VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01861
Package ID: USCOURTS-cofc-1_22-vv-01861
Petitioner: Bennett C. Meltzer
Filed: 2022-12-19
Decided: 2023-11-21
Vaccine: influenza
Vaccination date: 2019-12-18
Condition: sciatica
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Bennett C. Meltzer filed a petition alleging that the influenza and Pneumococcal Polysaccharide 23-valent vaccines he received on December 18, 2019, caused his sciatica. The court noted that the Pneumococcal vaccine was not covered by the program. Mr. Meltzer, acting pro se, struggled to find legal representation throughout the proceedings. Medical records, including MRIs from 2015 and 2019 (8 days post-vaccination), showed pre-existing structural changes in his lumbar spine, such as disc bulging and neural foraminal narrowing, consistent with sciatica. The court explained that it would be difficult to prove that these structural changes occurred as a result of the vaccine, especially given the pre-existing conditions. The petitioner understood the difficulty of prevailing and agreed to voluntarily dismiss his claim. The petition was dismissed for insufficient proof, as no medical records or competent physician's opinion linked the flu vaccine to his sciatica, and the evidence pointed to a common structural explanation for his pain.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-01861-0
Date issued/filed: 2023-11-21
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 10/11/2023) regarding 27 DECISION of Special Master. Signed by Special Master Thomas L. Gowen. (hs) Service on parties made. (Main Document 29 replaced on 11/27/2023 with reissued date) (sw). Petitioner served via e-mail on 11/27/2023 (sw).
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Case 1:22-vv-01861-UNJ Document 29 Filed 11/21/23 Page 1 of 4
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 11, 2023
Reisued for Public Availability Date: November 21, 2023
* * * * * * * * * * * * *
BENNETT C. MELTZER, *
*
Petitioner, * No. 22-1861V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Bennett C. Meltzer, pro se, Orange, CA.
Mary E. Holmes, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION DISMISSING PETITION1
On December 19, 2022, Bennett C. Meltzer (“petitioner”), acting pro se, filed a petition
in the National Vaccine Injury Compensation Program.2 Petitioner alleged that the influenza and
Pneumococcal-Polysaccharide 23-Valent vaccines he received on December 18, 2019, were the
cause-in-fact of his sciatica. Petition (ECF No. 1). Petitioner filed a narrative to accompany his
petition. Petitioner’s Exhibit (“Pet. Ex.”) 2. After a review of petitioner’s filings, I find that
petitioner has provided insufficient evidence to support his claim, and this petition must be
dismissed.
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the Court with a proposed
redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.

Case 1:22-vv-01861-UNJ Document 29 Filed 11/21/23 Page 2 of 4
A. Procedural history
Petitioner’s case was transferred to my docket on December 20, 2022. An initial status
conference was held on January 12, 2023 with petitioner and counsel for respondent
participating. Status Conference Order (ECF No. 12). During the status conference, I explained
that the Pneumococcal Polysaccharide 23-valent vaccine was not a covered vaccine, and that
only the influenza vaccine he received can be considered for purpose of the program.
Scheduling Order (ECF No. 14). I also explained that petitioner’s motion to proceed in forma
pauperis will be denied because he does not qualify.3 Additionally, I explained that in order for
petitioner to prevail, he will need to demonstrate how the flu vaccine was the cause of his
sciatica or significantly aggravated his pre-existing sciatica. Id. Petitioner was ordered to either
have an attorney enter their appearance on his behalf or file a status report indicating the progress
of obtaining an attorney. Id.
On March 17, 2023, petitioner filed a status report explaining that he had been contacting
various attorneys who practice before the Vaccine Court and was unsuccessful in securing
representation. Pet. Status Report (“Rept.”) (ECF No. 18). Petitioner requested additional time
to find an attorney and his motion was granted. Pet. Motion (“Mot.”) (ECF No. 16); Order (ECF
No. 17). On July 28, 2023, petitioner filed another status report indicating that he continued to
search for an attorney to represent him in this matter and was expecting to have representation
finalized in near future. Pet. Status. Rept. (ECF No. 21). I entered an order directing petitioner
to have an attorney enter their appearance on his behalf or file a status report on the progress of
retaining an attorney by August 30, 2023. Scheduling Order (ECF No. 22).
After missing the deadline, the I scheduled a status conference to determine the progress
of petitioner’s search for an attorney. On October 5, 2023, petitioner also filed five medical
records. See Medical Records (ECF No. 25). These records were imaging of petitioner’s spine
dating from 2015 through 2023. Id.
A telephonic status conference was held on October 10, 2023. During this status
conference, I explained to petitioner that it would be difficult for him to demonstrate vaccine
causation, particularly as the imaging he provided shows musculoskeletal changes that are
consistent with the injury he is alleging, sciatica, and that it would be nearly impossible for these
changes to occur within the period of time he is alleging the onset occurred.
More specifically, I explained that the MRIs filed by petitioner all show progressive
structural changes to petitioner’s spine. The MRI taken on December 27, 2019, of petitioner’s
lumbar spine, showed that he had, “multilevel disc bulging from L1-2 through L5-S1, with
minimal central canal narrowing from L1-2 through L4-5,” and “varying degrees of neural
foraminal narrowing,” at various levels. Med. Recs. Attachment 4 (ECF No. 25). At the L3-L4
level, a 3 mm circumferential disc bulge was seen “in conjunction with facet arthropathy and
mild posterior epidural lipomatosis,” and there was “moderate right and mild left neural
foraminal narrowing.” Id. At the L4-L5 level, there was a 4 mm circumferential disc bulge,
slightly larger along the right foraminal location. Additionally, there was “moderate right-sided
3 This motion was denied in Scheduling Order (ECF No. 14) and petitioner paid the filing fee.
2

Case 1:22-vv-01861-UNJ Document 29 Filed 11/21/23 Page 3 of 4
neural foraminal narrowing.” Id. I explained that the sciatic nerve arises from nerve roots
beginning at L4 through S3. It is the largest nerve in the body. According to petitioner’s MRI
taken 8 days post-vaccination, it shows that he had moderate right-sided neural foraminal
narrowing at L4-5, which can cause sciatic nerve pain as the nerve becomes irritated or
compressed. Furthermore, petitioner explained that his pain was more right-sided, which is
again, consistent with the imaging showing moderate foraminal stenosis on the right side, more
than the left. Finally, the MRI from November 20, 2015, indicates that petitioner had “persistent
lumbar radicular symptoms.” Med. Records MRI Lumbar 2015 (ECF No. 25). This MRI
showed “mild canal stenosis with mild narrowing of the left and moderate narrowing of the right
neural foramen. There is a diffuse central disc bulge, as well as facet hypertrophy.” There was
also “moderate narrowing of both neural foramens, attributed to a diffuse central disc bulge, as
well as facet hypertrophy.” Id. This MRI shows that petitioner had pre-existing lumbar spinal
issues prior to the receipt of his flu shot in December 2019, but more importantly, when
compared to the other MRIs, shows the progression of his structural injury.
Petitioner asserted that he understood that damage to nerves has been associated with
vaccine injuries. However, the nature of petitioner’s injury, sciatica, is an injury caused by
changes in the structure of his spinal cord, and not by an autoimmune reaction where nerves are
damaged by demyelination, such as in Guillain-Barre syndrome. I explained that it would be
nearly impossible to demonstrate that structural changes could occur within six-hours of
vaccination, or even within 8 days post-vaccination. Further, the bony changes described by
foraminal hypertrophy, as well as bulging discs at multiple levels were pre-existent and are the
more likely cause of his sciatic pain. Petitioner understood the difficulty of prevailing and
agreed to voluntarily dismiss his claim.
B. Legal standard for adjudication
In order to prevail, a petitioner must prove either a “Table” injury or that a vaccine listed
on the Table was the cause-in-fact of an injury. § 11(c)(1)(C). The Table identifies the vaccines
covered under the program, the corresponding injuries, and the time period in which the
particular injuries must occur after vaccination.4 42 U.S.C.§14(a).
An “off-Table” injury is initially shown when the petitioner demonstrates, by a
preponderance of the evidence: (1) that he received a vaccine set forth on the Vaccine Injury
Table; (2) that he received the vaccine in the United States; (3) that he sustained or had
significantly aggravated an illness, disease, disability, or condition caused by the vaccine; and (4)
that the condition has persisted for more than six months or that resulted in death. § 13(a)(1)(A).
Petitioner must establish each of the three Althen factors by preponderant evidence: (1) a medical
theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and
effect showing that the vaccination was the reason for the injury; and (3) a proximate temporal
relationship between vaccination and injury. Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1278 (Fed. Cir. 2005).
In the present case, petitioner does not allege a Table injury. Thus, to prevail on
entitlement, petitioner must establish that the flu vaccine is the actual cause of his sciatica.
4 The most recent version of the Table can be found at 42 C.F.R. §100.3.
3

Case 1:22-vv-01861-UNJ Document 29 Filed 11/21/23 Page 4 of 4
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on the
petitioner’s claims. Rather, the petition must be supported by either medical records or by the
opinion of a competent physician. §300aa-13(a)(1).
Petitioner has not submitted any medical records or other evidence sufficient to establish
entitlement to compensation. Petitioner has also not submitted the opinion of a competent
physician linking his alleged injury to the flu vaccine he received on December 18, 2019.
Rather, petitioner has submitted medical records that show he had been experiencing symptoms
of lumbar radiculopathy well before his flu vaccine in December 2019 and that this condition
continued to progress, along with his sciatica symptoms. In other words, the structural issues of
his lumbar spine which are well documented at multiple spinal levels in multiple MRIs are
consistent with his sciatica, the injury he is alleging was caused by the flu vaccine.
Thus, given the limited medical records filed by petitioner, all of which strongly suggest
a common structural explanation for sciatic pain and none of the evidence records filed suggest
vaccine causation, and petitioner does not have the opinion of a competent physician to support
his claim, this petition must be DISMISSED.
This matter is DISMISSED for insufficient proof. The Clerk of the Court shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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