VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01391
Package ID: USCOURTS-cofc-1_20-vv-01391
Petitioner: Ben D. Shiriak
Filed: 2020-11-18
Decided: 2021-03-08
Vaccine: pneumococcal polysaccharide
Vaccination date: 2017-10-12
Condition: atrial fibrillation, extreme body chills, and chronic arthritis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Ben D. Shiriak, born in 1939, filed a petition on November 18, 2020, alleging that he suffered from atrial fibrillation, extreme body chills, and chronic arthritis as a result of a pneumococcal polysaccharide vaccine (PPSV-23) he received on October 12, 2017. Mr. Shiriak, who represented himself, stated that immediately after the vaccination, he experienced an elevated pulse rate and blood pressure, leading to a diagnosis of atrial fibrillation on the same day. Following his hospital discharge, he began experiencing body chills, which he claimed continued to the present. The respondent was the Secretary of Health and Human Services. Special Master Katherine E. Oler issued a decision on March 8, 2021, granting the respondent's motion to dismiss. The Special Master noted that to be eligible for compensation under the National Vaccine Injury Compensation Program, a petitioner must demonstrate they received a vaccine listed on the Vaccine Injury Table. The public decision explained that there are two types of pneumococcal vaccines: the conjugate vaccine, which is covered by the program and typically administered to children, and the polysaccharide vaccine (such as Pneumovax 23), which is not listed on the Vaccine Injury Table. Because Mr. Shiriak alleged injury from the PPSV-23 vaccine, he could not demonstrate that he received a vaccine set forth in the Vaccine Injury Table. Consequently, the court lacked jurisdiction to adjudicate his claim, and the petition was dismissed for failure to state a claim upon which relief could be granted. The decision was reissued for publication on March 8, 2021. Petitioner counsel was Ben D. Shiriak, pro se. Respondent counsel was Heather L. Pearlman.

Theory of causation field:
Petitioner Ben D. Shiriak, born in 1939, alleged injury from a pneumococcal polysaccharide vaccine (PPSV-23) received on October 12, 2017, resulting in atrial fibrillation, extreme body chills, and chronic arthritis. The petition was filed on November 18, 2020. The Special Master, Katherine E. Oler, dismissed the petition on March 8, 2021, because the PPSV-23 vaccine is not listed on the Vaccine Injury Table, and therefore the court lacked jurisdiction. The public decision does not describe the specific mechanism of injury, expert testimony, or a detailed clinical progression beyond the initial diagnosis and reported symptoms. The theory of causation was based on the vaccine being a "Table" vaccine, which was found to be incorrect by the Special Master. No award was made as the case was dismissed for lack of jurisdiction. Petitioner was represented by himself (pro se), and respondent was represented by Heather L. Pearlman.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01391-0
Date issued/filed: 2021-03-08
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/18/2020) regarding 14 DECISION of Special Master Signed by Special Master Katherine E. Oler. (sw) Service on parties made; petitioner served via U.S. mail. (dls)
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Case 1:20-vv-01391-UNJ Document 19 Filed 03/08/21 Page 1 of 3
REISSUED FOR PUBLICATION
MAR 8 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1391V
Filed: November 18, 2020
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
BEN D. SHIRIAK, *
*
* TO BE PUBLISHED
Petitioner, *
*
*
v.
* Motion to Dismiss; Pneumococcal
* Polysaccharide vaccine (PPSV-23)
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
*
Respondent.
*
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
Ben D. Shiriak, pro se, Tappahannock, VA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION GRANTING MOTION TO DISMISS1
Oler, Special Master:
On October 9, 2020, Ben D. Shiriak (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine
Act” or “Program”). The petition alleges that Petitioner suffered from atrial fibrillation, extreme
body chills, and chronic arthritis as a result of the pneumococcal polysaccharide vaccine he
received on October 12, 2017. Pet. at 1, ECF No. 1.
1 This Decision will be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to
anyone with access to the internet. As provided in 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties
may object to the Decision’s inclusion of certain kinds of confidential information. To do so, each party
may, within 14 days, request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, this Decision will be available to the public in its present form. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
1

Case 1:20-vv-01391-UNJ Document 19 Filed 03/08/21 Page 2 of 3
For the reasons discussed below, Petitioner is unable to demonstrate that he received a
vaccine set forth in the Vaccine Injury Table. 42 U.S.C. § 300aa-11(c)(1)(a). Consequently, his
petition is DISMISSED.
I. Procedural and Factual History
Petitioner was born in 1939. Pet. at 1. He received the pneumococcal polysaccharide
(PPSV-23) vaccine at the office of Dr. Allen Tsui on October 12, 2017, in Tappahannock, Virginia.
Ex. 1 at 1. Immediately following the vaccination, Petitioner alleges that he experienced elevated
pulse rate and blood pressure. Pet. at 2. He was admitted to the hospital on the same day and
diagnosed with atrial fibrillation. Id. Following his hospital discharge, Petitioner began to suffer
from chills throughout his body, notably in his joints. Id. Petitioner claims that these chills
continue to this day.
On October 15, 2020, this case was assigned to my docket. ECF No. 8. On October 20,
2020, I held a status conference during which I explained to Petitioner that the PPSV-23 vaccine
is not a covered vaccine, and that consequently, this Court lacked jurisdiction to adjudicate his
claim. See Scheduling Order dated October 22, 2020, ECF No 9. I directed Respondent to file a
motion to dismiss by November 5, 2020. Id. Petitioner requested seven days to respond. Id.
On November 5, 2020, Respondent filed the instant Motion to Dismiss, arguing that the
Petition “must be dismissed for failure to state a claim upon which relief may be granted, pursuant
to RCFC 12(b)(6).” Mot. at 1, ECF No. 13. Petitioner did not file a response.
II. Analysis
To be entitled to compensation under the Vaccine Act, a petitioner must demonstrate that
he “received a vaccine set forth in the Vaccine Injury Table.” § 300aa-11(c)(1)(a).
There are two different types of pneumococcal vaccines, the pneumococcal conjugate
vaccine and the polysaccharide vaccine. Cielencki v. Sec’y of Health & Hum. Servs., No. 15-632V,
2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015). The Vaccine Program only covers
pneumococcal conjugate vaccines, which are routinely administered to children. The Pneumovax
23 vaccine is a polysaccharide vaccine and thus is not a vaccine set forth in the Vaccine Injury
Table. 42 U.S.C. § 300aa-11(c)(1)(a).
Because Petitioner has alleged that he was injured by the PPSV-23 vaccine, he cannot
demonstrate that he “received a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa-
11(c)(1)(a). Therefore, his petition must be dismissed for failure to state a claim upon which relief
may be granted.
III. Conclusion
For the reasons explained above, Respondent’s motion to dismiss is GRANTED and Mr.
2

Case 1:20-vv-01391-UNJ Document 19 Filed 03/08/21 Page 3 of 3
Shiriak’s petition is DISMISSED. The clerk shall enter judgment accordingly.3
A copy of this decision shall be mailed via USPS to Petitioner at:
BEN D. SHIRIAK
P.O. Box 862
Tappahannock, VA 22560
IT IS SO ORDERED.
_______________________
Katherine E. Oler
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.
3