“Finding certain information not relevant does not lead to—and likely undermines—the conclusion that it was not considered.”
How later courts described this case
- “Finding certain information not relevant does not lead to—and likely undermines—the conclusion that it was not considered.”
- “We generally presume that a special master considered the relevant record evidence even though he does not explicitly reference such evidence in his decision.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 25, 2024
* * * * * * * * * * * * * * *
JEAN GOLDEN, * No. 18-1223V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent.
FACT RULING1
On August 15, 2018, Jean Golden (“Petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program (“the Program”).2 Petitioner alleged that she suffered from
chronic inflammatory demyelinating polyneuropathy (“CIDP”)3 as a result of an influenza (“flu”)
vaccine administered on November 12, 2015. Pet. at 1, ECF No. 1. Following the submission of
1
Because this Ruling 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 Ruling 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 (2012).
3
CIDP is “a slowly progressive, autoimmune type of demyelinating polyneuropathy characterized by
progressive weakness and impaired sensory function in the limbs and enlargement of the peripheral
nerves, usually with elevated protein in the cerebrospinal fluid.” Dorland’s Illustrated Medical Dictionary
1468 (33rd ed. 2020) [hereinafter “Dorland’s”]. Neuropathy refers to “a functional disturbance of
pathologic change in the peripheral nervous system[.]” Id. at 1250. Polyneuropathy, also known as
peripheral neuropathy, is “neuropathy of several peripheral nerves simultaneously[.]” Id. at 1468.
Demyelination is “destruction, removal, or loss of the myelin sheath of a nerve or nerves.” Id. at 480. A
myelin sheath is “the cylindrical covering on the axons of some neurons[.]” Id. at 1673. Axon is “the
process of a neuron by which impulses travel away from the cell body[.]” Id. at 183.
expert reports and briefing, the parties still disagree on a number of issues, including whether
Petitioner’s neuropathy symptoms began before her November 12, 2015 vaccination. After
carefully analyzing and weighing all the evidence and testimony presented in this case in
accordance with the applicable legal standards,4 I find that the record contains preponderant
evidence that Petitioner’s neuropathy predated her vaccination.
I. Procedural History
Petitioner filed medical records and an affidavit, along with her petition, on August 15,
2018. Pet.; Pet’r’s Exs. 1–13, ECF No. 1. She then filed a statement of completion on August 17,
2018. ECF No. 7. Petitioner filed additional medical records between April 17, 2019, and October
2, 2019, as well as a statement of completion on October 2, 2019. Pet’r’s Ex. 14, ECF No. 15-1;
Pet’r’s Ex. 15, ECF No. 20-1; Pet’r’s Exs. 16–18, ECF No. 23; Pet’r’s Exs. 19–22, ECF No. 26;
Pet’r’s Exs. 23–26, ECF No. 28; ECF No. 29.
On January 23, 2020, Respondent filed his Rule 4(c) report arguing that this case is not
appropriate for compensation. Resp’t’s Report, ECF No. 31. He asserted that “the medical records
demonstrate that [P]etitioner’s symptomology more likely than not predated vaccination.” Id. at
14. Respondent further claimed that “the medical records themselves reflect inconsistencies in
[P]etitioner’s recollections.” Id.
On April 24, 2020, Petitioner filed an expert report by Frederick Nahm, M.D., Ph.D., Dr.
Nahm’s curriculum vitae (“CV”), and medical literature. Pet’r’s Exs. 27–41, ECF No. 32.
Respondent filed an expert report from Vinay Chaudhry, M.D., Dr. Chaudhry’s CV, and medical
literature on July 27, 2020. Resp’t’s Exs. A, A Tabs 1–13, B, ECF Nos. 34–35. Petitioner filed a
supplemental expert report from Dr. Nahm on April 27, 2021. Pet’r’s Ex. 42, ECF No. 42-1.
On June 2, 2021, Respondent indicated via email that he does not believe an entitlement
hearing is necessary in this case, but Petitioner responded that she would prefer to proceed with an
entitlement hearing. Informal Comm., docketed July 14, 2021. Respondent noted that he would
need to retain a new expert if this case were to proceed to a hearing because Dr. Chaudhry is no
longer able to testify. Id. Respondent suggested briefing to determine whether a hearing is
necessary. Id. I held a status conference to discuss this issue on September 7, 2021. Min. Entry,
docketed Sept. 7, 2021. Respondent noted concerns about the onset of Petitioner’s symptoms and
her diagnosis. Scheduling Order at 1, ECF No. 43. I noted “concerns regarding Petitioner’s pre-
vaccination medical records as well as those from shortly after her vaccination.” Id. I directed the
parties to submit briefing regarding the issues in dispute in the form of prehearing submissions to
help me determine whether an entitlement hearing is necessary. Id.
4
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
certain information not relevant does not lead to—and likely undermines—the conclusion that it was not
considered.”).
2
Petitioner filed her brief on December 25, 2021. Pet’r’s Br., ECF No. 45. Respondent filed
a response on March 8, 2022. Resp’t’s Resp., ECF No. 48. On July 7, 2022, I ordered Petitioner
to file a reply addressing her medical theory. Scheduling Order at 1, ECF No. 49. Petitioner filed
her reply on September 28, 2022. Pet’r’s Reply, ECF No. 52.
On November 29, 2022, I held a status conference with the parties to discuss their briefing.
See Min. Entry, docketed Nov. 29, 2022. Petitioner noted that she would like to retain an
immunologist to build on her medical theory, but Respondent noted continuing concern about the
factual issues in this case. I determined that I would issue a Fact Ruling to resolve these issues,
specifically the onset of Petitioner’s symptoms.
This matter is now ripe for consideration.
II. Factual Background
A. Medical Records
1. Pre-vaccination Medical Records
On February 14, 2012, Petitioner presented to her primary care provider (“PCP”), Stephen
Grybowski, M.D. Pet’r’s Ex. 26 at 136, ECF No. 28-4. She reported “intermittent paresthesias5 in
her feet” following thyroid6 surgery/thoracic goiter7 removal. Id. Petitioner noted that the
paresthesias would “come and go and ha[d] no specific exacerbating factors.” Id. During a
neurological exam Dr. Grybowski performed the same day, Petitioner “indicated that the
numbness in her feet re occurred while she was sitting on the edge of the examining table.” Id. at
137. Dr. Gybowski noted that Petitioner had a history of malignant melanoma8 and had had an
“excision approximately [five] years ago[.]” Id. at 136.
On November 21, 2012, Petitioner followed up with Dr. Grybowski and complained of
upper respiratory congestion and a sore throat. Pet’r’s Ex. 3 at 2, ECF No. 1-6. She stated that she
“fel[t] that she ha[d] hypothyroid9 symptoms with fatigue, depression, weight gain, thinning hair[,]
etc.” Id. She reported that she had not “felt good since September[,]” and she was concerned about
lesions on her arm, neck, and back. Id. Dr. Grybowski’s assessment included acute sinusitis and
pharyngitis as well as neoplasm of uncertain behavior of skin, and “[o]ther malaise and fatigue[.]”
Id. at 4.
5
A paresthesia is “an abnormal touch sensation, such as burning, prickling, or formication, often in the
absence of an external stimulus.” Dorland’s at 1362.
6
The thyroid gland is “an endocrine gland normally situated in the lower part of the front of the neck[.]”
Dorland’s at 773.
7
Goiter is “an enlargement of the thyroid gland, causing swelling in the front part of the neck.” Dorland’s
at 787.
8
Malignant melanoma is “a malignant neoplasm of melanocytes[] . . . occurring most often in the skin . . .
.” Dorland’s at 1109.
9
Hypothyroidism is “deficiency of thyroid activity, characterized by decrease in basal metabolic rate,
fatigue, and lethargy[.]” Dorland’s at 895.
3
On August 8, 2013, Petitioner returned to Dr. Grybowski reporting dizzy spells for the past
three months, low back pain, and rectal bleeding. Id. at 5. Dr. Grybowski’s assessment was
dizziness and giddiness and hypercholesterolemia. Id. at 6. When Petitioner returned to Dr.
Grybowski on August 20, 2013, she reported no dizziness since her last appointment. Id. at 8. She
followed up with Dr. Grybowski on November 21, 2013, and reported “[r]are dizziness[]” as well
as recent bronchitis, urinary tract infection (“UTI”), and a rash. Id. at 11. Petitioner also reported
year-round but minor post-nasal drip and lower back pain “on and off.” Id. Petitioner indicated
that she “[f]el[t] tired[,]” and Dr. Grybowski noted that they had “assessed [Petitioner’s fatigue]
before; had normal labs a few months ago[].” Id.
On February 13, 2014, Petitioner presented to an allergist, who assessed her with allergic
rhinitis and asthma. Pet’r’s Ex. 20 at 9, 11, ECF No. 26-2. On September 15, 2014, Petitioner
presented to an orthopedic surgeon and reported right knee pain since May of 2014 and “a couple
of episodes where the knee felt like it would give out.” Pet’r’s Ex. 21 at 2, ECF No. 26-3. The
surgeon noted that a June 2014 x-ray showed valgus osteoarthritis,10 and his impression was
“[v]algus osteoarthritis with a high probability for a meniscal11 tear.” Id. On September 22, 2014,
she reported “right knee pain since May and instability occasionally.” Id. at 3.
On October 12, 2015, Petitioner presented to John Jepma, D.O., who works in Dr.
Grybowski’s office, and reported UTI symptoms and mild back pain. Pet’r’s Ex. 3 at 31. Under
“past medical history[,]” Dr. Jepma listed “[large] goiter left side[, m]alignant melanoma in situ[,
a]sthma[, and e]nvironmental allergies[.]” Id.
2. Vaccination and Post-vaccination Medical Records
Petitioner received the flu vaccine at issue at a pharmacy on November 12, 2015, when she
was seventy-three years old. Pet’r’s Ex. 1 at 2–3, ECF No. 1-4. Twelve days post vaccination, on
November 24, 2015, Petitioner went to the emergency room (“ER”) by ambulance. Pet’r’s Ex. 2
at 168, ECF No. 1-5. She complained of “dizziness and shakiness that has been an ongoing issue[]”
but that it did not “seem to be going away.” Id. Petitioner also reported a “tingling sensation of
lower extremities[,]” nausea, and back pain. Id. She stated that she thought she had a bladder
infection that was not “getting better.” Id. Petitioner was evaluated by attending physician Sarah
Delaney-Rowland, M.D. Id. at 166–67, 170. Dr. Delaney-Rowland filled in an “emergency
physician record” form by hand and initialed the form at the bottom. 12 Id. Indicating Petitioner’s
“chief complaint[,]” Dr. Delaney-Rowland circled “dizziness[,]” and she wrote that Petitioner
reported feeling like she was going to pass out earlier that day, between 3:00 and 4:00. See id. at
166. Dr. Delaney-Rowland wrote that the dizziness lasted for a “few hours[,]” and she circled
“sudden” onset and both “better” and “gone now[.]” Id. Dr. Delaney-Rowland also wrote that
10
Osteoarthritis is “a noninflammatory degenerative joint disease seen mainly in older persons,
characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes
in the synovial membrane.” Dorland’s at 1326.
11
Meniscus refers to “one of the menisci of the knee joint[.]” Dorland’s at 1119.
12
The form shows a hand-written signature that appears to say “SR” in a section of the form designated
for an M.D.’s signature. See Pet’r’s Ex. 3 at 167. Because Dr. Delaney-Rowland is noted as the sole ER
physician who evaluated Petitioner in a typed timeline of Petitioner’s ER course, it is clear that Dr.
Delaney-Rowland is the author of the form. See id. at 170.
4
Petitioner complained of lightheadedness, nausea, gas, chest pain, and “heart racing this am[.]” Id.
The doctor noted that Petitioner reported experiencing vertigo13 a “few y[ears] ago.” Id. Reviewing
a list of “associated symptoms[,]” Dr. Delaney-Rowland crossed out hearing loss, ear pain,
nausea/vomiting, sense of movement, headache, weakness, sense of confusion, decreased ability
to stand/walk. See id. She circled “lightheadedness[.]” Id. Next to “numbness[,]” Dr. Delaney-
Rowland wrote “chronic[,]” and she drew an arrow to a part of the form that had more room to
write, where she wrote “paresthesias @ [lower extremities] x months[.]” Id. Next to a prompt
stating “[s]imilar symptoms previously[,]” Dr. Delaney-Rowland wrote “x months[.]” Id. Next to
“[r]ecently seen/treated by doctor/hospitalized[,]” the doctor wrote that Petitioner said “not for a
while[.]” Id. Dr. Delaney-Rowland also wrote “Dr. Jepma October[.]” Id.
In the review of systems section, Dr. Delaney-Rowland wrote that Petitioner complained
of thirst and noted “intentional w[eight] loss[.]” Id. The doctor made notes regarding Petitioner’s
digestion history and wrote that Petitioner complained of “low back pain x few months.” Id. In the
past history section of the form, Dr. Delaney-Rowland circled “asthma[,]” and she wrote in that
Petitioner had a history of melanoma. Id. Regarding past surgeries and procedures, Dr. Delaney-
Roland wrote a word that is difficult to decipher and “thyroid[.]” See id.
Dr. Delaney-Rowland did not note any abnormalities on Petitioner’s physical exam, and
she wrote that Petitioner was “well appearing[.]” Id. at 167. She reviewed Petitioner’s bloodwork,
and noted some results, such as platelet and thyroid stimulating hormone levels, and she reviewed
Petitioner’s EKG. Id. Regarding Petitioner’s diagnosis, Dr. Delaney-Rowland wrote, “multiple
vague complaints all of which have been going on for a period of time x months.” Id. In the
“clinical impression” section of the document, Dr. Delaney-Rowland circled “[d]izziness[.]” Id.
She also wrote in assessments of mild thrombocytopenia14 and transient lightheadedness of unclear
etiology. Id.
Petitioner was discharged to her home that evening, and the impression at discharge was
“[d]izziness and giddiness.” Id. at 175. The discharge note stated that the “[p]roblem is an ongoing
problem[]” and indicated that Petitioner’s symptoms improved while she was at the hospital. Id.
She was instructed to follow up with Dr. Grybowski in two to three days. Id.
On December 1, 2015, Petitioner followed up with Dr. Grybowski after her ER visit. Pet’r’s
Ex. 3 at 34. She noted that she presented to the ER for dizziness and feeling “like she was going
to pass out.” Id. Petitioner reported that she had “one episode briefly since [when she] was at a
restaurant.” Id. She indicated that she had intentionally lost weight through diet. Id. Petitioner
complained that her “[f]eet and legs feel numb and prickly[.]” Id. She reported that her legs and
feet become prickly and uncomfortable daily, and she also complained of some backache and knee
discomfort. Id. Dr. Grybowski noted that Petitioner had been treated for a UTI and that she “[h]ad
some palpitations with dizziness but as an effect[,] not cause. Has chest soreness on and off . . . .”
Id. Lab tests revealed high vitamin B12 levels. Id. at 36. Dr. Grybowksi’s assessment included
neuropathy, dizziness, low back pain, degenerative arthritis of knees, and asthma. Id.
13
Vertigo is “an illusory sense that either the environment or one's own body is revolving[.]” Dorland’s at
2021.
14
Thrombocytopenia is a “decreased in the number of platelets, such as in thrombocytopenic purpura.”
Dorland’s at 1892.
5
Petitioner returned to Dr. Grybowski on March 10, 2016. Id. at 38. She reported numbness
in both legs and constant heaviness in her feet. Id. She noted back pain and that she was “[n]ot
vertiginous but feels like she might pass out, particularly if she has been standing in one spot.” Id.
She stated that she did not feel comfortable driving due to leg numbness and that she was
continuing to lose weight on her weight loss program. Id. On April 22, 2016, Petitioner presented
to a general surgeon, William Schu, M.D., involved in her previous surgery and asked whether her
symptoms were related to her thyroid. Pet’r’s Ex. 4 at 104, ECF No. 1-7. She reported “progressive
lower extremity weakness which is now interfering with her ability to walk and drive.” Id. She
complained of weakness, numbness, and dizziness. Id. Dr. Schu denied that her symptoms were
due to her thyroid. Id. at 105.
Petitioner presented to Mohsin Ali, M.D., a neurologist, on April 26, 2016, for a
consultation. Pet’r’s Ex. 5 at 2, ECF No. 1-8. Petitioner reported “numbness in her feet, which
started [six to twelve] months ago.” Id. She noted that “[a] year ago, she developed right knee
problems and saw orthopedics and was told that she had no cartilage in her right knee joint[,] and
she may need right knee replacement.” Id. Petitioner recounted that she then lost forty pounds
through diet and exercise in the hope that it would help her knees. Id. She continued that “[s]ix
months ago when this was happening, she developed tingling, numbness in her feet, which now
has at least [sic] up to her knee joints bilaterally.” Id. Petitioner reported bilateral knee pain due to
arthritis, but she denied foot pain. Id. She also complained of tenderness when touching the skin
below her knee joints, mild back pain, and neck stiffness. Id. She reported a history of vertigo in
2011, but she indicated that it had improved. Id. On exam, Petitioner had “decreased cold pinprick
vibration sensation in her feet[,]” unsteady gait, and difficulty with tandem walking. Id. at 3. She
also “sway[ed] side to side while doing Romberg testing15 without falling down.” Id. Her “[d]eep
tendon reflexes [were] 2+ in arms, 1+ in knees[,] and 1+ at ankles.” Id. Dr. Ali suspected peripheral
neuropathy and noted concern for cervical and lumbosacral spinal stenosis.16 Id.
A May 2, 2016 lower extremity EMG/NCS showed evidence of “sensory and motor,
peripheral neuropathy with demyelinating and axonal17 features.” Pet’r’s Ex. 25 at 6–7, ECF No.
28-3. On May 6, 2016, a lumbar spine MRI revealed “[d]iffuse disc bulges at the L1-2 through
L5-S1 levels with minimal thecal sac18 compression.” Pet’r’s Ex. 2 at 142–43. A cervical spine
MRI revealed “cervical spondylosis19 at the C4-5 through C7-T1 levels without spinal cord
15
Romberg sign is “swaying of the body or falling when standing with the feet close together and the eyes
closed[.]” Dorland’s at 1686.
16
Stenosis is “an abnormal narrowing of a duct or canal[.]” Dorland’s at 1740.
17
Axonal neuropathy, or axonopathy, is “a disorder disrupting the normal functioning of the axons.”
Dorland’s at 183.
18
The thecal sac, also known as the dural sac, is “the portion of the spinal dura mater extending caudally
from the level of the first or second lumbar vertebra to the attachment at the filum terminale externum,
about the first or second sacral vertebra, and containing the lumbar cistern, cauda equina, cerebrospinal
fluid, and filum terminale internum[]” or “the entire length of the spinal dura mater from the foramen
magnum to the attachment at the filum terminale externum; located in the vertebral canal and containing
the spinal cord, spinal roots, and the contents of the lumbar cistern.” Dorland’s at 1633.
19
Spondylosis is “ankylosis of a vertebral joint[]” or “degenerative spinal changes due to osteoarthritis.”
Dorland’s at 1725.
6
compression.20” Id. at 140. A May 9, 2016 upper extremity EMG/NCS showed “evidence of
sensory and motor, peripheral neuropathy with demyelinating and axonal features.” Pet’r’s Ex. 25
at 3–5. Dr. Ali also noted that “[u]nderlying bilateral median nerve compression, such as seen in
carpal tunnel syndrome[,]21 cannot be excluded in the presence due to generalized neuropathy
[sic].” Id. at 5.
On June 24, 2016, Petitioner returned to Dr. Ali. Id. at 13. The subjective portion of this
medical record is very similar to that from the April 26, 2016 record. See Pet’r’s Ex. 5 at 2. Dr. Ali
again noted that Petitioner presented “for evaluation of numbness in her feet[]” except he now
wrote that it “started [six] months ago[]” rather than six to twelve months ago. Id.; Pet’r’s Ex. 25
at 13. Dr. Ali again noted that Petitioner reported that she developed right knee problems one year
prior and that she lost weight in an attempt to help her knees. Id. Dr. Ali added that Petitioner
stated that she was “absolutely sure that she had [a f]lu shot in November 2015[,] and she
developed [numbness] in December 2015.” Pet’r’s Ex. 25 at 13. He noted that Petitioner believed
that her flu vaccination caused her neuropathy. Id. Dr. Ali then repeated Petitioner’s report that
“[s]ix months ago when this was happening, she developed tingling in her feet, which now has at
least [sic] up to her knee joints bilaterally.” Id. He also repeated Petitioner’s description of her
symptoms and her history of vertigo. See id. The physical exam findings were similar to those
from Petitioner’s April 26, 2016 exam. See id. at 14. Dr. Ali’s assessment included “suspected
CIDP.” Id. at 14. He noted that “[e]pisode of [Guillain-Barré syndrome (“GBS”)]22 is differential
as only difference between GBS and CIDP is duration of clinical worsening.” Id. The assessment
also included peripheral neuropathy, cervical and lumbosacral spinal spondylosis, numbness of
legs, imbalance and difficulty walking, and mild neck and back pain. Id.
On August 18, 2016, Petitioner presented to Michael Stanton, M.D., a neurologist, after
being referred by Dr. Ali and Dr. Grybowski “for evaluation of progressive bilateral lower
extremity numbness and gait instability that developed over the course of [one to two] months last
winter and has subsequently slowly improved.” Pet’r’s Ex. 6 at 16, 20, ECF No. 1-9. Regarding
the progression of her condition, Petitioner “describe[d] being healthy and unlimited in activities
until the onset of symptoms in December 2015.” Id. at 17. She recalled receiving a flu vaccine in
mid-November of 2015 and that “[a]bout [four] weeks later in December, she started to develop
tingling and numbness in both feet, as well as unsteadiness.” Id. She continued that “her symptoms
progressed such that by mid January she had numbness up to her knees, was unable to drive due
to an inability to feel the pedals, and had to take stairs one step at a time due to imbalance.” Id.
Petitioner noted that her symptoms “[s]eemed to peak in the middle of January and had slowly
improved since that time.” Id. She recalled that “[a]bout the same time her sensory symptoms
began, she also started to notice a sense of dizziness upon standing, which she describe[d] as
20
Spinal compression is “a condition in which pressure is exerted on the spinal cord, as by a tumor, spinal
fracture, etc.” Dorland’s at 393.
21
Carpal tunnel syndrome is “an entrapment neuropathy characterized by pain and burning or tingling
paresthesias in the fingers and hand, sometimes extending to the elbow. Symptoms result from
compression of the median nerve in the carpal tunnel.” Dorland’s at 1794.
22
GBS is “rapidly progressive ascending motor neuron paralysis of unknown etiology, frequently seen
after an enteric or respiratory infection. An autoimmune mechanism following viral infection has been
postulated. It begins with paresthesias of the feet, followed by flaccid paralysis of the entire lower limbs,
ascending to the trunk, upper limbs, and face[.]” Dorland’s at 1802.
7
feeling like she is going to faint.” Id. Petitioner explained that this sensation would last for a few
seconds and that she did not experience the symptom while sitting or lying down. Id. She also
reported “a sense of nausea accompanied with the presyncope.” Id. She acknowledged her history
of low back pain but stated that this pain did not radiate to her legs. Id. Petitioner “denie[d] having
any numbness or tingling or balance difficulties prior to December.” Id. at 18. Dr. Stanton noted
that following Petitioner’s evaluation with Dr. Ali, “[t]here was some concern for a diagnosis of
CIDP[.]” Id. at 17. Although Dr. Ali recommended prednisone23 and intravenous immunoglobulin
(“IVIG”),24 Petitioner had declined these treatments. Id.
Dr. Stanton’s impression was “[p]ossible GBS with recovery.” Id. at 20. He noted that
“[t]he temporal relationship to [Petitioner’s] flu shot and monophasic presentation with a peak in
symptom at [four to eight] weeks are suggestive of a mild acquired inflammatory demyelinating
polyneuropathy (i.e. AIDP or GBS).” Id. However, following a physical examination and EMG,
Dr. Stanton stated that “that [cannot] be confirmed.” Id. Instead, he concluded that Petitioner’s
“EMG showed evidence for a very chronic, length dependent axonal peripheral neuropathy.” Id.
He recommended against treatment with steroids or IVIG. Id.
On August 25, 2016, Petitioner presented to Dr. Grybowski and reported numbness in her
legs and constant heaviness and numbness, with occasional tingling, in her feet. Pet’r’s Ex. 3 at
41. She also complained of dizziness “at least every other day[]” and back pain. Id. She followed
up with Dr. Grybowski on September 26, 2016, and reported numbness and difficulty walking as
well as leg pain when waking up. Id. at 45. She also noted back and knee pain. Id. On March 24,
2017, Petitioner continued reporting neuropathy symptoms, and she reported shortness of breath.
Id. at 52. She “[s]till th[ought] her flu shot last year was the cause of” her neuropathy. Id.
On June 15, 2017, Petitioner presented to a pulmonologist for shortness of breath and other
respiratory symptoms that had progressed for about eighteen months. Pet’r’s Ex. 10 at 7, ECF No.
1-13. The pulmonologist suspected that these symptoms were due to her thyroid. Id. On July 3,
2017, Petitioner followed up with Dr. Schu, and his assessment was non-toxic multinodular goiter.
Pet’r’s Ex. 4 at 6, ECF No. 1-7. He referred her to a thoracic surgeon. Id. Petitioner presented to
Christian Peyre, M.D., a thoracic surgeon on July 20, 2017. Pet’r’s Ex. 10 at 14. Dr. Peyre noted
that Petitioner reported that “her symptoms began after having a flu shot [two] years ago.” Id.
Petitioner indicated that “[t]wo weeks after the flu shot she was found to reportedly have CIDP
after experiencing some neuropathy.” Id. She continued that “[s]he wanted a second opinion, seen
by neurology here and diagnosed it as AIDP.” Id. Petitioner reported that “[d]uring this period of
time she reports she initially started to notice some shortness of breath[,]” which “is mostly
noticeable with exertion and is much less noticeable when she is at rest . . . .” Id. Dr. Peyre did not
see an emergent need to remove her substernal thyroid, and he recommended yearly CT scans. Id.
at 17.
On December 28, 2017, Petitioner returned to Dr. Ali. Pet’r’s Ex. 25 at 19. Petitioner felt
that she had CIDP rather than AIDP/GBS. Id. She reported worsening of her gait, falling a few
23
Prednisone is a “synthetic glucocorticoid derived from cortisone, administered orally as an
antiinflammatory and immunosuppressant in a wide variety of disorders.” Dorland’s at 1486.
24
Immunoglobulin is “any of the structurally related glycoproteins that function as antibodies, divided
into five classes . . . on the basis of structure and biological activity.” Dorland’s at 908.
8
times over the past year, intermittent facial numbness, wobbly legs, imbalance, and dizzy spells.
Id. Although he noted that Dr. Stanton believed Petitioner more likely had AIDP/GBS, Dr. Ali
noted that Petitioner felt her symptoms were worsening two years after their onset. Id. at 20. He
repeated that “[t]he only difference between GBS and CIDP is duration of clinical worsening[.]”
His assessment continued to include “[p]ossible CIDP” and peripheral neuropathy. Id.
On January 15, 2018, a lower extremity EMG/NCS showed evidence of a “sensory and
motor demyelinating and axonal peripheral neuropathy[]” and “mild interval worsening[]” since
her 2016 study. Pet’r’s Ex. 5 at 7–8. An upper extremity EMG performed on January 22, 2018,
showed “bilateral median nerve compression at” Petitioner’s wrists and “bilateral ulnar nerve
compression across [her] elbows.” Id. at 9–11. Dr. Ali noted “electrophysiological evidence of
sensory and motor peripheral neuropathy[]” that was “likely consistent with [Petitioner’s] history
of [GBS] in [the] past.” Id. at 11.
On February 1, 2018, Petitioner returned to Dr. Ali and reported continuing problems with
her gait, imbalance, dizziness, nausea, occasional facial numbness, and other issues. Pet’r’s Ex. 25
at 22. Dr. Ali noted that Petitioner’s foot numbness “started [two] years ago.” Id. Dr. Ali’s
assessment included “[p]ossible CIDP[,]” peripheral neuropathy, bilateral carpal tunnel syndrome,
and ulnar neuropathy.25 Id. at 23.
Petitioner followed up with Dr. Stanton on June 27, 2019. Pet’r’s Ex. 22 at 15, ECF No.
26-4. Dr. Stanton noted that Petitioner “[i]nitially [ ] reported progressive subacute onset from
December 2015 through mid January 2016 approximately [four] weeks after her [flu] vaccination
in November 2015. Her EMG here had suggested a more chronic axonal neuropathy.” Id.
Regarding his last assessment of Petitioner, Dr. Stanton wrote that Petitioner “had developed
progressive numbness and tingling spreading from feet to knees, and poor balance over [six] weeks
before stabilizing and then slowly improving.” Id. He noted that based on her symptoms, he had
thought “this might of [sic] been a sensory ataxic26 perform a [sic] GBS[,]” but this could not “be
confirmed since she had improved with intact reflexes and only mild sensory loss.” Id. Petitioner
reported that since her last appointment with Dr. Stanton, her numbness in her lower extremities
“remained about the same[,]” but she reported “a greater loss of sensation in her feet[,]” occasional
sharp pains, leg weakness when standing, and back pain. Id. at 16. She noted that she had recently
completed a course of physical therapy and that she had not fallen in the last six months. Id. An
EMG revealed “evidence of a moderately severe length-dependent sensorimotor axonal
polyneuropathy[]” and “a progression from her study in August 2016.” Id. at 18. Dr. Stanton noted
that in 2016, he questioned whether Petitioner had GBS “given onset after flu vaccine[]” but that
“[h]er initial EMG was consistent with a very chronic axonal neuropathy and not recovery from
GBS[.]” Id. He wrote that her June 2019 EMG “[s]howed a worsening of her chronic axonal
neuropathy consistent with exam and symptoms.” Id. He noted that her EMG did not show
demyelination suggestive of CIDP. Id. Dr. Stanton continued that “[t]he cause of [Petitioner’s]
25
Ulnar neuropathy is “any neuropathy of the ulnar nerve[.]” Dorland’s at 1252.
26
Ataxia is “failure of muscular coordination; irregularity of muscular action.” Dorland’s at 168.
9
idiopathic neuropathy is unclear[,] and some additional lab testing will be performed to evaluate
for potential causes,” including amyloid.27 Id.
B. Affidavit
On August 15, 2018, Petitioner filed a brief affidavit. Pet’r’s Ex. 13, ECF No. 1-16. She
stated that “[a]pproximately three [ ] weeks” following her November 12, 2015 flu vaccination,
she “began to experience muscle weakness accompanied by numbness and tingling in [her] feet
and legs.” Id. ¶ 2–3. She noted that she was “ultimately diagnosed with” CIDP. Id. ¶ 4.
III. Expert Reports28
A. Petitioner’s Expert, Frederick Nahm, M.D., Ph.D.
Dr. Nahm received his Master of Science and Ph.D. in neuroscience from the University
of California, San Diego in 1990 and 1994, respectively. Pet’r’s Ex. 41 at 1, ECF No. 32-16. He
then earned his medical degree from the University of Michigan in 1996. Id. He completed a
neurology residency through Harvard Medical School at Beth Israel Deaconess Medical Center in
Boston, Massachusetts from 1997 to 2000, and he completed three fellowships in medical ethics,
clinical neurophysiology, and neuromuscular medicine from 2000 to 2001. Id. at 1–2; Pet’r’s Ex.
27 at 2, ECF No. 32-2. Following his fellowships, he “joined the Yale New Haven Health System
at Greenwich Hospital, where [he] established one of the first Primary Stroke centers in the state.”
Pet’r’s Ex. 27 at 2. He then joined the Yale Department of Neurology as a clinical assistant
professor from 2006 to 2008 and has “served as Medical Director for a neurorobotics company
building powered prosthetics for people with paralysis and other neuromuscular disabilities.” Id.;
Pet’r’s Ex. 41 at 1. He founded a neurology practice in Greenwich, Connecticut in 2002, and he
has more than seventeen years “of clinical experience in both acute neurological emergencies as
well as outpatient and rehabilitation settings.” Pet’r’s Ex. 27 at 1; Pet’r’s Ex. 41 at 1. He is board-
certified by the American Board of Psychiatry and Neurology and the American Board of
Electrodiagnostic Medicine, and he is licensed to practice in fourteen states. Pet’r’s Ex. 27 at 2;
Pet’r’s Ex. 41 at 1.
Dr. Nahm wrote that before Petitioner’s vaccination, she “had no neurological issues, and
specifically no weakness, numbness[,] or difficulty walking.” Pet’r’s Ex. 27 at 13. He added that
“[t]here was no report of any neurological disorders immediately prior to receiving the [flu]
vaccination.” Id. Discussing Petitioner’s October 12, 2015 appointment with Dr. Jepma, Dr. Nahm
noted that that the “[r]eview of systems was only positive for dysuria29 and urinary frequency and
urgency.” Id. at 3. Dr. Nahm contended that at the time of Petitioner’s November 12, 2015
27
Amyloid is “the pathologic extracellular proteinaceous substance deposited in amyloidosis[.]”
Dorland’s at 68–69. Amyloidosis is “a group of conditions of diverse etiologies characterized by the
accumulation of insoluble amyloid in various organs and tissues of the body, which comprises vital
function. The associated disease states may be inflammatory, hereditary or neoplastic, and the deposition
can be local or generalized (systemic).” Id. at 69.
28
For the purposes of this Fact Ruling, I will limit my discussion of the expert reports to the experts’
discussion of onset.
29
Dysuria is painful urination. Dorland’s at 579.
10
vaccination, “[h]istory of present illness at that time reported the petitioner to be in good health,
exercising regularly, with no report of any numbness of the feet, and a review of systems entirely
negative.”30 Id. However, Petitioner’s vaccination record does not show a review of systems or a
history of present illness, and it does not suggest that Petitioner was evaluated by a pharmacist or
other medical professional. See generally Pet’r’s Ex. 1. Instead, she filled out a seven-question
standard questionnaire asking if she was currently sick and other questions about medical history
and reactions to vaccines. Id. at 2. Petitioner checked “[n]o” in response to all of the questions. Id.
Dr. Nahm noted that Petitioner had a “[p]rior report of some foot paresthesia . . . in 2012[]”
but that “no such symptoms were documented during medical follow-ups in 2012 and 2014.”
Pet’r’s Ex. 27 at 13. He contended that Petitioner was not diagnosed with a peripheral nerve
disorder prior to her vaccination and that “over the course of [four] years prior to the vaccination,
there is only [one] mention of foot symptoms.” Id. He asserted that “[t]he overwhelming evidence
from review of the medical records is that between 2013 and 2016, no lower extremity peripheral
nerve symptoms were present.” Id. He concluded that “[t]he suggestion that the petitioner’s
symptomology predated the vaccination is thus incorrect and not supported by the medical record.”
Id. Discussing the findings of “chronic” damage on Petitioner’s EMG studies, Dr. Nahm opined
that this damage could have occurred after Petitioner’s vaccination. Id. at 15. He wrote that the
term “chronic” in an EMG “is not meant to imply the duration of clinical symptoms, but rather the
nature of electrophysiological changes.” Id. He continued that “[i]n the case of distal nerve injury,
polyphasic reinnervated motor units can appear [six to eight] weeks after the initial insult,
accounting for a ‘chronic’ appearance on EMG.” Id.
In his supplemental expert report, Dr. Nahm did not dispute Respondent’s expert’s
contention that Petitioner had a “number of symptoms[,] including tingling, paresthesia, numbness,
leg pains, instability, low back pain[,] and dizzy spells spanning a time between [August 8, 2013,]
and [November 24, 2015].” Pet’r’s Ex. 42 at 1. However, Dr. Nahm contended that “[n]one of
these prior symptoms listed ever occasioned the kind of eventful neurological condition [sic] and
workup which only occurred post[ ]vaccination.” Id. He wrote that Petitioner “had years of
nonspecific symptoms, but never a clear diagnosis, and to suggest that these symptoms serve as
evidence of a condition like that which occurred after vaccination is incorrect.” Id. at 2. He wrote
that Petitioner “had pain, at times numbness, dizziness over the span of [two] years, but there was
never any wholly contained neurological event as she had after the vaccination that can explain
her acute and chronic post-vaccination neuropathy.” Id.
B. Respondent’s Expert, Vinay Chaudhry, M.D.
Dr. Chaudhry received his medical degree from All India Institute of Medicine in New
Delhi, India in 1980. Resp’t’s Ex. B at 2, ECF No. 35-5. He completed neurology residencies at
the University of Tennessee Center for Health Sciences in Memphis, Tennessee and the University
of Alabama at Birmingham School of Medicine in Birmingham, Alabama between 1984 and 1987.
Id. He then completed two fellowships in neuromuscular diseases at Johns Hopkins University
School of Medicine in Baltimore, Maryland between 1987 and 1989. Id. at 3. He joined the Johns
Hopkins University School of Medicine faculty as an instructor in 1989 and he has been a full
30
Dr. Nahm did not cite Petitioner’s vaccination record or any of her other medical records to support this
statement.
11
professor since 2004. Id. He is also the Director of the EMG Laboratory at Johns Hopkins
University and Johns Hopkins Hospital. Resp’t’s Ex. A at 1, ECF No. 34-1. He “specialize[s] in
the field of neuromuscular diseases, which includes management of peripheral neuropathies.” Id.
Dr. Chaudhry is board-certified in neurology neuromuscular diseases, electrodiagnostic medicine,
and clinical neurophysiology. Id. His clinical practice involves evaluation of “over 2000 patients
a year mostly related to peripheral nerve disease.” Id. He is an author of more than 120 publications
and has served as a reviewer and editor for various journals. Id.
Dr. Chaudhry opined that Petitioner “suffered from chronic axonal sensorymotor
polyneuropathy with symptoms present prior to the [flu] vaccination.” Id. at 25. He stated that
“[t]he onset of [Petitioner’s] paresthesias preceded the [flu] vaccine as noted from her clinical
records.” Id. at 14. He cited Petitioner’s November 24, 2015 ER record, which he stated showed
that Petitioner had “several months of tingling and paresthesias in the legs.” Id. Dr. Chaudhry also
cited Petitioner’s April 26, 201631 record from Dr. Ali, which stated that Petitioner’s foot
numbness started six to twelve months prior. Id. Dr. Chaudhry noted that six to twelve months
before April of 2016 would place onset of Petitioner’s numbness between April and October of
2015,32 before the vaccination at issue. Id. He further cited Petitioner’s intermittent paresthesias
reported in February of 2012, her low back pain and dizzy spells in August of 2013, her leg pains
in June and July of 2014, and her reported instability in September of 2014 as evidence that her
condition predated the vaccination. Id.
IV. Arguments of the Parties
In her brief, Petitioner discussed the multiple issues in this case, including Petitioner’s
diagnosis and medical theory. Regarding the onset of Petitioner’s neuropathy, Petitioner stated that
her “clinical symptoms of CIDP, lower extremity weakness and gait imbalance, started a little less
than two [ ] weeks after the receipt of the [flu] vaccination.” Pet’r’s Br. at 16 (citing Pet’r’s Ex. 27
at 16). She noted that before her November 12, 2015 flu vaccination, she “had never been
diagnosed with a neurological disease or disorder[]” and had never visited a neurologist. Id. at 14.
Petitioner argued that November 24, 2015, the date she presented to the ER, “should be used as
the approximate onset date” for two reasons. First, “Petitioner’s prior medical records are absent
of any of her chief complaints in the [ER].” Id. at 15. Petitioner noted that she “had been seen by
her [PCP]33 exactly one (1) month prior to her injury-causing influenza vaccination. She was seen
for symptoms of a [UTI] and did not report or complain of tingling in her lower extremities[.]” Id.
Second, Petitioner argued that “the records from the [ER] visit have internal inconsistencies in
regard to the onset of Petitioner’s symptoms and should be given little weight.” Id.
Respondent argued that “[t]he record preponderantly establishes that [P]etitioner’s alleged
condition predated vaccination.” Resp’t’s Br. at 17. He stated that “[o]nly twelve days following
vaccination, on November 24, 2015, [P]etitioner reported a tingling sensation in her lower
extremities that was clearly documented as having existed for months.” Id. (citing Pet’r’s Ex. 2 at
166–68). Respondent continued that “[n]ot until over seven months after vaccination, on June 24,
31
Dr. Chaudhry incorrectly stated that this visit occurred on April 26, 2015. This appears to be an error,
as he used the correct date when discussing Petitioner’s medical records. See Resp’t’s Ex. A at 4.
32
Dr. Chaudhry incorrectly stated that onset would have been between April and October of 2014.
33
Petitioner was seen by Dr. Jepma, another provider in her PCP’s office. Pet’r’s Ex. 3 at 31.
12
2016, did [P]etitioner report during a neurology visit receiving her flu vaccination in November
2015 and developing neurological symptoms, specifically feet numbness in December 2015.” Id.
He noted that Petitioner’s November 24 and December 1, 2015 medical records are inconsistent
with her June 24, 2016 report that her neurological symptoms began in December of 2015. Id.
V. Applicable Legal Standards
To receive compensation under the Vaccine Act, a petitioner must demonstrate either that:
(1) the petitioner suffered a “Table injury” by receiving a covered vaccine and subsequently
developing a listed injury within the time frame prescribed by the Vaccine Injury Table set forth
at 42 U.S.C. § 300aa-14, as modified by 42 C.F.R. § 100.3; or (2) the petitioner suffered an “off-
Table injury,” one not listed on the Table, as a result of his receiving a covered vaccine. See 42
U.S.C. §§ 300aa-11(c)(1)(C); Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321
(Fed. Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1319–20 (Fed. Cir.
2006).
Special masters, as finders of fact, “are entitled—indeed, expected—to make
determinations as to the reliability of the evidence presented to them and, if appropriate, as to the
credibility of the persons presenting that evidence.” Moberly, 592 F.3d at 1326. The process for
making determinations in Vaccine Program cases regarding factual issues begins with
consideration of the medical records. § 11(c)(2). The special master is required to consider “all []
relevant medical and scientific evidence contained in the record,” including “any diagnosis,
conclusion, medical judgment, or autopsy or coroner's report which is contained in the record
regarding the nature, causation, and aggravation of the petitioner's illness, disability, injury,
condition, or death,” as well as “the results of any diagnostic or evaluative test which are contained
in the record and the summaries and conclusions.” § 13(b)(1)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). Pursuant
to Vaccine Act § 13(a)(1)(A), a petitioner must prove her claim by a preponderance of the
evidence. A special master must consider the record as a whole but is not bound by any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. § 13(b)(1).
In Program cases, contemporaneous medical records and the opinions of treating
physicians are favored. Capizzano, 440 F.3d at 1326 (citing Althen, 418 F.3d at 1280). This is
because “treating physicians are likely to be in the best position to determine whether ‘a logical
sequence of cause and effect show[s] that the vaccination was the reason for the injury.’” Id. In
addition, “[m]edical records, in general, warrant consideration as trustworthy evidence.” Cucuras
v. Sec’y of Health & Hum. Servs., 933 F.2d 1525, 1528 (Fed. Cir. 1993). Indeed, contemporaneous
medical records are ordinarily to be given significant weight due to the fact that “the records
contain information supplied to or by health professionals to facilitate diagnosis and treatment of
medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium.
These records are also generally contemporaneous to the medical events.” Id. However, there is
no “presumption that medical records are accurate and complete as to all of the patient’s physical
conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021) (finding
13
that a special master must consider the context of a medical encounter before concluding that it
constitutes evidence regarding the absence of a condition.). While a special master must consider
these opinions and records, they are not “binding on the special master or court.” § 13(b)(1).
Rather, when “evaluating the weight to be afforded to any such . . . [evidence], the special master
. . . shall consider the entire record . . . .” Id.
In determining the accuracy and completeness of medical records, special masters will
consider various explanations for inconsistencies between contemporaneously created medical
records and later given testimony. The Court of Federal Claims has identified four such
explanations for explaining inconsistencies: (1) a person’s failure to recount to the medical
professional everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported to her or him; (3) a person’s faulty
recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of
symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl.
184, 203 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014).
VI. Discussion
A. Post-vaccination Medical Records and Petitioner’s Statements
Twelve days post vaccination, on November 24, 2015, Petitioner presented to the ER,
where she was evaluated by Dr. Delaney-Rowland, an attending physician. Dr. Delaney-
Rowland’s handwritten notes indicate specifically that Petitioner reported “chronic” numbness and
lower extremity paresthesias for a period of months. Pet’r’s Ex. 2 at 166. I find that this record
provides persuasive evidence that Petitioner’s neuropathy symptoms predated her vaccination.
Dr. Delaney-Rowland, as an attending ER physician, presumably fills in forms like the
“emergency physician record” form in this case in the regular course of business. While portions
of the form include prompts and symptoms to be checked off or circled, Dr. Delaney-Rowland
handwrote in three separate places on the form, spanning both pages, that Petitioner complained
of multiple symptoms for months. See Pet’r’s Ex. 2 at 166–67. On the list of “associated
symptoms,” Dr. Delaney-Rowland added the note of “chronic” next to numbness, and she then
specifically added, without a separate prompt from the form, that Petitioner had lower extremity
paresthesias for months. Id. at 166. These details support that Dr. Delaney-Rowland was
intentional and thoughtful in recording the duration and nature of Petitioner’s symptoms.
Furthermore, Dr. Delaney-Rowland included numerous notes about Petitioner’s medical
history that are consistent with Petitioner’s other medical records. Dr. Delaney-Rowland noted that
Petitioner reported intentional weight loss and histories of melanoma, thyroid surgery, asthma, and
vertigo “a few y[ears] ago.” Id. Petitioner’s pre-vaccination medical records repeatedly refer to her
histories of melanoma, thyroid surgery, and asthma. See Pet’r’s Ex. 26 at 126; Pet’r’s Ex. 20 at 11;
Pet’r’s Ex. 3 at 31. Petitioner reported intentional weight loss to Dr. Grybowski approximately one
week after the ER visit, on December 1, 2015. Pet’r’s Ex. 3 at 34. She again reported intentional
weight loss to Dr. Ali on June 24, 2016. Pet’r’s Ex. 25 at 13. She also noted a history of vertigo
during an appointment with Dr. Ali on April 26, 2016. Pet’r’s Ex. 5 at 2. Dr. Delaney-Rowland
also wrote that Petitioner had last been seen by a doctor in October, and she specifically noted that
the doctor was “Dr. Jepma,” Pet’r’s Ex. 2 at 166. This is again consistent with Petitioner’s other
14
medical records, which show that Petitioner presented to Dr. Jepma on October 12, 2015. Pet’r’s
Ex. 3 at 31. These are all specific details that Dr. Delaney-Rowland could presumably only know
if she was paying careful attention to Petitioner’s statements. That Petitioner reported symptoms
for months would also be consistent with other portions of the ER record, which note that Petitioner
reported “ongoing” symptoms. Pet’r’s Ex. 2 at 168, 175. Petitioner argued in her prehearing brief
that the records from the [ER] visit have internal inconsistencies in regard to the onset of
Petitioner’s symptoms[,]” Pet’r’s Br. at 15, but it is unclear what these alleged inconsistencies
regarding onset are.
The record from Dr. Delaney-Rowland contains one possible error. Although she wrote
that Petitioner complained of lightheadedness and nausea by the “chief complaint[,]” she then
crossed out “nausea/vomiting” on the ”associated symptoms[] list. See Pet’r’s Ex. 2 at 166. This
could be an error, given that she crossed this out while also crossing out multiple other symptoms,
or it could indicate that Petitioner did not report vomiting in conjunction with her nausea, which
would be consistent with the remainder of the record. This could also indicate that Petitioner’s
nausea had resolved by the time of Dr. Delaney-Rowland’s evaluation. I do not find that this
possible error detracts from the overall credibility of this record, particularly the specific,
handwritten portions of this record.
Furthermore, the notation that Petitioner had symptoms, specifically paresthesias, for
months and “chronic” numbness is consistent with the April 26, 2016 medical record from Dr. Ali.
Dr. Ali noted that Petitioner reported “numbness in her feet, which started [six to twelve] months
ago.” Pet’r’s Ex. 5 at 2. Petitioner also indicated that “[s]ix months ago when this was happening,
she developed tingling, numbness in her feet,” which then progressed to her knees. Id. Six to twelve
months before April 26, 2016, would place onset of these symptoms at sometime between April
26, 2015, and October 26, 2015. Notably, if Petitioner noticed numbness and paresthesias
beginning in October of 2015 following her October 12, 2015 appointment with Dr. Jepma, this
would account for why she did not report these symptoms until her next medical visit: the ER visit
on November 24, 2015.
When Petitioner followed up with Dr. Grybowski on December 1, 2015, following her ER
visit, he assessed her with neuropathy after she reported symptoms including dizziness and a
“prickly” feeling and numbness in her lower extremities. Pet’r’s Ex. 3 at 34, 36. Although the
December 1, 2015 record does not address the onset of these symptoms, the symptoms are again
consistent with Dr. Delaney-Rowland’s notes from November 24, 2015. While Petitioner
continued reporting similar symptoms during multiple medical appointments in the first half of
2016, the medical records do not indicate that she reported numbness beginning after her flu
vaccination until her second appointment with Dr. Ali on June 24, 2016. See Pet’r’s Ex. 25 at 13.
This appointment was more than seven months following Petitioner’s vaccination. This time lapse,
despite multiple appointments discussing her symptoms with at least three different providers (Dr.
Grybowski, Dr. Ali, and Dr. Schu) between December of 2015 and April of 2016, undermines the
reliability of Petitioner’s recollections more than seven months post vaccination.
Furthermore, Dr. Stanton, one of Petitioner’s treating neurologists, implied that the onset
and progression suggested by Petitioner was inconsistent with the electrodiagnostic evidence. He
wrote on June 27, 2019, that Petitioner “[i]nitially [ ] reported progressive subacute onset from
15
December 2015 through mid January 2016 approximately [four] weeks after her [flu] vaccination
in November 2015. Her EMG here had suggested a more chronic axonal neuropathy.” Pet’r’s Ex.
22 at 15 (emphasis added). Dr. Nahm contended that “chronic” EMG findings could be observed
within months post vaccination, but he did not address Dr. Stanton’s statement that the EMG
findings in this case were “more chronic” than what Petitioner reported.
Although Petitioner consistently indicated that her neuropathy symptoms began after her
November 12, 2015 vaccination from June 24, 2016, onwards, she was inconsistent in describing
how long after her vaccination these symptoms started. In her prehearing brief, Petitioner argued
that November 24, 2015, the date of her ER visit, “should be used as the approximate onset date[.]”
Pet’r’s Br. at 15. However, Dr. Delaney-Rowland’s notes support that Petitioner’s numbness and
paresthesias predated this visit. On June 24, 2016, Petitioner reported onset of numbness in
December of 2015. Pet’r’s Ex. 25 at 13. She again reported a December 2015 onset to Dr. Stanton
on August 18, 2016. Pet’r’s Ex. 6 at 17. These reports are inconsistent with Petitioner’s purported
onset date, her ER visit record, and the record from her December 1, 2015 visit with Dr.
Grybowski, which implied that her numbness began before December 1, 2015. See Pet’r’s Ex. 3
at 34. On August 18, 2016, Petitioner told Dr. Stanton that her foot numbness and tingling began
about four weeks after her mid-November 2015 flu vaccination, in December of 2015. Pet’r’s Ex.
6 at 17. However, on July 20, 2017, Petitioner recounted to Dr. Peyre that “[t]wo weeks after the
flu shot she was found to reportedly have CIDP after experiencing some neuropathy.” Pet’r’s Ex.
10 at 14. In her August 15, 2018 affidavit, Petitioner stated that her muscle weakness, numbness,
and tingling in her feet and legs began “[a]pproximately three [ ] weeks” post vaccination. Pet’r’s
Ex. 13 ¶ 2–3. When viewed along with the remainder of the record, these inconsistencies further
undermine the reliability of Petitioner’s recollections. I find Petitioner’s delayed and inconsistent
recollections regarding onset less reliable than the contemporaneous medical records from the
weeks following her November 12, 2015 vaccination.
B. Pre-vaccination Symptoms
The medical records provide some evidence that Petitioner experienced neurological
symptoms before her November 12, 2015 vaccination. For instance, she reported intermittent foot
numbness and paresthesias on February 14, 2012. Pet’r’s Ex. 26 at 136. She reported a three-month
history of dizzy spells on August 8, 2013, and she again reported dizziness on November 20, 2013.
Pet’r’s Ex. 3 at 5, 11. Petitioner’s providers did not appear to attribute these symptoms to one of
her other medical conditions, and Petitioner later reported these symptoms in relation to her
neuropathy.
Because Petitioner was not evaluated by a neurologist before 2016, it is difficult ascertain
whether these symptoms, and other symptoms Petitioner reported in 2012, 2013, and 2014, were
manifestations of her neuropathy. However, Respondent’s expert, Dr. Chaudhry, cited the
symptoms Petitioner reported from 2012 to 2014 as evidence that her neuropathy predated her
November 12, 2015 vaccination. See Resp’t’s Ex. A at 14. Dr. Nahm did not persuasively rebut
this. He conceded that Petitioner had “years of nonspecific symptoms[,]” including “pain, at times
numbness, dizziness over the span of [two] years[.]” Pet’r’s Ex. 42 at 1–2. He disagreed with Dr.
Chaudhry because Petitioner “never [had] a clear diagnosis[]” prior to vaccination and because
“there was never any wholly contained neurological event [like what] she had after the vaccination
16
that can explain her acute and chronic post-vaccination neuropathy.” Id. However, a lack of a
diagnosis does not mean a lack of a condition. Indeed, “[t]he fact that Petitioner’s pre-vaccination
symptoms were not understood to represent neuropathic issues is irrelevant. In the Program, onset
of an alleged vaccine injury is never dependent on the date formal diagnosis occurs.” Mason v.
Sec’y of Health & Hum. Servs., No. 17-1383V, 2022 WL 600415, at *24 (Fed. Cl. Spec. Mstr.
Feb. 4, 2022). Furthermore, Dr. Nahm’s contention does not persuasively account for the fact that
a longstanding neuropathy can worsen over time. E.g., Haubner v. Sec’y of Health & Hum. Servs.,
No. 16-1426V, 2021 WL 5614942, at *34 (Fed. Cl. Spec. Mstr. Oct. 22, 2021) (“The medical
records indicate that the main symptoms of [the petitioner’s] neuropathy, including extremity pain,
numbness, and tingling, appeared prior to vaccination, albeit in less severe forms.”).
I find that Petitioner’s pre-vaccination symptoms add further support to her post-
vaccination medical records indicating that her neuropathy symptoms predated her vaccination.
These records, coupled with the other evidence in the record, provide preponderant evidence that
Petitioner’s neuropathy predated her vaccination.
VII. Conclusion
After careful review of the record, I find that the record contains preponderant evidence
that Petitioner’s neuropathy predated her November 12, 2015 flu vaccination. Petitioner has
fourteen (14) days from the filing of this Ruling to file a status report indicating how she wishes
to proceed.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
17