Ojeda Colon v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-1065V

UNPUBLISHED

RAFAEL FRANCISCO OJEDA Chief Special Master Corcoran

COLON,

Filed: June 3, 2021

Petitioner,

v. Special Processing Unit (SPU);

Findings of Fact; Statutory Six Month

SECRETARY OF HEALTH AND Requirement; Influenza (Flu)

HUMAN SERVICES, Vaccine; Guillain-Barré Syndrome

(GBS)

Respondent.

Roberto E. Ruiz-Comas, RC Legal & Litigation Services PSC, San Juan, PR, for

Petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION1

On July 20, 2018, Rafael Francisco Ojeda Colon filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2

(the “Vaccine Act”). Petitioner alleges the Table claim that he developed Guillain-Barré

syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccine on October 17,

1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it

on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.

44 U.S.C. § 3501 note (2012) (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.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).

2013. Petition at 1.3 The case was assigned to the Special Processing Unit of the Office

of Special Masters.

Respondent’s Rule 4(c) Report, dated July 30, 2019 (ECF No. 46), disputed

Petitioner’s entitlement to a Vaccine Program award. Specifically, although Respondent

conceded that Petitioner has satisfied the criteria for a Table GBS injury, the medical

record did not preponderantly support the conclusion that Petitioner suffered the residual

effects of GBS for more than six months. Rule 4(c) Report at 8-11 (citing 11(c)(1)(D)(i)).

I ordered the parties to brief this issue, and they have done so. Petitioner’s Motion

in Compliance with Order and Petitioner’s Brief in Support of Severity, dated April 27,

2020 (ECF No. 55) (“Motion”) and Petitioner’s Motion for Findings of Facts and

Conclusions of Law Regarding Severity Argument, dated July 6, 2020 (ECF No. 58);

Respondent’s Response to Petitioner’s Motion in Compliance with Order and Brief in

Support of Severity Argument, dated June 26, 2020 (ECF No. 57) (“Response”) and

Respondent’s Response to Petitioner’s Motion in Compliance with Order and Brief in

Support of Severity Argument, dated July 20, 2020 (ECF No. 59).

For the reasons set forth below, I find that Petitioner has failed to satisfy the

severity requirement. Accordingly, his claim is DISMISSED.

I. Issue

At issue is whether Petitioner has met the Vaccine Act’s severity requirement by

showing that he continued to suffer the residual effects or complications of GBS for more

than six months.

II. Authority

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

3 Given the Vaccine Act’s three-year limitations period, the claim should have been filed by no later than

the fall of 2016 (three years from onset) – not July 2018 – and was thus facially untimely. Section 16(a)(2).

Arguably, the Act’s “lookback” provision (see Section 16(b)) saved the claim from untimeliness, because

(a) the Petition was filed within two years of the Table’s amendment in March 2017 to add flu-GBS as a

Table claim, and (b) the alleged injury began within eight years of amendment. I have, however, ruled that

only valid Table flu-GBS claims are saved by the lookback requirement. See Randolph v. Sec’y of Health

& Human Servs., No. 18-1231, 2020 WL 542735, at *8 (Fed. Cl. Spec. Mstr. January 2, 2020). Regardless,

all Vaccine Act claims must satisfy severity, and I am dismissing this claim on that basis (although it does

otherwise appear that the claim would be a viable Table claim but for severity).

2

11(c)(1)(D); Cloer v. Sec’y of Health & Human 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 & Human

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 & Human 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 & Human Servs., No. 14-

706V, 2018 WL 7017751, at *22–23 (Fed. Cl. Spec. Mstr. Dec. 17, 2018) (petitioner’s

post-vaccination GBS 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 & Human 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).

III. Findings of Fact

I make the following finding regarding severity after a complete review of the record

to include all medical records, affidavits, Respondent’s Rule 4 report, and briefing by the

parties. Specifically, I base my findings on the following evidence:

• Petitioner was administered a flu vaccine on October 17, 2013. Ex. 2 at 1; Ex.

9 at 1, 3. He was 70 years old at the time of vaccination. Ex. 1.

• On or about October 23, 2013, Petitioner traveled from Puerto Rico to Colombia

via aircraft. Petitioner avers that during the first leg of his trip, he began to

experience left leg numbness. He states that “I started dragging my left foot

and continued dragging it during the remainder of my [five] days of vacation.”

Ex. 7 at 1.

• Upon his return to Puerto Rico, on October 29, 2013, Petitioner presented to

Dr. Edgardo Colon Zavala at Centro Neurodiagnostico (“Centro”). Ex. 4 at 5-8.

The medical note reflects that Petitioner stated that he began to have trouble

walking during his flight to Colombia. Id. at 5. Petitioner reported that his

problems were greater on his left side and that he experienced mild numbness

and tingling in his left foot. Id. Petitioner also noted a two-day history of diarrhea

“after eating food in Columbia.” Id. Dr. Zavala diagnosed Petitioner with acute

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infective polyneuritis and recommended further evaluation for possible vaccine-

induced GBS. Id. at 7.

• Following his appointment at Centro, on October 29, 2013, Petitioner was

admitted to Hospital Español Auxilio Mutuo (“Auxilio”) for a chief complaint of

bilateral foot drop with numbness. Ex. 5 at 2. Petitioner reported that his

symptoms started five days earlier with difficulty walking and “tingling in soles.”

Id. at 4-5. He further stated that he had difficulty lifting his feet and “no diarrhea

prior to symptoms, only [two] days after symptoms.” Id. at 4. Petitioner was

diagnosed with GBS and, on October 31, 2013, was prescribed a five-day

course of Intravenous immunoglobulin (“IVIg”) therapy “to prevent progression

and avoid severe neuro[logical] damage/dysfunction.” Ex. 5 at 8, 14, 271.

• A neurology note dated November 4, 2013, reflects that Petitioner was “seen

and found [without] new def[icits].” Ex. 5 at 276; Ex. 11 at 13.4 He was expected

to complete IVIg therapy that day. Id.

• On November 5, 2013, it was noted that although Petitioner continued to have

distal leg weakness, his condition had not deteriorated. Ex. 5 at 279. It was also

noted that Petitioner had constipation and would be given “meds to stimulate.”

Id.

• Petitioner was discharged from Auxilio on November 6, 2013, with diagnoses

of GBS, polyradiculopathy, and diabetes mellitus. Ex. 5 at 333.

• Petitioner presented to Dr. Priscilla Mieses Llavat on November 7, 2013. Ex.

12 at 5.5 The medical note documenting this visit indicates that Petitioner

suffered from a decreased active range of motion of his distal lower extremities,

“left more than right.” Id. The medical note further indicates that Petitioner

experienced reduced strength in his left and right distal dorsilflexion and

plantarflexion. Id. Moreover, Petitioner exhibited decreased sensation in his

distal lower extremities. Id. He was assessed with GBS and left foot drop and

was instructed to attend physical therapy. Id.

• On November 19, 2013, Petitioner presented to his primary care physician, Dr.

Gabriel Hernandez Denton. Ex. 10 at 6.6 In addition to noting Petitioner’s

previous GBS diagnosis, Dr. Denton indicated that Petitioner suffered from

constipation and had experienced an episode of fecal impaction. Id.

4Records from Auxilio were originally filed as Exhibit 5. Because page 276 included notations in Spanish,

a fully translated version of this record was filed within Exhibit 11.

5 Dr. Llavat’s records were originally filed as Exhibit 6. Because they were found to be illegible, the

transcribed version of these records was filed as Exhibit 12.

6 Dr. Denton’s records were originally filed as Exhibit 3. Because certain pages within this exhibit were

found to be illegible, the transcribed pages were filed within Exhibit 10.

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• Petitioner presented to Dr. Llavat on November 22, 2013, December 24, 2013,

January 27, 2014 and February 11, 2014. Ex. 12 at 6-9. By Petitioner’s

February 2014 appointment, Dr. Llavat noted that Petitioner’s numbness had

abated and that he was “doing better.” Id. at 9. Petitioner was assessed with

GBS and left foot drop, and Dr. Llavat recommended that he participate in a

home exercise program. Id.

• Petitioner presented to Dr. Denton on April 24 and May 1, 2014. The records

documenting these visits reflect that Petitioner experienced “changes in his

[b]owel habits.” Ex. 10 at 6.

• Petitioner underwent a screening colonoscopy on May 9, 2014. Ex. 13 at 2.

Following this procedure, Petitioner was diagnosed with a colon polyp as well

as internal and external hemorrhoids. Id.

• Dr. Denton again examined Petitioner on July 22, 2014. Ex. 10 at 5. The

medical note documenting this appointment indicates that Petitioner was

diagnosed with chikungunya.7 Id.

• On September 2, 2014, Petitioner returned to Dr. Llavat with a complaint of

bilateral hand pain “that started [seven] weeks ago with viral infection. No

numbness.” Ex. 12 at 10. Dr. Llavat noted “[t]enderness and stiffness of

bilateral hands and right shoulder with decrease range of motion secondary to

pain.” Id. She further noted a mild decrease in the active range of motion of

Petitioner’s extremities. Id. Petitioner was assessed with bilateral hand and

shoulder stiffness and “viral infection.” Id. There was no mention of sequelae

of GBS at this visit.

• Petitioner presented to Dr. Denton on October 20, 2014. Ex. 10 at 5. The

medical note indicates that he was “S/P [status post]” GBS and chikungunya.

Id. Dr. Denton’s impression was type two diabetes. Id.

• Petitioner returned to Dr. Denton on December 16, 2014 for routine labs. Ex.

10 at 5. Although no specific findings were noted, a stool test was negative for

blood. Id.

• Witness affidavits were submitted by Mr. Vincente E. Rios and Mr. Eugenio

Perez Matos. Ex. 16 at 2-3. In them, Mr. Rios and Mr. Perez aver that they

witnessed Petitioner’s “left leg [give away] while walking” on December 30,

2014. Id.

• A medical note, dated January 12, 2015, indicates that Petitioner “fell in Spain

and hurt [his] right wrist and right knee.” Ex. 12 at 11. There is no mention of

sequelae of GBS at this visit.

7 According to the Centers of Disease Control and Prevention, chikungunya virus is spread to people by

the bite of an infected mosquito. The most common symptoms of infection are fever and joint pain. See

https://www.cdc.gov/chikungunya/index.html (last visited June 1, 2021).

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• Petitioner had an at-home medical appointment with Dr. Denton on July 13,

2015. Ex. 10 at 3. The medical note from this date indicates that Petitioner

suffered from multiple pelvic fractures due to a fall. Id.

• On August 5, 2015, Petitioner was examined by Dr. Llavat in his home. Ex. 12

at 12. The medical record reflects that he “fell from a horse on June 2015 and

sustained fractures of bilateral acetabulum and bilateral superior and inferior

pubic rami.” Id. Petitioner was unable to walk and exhibited “tenderness in right

hip area and pubic bones with decreased range of motion.” Id. He was

assessed with “right hip pain secondary to factures [and] muscle weakness.”

Id.

• Petitioner presented to Dr. Denton on December 18, 2017. Ex. 10 at 3. The

medical note reveals that, in addition to suffering from type two diabetes,

Petitioner also suffered from hypercholesterinemia. Id. There is no mention of

any other issues.

• Dr. Llavat drafted a letting indicating that Petitioner received physical therapy

six times in November 2013, twice in December 2013, and twice in June 2017.

Ex. 14. There are no corresponding notes that detail Petitioner’s condition at

the time of these visits, the reason for his attendance, or the exercises that he

performed on these dates.

• In his affidavit, Petitioner avers that he “spent almost a year recovering from a

severe foot drop for which I initially had to use crutches and then later on move

to ambulating with a cane.” Ex. 7 at 1. He further states that he suffered from

episodes of severe constipation “for about six months after the vaccination”

and, as of July 2018, continued to suffer from poor balance and falls. Id.

• A witness affidavit was submitted by Ms. Ada Diez de Ojeda, Petitioner’s wife.

Ex. 16 at 1. In it, she notes that her husband suffered from constipation in

November 2013 and that this was the first time she knew him to suffer from this

condition. Id. She further noted that, as of March 10, 2020, “[Petitioner] has

undergone several episodes of occasional constipation, the last one as recent

as . . . February 29, 2020.” Id.

• On October 1, 2019, almost six years after Petitioner was first diagnosed with

GBS, he presented to Dr. Jose Carlos for his “opinion and recommendations

regarding his sequelae of the GBS.” Ex. 15 at 2. Dr. Carlos found that

Petitioner’s “cranial nerve examination was normal except for droop in the left

nasolabial fold and mouth, which seems to date from GBS. He cannot whistle

since his GBS.” Id. at 2. Dr. Carlos further determined that Petitioner “[c]annot

walk tandem” and that “sensation to cold, vibration, and pin was reduced in a

stoking pattern below the calves, bilaterally, but more pronounced in the left

distal leg.” Id. at 3. Ultimately, Dr. Carlos concluded that the sequela of

Petitioner’s GBS included “distal leg weakness, facial weakness . . . and distal,

asymmetrical, sensory deficit . . . in the legs.” Id. at 3. Although an exercise

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program was discussed, Dr. Carlos opined that Petitioner’s deficits were “most

probably” permanent “given the time since his GBS.” Id.

Based upon a review of the entire record, I find that Petitioner has failed to

establish that he suffered the residual effects of GBS for more than six months.

In this case, because Petitioner received the flu vaccine on October 17, 2013, and

claims an onset in mid-to-late October 2013, he must demonstrate that his injuries

continued through at least mid-to-late April 2014.8 However, the medical records reflect

that Petitioner was last assessed with GBS sequelae on February 11, 2014 –

approximately four months from onset. Ex. 12 at 9. And there are no records thereafter

that document specific treatment or care associated with the GBS that Petitioner

unquestionably experienced in the fall of 2013.

To support his severity contention, Petitioner argues that the constipation he

experienced in the months and years following his November 2013 GBS diagnosis should

be considered. See Motion at 3. But the medical records relevant to these symptoms

largely indicate only that he experienced changes in his “bowel habits,”9 and was later

diagnosed with a colon polyp and hemorrhoids in the spring of 2014 – not that these

symptoms were thought to be GBS sequelae. Ex. 10 at 6; Ex. 13 at 2. Indeed, although

Petitioner was constipated when he was hospitalized for GBS in early November 2013,

and subsequently suffered from an episode of fecal impaction, it was not until April 24,

2014 – more than five months later – that his gastrointestinal issues were again even

mentioned in the medical records, and no association was drawn with his prior GBS

diagnosis. Ex. 5 at 279; Ex. 10 at 6. This gap is especially notable, because despite

Petitioner’s claim that he continued to suffer from severe constipation in the months

following his GBS diagnosis, this condition was not mentioned in the medical notes

documenting his appointments with Dr. Llavat (the physician primarily responsible for the

management of Petitioner’s care in the months following his GBS diagnosis). Further,

there is no evidence that Petitioner’s primary care physician made an association

between Petitioner’s gastrointestinal complaints and GBS.

8

Some special masters have read Section 11(c)(1)(D) as requiring a Vaccine Program petitioner to

experience his claimed injury or residual effects thereof later than six months after the date of vaccination,

rather than the date of injury onset. See, e.g., Uetz v. Sec’y of Health & Human Servs., No. 14-29V, 2014

WL 7139803, at *3 (Fed. Cl. Spec. Mstr. Nov. 21, 2014). Whether the six-month requirement runs from the

date of vaccination or date of onset is not dispositive to my resolution of this matter, however, and my

analysis would be the same whether I measure the six-month period from the date of vaccination or date

of onset (although I deem the latter to be the more equitable start date for measuring severity).

9 Petitioner acknowledges that neither he, his wife, nor his primary care physician “can be 100[%] certain

that the ‘change in bowel habits’ notes meant constipation.” Motion at 4. Whether this change refers to

constipation or some other gastrointestinal issue is not dispositive to my resolution of this matter.

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Petitioner’s witness affidavits (from both himself as well as his wife) also attempt

to corroborate severity beyond April 2014. Ex. 16 at 1 (stating that her husband’s

hospitalization “was the first time I saw him suffering from constipation” and that “he has

undergone several episodes of constipation”); Ex. 7 at 1 (stating that “[f]or about six

months after vaccination, I also suffered from episodes of severe constipation”). 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 record evidence. See, e.g., Uetz v. Sec’y of

Health & Human 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 & Human 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, these witness averments have to be weighed against the medical record

evidence. That record establishes (a) no specific GBS treatment after February 2014, (b)

no mention of GBS sequelae thereafter either, but (c) ample evidence for the three to

four-year period after substantiating treatment for many other conditions and illnesses,

some of which might better explain Petitioner’s GI distress. It is reasonable from review

of all such evidence in toto to conclude that Petitioner would have sought treatment or

intervention if he had continued to suffer sequelae for his GBS, and/or that his treaters

would have mentioned it – and the fact that the records are silent on these matters has

more evidentiary significance than Petitioner’s after-the-fact assertions of ongoing

symptoms. This is not a case where a claimant offers evidence to fill in holes or to provide

detail missing from a record. Rather, the record itself tells the story that the subsequent

witness statements seek to supplant.

Petitioner also argues that as a result of his GBS, he suffered a loss of balance

caused by issues with his left foot “beyond the six-month threshold.” Motion at 5.

Petitioner claims that this led to falls, and that he “spent almost [one] year recovering from

severe foot drop for which I initially had to use crutches and then later on move to

ambulating with a cane.” Ex. 7 at 1. However, the last mention of any issues with

Petitioner’s left foot drop is a medical record from February 11, 2014 – again, only around

four months after onset. Ex. 12 at 9. There are no records indicating that Petitioner

subsequently experienced difficulty walking until the summer of 2015 – and this occurred

following his tumble from a horse. Exs. 10 at 3; 12 at 12. And although Petitioner was

provided with the opportunity to secure other evidence documenting his use of ambulatory

devices for the relevant timeframe, he failed to do so. See Order, ECF No. 48.

8

There is little doubt that Petitioner did fall at least once in late 2014 or early 2015.

This is corroborated by three witness affidavits as well as a January 12, 2015 medical

note reflecting that Petitioner “fell in Spain and hurt [his] right wrist and right knee.” Ex. 12

at 11. See also Ex. 16 at 2-3. However, this medical note does not attribute Petitioner’s

fall to left foot drop, or to any other condition that may be related to GBS.

In a further attempt to fortify his argument that the statutory severity requirement

has been met, Petitioner offers a letter from Dr. Jose Carlo, a neurologist who examined

Petitioner approximately six years after his flu vaccination. Ex. 15. Although Dr. Carlo

physically examined Petitioner and identified certain medical deficiencies, he failed to

provide any corroboration (in the form of contemporaneous record evidence) for his

statements about why these deficiencies should be attributed to Petitioner’s previous

GBS diagnosis.

For example, Dr. Carlo determined that Petitioner’s cranial nerve examination was

“normal except for droop in the left nasolabial fold and mouth, which seems to date from

his GBS.” Ex. 15 at 2. However, as noted by Respondent, “Dr. Carlo failed to cite any

record documenting an abnormal cranial nerve examination during Petitioner’s evaluation

and treatment for GBS.” Response at 3. Indeed, a review of Petitioner’s

contemporaneous medical records reveals that physicians determined that his cranial

nerves were “intact.” Ex. 5 at 271, 276;10 Ex. 11 at 13.11 Moreover, there is nothing in

Petitioner’s medical records that document any signs or complaints of facial weakness

any time prior. Therefore, Dr. Carlo’s attribution of Petitioner’s facial droop to GBS lacks

persuasive evidentiary support.

Dr. Carlo also opined that Petitioner had “distal leg weakness . . . and distal,

asymmetrical, sensory deficit” in his legs that were sequela of GBS. Ex. 15 at 3. However,

Dr. Carlo again failed to provide any corroboration for this claim. Despite acknowledging

that Petitioner sustained pelvic fractures after falling from a horse in July 2015, he neither

explores whether this intervening incident may have caused Petitioner’s symptoms, nor

does he offer an explanation of how his conclusion was reached. Expert opinions based

on unsupported facts may be given relatively little weight. See Dobrydnev v. Sec’y of

Health & Human Servs., 556 F. Appx. 976, 992-93 (Fed. Cir. 2014) (“[a] doctor’s

conclusion is only as good as the facts upon which it is based”) (citing Brooke Group Ltd.

v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (finding that when an

10An October 30, 2013 neurology note also appears to indicate that Petitioner did not exhibit cranial nerve

deficits, although the handwriting on this record is unclear. See Ex. 5 at 267.

11

Records from Auxilio were originally filed as Exhibit 5. Because page 276 included notations in Spanish,

a fully translated version of this record was filed within Exhibit 11.

9

expert assumes facts that are not supported by a preponderance of the evidence, a finder

of fact may properly reject the expert’s opinion)). See also Gerami v. Sec’y of Health &

Human Servs., No. 12-442V, 2013 WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013)

mot. for review denied, 127 Fed. Cl. 299 (2014) (finding unpersuasive a letter from a

treating physician containing conclusory statements about petitioner’s symptoms lasting

beyond six months when letter lacked citation to medical records).

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

& Human 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. See Prepejchal

v. Sec’y of Health & Human Servs., No. 15-1302V, 2018 WL 5782865, at *15-16 (Fed. Cl.

Spec. Mstr. Oct. 5, 2018) mot. for review denied, 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 witness statements some weight, I cannot find that severity is met.

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/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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