Davis v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: July 23, 2021

* * * * * * * * * * * * * PUBLISHED

MARK V. DAVIS, *

* No. 16-276V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Entitlement; Table Injury; Tetanus-

AND HUMAN SERVICES, * Diphtheria (Td); Brachial Neuritis;

* Parsonage-Turner syndrome (PTS);

* Neuralgic Amyotrophy.

Respondent. *

* * * * * * * * * * * * *

Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Julia M. Collison, United States Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT1

On September 20, 2013, Mark V. Davis, D.M.D. (“petitioner”) received a tetanus-

diphtheria (“Td”) vaccination in his right arm. Twelve days later, on October 2, 2013, petitioner

developed acute and persistent aching pain in his dominant right hand and arm, accompanied by

the loss of motor function in his right hand, most notably the ability to extend his thumb.

Petitioner consulted numerous local providers, who emphasized his preexisting cervical

radiculopathy and newly diagnosed carpal tunnel syndrome. Petitioner also suffered a

myocardial infarction in January 2014. Eventually on November 10, 2015, petitioner obtained

the medical consultation of Joseph Feinberg, M.D., a physiatrist who specializes in the diagnosis

and treatment of the brachial plexus and peripheral nerve disorders. Dr. Feinberg provided an

additional diagnosis of brachial neuritis.

1

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a

reasoned explanation for the action in this case, I am required 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. This means the

decision will be available to anyone with access to the Internet. Before the decision 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

decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the

court’s website without any changes. Id.

On February 26, 2016, petitioner filed a claim in the National Vaccine Injury

Compensation Program,2 in which petitioner alleged that he developed brachial neuritis3 as listed

on the effective Vaccine Injury Table. Petition (ECF No. 1).4 He subsequently retained Dr.

Feinberg as a supportive expert. Respondent and his expert neurologist Vinay Chaudhry, M.D.,

contended that Dr. Feinberg’s diagnosis of brachial neuritis was inconsistent with the effective

Table’s definition of brachial neuritis and that petitioner’s injury could be explained by cervical

radiculopathy and carpal tunnel syndrome. Upon full consideration of the evidence and for the

reasons provided below, I conclude that petitioner has established entitlement to compensation

for a Table brachial neuritis injury lasting for more than six months. However, this injury does

not encompass his comorbid cervical radiculopathy, carpal tunnel syndrome, and cardiac

conditions.5

I. Procedural History

As stated above, petitioner initiated this claim in February 2016. Petition (ECF No. 1)

accompanied by Petitioner’s Exhibits (“Pet. Exs.”) 1-29. It was assigned to my docket. After an

initial status conference, respondent declined to discuss potential settlement. Respondent’s

(“Resp.”) Status Report (ECF No. 10). Petitioner then filed Dr. Feinberg’s initial expert report.

Pet. Ex. 30 (ECF No. 11).

Respondent then requested a finding of fact regarding onset. Resp. Motion (“Mot.”)

(ECF No. 12). Respondent averred that “the contemporaneous treatment records placed the

onset of petitioner’s symptoms on or about November 20, 2013.” Id. Petitioner responded that

the affidavits of multiple fact witnesses placed the onset of his symptoms on October 2, 2013,

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.

3

The Vaccine Injury Table creates a presumption of causation for “brachial neuritis” if onset occurs within 2 – 28

days after receipt of a vaccine containing tetanus toxoid (but no such similar presumption for seasonal flu vaccine,

as implicated in this case. See 82 Fed. Reg. 6294 (Jan. 19, 2017); 42 C.F.R. §§ 100.3(a), (c)(6). These terms as well

as Parsonage-Turner syndrome, (“PTS”) and neuralgic amyotrophy (“NA”) are all used to describe the same set of

symptoms. See, e.g., Grow v. Sec’y of Health & Human Servs., No. 16-13V, 2020 WL 7366332, at n. 3 (Fed. Cl.

Spec. Mstr. Nov. 24, 2020); Greene v. Sec’y of Health & Human Servs., No. 11-631V, 2015 WL 9056034 at n.9

(Fed. Cl. Spec. Mstr. July 31, 2015); Devonshire v. Sec’y of Health & Human Servs., No. 99-31V, 2006 WL

2970418, at *1 (Fed. Cl. Spec. Mstr. Sept. 28, 2006)). However, the most recent medical literature filed in this case

indicates that neuralgic amyotrophy is “the most common term in the literature and also neutral with respect to the

extent and localization of nerve involvement.” Van Alfen (2016) [Pet. Ex. 35] (full citation provided infra at n. 36)

at 1. This opinion refers most consistently to brachial neuritis because that conforms to the finding of a Table

injury.

4

Petitioner alleged that in the event his injury does not meet the Table definition, then it was caused-in-fact by the

Td vaccination. Petition at Preamble, ¶ 26. Petitioner also reserved the right to submit additional evidence to make

out the causation-in-fact claim. Pet. Post-Hearing Brief (ECF No. at 101) at 28; Pet. Post-Hearing Reply (ECF No.

109) at 18-19.

5

Pursuant to Section 13(a)(1), in order to reach my decision, I have considered the entire record, including all of the

medical records, expert testimony, and literature submitted by the parties. This opinion discusses the elements of the

record I found most relevant to the outcome.

2

while treating a specific dental patient. Pet. Response (ECF No. 15) at 1-2. During a status

conference, the parties agreed that onset could be resolved based on the written record without

need for a hearing. I concluded, consistent with petitioner’s position, that onset was on or about

October 2, 2013. See Findings of Fact filed October 7, 2016 (ECF No. 16). I ordered the parties

and any experts retained in the case to accept the findings of fact in rendering their opinions. Id.

at 8.6 Petitioner subsequently filed his dental practice’s contemporaneous records for the patient

in question. Pet. Ex. 36 (ECF No. 17).

On January 30, 2017, respondent filed his report pursuant to Vaccine Rule 4(c), in which

he recommended against compensation for a Table tetanus/brachial neuritis injury. Resp. Report

(“Rep’t”) (ECF No. 23). Respondent also filed Dr. Chaudhry’s initial expert report. Resp. Ex. A

(ECF No. 23); see also Pet. Ex. 37 (Dr. Feinberg’s second report) (ECF No. 26); Resp. Ex. C

(Dr. Chaudhry’s second report) (ECF No. 29).

Following another status conference, see Order filed May 3, 2017 (ECF No. 30),

petitioner filed the images from his two cervical spine MRIs (ECF Nos. 35, 39). Petitioner filed

Dr. Feinberg’s third report as Pet. Ex. 40 (ECF No. 42). Respondent filed Dr. Chaudhry’s third

report as Resp. Ex. E (ECF No. 49). Respondent also retained a radiologist, David M. Yousem,

M.D., to review and interpret the MRI images. See Resp. Ex. F (ECF No. 49).

I recommended that the parties explore a litigative risk settlement. See Order filed May

10, 2018 (ECF No. 50). Petitioner conveyed a demand, but the parties did not continue

settlement discussions. See Pet. Status Report (ECF No. 51); Resp. Status Report (ECF No. 52).

The parties filed pre-hearing briefs (ECF Nos. 57, 60). Additionally at my suggestion,

respondent filed visual representations of the nerves and anatomy involved in this case as Resp.

Exs. H-I (ECF Nos. 61-62). Petitioner also retained a radiologist, Darryl B. Sneag, M.D., to

review and interpret the MRI images. See Pet. Ex. 47 (ECF No. 65).

An entitlement hearing took place in New York, New York on January 17 – 18, 2019.

Petitioner presented expert testimony from Dr. Feinberg and respondent presented expert

testimony from Dr. Chaudhry. Petitioner also offered fact testimony about his injury. See

Transcript (“Tr.”) (ECF Nos. 73-74). Petitioner also filed exhibits presented at the hearing

(“Hearing Exs.”) 1 – 7 (ECF No. 71). I recommended that the parties revisit settlement

discussions and I identified questions for post-hearing briefing. Scheduling Order filed March

21, 2019 (ECF No. 77). Petitioner filed his workers’ compensation file as Pet. Ex. 48 (ECF No.

78) and Dr. Feinberg’s fourth report as Pet. Ex. 49 (ECF No. 86). Respondent filed Dr.

Chaudhry’s fourth report as Resp. Ex. J (ECF No. 89). An outside mediation was unsuccessful.

See Joint Status Report (No. 90).

Petitioner filed Dr. Feinberg’s fifth report as Pet. Ex. 50 on May 14, 2020 (ECF No. 96)

and his post-hearing brief on September 8, 2020 (ECF No. 101). Respondent filed a response on

November 10, 2020 (ECF No. 103). Petitioner filed a reply on February 3, 2021 (ECF No. 109)

6

The findings of fact are fully incorporated and clarified herein.

3

as well as Dr. Feinberg’s updated curriculum vitae (“CV”) as Pet. Ex. 51 (ECF No. 110) the next

day. This matter is ripe for adjudication.

II. Legal Standard7

The Vaccine Act was established to compensate vaccine-related injuries and deaths. §

10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system as

a simple, fair and expeditious means for compensating vaccine-related injured persons. The

Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty

and generosity.’” Rooks v. Sec’y of Health & Human Servs., 35 Fed. Cl. 1, 7 (1996) (quoting

H.R. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344).

A petitioner bears the burden of establishing his or her entitlement to compensation from

the Vaccine Program. The burden of proof is by a preponderance of the evidence. § 13(a)(1).

A. Findings of Fact

A special master must consider, 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). “Medical records,

in general, warrant consideration as trustworthy evidence. 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.” Curcuras v. Sec’y of Health & Human

Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

Accordingly, where medical records are clear, consistent, and complete, they should be

afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005

WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always

apply. In Lowrie, the special master wrote that “written records which are, themselves,

inconsistent, should be accorded less deference than those which are internally consistent.”

Lowrie, at *19.

The United States Court of Federal Claims has recognized that “medical records may be

incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391

(1998). The Court later outlined four possible explanations for inconsistencies between

contemporaneously created medical records and later testimony: (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

7

Decisions of special masters and the U.S. Court of Federal Claims (some of which are referenced in this ruling)

constitute persuasive but not binding authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630

(1998). By contrast, Federal Circuit rulings concerning legal issues are binding on special masters. Guillory v. Sec’y

of Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d, 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner

v. Sec’y of Health & Human Servs., No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).

4

recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Human Servs., 110

Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

The Court has also said that medical records may be outweighed by testimony that is

given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391

(citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed.

Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such testimony must

also be determined. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir.

2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

The special master is obligated to fully consider and compare the medical records,

testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110

Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Human

Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion

to determine whether to afford greater weight to medical records or to other evidence, such as

oral testimony surrounding the events in question that was given at a later date, provided that

such determination is rational).

B. Nature of Injury

Special masters are generally not tasked with diagnosing injuries. In Lombardi, the

Federal Circuit explained: “The function of a special master is not to ‘diagnose’ vaccine-related

injuries, but instead to determine ‘based on the record evidence as a whole and the totality of the

case, whether it has been shown by a preponderance of the evidence that a vaccine caused the

petitioner’s injury.’” Lombardi, 656 F.3d at 1343, citing Andreu v. Sec’y of Health & Human

Servs., 569 F.3d 1367, 1382 (Fed. Cir. 2009).

However, the Federal Circuit has determined that in certain instances, “if there is a

dispute as to the nature of a petitioner’s injury, the special master may opine on the nature of the

petitioner’s injury.” Contreras v. Sec’y of Health & Human Servs., 844 F.3d 1363, 1368 (Fed.

Cir. 2017), citing Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355 (Fed. Cir. 2012);

see also Locane v. Sec’y of Health & Human Servs., 686 F.3d 1375 (Fed. Cir. 2012);

Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339 (Fed. Cir. 2010)).

C. Causation

A petitioner may prevail by proving either that (1) the vaccinee suffered an injury listed

on the Vaccine Injury Table with onset beginning within a corresponding time period following

receipt of a corresponding vaccine (a “Table Injury”), for which causation is presumed or that (2)

the vaccinee suffered an injury that was actually caused by a vaccine. Under either method,

however, the petitioner must also show that the vaccinee “suffered the residual effects or

complications of the illness, disability, injury, or condition for more than six months after the

administration of the vaccine.” Section 11(c)(1)(D)(i). Here, petitioner alleges a Table brachial

neuritis injury, for which the criteria are set forth and applied below in section VII.

5

A petitioner often presents expert testimony in support of his or her claim. Lampe v.

Sec’y of Health & Human Servs., 219 F.3d 1357, 1361 (Fed. Cir. 2000). Expert testimony in the

Vaccine Program is usually evaluated according to the factors set forth in Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 594-96 (1993); see also Cedillo, 617 F.3d at 1339 (citing

Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999). A special

master may use the Daubert framework to evaluate the reliability of expert testimony, but expert

testimony need not meet each Daubert factor to be reliable. Boatmon v. Sec’y of Health &

Human Servs., 941 F.3d 1351 (Fed. Cir. 2019). The Daubert factors are “meant to be helpful,

not definitive,” and all factors “‘do not…necessarily apply even in every instance in which the

reliability of scientific testimony is challenged.’” Boatmon, 941 F. 3d at 1359 (citing Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L.Ed.2d 238 (1999). Thus, for

Vaccine Act claims, a “special master is entitled to require some indicia of reliability to support

the assertion of the expert witness.” Moberly at 1324. Where both sides offer expert testimony,

a special master’s decision may be “based on the credibility of the experts and the relative

persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health & Human Servs.,

219 F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe, 219 F.3d 1357 at 1362).

If the petitioner makes a prima facie case supporting vaccine causation-in-fact, the

burden shifts to respondent to show by a preponderance of the evidence that the injury is instead

due to factors unrelated to the administration of the vaccine. Deribeaux v. Sec’y of Health &

Human Servs., 717 F.3d 1363, 1367 (Fed. Cir. 2013) (citing § 13(a)(1)(B)). Respondent has the

burden of demonstrating that: “[A] factor unrelated to the vaccination is the more likely or

principal cause of injury alleged. Such a showing establishes that the factor unrelated, not the

vaccination, was ‘principally responsible’ for the injury. If the evidence or alternative cause is

seen in equipoise, then the government has failed in its burden of persuasion and compensation

must be awarded.” Knudsen, 35 F.3d at 551.

III. Summary of Relevant Facts

A. Introduction

Petitioner was born in 1942. He graduated from the University of Kentucky College of

Dentistry in 1967. His first day of dental practice was October 2, 1968. Over the course of his

career, petitioner came to specialize in dental implants and advanced restorative dentistry. He

managed his own dental practice in Clearwater, Florida. See generally Petition; Pet. Exs. 18, 29.

Petitioner testified that in 2006, he spent approximately one million dollars on improvements to

the dental practice. Tr. 452. He planned to “work forever.” Tr. 450-52 (citing his family’s

considerable longevity and his knowledge that other implant dentists tend to work well into their

eighties).

B. January 20, 2009, Cervical Spine MRI

The MRI was apparently performed at Morton Plant Hospital (“MPH”) in Clearwater,

Florida. Pet. Ex. 27 at 28. The clinical indication was “neck pain primarily left-sided.” Id. The

local radiologist recorded that interspaces C3-4, C4-5, C5-6, and C6-7 showed moderate to

6

advanced degenerative spondylosis.8 Id. Additionally, the right side of C5-6 and the left side of

C6-7 showed mild foraminal narrowing.9 Id.

C. Other Medical Records Predating the September 20, 2013, Td Vaccination

Petitioner filed records from his primary care provider Thomas E. Austin, M.D. in

Clearwater, Florida beginning in 2011. Those records reflect that petitioner had hypertension,10

hyperlipidemia,11 and obstructive sleep apnea.12 He also had chronic pain in his neck. In one

June 2011 record, the review of systems was positive for “joint pain in shoulders and neck” but

the physical exam did not have any positive findings. Pet. Ex. 1 at 29-30. There is no other

evidence that petitioner’s chronic pain extended to his chest, shoulders, arms, or hands. See

generally Pet. Ex. 1 at 1-29. Petitioner’s medication list included Tramadol 50 mg to take every

six hours for pain. Id. but see Tr. 459-61 (petitioner’s testimony that he “might take a Tramadol

once or twice a week, if [he was] uncomfortable from work”). In March 2013, he reported that

taking non-steroidal anti-inflammatory drugs (“NSAIDs”) increased his blood pressure. Pet. Ex.

1 at 19. In May 2013, he reported that his neck pain was “doing OK” but he had “off and on

sciatica.”13 Id. at 17. Dr. Austin referred petitioner, based on his complaint of sciatic discomfort

and sore back, for a series of ten physical therapy appointments which took place in the summer

of 2013. See Pet. Ex. 28 at 1.

On September 20, 2013, just before his seventy-first birthday, petitioner saw Dr. Austin

for an annual exam. Pet. Ex. 1 at 13. Petitioner reported that he was “doing well.” Id. The

review of systems was positive for chronic neck pain and some lower back pain but was negative

for joint swelling, morning stiffness, or motor or sensory losses. Id. Dr. Austin did not record

any complaints or any findings relating to petitioner’s right arm or hand. There is no record of

8

Cervical spondylosis is defined as a “degenerative joint disease affecting the cervical vertebrae, intervertebral

disks, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating along the

upper limbs as a result of pressure on the nerve roots.” Dorland’s.

9

Neural is “pertaining to a nerve or to the nerves.” Foramina is the plural of foramen, which is defined as “a natural

opening or passage, especially one into or through a bone.” Stenosis is “an abnormal narrowing of a duct or canal.”

Dorland’s.

10

Hypertension is “high arterial blood pressure; various criteria for its threshold have been suggested, ranging from

140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic.”

Dorland’s.

Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma.”

11

Dorland’s.

12

Sleep apnea is “transient periods of cessation of breathing during sleep. It may result in hypoxemia and

vasoconstriction of pulmonary arterioles, producing pulmonary arterial hypertension.” The obstructive type

“result[s] from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM

sleep”, which among adults “is seen primarily in middle-aged obese individuals, with a male predominance].”

Dorland’s.

13

Sciatica is “a syndrome characterized by pain radiating from the back into the buttock and along the posterior or

lateral aspect of the lower limb; it is most often caused by protrusion of a low lumbar intervertebral disk. The term is

also used to refer to pain anywhere along the course of the sciatic nerve.” Dorland’s.

7

his range of motion, reflexes, strength, or sensation. Id. at 14. At this encounter, petitioner

received a Td vaccination in his right deltoid. Id.

D. Medical Records from November 22, 2013, Hospital Encounter

The first medical encounter was sixty-three (63) days post-vaccination, on November 22,

2013 at approximately 3:30 a.m., when petitioner presented to the MPH emergency room. Pet.

Ex. 19 at 11. He had a past history of sleep apnea, cervical disc disease, and hyperlipidemia. Id.

at 9. His chief complaint was: “right-sided chest pain with high b/p [blood pressure] [and] right

hand numbness. Has been going on for day and half.” Id. at 10.

“Immediately upon [petitioner’s] arrival” at 3:34 a.m., he was seen by Joshua Kaplan,

D.O. Pet. Ex. 19 at 15. Petitioner reported his history of cervical radiculopathy, but that the

current pain “felt different and he was concerned for his heart.” Id. Dr. Kaplan felt that

petitioner was “very knowledgeable” but incorrectly described him as a “retired dentist.” Id.14

Dr. Kaplan did not record any abnormal findings whatsoever on the review of systems or on

physical examination. Id. at 15-16. Dr. Kaplan suspected cervical radiculopathy but admitted

petitioner for “a cardiac rule out.” Id. at 16-17. His chest pain subsided and further testing was

unremarkable. See id. at 21-22. Afterwards, the primary care provider Dr. Austin evaluated

petitioner. Id. at 1-2. Although Dr. Austin’s record contains a physical examination section this

was a telemetry15 encounter and there is no indication that any other medical professional was

physically present to facilitate a physical examination. Id. at 1-2. Dr. Austin believed that the

acute chest pain was attributable to radiculopathy and he planned an “MRI of his neck.” Id. at 2.

Afterwards, a cardiology nurse practitioner evaluated petitioner for the “atypical” right-sided

chest pain as well as right arm numbness; she “suspect[ed] cervical radiculopathy – doubt[ed]

cardiac.” Id. at 3,6. She noted that the pain and the resulting increased NSAID use were

“possibly” contributing to his poorly controlled hypertension. Id. Petitioner was discharged that

same day without a comprehensive diagnosis. Id. at 13.

At a December 2, 2013 appointment (in person), Dr. Austin recorded that petitioner was

“experiencing worsening sx’s [symptoms] of weakness, numbness, loss of R hand grip in RUE

[right upper extremity], he’s expressing concerns of being able to safely perform his dental

duties because of this.” Pet. Ex. 1 at 2. Petitioner was already taking NSAIDs and tramadol for

pain. Id. Dr. Austin recorded that on physical exam: “motor function normal, he is able to move

hand fingers ok today,” but he did not address sensation, strength, or muscle tone. Id. Dr.

Austin’s assessment was “brachial neuritis or radiculitis nos [not otherwise specified]” and he

ordered a cervical spine MRI. Id.

14

Petitioner established that in fall 2013, he was working full-time and had recently made renovations to his dental

practice.

15

Telemetry is “the making of measurements at a distance from the subject, with measurable evidence of the

phenomena under investigation being transmitted by radio signals, wires, or other means.” Dorland’s. In this

context, it suggests that Dr. Austin was not at the hospital in person, rather, he provided a telehealth or telemedicine

appointment: “consisting of provision of consultant services by off-site health care professionals to those on the

scene; diagnosis and treatment can be done at a great distance through methods such as the videoconference or rapid

transmission of digital files.” Dorland’s.

8

E. December 4, 2013, Cervical Spine MRI

The local radiologist recorded that: “Compared with 1/20/09, there has been progression

of central stenosis at [interspace] C5-6.” Pet. Ex. 27 at 27. C4-5 and C5-6 also showed

moderate central stenosis. Id. C3-4, C4-5, C5-6, and C6-7 also showed moderate to severe

chronic foraminal narrowing. Id. Finally, C7-T1 showed disc bulging and subtle annular

tearing, id., however, the treating providers and the experts did not assign any significance to this

finding, see, e.g., Resp. Ex. F at 1; Pet. Ex. 47 at 1; Tr. 301-02.

F. Subsequent Medical Records

On December 6, 2013, petitioner presented to Michael Hadley, D.O.16 at Non-Surgical

Orthopedics in Palm Harbor, Florida. Pet. Ex. 6 at 1. Dr. Hadley recorded petitioner’s history of

neck and back pain for over 30 years, which had been controlled with osteopathic manipulation

and over-the-counter medication. Id. He had neck pain in the C4 through C6 areas, which

varied in intensity from 2 or 3/10 to 7/10 and was aggravated by certain postures. Id. He also

had intercostal pain in the right ribs. Id. Petitioner reported that two weeks ago, he had the onset

of numbness and weakness in his hands and right ulnar17 forearm. Id. He was also experiencing

“severely bothersome” pain characterized as “burning” and “needles.” Id.

On physical exam, Dr. Hadley observed normal strength except for 4/5 pincer grasp on

right and left, right wrist flexion, and right shoulder abduction. Id. Bilateral biceps and left

triceps reflex were at 2/4, but the right triceps reflex was entirely absent. Id. Petitioner also

reported that “a position of his neck which reproduces a Spurling’s test18… increases finger

numbness, specifically his middle finger on the right side.” Id. However, when Dr. Hadley

actually performed the Spurling’s test, it was negative. Id. Examination of the cervical spine did

not find any additional tenderness, asymmetry, tissue texture changes, or abnormal range of

motion. Id. Dr. Hadley assessed petitioner with cervical radiculopathy as well as right upper

extremity weakness. Id. at 2. Dr. Hadley believed that petitioner’s “symptoms were caused by

[petitioner’s] profession and his positioning that is required for his job” and recommended seeing

another orthopedist for further evaluation. Id.

16

Dr. Hadley’s father is Mr. Ron Hadley, who submitted an affidavit in this case averring that he was a dental

patient of petitioner “for many years going back to the early seventies.” Pet. Ex. 29 at 16. Mr. Hadley’s

“landscaping company provided landscape design and completed the landscape for [petitioner’s] first dental office.”

Id. Mr. Hadley had considerable dental issues and also attended regular cleanings every three months to avoid

infection, which were motivated by his remission from a rare leukemia. Id. During an October 2013 appointment,

they discussed their health and petitioner confessed that he was having trouble with his hand and arm. Id. Mr.

Hadley encouraged petitioner to see his son Dr. Hadley “immediately,” but at another appointment in November

2013, petitioner said that he “was going as soon as he could get some time.” Id.

17

The ulna is “the medial long bone of the forearm, on the side opposite that of the thumb.” Dorland’s.

18

A Spurling test is an assessment for cervical radiculopathy, during which: “The examiner presses down on the top

of the head while the patient rotates the head laterally and into hyperextension; pain radiating into the upper limb

ipsilateral [on the same side] to a rotation position of the head indicates radiculopathy.” Dorland’s.

9

During a December 13, 2013, follow-up appointment, Dr. Hadley performed osteopathic

manipulation and traction, which improved petitioner’s feeling of tightness in the ribs and chest

area. Pet. Ex. 6 at 3-4. Petitioner reported continuing right arm weakness as well as burning

pain which disrupted his sleep and was not alleviated by two Medrol dose packs. Id. Dr. Hadley

referred to the “significantly worsened” cervical spine MRI and recorded that if petitioner

continued to do dentistry in certain positions required for his job, that his symptoms would

continue to worsen. Id. Dr. Hadley referred petitioner to an orthopedic surgeon, Dr. Davidson

(discussed below) and to physical therapy. Id.

Also on December 13, 2013, Dr. Austin recorded that petitioner had ongoing pain in his

right neck and upper arm, which disrupted his sleep. Pet. Ex. 1 at 10. He was “also now getting

numbness and weakness in the first three fingers on his right hand.” Id. Dr. Austin observed

that petitioner could not flex his right thumb and in addition, the right thumb and second finger

grasp were weakened. Id. Petitioner’s hand symptoms were affecting his ability to work as a

dentist, as he held his tools in the right hand. Id. Trying to work exacerbated the problem,

causing severe pain and weakness down his right arm. Id. Petitioner reported that the repeat

cervical spine MRI showed severe spinal stenosis at C5-6, and that he planned to go on disability

and consult a neurosurgeon. Id. Dr. Austin maintained his earlier assessment of brachial neuritis

but added cervical stenosis. Id. at 10-11.

On December 19, 2013, petitioner presented to J. Byron Davidson, M.D. at Orthopaedic

Specialties of Tampa Bay. Pet. Ex. 21 at 1. Dr. Davidson recorded that petitioner had a long

history of neck pain associated with his job, but that in November,19 “ was the first time he woke

up with right arm numbness and pain… so he went to MPH ER to get checked out.” Id.

Petitioner “ha[d] taken three Medrol DP [dose packs] without any change.” Pet. Ex. 21 at 1. His

symptoms were aggravated with extension of the right arm and body rotation. Id. Physical

examination found decreased sensation in the right radial forearm, thumb, and index finger in a

C6 nerve root distribution; absent triceps reflex; and a positive Spurling’s test. Id. at 2-3. Based

on these findings and his review of the cervical spine MRI, Dr. Davidson concluded that

petitioner’s profession had led to this radiculopathy and right hand weakness. Id. Dr. Davidson

had petitioner undergo an epidural steroid injection at approximately the C6-7 nerve root. Id.;

see also Pet. Ex. 24 at 1 (procedure note); Pet. Ex. 22 at 3, 10, 13 (petitioner’s physical therapy

intake forms confirming his receipt of the steroid injection). Dr. Davidson recommended that

petitioner follow up in four to six weeks, but he never returned. Pet. Ex. 21 at 1.

On December 20, 2013, petitioner presented to Jose L. Gallastegui, M.D., at Clearwater

Cardiovascular Consultants. Pet. Ex. 13 at 33-35. Dr. Gallastegui recorded that petitioner had

inadequately controlled hypertension and hyperlipidemia, but that his November 22, 2013

episode of chest pain and ongoing right arm symptoms were due to cervical radiculopathy, for

which he should pursue “neurology consult – Dr. Sinoff schedule ASAP.” Id. at 35.

19

Dr. Davidson inaccurately records that the ER encounter was on November 14, instead of November 22, 2013.

Compare Pet. Ex. 21 at 1 and Pet. Ex. 19 at 1-30.

10

On January 3, 2014, petitioner presented for recommended cardiac tests. See Pet. Ex. 19

at 33. During the infusion for a PET scan, he felt discomfort in his chest. Id. The study was

negative for ischemia and his ejection fraction was noted to be 50%. Id. While undergoing an

echocardiogram, he developed pain in his right shoulder that went back to his chest and scapula,

followed by shortness of breath and nausea. Id. Petitioner was transported to MPH, where he

was diagnosed with a myocardial infarction with a near complete occlusion of the left anterior

descending coronary artery, for which he underwent angioplasty and insertion of a stent. Id. at

33-37.

After stabilizing from the acute cardiac event, on February 6, 2014, petitioner followed

through with the referral to Stuart Sinoff, M.D., who is identified in the records as a neurologist

and neuro-ophthalmologist based at the MPH Center for Dizziness and Balance Disorders. See

generally Pet. Ex. 25. Petitioner wrote on a new patient questionnaire that for over twenty years,

he had been experiencing episodic neck discomfort on rotation and muscle spasms primarily

around the scapula, which were related to the posture and positions required for his job. Id. at 4.

Approximately five years before, he developed high blood pressure and his neck discomfort

transformed from episodic to chronic, but this discomfort was “primarily cervical, occasionally

sciatica without any symptoms in my hands or arms.” Id. Then on November 22, 2013, he

awoke at 3:00 a.m. with considerable right-sided chest pain. Id. at 4, 13. Petitioner also wrote

that he had developed a “sudden radiculopathy which persists to the present… with some loss of

grasping strength and a persistent numbness with the radial20 and median21 nerves.” Id. at 13.

His symptoms were “constantly present” as opposed to “appear[ing] in attacks.” Id. at 5. Dr.

Sinoff observed right-sided moderately severe thenar22 atrophy; mild weakness in the right hand,

triceps, and biceps; and decreased subjective sensation over the right digits 1, 2, 3, and the inside

of digit 4. Id. at 2-3. Dr. Sinoff’s initial impression was cervical spine disease and carpal tunnel

syndrome, both primarily right-sided, but he referred to another neurologist, Raphael Schneider,

M.D., for further evaluation including EMG23 and NCV24 studies. Id. at 4.

20

The radial nerve originates from the posterior cord of the brachial plexus (C6–C8, and sometimes C5 and T1). Its

branches are the posterior brachial, inferior lateral brachial, posterior antebrachial cutaneous nerves, muscular, deep,

and superficial rami. It descends down the back of the arm and forearm. It is ultimately distributed to “skin on back

of arm, forearm, and hand, extensor muscles on back of arm and forearm, and elbow joint and many joints of hand.”

Dorland’s.

21

The median nerve originates from the lateral and medial cords of the brachial plexus (C6-T1). Its branches are the

anterior interosseous nerve of forearm, common palmar digital nerves, muscular and palmar rami, and a

communicating branch with the ulnar nerve. Its distribution is to the elbow, wrist, and intercarpal joints, anterior

muscles of the forearm, muscles of the digits, skin of the palm, thenar eminence, and digits. Dorland’s.

22

Thenar pertains to “the mound on the palm at the base of the thumb.” Dorland’s.

23

Electromyography (“EMG”) is “an electrodiagnostic technique for recording the extracellular activity (action

potentials and evoked potentials) of skeletal muscles at rest, during voluntary contractions, and during electrical

stimulation; performed using any of a variety of surface electrodes, needle electrodes, and devices for amplifying,

transmitting, and recording the signals.” Dorland’s.

24

Nerve conduction velocity (“NCV”) is a measure of “the speed, in meters per second, at which an impulse moves

along the largest fibers of a peripheral nerve.” Dorland’s.

11

At a February 7, 2014 follow-up with Dr. Austin, petitioner reported that he had

congestive heart failure and that he had stopped working. Pet. Ex. 1 at 8. His “sciatica pain”25

had improved but he was still “dealing with the RUE radiculopathy.” Id. Dr. Austin’s record

does not include any abnormal findings, but there is no indication that he actually performed a

physical exam and he did not offer an assessment relating to the right upper extremity. Id.

On February 12, 2014, the orthopedist Dr. Hadley recorded that the cervical epidural

steroid injection two months prior did not deliver “any significant help.” Pet. Ex. 6 at 5.

Petitioner still had neck pain; right wrist weakness and pain on flexion; right hand weakened

grasp; inability to do movements with thumb and index finger that were necessary for his job;

right elbow pain, decreased flexion, and decreased extension; and decreased range of motion on

abduction of his right shoulder. Id. Dr. Hadley recommended further physical therapy, traction,

osteopathic manipulation, and possibly another epidural steroid injection. Id. at 5-6; see also Pet.

Ex. 6 at 7.

On February 17, 2014, petitioner presented to Jean Raphael Schneider, M.D., at Clinical

Neurosciences of Tampa Bay. Pet. Ex. 27 at 7-10. Dr. Schneider observed right sided thenar

atrophy, decreased sensation in a median nerve distribution, and absent reflexes in the biceps and

triceps. Id. at 10. Dr. Schneider’s assessment was right-sided cervical radiculopathy and right-

sided carpal tunnel syndrome which together represented a “double crush syndrome.”26 Id. Dr.

Schneider planned NCV and EMG studies to confirm this assessment. Id.

At a February 21, 2014, follow-up appointment, Dr. Hadley recorded that petitioner had

continued right arm pain. Pet. Ex. 6 at 7. Osteopathic manipulation had helped while it was

being performed but had no lasting effect. Id. Petitioner had paresthesias in his right forearm

and hand which did not involve the thumb or pinky finger. Id. He also had difficulty abducting

his forearm. Id.

On April 3, 2014, Dr. Schneider conducted the NCV and EMG studies. He tested nerve

conduction of only the bilateral median and ulnar motor and sensory nerves at the wrists. This

testing found evidence of carpal tunnel syndrome which was moderate on the right and mild to

moderate on the left. Pet. Ex. 27 at 18-19. In May 2014, petitioner discussed carpal tunnel

release with a colleague of Dr. Schneider. Pet. Ex. 11 at 1-2. The procedure was tentatively

planned for July 2014, see Pet. Ex. 27 at 2, but never occurred.

25

Sciatica is “a syndrome characterized by pain radiating from the back into the buttock and along the posterior or

lateral aspect of the lower limb; it is most often caused by protrusion of a low lumbar intervertebral disk. The term is

also used to refer to pain anywhere along the course of the sciatic nerve,” which originates at L4-S3. Dorland’s.

26

Double crush syndrome is defined as “compression or other damage of the same nerve at two different points,

such as carpal tunnel syndrome with cervical radiculopathy. Some authorities believe that damage at one point

makes a nerve group more vulnerable to injury somewhere else.” Dorland’s. However, respondent’s expert Dr.

Chaudhry testified that this is a misnomer and does not necessarily refer to two “crushes” on the same nerve, but

“two independent things.” Tr. 225.

12

Also on April 3, 2014, Dr. Schneider’s EMG study tested selected muscles27 on the right

side of the body correlating to nerve roots C5 through T1. Pet. Ex. 27 at 20. The findings were

generally unremarkable, however, the right biceps muscle, which is supplied by the

musculocutaneous nerve originating from nerve roots C5-6, displayed an increased duration. Id.

The right pronator teres muscle, which is supplied by the median nerve originating from nerve

roots C6-7, showed the same increased duration as well as increased insertional activity,

increased amplitude, reduced recruitment pattern, and 3+ fibrillations. Id. The right triceps

muscle, supplied by the radial nerve originating from nerve roots C6-7-, showed an increased

duration, increased insertional activity, increased amplitude, reduced recruitment pattern, and 4+

fibrillations. Id. However, EMG of right-sided paraspinal muscles at C6 – T1 were found to be

normal. Id. Dr. Schneider concluded that the EMG findings evidenced acute and chronic C6-7

radiculopathy on the right. Id. at 18.

On April 23, 2014, petitioner filed a claim with the Florida Department of Financial

Services Division of Workers’ Compensation. Pet. Ex. 44 at 2. He was referred for a May 12,

2014 evaluation with George Kardashian, M.D., at the Center for Bone and Joint Disease in

Hudson, Florida. Pet. Ex. 26 at 1-3. Dr. Kardashian did not review the cervical spine MRIs, but

he did review the NCV/EMG studies which demonstrated cervical radiculopathy and carpal

tunnel syndrome. Id. at 3. Dr. Kardashian noted petitioner’s neck pain from years of working as

a dentist but focused on his more recent development of right extremity symptoms. Id. at 1. He

recorded that “5 months ago,” petitioner had an episode that started with significant right chest,

shoulder and upper arm pain”; that petitioner “subsequently” developed weakness and

diminished flexion in the right thumb and index finger; and that petitioner developed numbness

and tingling in the right hand “around the same time.” Id. Dr. Kardashian recorded that the

bilateral upper extremities showed “normal appearance without obvious deformities,” however,

there is no indication that upper extremity strength, reflexes, or range of motion were tested. Id.

at 2. There was 5/5 strength in the bilateral thenar muscles, fingers on abduction/adduction, and

the wrists. Id. However, the right flexor pollicis longus (“FPL”) muscle showed 0/5 strength

and the right index finger’s distal interphalangeal (“DIP”) joint had 4/5 strength on flexion. Id.

Sensation was intact to light touch bilaterally in median, ulnar, and radial nerve distribution. Id.

There was full active range of motion of bilateral elbows, wrists, and all fingers except for the

right thumb interphalangeal (“IP”) joint. Id. The shoulders are not addressed in the physical

exam. Id. Dr. Kardashian’s assessment was that petitioner “likely had right-sided brachial

neuritis that eventually developed into a R AIN [anterior interosseous nerve] syndrome.28

Patient still has weakness of the thumb and index finger.” Id. at 3. Dr. Kardashian submitted

paperwork confirming his diagnosis of “R AIN syndrome” as well as right carpal tunnel

syndrome to the workers’ compensation program. Pet. Ex. 44 at 4-7. At a May 21, 2014 follow-

up appointment, Dr. Kardashian added petitioner’s history of “a tetanus booster vaccine one

months [sic] prior to the start of the brachial neuritis episode.” Pet. Ex. 26 at 4; see also Pet. Ex.

27

Of note, Dr. Schneider’s EMG did not assess the right serratus anterior, flexor pollicis longus, and pronator

quadratus muscles. Dr. Feinberg’s later EMG tested those muscles and found evidence for two separate nerve

injuries, which were consistent with brachial neuritis. Compare Pet. Ex. 27 at 19-20 to Pet. Ex. 15 at 1-2.

28

Anterior interosseous nerve (“AIN”) syndrome is defined as “a complex of symptoms caused by a lesion of the

anterior interosseous nerve… symptoms include pain in the proximal forearm and weakness of the muscles

innervated by the nerve.” Dorland’s.

13

29 at 2 (petitioner’s recollection that he conducted internet research on his condition in May or

June 2014 and “eventually” discovered a link between Td vaccination and brachial neuritis).

At a May 27, 2014, follow-up appointment with Dr. Schneider, petitioner reported that

his right arm and hand symptoms were about the same and that he continued to have right

forearm wasting. Pet. Ex. 27 at 2. He also felt that “the symptoms in the left hand and arm are

getting worse” and that he was “losing dexterity in the hands.” Pet. Ex. 27 at 2. Petitioner was

“concerned about the possibility of brachial plexopathy related to the tetanus shot he got around

the time when symptoms began.” Pet. Ex. 27 at 2. Dr. Schneider discussed that the EMG and

NCV findings were “very focal which goes along more with the right C6 or C7 radiculopathy

and bilateral carpal tunnel syndrome.” Id. There is no indication that Dr. Schneider was aware

of petitioner’s workers compensation claim or his recent consultation with Dr. Kardashian, who

had offered the assessment of brachial neuritis in addition to cervical radiculopathy and carpal

tunnel syndrome. Id. The same is true for subsequent records from the primary care provider

Dr. Austin, see Pet. Ex. 1 at 2-6.

On September 22, 2014, Dr. Kardashian added the following dictation to petitioner’s

records and his workers’ compensation claim: “It is possible that [petitioner] had a vaccination

that led to brachial neuritis. The brachial neuritis likely led to AIN [anterior interosseous nerve]

syndrome and carpal tunnel syndrome. [Petitioner] also has neck problems and radiculopathy.

He is not interested in pursuing further carpal tunnel syndrome treatment and patient is at MMI

[maximum medical improvement] at this time.” Pet. Ex. 44 at 9.

G. Petitioner’s Letter to Dr. Feinberg29

Petitioner conducted internet research and came across descriptions of brachial neuritis

including a 2010 article coauthored by Dr. Feinberg. Pet. Ex. 14 at 2. Then on November 3,

2015, he wrote a letter to Dr. Feinberg, seeking only “an informed opinion from an experienced

clinician who can properly evaluate the possibility of [brachial neuritis] pancaking onto my pre-

existing cervical problems which never affected my hands or arms or caused me to miss a single

day of scheduled work since October 2, 1968.” Id.30 In the letter, petitioner recounted that he

had received a Td vaccination on September 20, 2013, and that “within two weeks,” he

experienced the onset of “right hand cramps while treating patients.” Id. at 1. He had to

“remove various dental instruments from my cramped right hand using the left hand to force the

right hand open.” Id. He initially assumed that these cramps were related to his hypertension

medication, so he improved his hydration and began taking potassium. Id. He described that

these “hand cramps” occurred numerous times during dental surgeries until November 22, 2013

at 2:00 a.m., when he awakened with alarming right-sided chest, arm, shoulder, and back pain

with accompanying hand, forearm, and shoulder numbness and elevated blood pressure. Id. He

recounted telling numerous doctors that his acute condition on November 22, 2013, was “very

29

Feinberg and Radecki, Electrodiagnosis Corner/ Review Article: Parsonage-Turner syndrome, 6 HSSJ 199 (2010)

Pet. Ex. 33].

30

Petitioner declares that he wrote to Dr. Feinberg “long before [petitioner] ever considered any legal action of met

with legal counsel.” Pet. Post-Hearing Brief at 15; see also Pet. Post-Hearing Reply at 7-8, 12.

14

different from the chronic discomforts of cervical radiculopathy.” Id. at 2. Petitioner wrote that

as of November 3, 2015: “There has been no improvement in the hand, arm, and shoulder for 24

months. Generalized muscle weakness, slight muscle wasting with dorsal forearm and shoulder

paresthesia along with numbness of the right thumb, index, middle, and proximal surface of the

3rd finger is present. I experience shoulder pain when the right hand is elevated above the head.

There is some motor deficit of the entire extremity.” Id.

H. Dr. Feinberg’s Medical Evaluation31

Petitioner traveled from Florida to New York City for the medical evaluation on

November 10, 2015. Pet. Ex. 15 at 1-3. Dr. Feinberg recorded his history of “right arm

weakness, atrophy, cramping, numbness, and tingling since receiving a tetanus toxin vaccination

on September 20, 2013.” Id. at 1. The April 2014 EMG showed “acute and chronic C6-C7

radiculopathy on the right side as well as moderate bilateral carpal tunnel syndrome.” Id. Dr.

Feinberg recorded: “Neck full ROM without end range pain. Negative Spurling’s. Mild

scapular winging with dyskinesis on the right… Right shoulder APROM [active and passive

range of motion] is wnl [within normal limits].” Id. There was: “Atrophy of the deltoid and

elbow flexors and ABP [sic, APB?] on the right. No fasciculations noted. 5/5 strength in

bilateral deltoid, biceps, triceps, infraspinatus, wrist extensors, wrist flexors, FDI, ADM, APB,

EIP, FDP. Sensation intact to light touch and pinprick, EXCEPT C6-C7 on the right.” Id. Dr.

Feinberg planned to evaluate for brachial neuritis as well as cervical radiculopathy. Id.

Dr. Feinberg’s NCV study found that the right median motor nerve, at the abductor

pollicus brevis (“APB”) muscle, had a delayed onset of 4.4 milliseconds (reference range: less

than 3.6 milliseconds) and an increased amplitude of 10.3 mV (reference range: less than 4 mV).

Pet. Ex. 15 at 1-2. The right ulnar segment motor nerve, at the abductor digitorus minimus

(“ADM”) muscle had a normal onset but an increased amplitude of 6.9 mV. Id. at 2. Dr.

Feinberg tested numerous sensory nerves in both arms, which were normal at the forearms but

there were delayed onsets in the bilateral median nerves and the right ulnar nerve. Id.

Dr. Feinberg’s EMG study tested selected muscles on the right side of the body, some of

which were included in Dr. Schneider’s earlier study and some that were not. Of note, Dr.

Schneider found that the right biceps muscle, associated with the musculocutaneous nerve and

roots C5-6, had normal findings including a normal duration. Pet. Ex. 15 at 2.

With regard to interspace C6-7, Dr. Feinberg did not test the median nerve-supplied

pronator teres muscle, which Dr. Schneider had previously recorded to be abnormal. See Pet.

Ex. 27 at 20. But Dr. Feinberg recorded that the median nerve-supplied flexor carpi radialis

(“FCR”) muscle and the radial nerve-supplied triceps (lateral head) muscle were normal. Pet.

Ex. 15 at 2. However, the long thoracic nerve-supplied serratus anterior muscle displayed an

abnormal “discrete” recruitment pattern. Id.

31

Petitioner emphasizes that “Dr. Feinberg was a treating physician in this case. When he conducted his

examination on [petitioner,] and performed the EMG in New York, Dr. Feinberg had no idea this matter would be a

matter of litigation… Dr. Feinberg formed his diagnosis long before he was asked to serve as an expert in this case.”

Pet. Post-Hearing Reply at 7-8; see also id. at 12; Tr. 50-51, 78, 129-30.

15

Dr. Feinberg also recorded that the flexor pollicis longus (“FPL”) and pronator quadratus

(“PQ”) muscles displayed the same “discrete” recruitment pattern as well as 1+ fibrillations,

which Dr. Feinberg characterized as “mild abnormal spontaneous activity.” Id. The EMG study

provides that both of these muscles are associated with the anterior interosseous nerve (“AIN”)

and the C7-8 nerve root. Id. Of note, C7-8 was entirely unremarkable on petitioner’s MRIs, see

Pet. Ex. 27 at 26-28.

Dr. Feinberg recorded that the EMG/NCV studies showed evidence of bilateral median

neuropathy (carpal tunnel syndrome) that was mild to moderate on the right side and mild on the

left. Pet. Ex. 15 at 3. However, his primary impression was “a chronic partially recovered right

anterior interosseous neuropathy and a chronic partially recovered right long thoracic

neuropathy,” which findings were “most likely secondary to Parsonage-Turner syndrome/

neuralgia amyotrophy,” also known as brachial neuritis. Id.

I. Subsequent Medical Records

At a June 26, 2018 follow-up appointment, the primary care provider Dr. Austin recorded

that petitioner’s main complaint was continued achiness in his right arm and hand. Petitioner

and Dr. Austin “discuss[ed] the etiology of his arm pain, first noticed this two weeks after getting

a Td booster routinely Sept, 2013. He’s had multiple evaluations for this and [it, sic] was

originally thought to be a cervical radiculopathy. Now thought to be a vaccine-related injury.

The arm pain has been constant over the past 5 years. Currently using ibuprofen which takes the

edge off the pain.” Pet. Ex. 45 at 1. Dr. Austin’s assessment included “injury of right brachial

plexus, sequela.” Id. at 2.

J. Affidavits

As previously reviewed in the findings of fact, petitioner and ten (10) other fact witnesses

submitted affidavits focusing on the onset of his symptoms. See generally Pet. Ex. 29. The

affidavits describe that petitioner developed new symptoms twelve (12) days post-vaccination,

on October 2, 2013. This was petitioner’s work anniversary and close in time to his birthday.

That day, he saw an established patient for a prescheduled appointment for dental surgery

involving anesthesia, extraction of several teeth, and placement of a bridge for dentures and

crowns. See generally Pet. Ex. 29 (affidavits); see also Pet. Ex. 36 (dental practice records).

Petitioner recalled that: “On or about October 2, 2013, I began having severe right hand and right

arm muscle pain that was immediately noticeable. The ‘cramps’ I experienced were deep and

consistent aching pains and occurred numerous times in addition to a progressive inability to flex

the right thumb and loss of grasp as I began to drop small objects previously easily held and

manipulated until November 22, 2013… ” Pet. Ex. 29 at 1. A medical assistant recalled that

during the October 2, 2013 appointment, petitioner was unable to use his right thumb to aspirate

(pull back) the plunger on a syringe while administering an anesthesia injection. Id. at 15. That

evening, petitioner recounted to his wife that he used his left hand to force the right fingers to

open and release an instrument, presumably the syringe. Id. at 18. During the same procedure,

he was also unable to change handpiece burs which required right thumb pressure. Id. at 15. He

also had trouble grasping small objects. Id. at 1, 12, 15. Several witnesses characterized

petitioner’s hand symptoms as “cramps” or “cramping.” Id. at 4, 6, 7, 12, 15, 18. From that

16

point on, petitioner took longer to perform procedures and required two rather than just one

assistant. Id. at 12, 18. At some point in October 2013, his patient Ron Hadley recommended

consulting his son, the orthopedist Dr. Michael Hadley. Id. at 16. However, petitioner did not

seek treatment until he awakened on November 22, 2013, at approximately 2:00 a.m., with right-

sided chest pain and he was concerned for his heart.

K. Fact Testimony

At the hearing, petitioner provided credible testimony including additional detail about

the events on October 2, 2013. He recalled that the specific appointment began at 1:30 p.m. Tr.

432. The first step was to administer anesthesia into both sides of the patient’s mandible (lower

jaw). Tr. 432-33. Petitioner was unable to use his right thumb to aspirate (extend) the needle.

Id. at 433. He ultimately managed to administer the anesthesia. Id. While waiting

approximately five to seven minutes for the anesthesia to take effect, he stretched and checked

on other patients. Id. Upon returning to the patient in question and starting the procedure,

petitioner used his right hand to form a “pencil grip” on a dental tool, but then he could not

release the tool. Id. at 433-34. He used his left hand to pry open his right fingers. Id. at 434.

Petitioner testified that his hand was not precisely “cramping” but instead “locked” due to the

pain. Id. at 435. These symptoms continued throughout the procedure. Id. He could use his

right hand to manipulate objects, but he could not open his hand. Id. At the same time,

petitioner noticed an aching pain extending from his forearm to near his shoulder. Id. at 435,

445. However, he was more focused on the hand symptoms that were impeding the dental

procedure. Id. at 435.

I asked petitioner about what happened after that “one event” on October 2, 2013. Tr.

444. Petitioner answered: “That went on through -- all of the time that I was working my arm

hurt. I mean, it just hurt all the time.” Id.; see also id. at 435 (“my arm pretty much ached all of

the time”). He initially believed that these new symptoms were from an electrolyte imbalance.

Id. at 445. As Thanksgiving, Christmas, and the end of the year were approaching, many

patients were wanting to finish treatment and he was very busy. Id. at 435. He continued to

work, but as a result of the new symptoms in his arm and hand, he required both assistants “right

on top of me all of the time to help me take the hand piece away, put it in the holder, change the

cutting instrument that goes in the hand piece, because we’re continually changing those. And I

finished my patient schedule up until the famous night of November the 22nd being really, really

uncomfortable.” Id. at 436. Petitioner summarized: “all of the contortions and the

accommodations that I had to make from October the 2nd to November 22nd put me in pretty bad

shape.” Id. at 437.

Petitioner testified that as of January 2019, his motor function had improved “some,” but

it was not back to baseline. Tr. 449. He had persistent pain in his right upper arm and forearm,

for which he took 800 milligrams of ibuprofen per day. Tr. 449. At some point in 2014 or later,

petitioner sold his dental practice. He attributed the “distress sale” of the dental practice and the

resulting lost wages to “the chain of events” which started with the Td vaccination and onset of

brachial neuritis. See Pet. Ex. 29 at 2.

17

IV. Findings of Fact

There are no medical records or other contemporaneous evidence from between

petitioner’s Td vaccination at issue on September 20, 2013, and his emergent presentation on

November 22, 2013, at approximately 3:30 a.m. The later medical records generally do not

address symptoms beginning in October, but rather, relate all of the changes in petitioner’s

condition to late November coinciding with his hospital presentation. However, I previously

concluded that the later recollections from petitioner and ten (10) other fact witnesses were

sufficiently “consistent, clear, cogent, and compelling” to outweigh the later medical records

with regard to the events occurring during this time period. See Findings of Fact filed October 7,

2016 (ECF No. 16).

Consistent with the original findings of fact, a preponderance of the available evidence

supports that on October 2, 2013, petitioner suddenly developed aching pain in his right hand

and arm, accompanied by the loss of motor function in his right hand, most notably the ability to

extend his thumb. This pain was consistent and progressive, then gave way to weakness over the

subsequent weeks. These symptoms significantly impacted petitioner’s ability to perform his

job. He took longer to complete dental procedures and required additional assistance. Then, in

late November 2013, petitioner experienced numbness, tingling, and decreased sensation in his

right arm as well as sharp right-sided chest pain.

I concluded that when petitioner first presented to the emergency room on November 22,

2013, “it is quite likely that he was primarily concerned that he was having a heart attack, and

recounted the chest pain with more accuracy and detail than the right hand and right arm pain.”

Finding of Fact at 7. “It is also very likely that the medical professionals were more concerned

with the chest pain and did not inquire about any history of prior right arm pain.” Id.

Additionally: “The medical professionals also may have associated petitioner’s hand and arm

pain with his history of cervical disc disease… [which rebutted] the presumption that the medical

records were accurate and complete with regards to petitioner’s hand and neck symptoms.” Id.

V. Expert Qualifications

A. Petitioner’s Expert Dr. Feinberg

After initiating his claim in the Vaccine Program, petitioner retained Dr. Feinberg, whose

first expert report is dated August 25, 2016. Pet. Ex. 30 at 1. Dr. Feinberg is a physiatrist with

active board certifications in physical medicine and rehabilitation, pain medicine, and

electrodiagnostic medicine. Pet. Ex. 51 at 2-3. After completing medical school and relevant

post-doctoral training, in 1996, Dr. Feinberg joined the Hospital for Special Surgery (“HSS”), a

world-renowned institution which is focused on treating orthopedic conditions. Tr. 8-9. Dr.

Feinberg previously served as the director of the physiatry department, but his current title is

director of HSS’s Center for Brachial Plexus and Traumatic Nerve Injuries. Tr. 8; Pet. Ex. 51 at

6. He presents and publishes on this subject regularly, including in the United States’

preeminent EMG journal, Muscle and Nerve, Tr. 19, 24-25.32 He is also a full professor at

32

Feinberg et al., The Electrodiagnostic Natural History of Parsonage-Turner Syndrome, Muscle & Nerve (2017),

published online in Wiley Online Library (wileyonlinelibrary.com), DOI 10.1002/mus.25558 [Pet. Ex. 42]; Feinberg

18

HSS’s affiliated medical school, Cornell University Weill Medical College. Pet. Ex. 51 at 2. Dr.

Feinberg’s largest referral base is hand and neck surgeons asking him to evaluate patients with

presumed carpal tunnel syndrome and cubital tunnel syndrome. Tr. 10. Additionally,

orthopedists and spine surgeons ask him to evaluate patients with presumed radiculopathies. Tr.

9-10. “At least 75 to 80 percent” of his patients are referred with a suspicion of carpal tunnel

syndrome and/or radiculopathy. Tr. 14. He diagnoses brachial neuritis in approximately one

patient per week and has treated “hundreds” of patients with these injuries over his twenty (20)

years of clinical experience. Tr. 27. However, for approximately half of patients presenting for

suspected brachial neuritis, he rules out that diagnosis. Tr. 26. Dr. Feinberg recognized that

experts in particular conditions can “tend to be biased in what they see,” but he focuses on

determining the right diagnosis in service of delivering the correct treatment. Tr. 26.

Dr. Feinberg has limited experience as an expert witness. Since 2006, he has consulted

for the U.S. Department of Justice in three or four cases outside of the Vaccine Program, not

involving brachial neuritis. Tr. 41; see also Pet. Ex. 51 at 9. He agreed to serve as an expert for

one defendant concerning brachial neuritis which did not go to trial. Tr. 50. Dr. Feinberg

emphasized that he does not automatically support either plaintiffs or defendants and will not

“defend Parsonage-Turner syndrome for someone just because they want someone who’s an

expert in it.” Tr. 50. Dr. Feinberg agreed to see Mark Davis as a patient and conducted his

medical evaluation, long before learning that there was “any legal aspect” or even knowing that

the Vaccine Program existed. Tr. 50-51, 78, 129-30. Afterwards, Dr. Feinberg agreed to serve

as an expert in petitioner’s claim, but he has declined other claims from petitioner’s attorney

Leah Durant and another firm in Philadelphia. Tr. 51. At the entitlement hearing, on petitioner’s

motion and without objection from respondent, I admitted Dr. Feinberg as an expert in the

subjects of physiatry, electrodiagnostic medicine, peripheral nerve injuries and disease, and the

diagnosis and treatment of brachial neuritis. Tr. 60.

B. Respondent’s Expert Dr. Chaudhry

Dr. Chaudhry is board-certified in neurology, clinical neurophysiology, neuromuscular

medicine, and electrodiagnostic medicine. Resp. Ex. B at 1. After completing medical school

and relevant post-doctoral training, in 1987, he joined the Johns Hopkins University School of

Medicine, initially as a fellow in neuromuscular diseases. Id. at 2. He is currently the director of

the neurology outpatient center, codirector of the neurology EMG laboratory, and a full professor

of neurology. Id. at 1-3. In a year, Dr. Chaudhry sees approximately 2,000 patients, of whom

between 50 – 70% have peripheral nerve diseases including brachial neuritis, carpal tunnel

syndrome, Guillain-Barré syndrome (“GBS”), chronic inflammatory demyelinating disease

(“CIDP”), and multifocal neuropathies. Tr. 220-21. About 50 to 100 of these patients are

suspected or indeed have brachial neuritis. Tr. 347. Dr. Chaudhry testified that he sees all

patients with suspected brachial neuritis who come to Johns Hopkins, “if not directly, then at

least as a… favor or consult to help other physicians diagnose this.” Tr. 349. His predominant

role is to conduct the electrodiagnostic studies to confirm the diagnosis before a colleague

et al., MRI Bullseye Sign: An Indicator of Peripheral Nerve Constriction in Parsonage-Turner Syndrome, Muscle &

Nerve, doi:10.1002/mus25480 (2016) [Pet. Ex. 36]; Feinberg & Radecki, Electrodiagnosis Corner/ Review Article:

Parsonage-Turner Syndrome, 6 Hospital for Special Surgery Journal 199 (2010) [Pet. Ex. 33].

19

proceeds with surgery. Tr. 228, 349. Dr. Chaudhry contributed a section on brachial neuritis to

a book which was published in 1993.33 He has written more on the subject, but nothing as

specific as Dr. Feinberg’s publications on brachial neuritis and findings such as hourglass

constriction on MRI. Tr. 349-50. He has also spoken but has not been specifically “invited to

lecture on the topic” like Dr. Feinberg has. Tr. 350.

Dr. Chaudhry has been a medical expert in the Vaccine Program for the respondent since

1999. Resp. Ex. B at 31. Each year, he reviews approximately five to ten claims and testifies at

approximately one to two hearings. Tr. 340. Petitioner’s counsel Mr. Milmoe asked Dr.

Chaudhry whether, upon reviewing a case for HHS, he has ever determined that there was

vaccine causation. Tr. 342. Dr. Chaudhry said that HHS may ask him “off record my opinion,

then I would say no or yes.” Tr. 342. But more often, “either the HHS or the attorneys have

already reviewed the records and they have made the determination that it [the injury] is not

[caused by the vaccine]… so it’s already gone through first or second level of scrutiny I would

think… they [HHS or the attorneys] have already made the determination, otherwise they’ve

already settled.” Tr. 342. Mr. Milmoe then asked: “Have you ever been sent a case for review

by HHS where you later had to say I can’t be an expert in the case because I think the vaccine

was the cause of the injury?” Tr. 342-43. Dr. Chaudhry answered: “I don’t believe so.” Tr. 343.

He could not remember doing so, adding: “It’s possible. I am not going to say – 20 years is a

long time.” Tr. 343. On respondent’s motion and without objection from petitioner, I admitted

Dr. Chaudhry as an expert in the subjects of neurology and the diagnosis of brachial neuritis,

cervical radiculopathy, and carpal tunnel syndrome. Tr. 228-29.

C. Discussion

The parties devoted significant time to debating the experts’ qualifications. Petitioner

contended that while Dr. Chaudhry is an experienced and respected neurologist who is board-

certified to conduct and interpret EMGs, Dr. Feinberg has had more focused experience and and

qualifications concerning this specific disorder of brachial neuritis. Pet. Post-Hearing Response

at 12-16; see also Pet. Post-Hearing Reply at 7-11. In turn, respondent contended that Dr.

Chaudhry is equally qualified to opine in this case because “he is the primary person at his

hospital to diagnose brachial neuritis”; he is a neurologist whose role is to diagnose, rather than

rehabilitate patients; he has more publications overall; and that he has a higher academic rank

than Dr. Feinberg. Resp. Post-Hearing Response at 15-16, citing Tr. 354-55. But as I stated at

the hearing, both experts are well-qualified and I am more focused on the substance of their

opinions. Tr. 355.

Respondent also contended that “Dr. Feinberg’s opinion deserves no special weight”

because petitioner sought him out for the purpose of diagnosing brachial neuritis and that Dr.

Davis “had incentives” for making that diagnosis, apparently because petitioner subsequently

retained him as a paid expert witness. Resp. Post-Hearing Response at 11, 13. I disagree in light

of Dr. Feinberg’s credible testimony, noted above, that he is invested in reaching the correct

diagnosis that will benefit the patient; he evaluated Dr. Mark Davis as a patient before knowing

33

Cornblath & Chaudhry, Brachial Neuritis, pp. 353-55 in Current Therapy in Neurologic Disease (Johnson et al.,

4th ed. 1993) [Resp. Ex. A-2].

20

of the present legal action or that he would be asked to serve as an expert; and he does not

automatically agree to serve as an expert. Accordingly, I find that Dr. Feinberg’s medical

records are entitled to comparable weight as those from the other treating providers.

Respondent also contended that “Dr. Feinberg did not perform a proper differential

diagnosis because he did not consider a full history, he placed too much emphasis on a single

EMG, and he ignored his own physical examination findings.” Resp. Post-Hearing Response at

13-15. This is somewhat of an overstatement because Dr. Feinberg’s medical records note the

prior EMG and diagnosis of carpal tunnel syndrome. Dr. Feinberg also evaluated for cervical

radiculopathy. No medical record in this case is completely comprehensive, but Dr. Feinberg

acknowledged petitioner’s separate diagnoses of cervical radiculopathy and carpal tunnel

syndrome in his medical evaluation and separated those out in his expert opinion.

VI. Expert Opinions

A. Dr. Feinberg

Dr. Feinberg opined that as a result of the September 20, 2013, Td vaccination, petitioner

suffered acute injury to the anterior interosseous nerve resulting in decreased function in his right

thumb and index finger, as well as acute injury to the long thoracic nerve resulting in decreased

right shoulder strength and scapular winging. Pet. Ex. 30 at 2. These two nerve injuries together

represented brachial neuritis. Id. While this condition generally has a favorable prognosis,

petitioner has had an incomplete recovery and his condition is now chronic. Id.; see also Pet.

Post-Hearing Brief at 16-26; Pet. Post-Hearing Reply at 2-6.

1. Anterior Interosseous Nerve Injury

Assessing this issue requires understanding the relevant anatomy beginning at the

cervical spine. The C8 and T1 nerve roots supply fascicles that travel though the brachial

plexus’s medial cord and help to innervate the median nerve. Resp. Ex. I at 9.34 The median

nerve travels down the arm. Resp. Ex. I at 4. Below the elbow, in the forearm, certain fascicles

branch off from the median nerve to form the anterior interosseous nerve, which controls three

muscles in the forearm: the pronator quadratus (“PQ”), the flexor pollicis longus (“FPL”), and

the flexor digitorum profondus (“FDP”). Id. The PQ muscle controls downward rotation of the

palm, the FPL controls flexion of the distal part of the thumb, and the FDP controls flexion of the

index finger. Pet. Ex. 30 at 2; Tr. 89-90, 253.35

For all three muscles, nerve root C8 is the “dominant” contributor of innervation and T1

is a “significant” contributor. Id. at 8. Importantly in this case, petitioner did not have any

pathology at the C8 or T1 nerve roots. See Pet. Ex. 27 at 26-28.

34

Nerve roots C5 and C6 provide additional fascicles that travel through the lateral cord before reaching the median

nerve. Resp. Ex. I at 9. However in this case, the experts did not suggest that C5 and C6 are involved in the AIN.

35

The experts agreed that the FDP also contributes to flexion of the middle finger, but that is not always impacted

with anterior interosseous nerve injury. Tr. 89-90, 253.

21

Acute nerve injury will cause inflammation of the tendons, resulting in pain, which can

lead to cramping and spasming of the affected muscles. Tr. 488-89. However, the onset is

variable and Dr. Feinberg has even seen two or three patients “without pain,” only spontaneous

weakness and loss of function. Tr. 114, 488-89. Additionally, the leading author on this

condition, Nens van Alfen, M.D., Ph.D.,36 has recognized that certain patients can have

“identical symptoms and a disease course that does not have pain at the onset.” Pet. Ex. 35 at 2.

Dr. Chaudhry agreed that “pain can have various manifestations.” Tr. 489-90.

In describing the loss of function associated with injury to the anterior interosseous nerve,

Dr. Feinberg focused on the FPL muscle, for which there is not a “classic” description in the

literature. Tr. 89. Dr. Feinberg testified that it is common for a patient with a compromised FPL

muscle to describe getting his or her thumb “getting caught” upon reaching into a pocket. Tr. 89.

Dr. Feinberg has also treated two or three surgeons and a dentist (other than the petitioner) who

described not being able to hold instruments. Tr. 64. Dr. Feinberg recognized that the loss of

thumb function alone “really is problematic even though it’s just one thing.” Id. Similarly in

this case, on October 2, 2013, petitioner suddenly experienced severe “cramping” pain in his

right hand, particularly in his thumb and index finger, which made it significantly difficult to

perform dental procedures. See Pet. Ex. 29 at 1, 12, 15, 18. As two of petitioner’s professional

colleagues explained: “Our work is so dependent on coordination and physical ability to control

our hands and fingers for delicate movements.” Pet. Ex. 29 at 8.

Dr. Chaudhry objected that anterior interosseous nerve weakness would impact finger

flexion, not extension, Tr. 486-87, but Dr. Feinberg explained that the acute pain “triggered a

spasm in these muscles so they tightened up.” Tr. 488-89.

Dr. Feinberg opined that over time, the pain gives way to weakness, which makes the

diagnosis of these injuries challenging and often missed. Tr. 489. Here, petitioner recalled a

“progressive inability to flex the right thumb and loss of grasp.” Pet. Ex. 29 at 1. His medical

assistant recalled that he “dropped dental handpieces and other equipment more frequently.” Id.

at 15. His wife recalled that his hand became weaker over time. Id. at 18-19. Additionally in

the medical records, on December 10, 2013, the primary care provider observed that petitioner

“can’t flex R thumb at dip, thumb/ 2nd finger grasp is weakened.” Pet. Ex. 1 at 10. On

December 12, 2013, the orthopedist Dr. Hadley observed that he had “4/5 pincer grasp on right

and left” and “right wrist flexion 4/5.” Pet. Ex. 6 at 1. On February 12, 2014, petitioner

remained “unable to curl his right index finger (flex distal interphalangeal joint) and… to do

movements with thumb and index finger that are required of him in his job.” Id. at 5. In

February 2014, the local neurologist Dr. Schneider recorded petitioner’s complaints including

“right hand weakness and incoordination.” Pet. Ex. 27 at 7. Of course, Dr. Schneider did not

suspect injury to the anterior interosseous nerve and he did not test the relevant muscles on

EMG. Id. at 18-20.

Finally in May 2014, petitioner reported right thumb and index finger weakness to the

orthopedic surgeon Dr. Kardashian, who observed “0/5 strength of FPL R side [e.g., the thumb]

and 4/5 strength of DIP flexion R IF [index finger], and then diagnosed petitioner with “R AIN

36

See Van Alfen et al., Invited Review: Neuralgic Amyotrophy: An Update on Diagnosis, Pathophysiology, and

Treatment, 53 Muscle and Nerve 337 (2016) [Pet. Ex. 35, also filed as Resp. Ex. A-3].

22

[anterior interosseous nerve] syndrome.” Pet. Ex. 6 at 2. Dr. Chaudhry had several critiques of

this evaluation. First, he opined that the observation of “0/5 strength of FPL” but “4/5 strength

of DIP flexion” was a “big disconnect”: “You can’t have an anterior interosseous nerve injury

causing zero strength and not being able to flex… and then also have a relatively normal strength

in the other muscle that’s noted by the same distribution.” Tr. 317. I later asked both experts

whether the degree of injury be variable within a nerve. Tr. 420-21. Dr. Feinberg agreed that

you can get “involvement of certain fascicles” but it is hard to prove without a biopsy of the

nerve. Tr. 421. Dr. Chaudhry did not rebut this point and I find that Dr. Feinberg provided a

credible explanation for this “disconnect.” Separately, Dr. Chaudhry suggested at least twice

that Dr. Kardashian was somehow “biased” in his evaluation of petitioner, see Tr. 317, 326. I

find no evidence in the record for this assertion.

In November 2015, petitioner reported symptoms consistent with right sided PQ, FPL,

and FDP dysfunction to Dr. Feinberg. See Pet. Ex. 14 at 1; Pet. Ex. 15 at 1. Dr. Feinberg did not

record his physical exam findings about the FPL and PQ muscles. Pet. Ex. 15 at 1.37 However,

he tested those muscles on EMG. He testified that he would not have tested these muscles if

they were not weak. Tr. 63.

Dr. Feinberg included the third anterior interosseous nerve-supplied muscle, the FDP, in

a list of numerous right arm muscles that had normal strength. Pet. Ex. 15 at 1. He did not test

the FDP on EMG. Id. at 3. He testified that anterior interosseous nerve injury can be diagnosed

based on involvement of only two muscles. Tr. 90. The FPL and PQ muscles are anatomically

easier to identify. Tr. 91. In comparison, it is difficult to identify the FDP muscle especially if it

is atrophic. Tr. 91. Therefore, Dr. Feinberg determined that it was not necessary to check

petitioner’s FDP muscle. Dr. Feinberg also testified that in the event that petitioner did not lose

index finger function, that would not be uncommon. Tr. 406. The most common muscles to be

impacted are the FPL (which controls the thumb) and the PQ (which controls wrist rotation). Id.

Dr. Feinberg has seen many cases of anterior interosseous nerve injury where the FDP is

completely normal. Id.

With regard to the significance of the EMG findings, it is important to understand that an

EMG measures the electrical activity of muscles during rest, slight contraction, and forceful

contraction. Abnormal findings can be indicative of nerve injury.38 Here, the local neurologist

did not examine the anterior interosseous nerve-supplied muscles, but Dr. Feinberg did and he

found evidence of chronic partially recovered nerve damage – specifically a 1+ fibrillation

potential (which he characterized as “mild abnormal spontaneous activity”) and a “discrete”

recruitment pattern. Pet. Ex. 15 at 3.

37

While cross-examining Dr. Feinberg, respondent’s counsel stated: “And for FPL weakness. I see five out of five

strength noted.” Tr. 141. This is incorrect. See Pet. Ex. 15 at 1.

38

See Johns Hopkins Medicine, Treatment, Tests, and Therapies: Electromyography (EMG), available at

https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/electromyography-emg (last accessed July 9,

2021).

23

Fibrillations represent abnormal electrical activity while the muscle is at rest. Tr. 270-

71; see also Johns Hopkins website infra note 38. Dr. Chaudhry opined that a 1+ fibrillation

potential is not “severe” because the spectrum is from 1+ up to 4+. Resp. Ex. E at 4; Tr. 307-08.

However, Dr. Feinberg did not suggest that this finding was severe, but rather, “chronic” and

“partially recovered,” approximately two years into the course. Pet. Ex. 15 at 1-2.

Dr. Chaudhry also objected that fibrillations do not persist for more than two months. Tr.

271. However, he submitted a table which summarizes the typical evolution of needle EMG

findings following an acute nerve injury. Hearing Ex. 6 at 1. The table provides that six months

or more into the course, the EMG findings will be “normal (fibrillations if incomplete

reinnervation).” Id. (emphasis added). This is consistent with Dr. Feinberg’s explanation that

these nerve injuries generally have a good prognosis but that in some cases, there is incomplete

reinnervation, which has spurred ongoing research into how the prognosis may be predicted and

whether particular treatments can improve recovery. See, e.g., Pet. Ex. 30 at 3. Dr. Feinberg

also opined that the anterior interosseous and the long thoracic nerves, both seen in this case,

tend to take the longest to recover. Tr. 37-38.39

The “recruitment pattern” is a measure of the motor units (which represent individual

axons) that are fired to recruit muscle fibers, when the patient is told to contract a specific

muscle. Tr. 55-56, Tr. 271-73. Here, Dr. Chaudhry questioned Dr. Feinberg’s notation of a

“discrete” recruitment pattern, saying: “We don’t use the word discrete in our world, in EMG.”

Tr. 271; see also id. at 327, 378. Dr. Feinberg disagreed, saying that he has been using this

terminology in his clinical practice and publications, including in the preeminent journal Muscle

and Nerve, for twenty-eight (28) years. Tr. 393.40 Dr. Feinberg explained that normally at

maximal muscle contraction, the EMG visualizes so many motor units that they overlap and

flood the image: this is a “full” recruitment pattern. Tr. 413. “One degree lower,” where there

are fewer motor units, but they still cannot be individually distinguished, is termed a “decreased”

recruitment pattern. Tr. 413. Lower still, where there is such significant dropout that the EMG

can visualize individual motor units, is termed a “discrete” recruitment pattern. Tr. 413. Dr.

Feinberg explained that a discrete recruitment pattern results after a muscle has been denervated

for a prolonged period of time. Tr. 55. The muscle degenerates and the axons “drop out.” Id. at

55-56. At this point, there is little potential for recovery. Id. at 56. Dr. Feinberg has published

an article “discriminating between discrete and decreased recruitment… as a determining factor”

regarding the feasibility of nerve transfers. Tr. 393.

39

Dr. Feinberg elaborated, in a peer-reviewed article: “The rate of axonal regeneration is classically described as

occurring at a rate of 1-4 mm/ day. So reinnervation of the supraspinatus… will more commonly occur earlier than

reinnervation following a long thoracic neuropathy or anterior interosseous neuropathy due to the length-dependent

recovery of those conditions.” Feinberg (2010) [Pet. Ex. 33] at 4.

40

Dr. Feinberg/s articles that were filed in this case do not refer to a “discrete” recruitment pattern. However, the

board specializing in EMGs, to which both Drs. Feinberg and Chaudhry belong, seems to recognize this

terminology. See American Association of Neuromuscular Medicine & Electrodiagnostic Medicine, AANEM

Glossary of Terms in Neuromuscular and Electrodiagnostic Medicine (3rd ed. 2015) at 11, 17, 23, 49, available at

https://www.aanem.org/Practice/Glossary-of-Terms (last accessed April 20, 2021).

24

Dr. Chaudhry also opined that an abnormal recruitment pattern should be associated with

abnormal velocity, amplitude, and duration. Tr. 307-08, 378. However, Dr. Feinberg anticipated

this question and expressly disagreed. He opined that in his clinical experience, this kind of

“long-term degeneration” will have a discrete recruitment pattern, but not the other abnormal

EMG findings. Tr. 57-58; 393-95; 407-16.

Dr. Chaudhry agreed that he and Dr. Feinberg hold the same board certification in

electrodiagnostic medicine, there was no indication that Dr. Feinberg had performed petitioner’s

EMG incorrectly, and they were debating “interpretation” and “semantics.” Tr. 380. Dr.

Chaudhry also testified that he sometimes disagrees with his professional colleagues at Johns

Hopkins about EMG interpretation. Tr. 380-81. While both experts are qualified in conducting

and interpreting EMGs, I find that Dr. Feinberg’s explanation of the specific EMG findings

associated with chronic, partially recovered neuropathies of this nature, in which he specializes,

was persuasive and in fact consistent with the exhibit submitted by Dr. Chaudhry.

2. Long Thoracic Nerve Injury

The C5, C6, and C7 nerve roots supply fascicles to the long thoracic nerve. Resp. Ex. I at

9. The long thoracic nerve innervates the serratus anterior (“SA”) muscle which spans the upper

eight or nine ribs underneath the arm and controls movement of the scapula. Tr. 66-68; Pet. Ex.

49 at 1. Injury to the long thoracic nerve will generally cause pain followed by loss of function.

Tr. 480-81.

Dr. Feinberg did not focus on the onset of each injury in his expert reports. He testified

that the November 22, 2013, emergency room visit for right-sided chest pain was consistent with

the typical onset of long thoracic nerve injury. Tr. 98-99.41 But as noted above, Dr. Feinberg

also testified that the degree of pain is variable and he has seen patients without any pain, just

weakness and loss of function. Tr. 114, 488-89.42 Here, the affidavits provide less detail about

41

Dr. Feinberg allowed for the potential that October 2, 2013, represented the onset of anterior interosseous nerve

injury and that November 22, 2013 represented the onset of long thoracic nerve injury. He testified: “there’s a

certain percentage [of patients with Parsonage-Turner syndrome who will have more than one nerve, and a lot of

times they may not occur at the same time. And I’ve had a number of other patients who developed a super [sic,

supra?] -scapular neuropathy… and then a little later developed another one.” Tr. 198-99. Dr. Chaudhry also

opined that: “There are two acute onsets, one on October 2, one on November 22.” Tr. 363. Dr. Chaudhry also

agreed (while discussing the potential for recovery) that Parsonage-Turner syndrome can have “multiple episodes.”

Tr. 368. Van Alfen supported this proposition in a 2016 review:

Recurrent episodes occur in a significant proportion of patients, with at least 25% of idiopathic

cases and 75% of hereditary cases having a second episode during the first years after their initial

attack. In our clinical practice, over the last 20 years, we found that recurrences occur even more

often, and they seem to be a common feature of the disorder. Recurrences may involve the same

extremity or manifest in a totally different pattern or limb. Currently, there is no way to predict or

prevent recurrence.

Van Alfen (2016) [Pet. Ex. 35] at 3.

42

See also Feinberg (2010) [Pet. Ex. 33] at 2 (“some of the classical symptoms, including the incapacitating pain of

1-2 week duration, may not always be present”); Devathasan & Tong, Neuralgic Amyotrophy: Criteria for

Diagnosis and a Clinical with Electromyographic Study of 21 Cases, 10 Aust. N.Z. J. Med. 188 (1980) [Resp. Ex.

25

the long thoracic nerve injury. However, petitioner described that “on or about October 2, 2013,

I began having severe right hand and right arm muscle pain that was immediately noticeable.”

Pet. Ex. 29 at 1 (emphasis added).

Dr. Feinberg explained that long thoracic nerve injury leads to SA muscle weakness. He

explained that when the deltoid and rotator cuff abduct the arm, the SA muscle normally rotates

the scapula and provides stability. But when the SA muscle is weakened, the trapezius and

rhomboid muscles contract and the scapula pops out in the opposite direction than it should; this

is termed scapular winging. Tr. 69. Dr. Feinberg opined that the unaffected deltoid and rotator

cuff are still able to abduct the arm to at least ninety (90) degrees, but the scapular winging

causes reduced stability and easier fatigue. Tr. 401-02, 423-27; Pet. Ex. 50 at 2. He added that

over time, the winging will diminish somewhat as the patient finds ways to compensate. Tr.

66.43 There will not be observable atrophy. Tr. 137.

Here, petitioner’s wife recalled that he had trouble steering the lawnmower and asked her

to take on some of the mowing. Pet. Ex. 29 at 18. In December 2013, he was observed to have

decreased 4/5 strength on right shoulder abduction. Pet. Ex. 6 at 1. He also reported “progressive

muscle weakness” in his right arm. Pet. Ex. 13 at 33-34.

Dr. Feinberg suggested that the local providers did not document a long thoracic nerve

injury because they did not look for one. Tr. 53, 70-71, 138-39, 151-52. He explained that to

detect scapular winging, the physician needs to examine the patient’s shirtless back, which “a

large percentage of physicians” do not do. Tr. 139. Dr. Feinberg was not confident that even the

local neurologist Dr. Schneider would have examined petitioner properly for scapular winging

upon conducting the EMG. Id. Dr. Feinberg testified that a thorough EMG study can be

conducted without the patient taking off his shirt. Id. Dr. Chaudhry testified that you would

“have to pull the collar all the way down” to reach the paraspinal muscles especially at T1, which

was “right where the scapula is.” Tr. 311-12. Petitioner did not recall Dr. Schneider’s procedure

in conducting the EMG. Tr. 462. He said that the orthopedists “probably” asked him to take his

shirt off, but then again, they saw him during the holiday season as a favor for “a little bit of a

cursory social examination and then refer me on to the next guy.” Tr. 461-62. Petitioner, who

was a dentist himself, noted that he was friends with many of the local physicians. Id.

Dr. Chaudhry also opined that scapular winging would be observable when the patient is

lying on his or her side. Tr. 312. However, both experts’ representative images of scapular

winging depict patients standing, facing away from the camera, and extending their arms. See

Hearing Ex. 4 (Dr. Feinberg); Hearing Ex. 5 (Dr. Chaudhry).

A-1] at 1, 2, 4 (recognizing that the “atypical manifestation” can lack pain and feature only “a lone serratus anterior

weakness presenting a winging of the scapula or difficulty in lifting up the arm over the head”).

43

“[M]ost patients with serratus anterior weakness will move the affected shoulder in a compensatory pattern that

(over-)uses the levator scapulae, trapezius, pectorals, and to a lesser extent rhomboid muscles…” Van Alfen (2016)

[Pet. Ex. 35] at 5-6. “If patients are first seen in the post-acute phase and the onset history was painless, unclear, or

not explicitly explored, their symptoms will have changed and will show mainly pain in the shoulder or arm area

that increases during the day and with activities…” Id.. at 7.

26

In contrast to the local providers, in November 2015, Dr. Feinberg observed that

petitioner had right-sided mild scapular winging. Pet. Ex. 15 at 1.44 Dr. Chaudhry objected that

“significant” scapular winging would prevent active and passive shoulder range of motion

beyond 90 degrees. Tr. 303-04; see also id. at 325, 379; Resp. Ex. J at 6. But Dr. Feinberg

explained, as noted above, that scapular winging does not necessarily prevent shoulder abduction

and petitioner’s winging was only “mild.”

After observing petitioner’s scapular winging, Dr. Feinberg found that the SA muscle had

no fibrillations, but the same “discrete” recruitment pattern. Pet. Ex. 15 at 2. Dr. Chaudhry

opined that if he understood Dr Feinberg correctly, a discrete recruitment pattern should mean a

“very severe injury” resulting in more than “mild” scapular winging and “more restricted” range

of motion. Tr. 428. Dr. Chaudhry based his opinion on seeing patients who are recommended

for surgery and “textbook anatomical description[s],” but allowed that it “may be functionally

Dr. Feinberg is more experienced on [scapular winging].” Tr. 482. However, Dr. Feinberg

actually said that after the acute phase of an long thoracic nerve injury, the patient will have

ongoing weakness in the serratus anterior muscle but the patient can build up other muscles to

compensate somewhat. Tr. 429. Dr. Feinberg testified that this illustrated why he became a

physiatrist: he “love[s] the ability of patients conservatively doing rehabilitation to compensate

because the body can do a lot.” Tr. 429.

3. Brachial Neuritis

Dr. Feinberg opined that the distribution seen in petitioner’s case, involving the anterior

interosseous and long thoracic nerves, was “typical” for brachial neuritis. Pet. Ex. 30 at 2. Dr.

Chaudhry objected that that brachial neuritis can involve either one of these nerves, but they are

anatomically separate with “nothing in common in between.” Dr. Chaudhry opined that

involvement of both these nerves would be “a very unusual situation.” Tr. 384. Dr. Feinberg

disagreed and opined that brachial neuritis can feature various combinations of nerves that are

“scattered.” Tr. 191.45

Dr. Feinberg opined, given the discrete recruitment pattern on EMG two years after the

accepted onset of symptoms, that petitioner had an incomplete recovery from his brachial

neuritis and he was unlikely to see a major improvement in the future. See, e.g., Pet. Ex. 30 at 2.

Petitioner would continue to have decreased function in his right shoulder as well as the right

thumb and index finger, which represents “a significant disability for a surgeon.” Id. He

recommended continued home exercises. Pet. Ex. 37 at 2. He noted research involving MRIs

and possible surgical nerve decompression, as well as the consideration of muscle transfers if

function does not improve. Id.

44

Dr. Feinberg also recorded that petitioner had “dyskinesis on the right.” Pet. Ex. 15 at 1. Dr. Feinberg explained

that “dyskinesis” is a similar term describing “abnormal motion of the scapula, so as he elevates his arm the scapula

is not moving normally.” Tr. 135.

45

Dr. Feinberg elaborated in a peer-reviewed article: “The unique feature here is that the nerves involved… vary in

the originating root level or brachial plexus trunk or cord distribution. Furthermore, there may be other nerves,

which do have the same root level or plexus innervation pattern as the nerve involved but are completely normal.”

Feinberg (2010) [Pet. Ex. 33] at 3.

27

B. Dr. Chaudhry’s Opinion

Dr. Chaudhry opined that to the extent that petitioner had anterior interosseous and long

thoracic nerve damage, those were mild. Tr. 309-10. He opined that many of the predominant

symptoms described beginning in the fall of 2013 could be explained by worsening cervical

radiculopathy and the new onset of carpal tunnel syndrome.

1. Cervical Radiculopathy

Dr. Chaudhry first discussed that petitioner had chronic neck pain for which he was

prescribed Tramadol in 2011. Resp. Ex. A at 1-2. However, this pain was localized in

petitioner’s neck and did not extend to his shoulders, arms, or chest. See generally Pet. Ex. 1 at

14-30. The MRIs showed that interspace C3-4, which had “moderate” findings in 2009 and

“severe left and moderate right chronic foraminal narrowing” in December 2013. Pet. Ex. 27 at

26-28. Interspace C3-4 corresponds to nerve root C4, which manifests only in sensory loss in a

cape distribution (across the shoulders) and pain in the lower neck and trapezius muscle. Resp.

Ex. H at 3. These findings do not explain petitioner’s post-vaccine right hand and arm injuries.

More relevant, cervical radiculopathy (“CR”) at interspace C4-5, corresponding to nerve

root C5, can compromise sensation in the lateral arm; motor function in the deltoid elbow, and

biceps reflex; and pain in the lateral arm, neck, and shoulder. Resp. Ex. H at 3.

Interspace C5-6, corresponding to nerve root C6, can compromise sensation in the lateral

forearm and thumb; motor function in the biceps and wrist extension; reflex of the

brachioradialis; and pain in the dorsolateral arm, neck, and thumb. Id.

Interspace C6-7, corresponding to nerve root C7, manifests in losses of sensation in the

dorsal forearm and index finger; motor function in the triceps and wrist flexion; triceps reflexes;

and pain in the dorsolateral forearm, middle finger, and neck. Id.

Interspaces C7-8 and C8-T1, corresponding to nerve roots C8 and T1, can compromise

sensation in the median and ulnar forearm; loss of motor function in the finger flexors and

intrinsics; and pain in the neck, medial forearm, and ulnar forearm. Id.

Despite my findings of fact, when asked directly about what occurred on October 2,

2013, Dr. Chaudhry testified: “Nobody saw [petitioner] so it’s hard to know because there was

no examination… the physicians, not the affidavit[s] now. All the physicians who have

evaluated [petitioner since November 22nd have noted onset of symptoms on November 22nd.”

Tr. 357 (emphasis added). Dr. Chaudhry also disputed that petitioner experienced the onset of

any new symptoms specifically on October 2, 2013: “I don’t know… which affidavit you are

referring to. There were dates mentioned… around his birthday, which was the 10th, I thought

the 2nd, and then other people said fall… so I am not sure what you call sudden.” Id. at 358-59.

Dr. Chaudhry also suggested that the October 2, 2013 onset included numbness and

tingling, see Resp. Ex. A at 11; Tr. 331, based on the daughter’s recollection of petitioner’s

symptoms “sometime in the fall” and a patient’s recollection of “late in 2013,” Pet. Ex. 29 at 19,

28

13. However, these are outweighed by the recollections of petitioner, his wife, and his two

medical assistants, who did not describe the October 2, 2013 onset as involving numbness or

tingling, only aching pain. Pet. Ex. 29 at 12, 15, 18. Dr. Chaudhry also relies on a May 2014

medical record which provides that petitioner developed numbness and tingling “around the

same time” as the thumb and index finger weakness, see Pet. Ex. 26 at 1. However, the earlier

medical records support that the numbness and tingling began shortly before the November 22,

2013 emergency encounter. See, e.g., Pet. Ex. 19 at 10; Pet. Ex. 6 at 1.

Dr. Chaudhry also interpreted that petitioner’s symptoms beginning on October 2, 2013,

were “intermittent,” see Resp. Ex. A at 11; Tr. 331-32, 359, 365, which would also support

cervical radiculopathy and/or carpal tunnel syndrome (discussed further below). The affidavits

and petitioner’s testimony actually support that the aching pain in his hand and shoulder were

persistent for weeks leading up to the emergency encounter. See generally Pet. Ex. 19; Tr. 435,

444.

Dr. Chaudhry opined that on November 22, 2013, in the middle of the night, when

petitioner presented to the emergency room for right-sided chest pain, he was experiencing an

acute episode of “cervical angina” caused by his cervical radiculopathy (without specifying

particular nerve roots). Tr. 283-84, 289-90. The fact that the pain was right-sided made cervical

angina more likely than an acute cardiac event. Tr. 286. This is consistent with the treating

physicians’ assessments. See generally Pet. Ex. 19; Pet. Ex. 13 at 35.

Dr. Chaudhry noted that the medical records describe that petitioner developed right

extremity numbness “around the same time” as the hospitalization. Tr. 291. He stressed that

numbness is not a feature of either anterior interosseous or long thoracic nerve injury, and that

numbness is better explained by cervical radiculopathy and/or carpal tunnel syndrome (discussed

separately below). Id.

Dr. Chaudhry opined that the orthopedist Dr. Hadley’s December 6, 2013, record of

numbness and weakness in the hands, diminished strength in right wrist flexion and elbow

extension, and absent triceps reflexes were all consistent with C7 radiculopathy. Tr. 277, citing

Pet. Ex. 6 at 1. Petitioner also “show[ed] a position of his neck which reproduces a Spurling’s

test and states this is the position that increases finger numbness, specifically his middle finger

on the right side.” Pet. Ex. 6 at 1. Dr. Chaudhry said that a Spurling’s test is a “telltale sign” for

C7 radiculopathy. Tr. 276-78.46 However, Dr. Chaudhry skipped over that when Dr. Hadley

actually performed the physical exam, petitioner had “a negative Spurling’s.” Pet. Ex. 6 at 1.47

Dr. Chaudhry testified that at a December 13, 2013 follow-up appointment with Dr.

Hadley, petitioner had the same diminished right-sided wrist flexion and extension and that “he

had some traction which improved his symptoms.” Tr. 278. Dr. Chaudhry’s testimony implied

that the traction improved the right arm and hand symptoms. However, Dr. Chaudhry then

46

Tong et al., The Spurling Test and Cervical Radiculopathy, 27 Spine 156 (2002) [Resp. Ex. A-4].

47

Additionally, when Dr. Feinberg evaluated petitioner for multiple conditions including cervical radiculopathy, he

recorded that a Spurling’s test was negative. Pet. Ex. 15 at 1.

29

explained that manual traction stabilizes the neck. Tr. 278-80. The record does not state that

this traction helped petitioner’s right arm and hand symptoms, and Dr. Chaudhry did not explain

why it would. Pet. Ex. 6 at 3-4.

Dr. Chaudhry discussed that on December 19, 2013, the orthopedist Dr. Davidson,

observed that petitioner had decreased sensation in the right radial forearm, thumb, and index

finger; absent triceps reflex; and a positive Spurling’s test. Tr. 281-83, citing Pet. Ex. 21 at 1-3.

Dr. Chaudhry noted that petitioner completed three Medrol dose packs and received a

cervical epidural steroid injection at approximately the C6-7 interspace (where he had moderate

cervical stenosis), for treatment of CR. Pet. Ex. 21 at 3; Pet. Ex. 24. However, the steroids did

not alleviate his symptoms. Dr. Chaudhry opined that steroids are used to reduce inflammation,

but they do not resolve nerve compression. Tr. 280. Also, an epidural injection’s effectiveness

depends on proper placement. Tr. 386. Dr. Chaudhry also suggested that steroids are also used

to treat brachial neuritis, so petitioner’s lack of improvement “doesn’t help you either way.” Tr.

386; see also Tr. 280. Dr. Feinberg agreed that “some physicians” give steroids to patients with

brachial neuritis, but many patients do not get significant relief. Tr. 207. He would expect

steroids to be more effective in providing at least temporary relief from cervical radiculopathy

pain. Id. Consistent with his testimony, Dr. Feinberg wrote in a peer-reviewed article: “In cases

where imaging studies demonstrate cervical spinal pathology that is suggestive of nerve root-

level compression, a cervical epidural may be helpful to distinguish between pain due to cervical

radiculopathy and [brachial neuritis].” Feinberg (2016) [Pet. Ex. 33] at 3. This tends to support

that petitioner’s continued pain in December 2013, despite steroids, was at least not solely due to

cervical radiculopathy.

Dr. Chaudhry also noted the neurologist Dr. Sinoff’s observations on February 6, 2014,

of weakness in the biceps and triceps; numbness in the right dorsal forearm; and decreased

sensation to pinprick on digits 1, 2, 3, and the inside of 4 (bilaterally, with a subjective decrease

of 40% on the right and 20% on the left) as being not explained by anterior interosseous or long

thoracic nerve injury, but rather cervical radiculopathy. Tr. 291-92, citing Pet. Ex. 25 at 1-4.

Later in February 2014, the second neurologist, Dr. Schneider, found similar evidence for

CR. Pet. Ex. 27 at 7-11. His EMG found increased duration in the right biceps corresponding to

C5-6. Id. at 19. The same increased duration as well as increased amplitude, a reduced

recruitment pattern, and 4+ fibrillations were found in the right pronator teres muscle,

corresponding to C6-7, as well as the right triceps muscle, corresponding to C6-7-8. Id. Dr.

Schneider’s assessment was right-sided acute and chronic C6-7 radiculopathy. Pet. Ex. 27 at 19,

see also id. at 1-4. Dr. Chaudhry agreed, opining that the pronator teres and triceps muscles had

only the C7 nerve root in common. Tr. 262. Dr. Chaudhry also testified that the increased

amplitude and duration supported both acute and chronic damage. Tr. 298-99. Dr. Feinberg

noted that on the same EMG, the right paraspinal muscles from C6 – T1 were completely

normal, which he opined was atypical for cervical radiculopathy. Tr. 76-77. Dr. Chaudhry

disagreed, opining that cervical radiculopathy manifests first in the paraspinal muscles and later

in the neck and arm. Tr. 313. Dr. Chaudhry added that the paraspinal muscles – which are “a

finger or two away from the midline” of the spine and overlap with one another – are

uncomfortable to evaluate. Tr. 313-14.

30

Dr. Chaudhry suggested that the orthopedist Dr. Kardashian’s diagnosis of anterior

interosseous nerve injury was undercut because he did not seem to review the MRIs. Tr. 319.

However, Dr. Kardashian reviewed the EMG, wrote that petitioner had confirmed neck pain and

CR, and recommended seeing a spine surgeon for what he apparently viewed to be a separate

issue. Pet. Ex. 26 at 3.

Dr. Chaudhry noted that even Dr. Feinberg recorded “numbness and tingling” and

observed “C6-7 on the right” reduced sensation to pinprick. Tr. 303-06, 310, discussing Pet. Ex.

15 at 1-3. Indeed, Dr. Feinberg noted the earlier EMG evidencing C6-7 radiculopathy and he

“evaluate[d] for… cervical radiculopathy” on EMG, but he found that multiple muscles supplied

by C5-6, C6-7, and C7-8 were entirely normal. Pet. Ex. 15 at 2-3.

Dr. Chaudhry discussed the “possibility” that pathology at the C5, C6, and C7 nerve roots

caused petitioner’s “mild” long thoracic nerve damage and scapular winging. Tr. 314. However,

he opined that would be “unusual” because other muscles supplied by the same nerve roots,

specifically the deltoid and suprascapular muscles, were tested and found to be normal. Id.

Here, Dr. Chaudhry accepted the local radiologist’s interpretation that the December

2013 MRI showed “severe (critical) narrowing of the foramina and this was worse than findings

in the past.” Resp. Ex. A at 9; see also Resp. Ex. C at 1-2. But respondent retained his Johns

Hopkins colleague, the radiologist Dr. Yousem48 to actually review the MRI images. Dr.

Yousem opined that the findings were “mild” to “moderate,” and that the “greatest degree of

foraminal narrowing, which is moderate in severity, is on the left side at C3-4 and on the right

side at C5-6.” Resp. Ex. F at 1. Dr. Yousem also disagreed with the local radiologist’s opinion

that C5-6 had progressed; he opined that all levels except for C3-4 were “stable.” Id.

Petitioner’s expert radiologist Dr. Sneag49 tended to agree or suggest that the MRI findings were

48

Dr. Yousem is licensed to practice medicine and board-certified in neuroradiology. Resp. Ex. G at 20. He

obtained a bachelor’s degree in 1980 and his medical degree in 1983, both from the University of Michigan. Id. at

1. After completing an internship in internal medicine at Union Memorial Hospital, in 1984, Dr. Yousem joined

Johns Hopkins University as a resident in diagnostic radiology, after which he became a fellow in the neurology

section. He moved to the University of Pennsylvania for a fellowship in neuroradiology from 1988 - 1990. Id.

Afterwards, he returned to Johns Hopkins, where in 1998 he became the director of neuroradiology. Id. He also

teaches at the medical school, where he has been a full professor since 2004. Id. His curriculum vitae lists

considerable research, peer-reviewed publications, and editorial activities including serving as a reviewer in head

and neck radiology for the journal Radiology. Id. at 1-24. While Dr. Yousem did not testify at the hearing, he

would have been readily accepted as an expert in the subject of neuroradiology, including MRI interpretation and

cervical radiculopathy.

49

Petitioner did not file Dr. Sneag’s formal curriculum vitae (“CV”) but did file his HSS physician profile. See Pet.

Ex. 46 at 43-46. He is licensed to practice medicine and board-certified in radiology and electrodiagnostic

medicine. Id. at 45. After obtaining a bachelor’s degree from Brown University, he enrolled at Albert Einstein

College of Medicine. Id. at 43. During medical school, he served as an MRI research assistant at HSS. Id. After

obtaining his medical degree, he completed a residency at Brigham and Women’s Hospital and then returned to HSS

as a musculoskeletal MRI fellow, where he received the fellowship research award. Id. He is now an assistant

attending radiologist and director of peripheral nerve MRIs at HSS, as well as an assistant professor of radiology at

Weill Cornell Medical College. Id. Dr. Sneag’s faculty profile lists his areas of special expertise as peripheral nerve

MRI, spine MRI, and sports medicine. Id. at 44. He works closely with physicians at the HSS Center for Brachial

Plexus and Traumatic Nerve Injury – which would necessarily include the director, Dr. Feinberg – to help guide

operative and non-operative management. Id.

31

even less significant. Pet. Ex. 47 at 1. Afterwards, Dr. Chaudhry acknowledged the “different

interpretations from the Johns Hopkins radiologist [Dr. Yousem] and the petitioner’s

radiologist,” but he preferred to rely on the “independent radiologist at the institution that the

doctors were working at, and… there’s some very significant changes at the level of C6, C7.”

Tr. 300-01. However, there is no evidence that the local radiologist ever reviewed the medical

records or examined petitioner, or that he is more qualified than the two expert radiologists

retained in this case. The expert radiologists also reviewed the images and agreed that all levels

except for C3-4 were stable from January 2009 to December 2013. I accept their agreement and

find that it is significant in understanding petitioner’s clinical picture.

I also asked Dr. Chaudhry why petitioner would experience “the sudden onset of this

severe pain when he’s had prolonged cervical radiculopathy?” Tr. 287. Dr. Chaudhry answered

that it was “possible that it was at the critical level and then one day it becomes severe. And

that’s not uncommon that you’re always going around, you know, it reaches a threshold at one

stage and it gets worse. Classically that’s due to a disk disease…this was not a disk, this was a

narrowing of the foramen and it was critical. It was low enough. And whether a certain position

or just with – happened one day, is difficult to know.” Tr. 287-88 (emphasis added). This is

intriguing in light of the medical records reflecting that petitioner had managed to work despite

his cervical radiculopathy for several decades, the expert radiologists’ agreement that petitioner’s

radiculopathy was generally stable from 2009 to 2013, and the affidavits describing the

significant accommodations that petitioner had to make after the onset of the new hand and arm

symptoms on October 2, 2013. As petitioner summarized at the end of the hearing: “All of the

contortions and the accommodations that I had to make from October the 2nd to November the

22nd put me in pretty bad shape.” Tr. 437. This supports petitioner’s contention that the acute

onset brachial neuritis forced him to make positional changes while working and to need

additional assistance until he no longer could do dental surgeries. However, any resulting

worsening of his cervical radiculopathy is not part of his compensable Table brachial neuritis

injury.

It also bears repeating that neither Dr. Chaudhry nor any treating doctors identified

cervical radiculopathy at the C8 and T1 nerve roots, which supply the anterior interosseous

nerve-supplied muscles. Resp. Ex. I at 9; Tr. 301-02. Dr. Feinberg emphasized that these levels

were “completely normal.” Tr. 101-02.

2. Carpal Tunnel Syndrome

Dr. Chaudhry adopted the neurologist Dr. Schneider’s characterization that petitioner had

a “double crush syndrome.” Pet. Ex. 27 at 10. Dr. Chaudhry explained that the two “crushes”

can be on different nerves. Tr. 225. Here, the two crushes would be cervical radiculopathy and

carpal tunnel syndrome, affecting different nerves.

Carpal tunnel syndrome describes compression of the C8-supplied median nerve as it

travels through the carpal tunnel, where the hand connects to the wrist. Tr. 245. It is called a

tunnel because it is surrounded by bones, the transverse carpal ligament, and several tendons. Id.

Too much crowding can result in compression on the nerve. Id. at 245-46; see also Tr. 92-95

(Dr. Feinberg’s agreement on the etiology). The experts agreed that carpal tunnel syndrome

32

causes numbness, tingling, and decreased sensation in the first three fingers. Tr. 28-29, 247.

Only advanced carpal tunnel syndrome causes weakness. Id. at 28-29, 399.

As noted above, Dr. Chaudhry believed that on October 2, 2013, petitioner’s new

symptoms were intermittent “numbness and tingling” in the hands, which he believed was most

consistent with carpal tunnel syndrome. Tr. 331; see also id. at 316-17, 359, 365-66, 376.

However, I do not see evidence for this characterization and instead find that the onset of

numbness and tingling was around the time of the November 22, 2013 emergency encounter.

Dr. Chaudhry mentioned that a positive Tinel sign50 can indicate early, but not late stage

carpal tunnel syndrome. Tr. 258. Only a few medical records include this test. In December

2013, Dr. Davidson recorded that the Tinel’s sign was negative. Pet. Ex. 21 at 2. In February

2014, Dr. Hadley recorded that it was “equivocal.” Pet. Ex. 6 at 7. Both records note that the

Phalen’s test51 for carpal tunnel syndrome was also negative.

Dr. Chaudhry testified that the first electrodiagnostic sign of carpal tunnel syndrome is

delayed conduction in the median nerve from above the carpal tunnel to the fingers. Resp. Ex. I

at 6; Tr. 256-57. The time is termed latency. Tr. at 257. The distance divided by time is

velocity. Id. Longer latency, leading to lower velocity, is supportive of carpal tunnel syndrome.

Id. Dr. Chaudhry testified that sensory fibers are more prone to damage. Id. at 259. The second

sign of more progressive carpal tunnel syndrome is the loss of some nerve fibers, which is

termed reduced amplitude on the NCV study. Tr. 257-59. The third sign of late stage carpal

tunnel syndrome is median nerve denervation, which shows up as fibrillations, positive waves,

and motor unit changes on EMG. Tr. 258.

On petitioner’s April 2014 electrodiagnostic testing, the right median nerve’s sensory

fiber latency and velocity were slightly below average bilaterally. Ex. 27 at 19. The amplitude

was normal on the left side but reduced on the right side. Id. The median nerve-supplied ABP

muscle was normal on EMG. Id. at 20. On the November 2015 NCV study (conducted by Dr.

Feinberg), the right-sided median sensory fibers still had longer latency, reduced velocity, and

reduced amplitude. Pet. Ex. 15 at 2. The right-sided median motor fibers had longer latency,

reduced velocity, and strangely increased amplitude (which the experts did not explain). Id. The

ABP muscle was normal on EMG. Id. Dr. Chaudhry opined that these findings were “not as

bad,” but “still evidence of carpal tunnel, right greater than left.” Tr. 307. This is in fact

consistent with Dr. Feinberg’s record upon completing the studies, back in November 2015, that

petitioner had “superimposed” carpal tunnel syndrome which was “mild to moderate on the right

side and mild on the left.” Pet. Ex. 15 at 3.

50

A Tinel sign is a “tingling sensation in the distal end of a limb when percussion is made over the site of a divided

nerve.” Dorland’s.

51

In a Phalen test, the patient holds the affected hand with the wrist fully flexed or extended for 30 to 60 seconds or

a cuff on the arm is inflated. The appearance of numbness and paresthesias indicates carpal tunnel syndrome.

Dorland’s.

33

After being retained as an expert, Dr. Feinberg maintained that petitioner’s carpal tunnel

syndrome was mild to moderate. It could cause some numbness, tingling, and loss of sensitivity.

See, e.g., Pet. Ex. 30 at 2; Pet. Ex. 37 at 1; Tr. 73, 95-97, 111. However, the right and left

electrodiagnostic findings were not significantly different, and he was so significantly disabled

on the right side. Tr. 158. Dr. Feinberg maintained that carpal tunnel syndrome would not have

any effect on the anterior interosseous nerve and the related PQ muscle, downward rotation of

the palm, the FPL muscle, flexion of the thumb, the FDP muscle, and flexion of the index finger.

See, e.g., Tr. 65, 95-96; Pet. Ex. 49 at 1; Pet. Ex. 50 at 1.

Dr. Chaudhry opined that another important sign of carpal tunnel syndrome was the

finding of right-sided thenar atrophy beginning in February 2014. See Pet. Ex. 25 at 2; Pet. Ex.

27 at 10; Pet. Ex. 15 at 1. He explained that carpal tunnel syndrome directly causes the loss of

motor function in the median nerve-supplied abductor pollicis brevis (“ABP”) muscle, which is

located in the thenar area of the palm and controls thumb abduction. This loss of function causes

the thenar atrophy. Tr. 250-51; see also Resp. Ex. I at 5 (illustrations of the anatomy and

appearance of atrophy).

Dr. Feinberg opined that petitioner’s NCV findings were not significant enough to cause

thenar atrophy. Tr. 184. He also noted that the ABP muscle did not have any signs of

denervation on EMG. Therefore, that should not account for the thenar atrophy. Tr. 96, 184,

396, 396. His alternative explanation was that the anterior interosseous nerve-supplied FPL

muscle, which was documented to have loss of function and abnormal EMG findings and is also

located in the thenar palm, accounted for the atrophy. Tr. 96-97.

Based on the April 2014 NCV/ EMG results, Dr. Feinberg would have recommended a

conservative trial of cortisone shots and splinting. Tr. 156-57. He suggested that the local

treaters might not have recommended carpal tunnel release if they had realized that his loss of

hand function was more from the AIN. Id. at 157. He works with a couple of surgeons who will

not operate on carpal tunnel syndrome unless there is denervation. Id. at 397. He maintained that

petitioner’s disability and loss of function in his right hand arose not from mild carpal tunnel

syndrome but from the injury to the anterior interosseous nerve.

Petitioner appears to have had mild carpal tunnel syndrome which generally involves

compression of the medial nerve as it passes through the carpal tunnel in the wrist. Carpal tunnel

syndrome does not involve injury to the anterior interosseous and the long thoracic nerves and it

is not a component of brachial neuritis. I find Dr. Feinberg’s explanation as to the source of

motor dysfunction and pain arising from the nerves passing through the brachial plexus to be

persuasive on this point.

VII. Table Brachial Neuritis Injury

A. Definition

If a petitioner establishes that he has suffered a Table injury, he is entitled to a

presumption of causation. 42 U.S.C. § 300aa-14(a); 42 C.F.R. § 100.3(a). Here, it is undisputed

that on September 20, 2013, petitioner received a Td vaccine, which contains tetanus toxoid.

34

Pet. Ex. 1 at 15. He must show that within 2-28 days after the vaccine, he suffered the onset of

brachial neuritis as defined in the controlling Table and the accompanying Qualifications and

Aids to Interpretation (the “QAI”). 42 C.F.R. § 100.3(b).52 The QAI at section 100.3(b)(7)

provides:

(i) [Brachial neuritis] is defined as dysfunction limited to the upper extremity nerve

plexus (i.e., its trunk, divisions, or cords) without involvement of other peripheral

(e.g., nerve roots or a single peripheral nerve) or central (e.g., spinal cord) nervous

system structures. A deep, steady, often severe aching pain in the shoulder and upper

arm usually heralds onset of the condition. The pain is followed in days or weeks by

weakness and atrophy in upper extremity muscle groups. Sensory loss may

accompany the motor deficits, but is generally a less notable clinical feature. The

neuritis, or plexopathy, may be present on the same side as or the opposite side of the

injection; it is sometimes bilateral, affecting both upper extremities.

(ii) Weakness is required before the diagnosis is made. Motor, sensory, and reflex

findings on physical examination and the results of nerve conduction and

electromyographic studies must be consistent in confirming that the dysfunction is

attributable to the brachial plexus. The condition should thereby be distinguishable

from conditions that may give rise to dysfunction of the neve roots (i.e.,

radiculopathies) and peripheral nerves (including multiple mononeuropathies), as

well as other peripheral and central nervous system structures (e.g., cranial

neuropathies and myelopathies).

42 C.F.R. § 100.3(b)(7).

B. Petitioner suffered the onset of brachial neuritis within 2-28 days after the Td

vaccination.

Petitioner received the Td vaccination on September 20, 2013. Pet. Ex. 1 at 15. The QAI

provides that “a deep, steady, often aching pain in the shoulder and upper arm usually heralds

onset of” brachial neuritis.” 42 C.F.R. § 100.3(b)(7)(i). Respondent contends that petitioner did

not experience such symptoms within 2-28 days of vaccination. Resp. Post-Hearing Brief at 4.

Respondent avers that petitioner experienced only “hand cramping on or about October 3 [sic?

October 2?], 2013.” Id. at 4-5. However, as accepted in my earlier finding of fact and reiterated

here, the witnesses described that on October 2, 2013, petitioner suddenly developed deep aching

pain in his right hand and shoulder. The pain caused the cramping. This pain was not so severe

that petitioner sought medical attention, but it significantly impacted his ability to do his job. He

made positional changes and began to have not just one, but two medical assistants present

during dental surgeries. This pain was also persistent. Contrary to Dr. Chaudhry’s

interpretation, the affidavits do not support that petitioner’s symptoms beginning on October 2,

2013, were intermittent or that they included numbness and tingling. The onset described in the

affidavits is consistent with the Table’s description of pain that is “often” but not always severe

and current literature which recognizes a range of symptomatology. See van Alfen (2016) [Pet.

52

Given the date of the petition’s filing, the applicable Table was published July 23, 2015.

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Ex. 25] at 2. Dr. Feinberg also explained that the hand symptoms corresponded to the anterior

interosseous nerve, the shoulder symptoms corresponded to the long thoracic nerve, and that

simultaneous injury to both nerves was consistent with brachial neuritis.

C. Petitioner’s pain was followed within days or weeks by weakness and atrophy in the

affected upper extremity muscle groups.

On this question, respondent emphasizes Dr. Chaudhry’s opinion that “petitioner’s

clinical examinations in the months following his initial symptoms were variable, and his

strength was noted to be normal at various points, including in examination by Dr. Feinberg two

years post-vaccination.” Resp. Post-Hearing Response at 6-7, citing Resp. Ex. J at 4-5.

However, the affidavits describe progressive weakness throughout October and November 2013.

Several of the “normal” findings are from medical encounters not focused on petitioner’s left

hand and shoulder. Pet. Ex. 19 at 12, 15 (emergency encounter due to “concern for his heart”);

Pet. Ex. 1 at 5, 8 (follow-up primary care encounters). Many of the other medical records cited

by Dr. Chaudhry do in fact document petitioner’s report of right hand weakness and/or that

finding on physical exam. Pet. Ex. 1 at 10, 12; Pet. Ex. 6 at 1-2, 5, 7; Pet. Ex. 15 at 1-3; Pet. Ex.

21 at 1-3; Pet. Ex. 25 at 1-3; Pet. Ex. 26 at 1-3; Pet. Ex. 27 at 1-5, 7-10, 12-16. While many of

the local physicians attributed petitioner’s hand weakness and thenar atrophy to carpal tunnel

syndrome, Dr. Feinberg was persuasive in explaining that those are only present with late-stage

carpal tunnel syndrome and that petitioner’s carpal tunnel syndrome was only mild to moderate.

Therefore, those signs and symptoms were more likely attributable to the anterior interosseous

nerve component of his brachial neuritis. Dr. Feinberg also explained that long thoracic nerve

weakness and atrophy would have been less apparent particularly if the local physicians did not

properly examine petitioner shirtless and from behind for scapular winging, which he personally

observed in November 2015.

D. Petitioner’s compensable condition is limited to the upper extremity nerve plexus

and was documented on physical examination and electrodiagnostic studies.

Dr. Feinberg – acting first as a disinterested medical provider, then as a highly qualified

expert – explained that petitioner developed specific dysfunction that was attributable to two

specific nerves which pass through the brachial plexus. Most prominently, petitioner developed

weakness in the right FPL muscle which controls thumb flexion. He also developed weakness in

the FDP muscle which controls index finger flexion and the PQ muscle which controls

downward rotation in the thumb. All three muscles are controlled by the anterior interosseous

nerve, which stems from the C8 and T1 nerve roots and then passes through the brachial plexus.

The relevant interspaces, C7-8 and T1, were normal on the MRIs of petitioner’s spine.

Therefore, cervical radiculopathy in this patient does not explain his dysfunction. Neither does

petitioner’s carpal tunnel syndrome, which was mild to moderate.

Petitioner also developed weakness in the right SA muscle which rotates the scapula and

plays an important role in stabilizing the shoulder during shoulder abduction. This weakness did

not have such a significant impact on petitioner’s ability to work as a dentist, which primarily

required fine motor control in his hands. However, several local physicians documented that

petitioner had decreased strength on right shoulder abduction and he still displayed the hallmark

sign of scapular winging when he finally reached Dr. Feinberg. Importantly, while Dr. Chaudhry

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suggested that cervical radiculopathy at nerve roots C5, C6, and C7 could have caused the long

thoracic nerve injury, SA weakness, and scapular winging, he also recognized that this would be

“unusual” because other muscles, like the deltoid and suprascapular, from those nerve roots were

normal on both EMGs. Tr. 314. Accordingly, I find that cervical radiculopathy does not explain

these specific findings.

As noted in the previous subsection, many of the local physicians’ records documented

this dysfunction without recognizing that it was attributable to injuries to the anterior

interosseous and long thoracic nerves which together represented brachial neuritis. With regard

to the electrodiagnostic studies, it is highly significant that the local neurologist did not test the

relevant muscles and nerves. In contrast, Dr. Feinberg, who is highly specialized in testing and

diagnosing these injuries, did detect mild abnormal spontaneous activity in the anterior

interosseous nerve and a discrete recruitment pattern in both nerves. He explained that these

findings were indicative of chronic partially recovered injuries to these two nerves which pass

through the brachial plexus.

E. Petitioner’s compensable condition can be separated out from his other

comorbidities.

Respondent correctly noted that petitioner has experienced symptoms – including chronic

pain in his neck as well as new pain throughout his right arm and chest, numbness and tingling in

his hands, sensory loss, and worsening cardiac conditions all beginning in November 2013 – that

cannot be explained by his brachial neuritis and are instead explained by chronic cervical

radiculopathy and the new post-vaccination diagnosis of carpal tunnel syndrome. Resp. Post-

Hearing Response at 7-8. Respondent also contended: “To find that these facts meet the

requirements for a Table injury would be unfair to those petitioners who meet or substantially

meet the terms presented by the QAI, and would set a poor precedent for future claimants to

make Table claims when really their facts really warrant a causation-in-fact analysis.” Id. at 10.

It is first noted that a ruling in favor of this petitioner is not unfair to others. Due to

petitioner’s complex medical picture, this claim has required several years of litigation and

opinions from experts on both sides.

After a careful review, I find that Dr. Chaudhry was persuasive in testifying that the

November 22, 2013, episode of acute right arm and chest pain may well have represented

cervical angina. He also identified symptoms throughout the medical records which were more

consistent with cervical radiculopathy. The expert radiologists were in consensus that the MRI

findings were largely stable from 2009 to 2013, but there were not insignificant findings at

multiple levels and undisputed progression at interspace C3-4. Dr. Feinberg agreed that

petitioner had mild to moderate carpal tunnel syndrome which caused some new numbness and

tingling in petitioner’s hands in November 2013. Neither expert devoted significant attention to

the cardiac condition, which was not within their area of expertise and is well explained by the

presence of a 90% occlusion of the left descending coronary artery. The finding of a Table

brachial neuritis injury in this case applies to the loss of motor function in the thumb and other

symptoms described above that are attributable to the injury to the anterior interosseous nerve

and the long thoracic nerve which both arise in the brachial plexus. The Table injury does not

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include the comorbidities including the cervical radiculopathy, carpal tunnel syndrome, and

myocardial infarction.53

VIII. Conclusion

For the foregoing reasons, petitioner is entitled to compensation and the case will proceed

to determining the damages attributable to petitioner’s Table brachial neuritis injury.

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

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Petitioner has also established that he suffered residual effects or complications of brachial neuritis for at least six

months after the vaccination, see section 11(c)(1)(D), based specifically on the persistence of his signs and

symptoms as well as Dr. Feinberg’s EMG findings of chronic partially recovered neuropathies over two years post-

vaccination.

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