the
credibility of the witnesses—these are all matters within the purview of the fact finder.’”
(quoting Porter v. Sec’y of Health and Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011))). In
Kirby, the Federal Circuit found the Court of Federal Claims erroneously presumed the medical
records were “accurate and complete” and therefore reversed the Special Master. Id. at 1382
(“The [Court of Federal Claims] reasoned that because [petitioner’s] medical records from
January 2014 through July 2015 are silent about her vaccine injury and indicate she was ‘feeling
fine,’ they undermine her testimony that she continued to experience symptoms during this
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period.” (citation omitted)). The Federal Circuit “reject[ed] as incorrect the presumption that
medical records are accurate and complete as to all the patient’s physical conditions” and found
the Special Master’s decision that petitioner’s injury lasted longer than six months was not
arbitrary and capricious because such findings were “based . . . on plausible evidence, i.e.,
[petitioner’s] lay testimony, corroborating documentation, and expert testimony.” Id. at 1381,
1383. The Federal Circuit therefore found it was improper for the Court of Federal Claims to
reverse the Special Master’s factual determination petitioner satisfied the six-month severity
requirement. Id. at 1385. In other words, the Federal Circuit upheld the Special Master’s
decision because it was neither arbitrary nor capricious for the Special Master—after reviewing
the record as a whole—to determine petitioner’s vaccine injury lasted longer than six months.
Id. Here, the Special Master reviewed the record as a whole and made a factual determination
petitioner did not satisfy the six-month severity requirement. See supra Sections IX, X. The
Court will therefore not reweigh the evidence—such a task is reserved for the Special Master as
a fact finder. Munn, 970 F.2d at 871.
Additionally, Kirby is distinguishable from this case. In Kirby, the medical records were
silent as to “the existence or nonexistence” of petitioner’s vaccine injury. 997 F.3d 1380 (“The
records of these visits are silent about the existence or nonexistence of any arm pain, muscle
weakness, or numbness.”). Here, the medical records were not silent on GBS; rather, there were
multiple records noting petitioner was not suffering from GBS residuals. See supra Sections IX,
X (describing multiple records noting petitioner was not suffering from GBS and had recovered).
At oral argument, petitioner agreed Kirby was distinguishable from this case because the medical
records were not silent as to petitioner’s GBS symptoms. See Tr. at 85:18–86:4 (“THE COURT:
So if we just said, ‘Well there’s a gap, there’s nothing, that’s fine, but in our instance, the Special
Master wrestled with the three medical records in order to determine what was or was not going
on and what the causes were. . . . that’s different than Kirby. [PETITIONER:] Different than
Kirby, yes.”). As discussed supra, the Special master considered all the medical records in
making a determination petitioner did not suffer from GBS residuals for longer than six months.
See supra Section IX (finding the Special Master reviewed the record as a whole); supra Section
X (finding the Special Master properly weighed the evidence in reaching a determination on the
six-month severity requirement). Accordingly, as the Special Master “considered the relevant
evidence of record, [drew] plausible inferences and articulated a rational basis for the decision,”
the determination petitioner did not satisfy the six-month severity requirement was neither
arbitrary nor capricious. See Hines, 940 F.2d at 1528.
XII. Conclusion
For the foregoing reasons, the Court SUSTAINS the Special Master’s decision finding
petitioner did not meet the six-month severity requirement because it was not arbitrary,
capricious, or not otherwise in accordance with law. Accordingly, the Court DENIES
petitioner’s Motion for Review of the Special Master’s Decision, ECF No. 79. The Clerk’s
Office is directed to enter judgment for respondent in accordance with this Opinion and Order.
IT IS SO ORDERED.
s/ Ryan T. Holte
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RYAN T. HOLTE
Judge
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