            In the United States Court of Federal Claims
                                           No. 15-891V
                               Filed Under Seal: February 7, 2018
                             Reissued for Publication: March 9, 2018*

                                               )
    JASON CLUBB,                               )
                                               )
                         Petitioner,           )
                                               )      National Childhood Vaccine Injury Act,
    v.                                         )      42 U.S.C. § 300aa–1 to –34; Statute of
                                               )      Limitations; Equitable Tolling.
    SECRETARY OF HEALTH AND                    )
    HUMAN SERVICES,                            )
                                               )
                         Respondent.           )
                                               )


       Renée J. Gentry, Counsel of Record, Vaccine Injury Clinic, George Washington
University Law School, Washington, DC, for Petitioner.

       Adriana Ruth Teitel, Trial Attorney, Gabrielle M. Fielding, Assistant Director,
Catharine E. Reeves, Deputy Director, C. Salvatore D’Alessio, Acting Director, Chad A.
Readler, Acting Assistant Attorney General, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for Respondent.

                          MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I.       INTRODUCTION

         Petitioner, Jason Clubb, seeks review of the August 15, 2017, decision of the special
master denying his claim for compensation under the National Childhood Vaccine Injury Act
(the “Vaccine Act”), 42 U.S.C. § 300aa–1 to –34. Petitioner alleges that he suffered from
chronic inflammatory demyelinating polyneuropathy (“CIDP”) as the result of the influenza

*
 This Memorandum Opinion and Order was originally filed under seal on February 7, 2018
(docket entry no. 48). The parties were given an opportunity to advise the Court, by March 7,
2018, of their views with respect to what information, if any, should be redacted. On March 6,
2018, the parties informed the Court that no redactions were required (docket entry no. 50).
And so, the Court reissues the Memorandum Opinion and Order, dated February 7, 2018,
without any redactions.
vaccine, and that his CIDP was caused, or significantly aggravated, by the Tetanus-diphtheria-
acellular-pertussis (“Tdap”) vaccine. For the reasons set forth below, the Court DENIES
petitioner’s motion for review and SUSTAINS the decision of the special master.

II.      FACTUAL AND PROCEDURAL BACKGROUND1

        A. Factual Background

        In this Vaccine Act matter, petitioner, Jason Clubb, alleges that he suffered from CIDP
as the result of the influenza vaccine, and that his CIDP was caused, or significantly aggravated,
by the Tdap vaccine. See generally Amended Pet. On August 15, 2017, the special master
denied petitioner’s claim for compensation under the Vaccine Act as untimely. Clubb v. Sec’y
of Health & Human Servs., (Fed. Cl. Spec. Mstr. filed Aug. 15, 2017) (docket entry no. 43)
(“Dec.”).

                1. Petitioner’s Medical History

        In 2012, petitioner was hospitalized and ultimately diagnosed with GuillainBarré
Syndrome (“GBS”). Id. Petitioner’s GBS became chronic and developed into CIDP. Id.

         With regards to the timing of the onset of petitioner’s CIDP, petitioner’s medical
records document a call that he made to his primary care physician’s “Call-A-Nurse” service on
August 17, 2012. Pet. Ex. 7 at 239. During this call, petitioner complained of “numbness in
[his] finger tips and ‘bottoms of feet.’” Id. Petitioner was “advised to contact [his primary care
physician] on Monday for follow up and/or if symptoms worsen [to] call back or seek assistance
at the beach.” Id.

         On August 18, 2012, petitioner was seen by emergency medical personnel. Id. at 238.
Petitioner’s test results at that time were normal and no further action was taken. Id.

        On August 19, 2012, petitioner again reported that his symptoms had worsened and
spread to his tongue to his physician’s “Call-A-Nurse” service. Id. At the advice of the
service’s on-call nurse practitioner, petitioner subsequently sought in-person medical treatment.


1
 The facts recounted in this Memorandum Opinion and Order are taken from the petitioner’s amended
petition (“Pet.”) and exhibits filed during the proceedings before the special master (“Pet. Ex.”). Except
where otherwise noted, the facts recited herein are undisputed.



                                                     2
Id. To that end, petitioner went to the emergency room and reported to the triage nurse that he
was suffering numbness and heaviness in his legs. Pet. Ex. 6 at 22. During this emergency
room visit, petitioner stated that his symptoms began on August 17, 2012. Id. at 21-22.
        According to the medical records for this emergency room visit, petitioner presented to
the treating physician’s assistant with “upper extremity altered sensation” that started about
seven days prior. Pet. Ex. 7 at 233. Petitioner was diagnosed with disturbance of sensation and
acute cervical strain. Id. at 235. And so, petitioner was referred to a neurologist and an
orthopedist. Id.

           On August 20, 2012, petitioner returned to the emergency room due to “tingling all
over,” numbness, and inability to perform fine motor skills for approximately three days prior.
Pet. Ex. 6 at 36-37. During this emergency room visit, petitioner presented with weakness of
the right arm, right hand, right leg, left arm, left hand, and left leg. Pet. Ex. 10 at 31.

        Petitioner was admitted to the hospital with a diagnosis of probable GBS. Pet. Ex. 6 at
35. At the time, petitioner did not exhibit impaired speech. Pet. Ex. 10 at 32. And so,
petitioner was able to communicate with medical personnel about his symptoms and treatment.
Id. at 35.

         On the day of his admission to the hospital, petitioner was described as alert and
oriented with normal mood, affect, and speech. Pet. Ex. 6 at 32. Later that day, petitioner
remained alert and communicative, but his speech took on a nasal quality. Id. at 385. Petitioner
remained in the hospital for eight days. Id. at 26. Petitioner remained able to communicate
with medical personnel about his course of treatment and rehabilitation during this
hospitalization. Id. at 425, 427, 429, 434, 438, 441. In this regard, a progress report dated
August 22, 2012, states that, “Pt eager to do work” and “Pt asking appropriate questions
throughout.” Id. at 441.

        On August 24, 2012, petitioner received a neurologic exam and he was described as
follows:
        [a]wake, alert, and oriented. Cranial nerves intact. Sensation intact . . . Sitting
        balance is good. Speech and cognition is fairly good, but he can see his little cotton
        mouth and his [sic] not getting much lip movement when he speaks, so he sounds
        a little dysarthric.




                                                   3
Id. at 367. Neurologic notes from the day before petitioner’s discharge from the hospital
similarly refer to petitioner as being “alert and oriented,” with the ability to follow commands
despite some speech dysarthria.2 Id. at 425. Although petitioner’s dysarthria persisted, the
neurologic notes from petitioner’s hospital discharge summary describe him as “alert and
oriented.” Id. In fact, petitioner’s medical records detail his drug regimen and contain notes
from treating personnel that document petitioner’s alertness and ability to communicate
throughout his week-long hospitalization. See generally Pet. Exs. 6, 10.

        Petitioner was discharged from the hospital on August 28, 2012. Pet. Ex. 6 at 26. At the
time of his discharge, petitioner was diagnosed with GBS, dysphagia,3 and headache. Id. After
further treatment and examination, petitioner was ultimately diagnosed with CIDP sometime in
September or October of 2012. Pet. Ex. 4 at 14-16.

                 2. Proceedings Before The Special Master

        On August 18, 2015, petitioner filed a petition pursuant to the Vaccine Act, alleging that
he suffered from CIDP as a result of the influenza vaccination. Pet. at 2. On September 18,
2015, petitioner filed an amended petition alleging that his CIDP was caused, or, in the
alternative, significantly aggravated, by the Tdap vaccination that he received on July 31, 2012.
Am. Pet. at 2.

         On January 13, 2016, the Secretary filed a motion to dismiss petitioner’s claim upon
the ground that the statute of limitations had run at the time of petitioner’s filing on August 18,
2015. Resp’t Mot. On October 24, 2016, petitioner filed an opposition to the government’s
motion to dismiss and requested that the special master apply equitable tolling to the limitations
period in this case. See generally Pet’r’s Opp. In his reply, the Secretary argued that there were
no grounds for equitable tolling in this case. Resp’t Reply.




2
  Dysarthria is “a speech disorder consisting of imperfect articulation due to loss of muscular control
after damage to the central or peripheral nervous system.” Dysarthria, Dorland’s Medical Dictionary
575 (32d ed. 2012).

3
 Dysphagia is “[an] impairment of speech, consisting in lack of coordination and failure to arrange
words in their order, due to a central lesion[.]” Dysphagia, Dorland’s Medical Dictionary 579 (32d ed.
2012) (brackets added).


                                                     4
       After the parties fully briefed these issues, the special master held a status hearing on
May 11, 2017, during which she ordered the petitioner to file additional records from his
August 2012 hospitalization. See generally Scheduling Order, May 11, 2017. Petitioner filed
the requested records on June 22, 2017. See Pet. Ex. 10.

               3. The Special Master’s Decision

       On August 15, 2017, the special master issued a decision denying petitioner’s Vaccine
Act claim (the “August 15, 2017, Decision”). See generally Dec. In that decision, the special
master found that petitioner’s claim was untimely, because the Vaccine Act’s 36-month statute
of limitations had run with respect to his claims. Id. at 9-10. And so, the special master granted
the Secretary’s motion to dismiss this matter. Id.

       Specifically, in the August 15, 2017, Decision, the special master found that the
evidence supported August 17, 2012, as the correct symptom onset date, due to evidence that
petitioner made several calls to the “Call-A-Nurse” service on August 17 and 18, 2012. Dec. at
6; see also Pet. Ex. 7 at 238-39. And so, the special master concluded that the complete medical
record “overwhelmingly identifies August 17, 2012 as the onset date[]” for petitioner’s
symptoms. Dec. at 6.

       The special master also examined the question of whether the 36-month statute of
limitations period under the Vaccine Act had elapsed, given the onset date of the petitioner’s
symptoms. In this regard, the special master found that the statutory period ends on the
anniversary date of the event which triggers the beginning of the statute of limitations. Dec. at
8. And so, the special master concluded that the statute of limitations period in this case began
on August 18, 2012, at 12:01 AM, and ended at midnight on August 17, 2015. Dec. at 6.
Because petitioner filed his Vaccine Act claim on August 18, 2015, the special master
concluded that petitioner’s claim was untimely. Id.

       In light of her conclusion that statute of limitations period expired before petitioner filed
his claim, the special master considered whether the application of the doctrine of equitable
tolling would be appropriate in this case. Id. at 4-5. In this regard, the special master
considered petitioner’s argument that the running of the statute of limitations should be tolled in
this case, because his medical impairments rendered petitioner incapable of carrying out his




                                                  5
daily affairs “in a manner that would allow him to pursue his legal rights for a material period of
time.” Id. at 6.
        The special master observed that petitioner’s medical records detailed hospital
admissions and that petitioner stated that he was non-ambulatory and bed-bound due to
paralysis during his hospitalization. Id. The special master also observed that petitioner
suffered from facial paralysis and difficulty eating and swallowing at the time. Id. But, the
special master found that these symptoms were not evidence of a mental impairment that, either
rendered petitioner incapable of rational thought or deliberate decision making, incapable of
handling his own affairs, or unable to function in society. Id. (quoting Barrett v. Principi, 363
F.3d 1316, 1321 (Fed. Cir. 2004)).

        The special master also found that petitioner’s claim that he lost the ability to
communicate “[w]ithin days and weeks following his vaccination,” was unsupported by the
evidence. Id. at 6-7 (alteration in original). The special master did find, however, evidentiary
support for petitioner’s claim that he experienced “‘persistent numbness in his feet and hands,’
severe motor skill dysfunction and sensory impairment, difficulty ingesting food, fatigue, and
[paresthesia], as well as a loss of independence resulting from diagnosis of CIPD. Id. at 7; see
also Pet. Ex. 4 at 14-16. But, the special master concluded that these physical impairments did
not affect petitioner’s cognitive abilities in a way that would prevent petitioner from pursuing
his legal rights to warrant the application of the doctrine of equitable tolling in this case.4 Id. at
8.

        As a final matter, the special master rejected three alternative arguments put forward by
petitioner to support his contention that “extraordinary circumstances” warranted equitable
tolling of the statute of limitations in this case. First, petitioner argued without success that
equitable tolling should apply in this case because his injury was unknown during the early



4
  The special master did, however, acknowledge that petitioner may have suffered from dysphasia,
which could certainly affect his ability to pursue a legal claim. Dec. at 7. But, the special master found
that the evidence in petitioner’s medical history from the time petitioner was diagnosed with that
condition showed that petitioner retained his cognitive abilities. Id.; see also Pet. Ex. 6 at 27. And so,
the special master concluded that there was no evidence that petitioner suffered a physical impairment
that would justify equitable tolling. Dec. at 8.




                                                     6
stages, due to the evolving nature of GBS into CIDP. Pet’r’s Opp. at 9-11; Dec. at 8. Based
upon the Federal Circuit’s decision in Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,
1338 (Fed. Cir. 2012), the special master found that “Congress made the deliberate choice to
trigger the Vaccine Act statute of limitations from the date of occurrence of the first symptom or
manifestation of the injury for which relief is sought, an event that does not depend on the
knowledge of a petitioner as to the cause of an injury.” Dec. at 8 (quoting Cloer, 654 F.3d at
1338). And so, the special master concluded that the trigger for the Vaccine Act’s statute of
limitations did not depend upon petitioner’s knowledge of the cause of his injury. Id.

       Second, the special master rejected petitioner’s argument that extraordinary
circumstances warranting equitable tolling were present, because his vaccine administrator
failed to provide petitioner with a vaccine information sheet. Id. at 8-9. In doing so, the special
master observed that it is well-established that ignorance of the vaccine injury compensation
program “is not a proper basis for applying equitable tolling.” Id.

       Lastly, the special master also rejected the petitioner’s argument that equitable tolling
was appropriate in this case due to petitioner’s alleged disadvantage given his status as a pro se
petitioner. Dec. at 9. In rejecting this argument, the special master observed that petitioner had
not been precluded from obtaining counsel prior to filing his claim. Id. The special master also
observed that the vaccine injury compensation program will often pay attorneys’ fees when
petitioners are unsuccessful and that this practice increases the ease with which petitioners are
able to procure representation regardless of their ability to pay. Id.; see also 42 U.S.C. §
300aa—15(e).

       After considering the evidence and petitioner’s various arguments in support of applying
the doctrine of equitable tolling in this matter, the special master observed that the statute of
limitations is “one of the few procedural safeguards that the [vaccine injury compensation
program] has to provide the best guarantee of an evenhanded administration of the law.” Id.
Given this, the special master concluded that petitioner did not present evidence of any
circumstance that would warrant the application of the doctrine of equitable tolling. Dec. at 9.
And so, the special master denied petitioner’s claim as untimely. Id.




                                                  7
       B. Procedural History

       On September 13, 2017, petitioner filed a motion for review of the special master’s
August 15, 2017, Decision. See Mot. for Review. The Secretary responded to the motion for
review on October 13, 2017. See Resp.

       The petitioner’s motion for review having been fully briefed, the Court resolves the
pending motion.

III.   STANDARDS FOR DECISION

       A. Vaccine Act Claims

       The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master and, upon such review, may:

       (A) uphold the findings of fact and conclusions of law of the special master and
       sustain the special master’s decision,

       (B) set aside any findings of fact or conclusion of law of the special master found
       to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law and issue its own findings of fact and conclusions of law, or

       (C) remand the petition to the special master for further action in accordance with
       the court’s direction . . . .

42 U.S.C. § 300aa–12(e)(2).

       The special master’s determinations of law are reviewed de novo. Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master’s
findings of fact are reviewed for clear error. Id. (citation omitted); see also Broekelschen v.
Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special
master’s findings of fact unless they are arbitrary or capricious[]”) (alteration not in original).
The special master’s discretionary rulings are reviewed for abuse of discretion. Munn v. Sec’y
of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).

       In addition, a special master’s findings regarding the probative value of the evidence and
the credibility of witnesses will not be disturbed so long as they are “supported by substantial
evidence.” Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010)
(citation omitted); see also Burns v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 415, 417



                                                  8
(Fed. Cir. 1993) (holding that the decision of whether to accord greater weight to
contemporaneous medical records or later given testimony is “uniquely within the purview of
the special master”). This “level of deference is especially apt in a case in which the medical
evidence of causation is in dispute.” Hodges v. Sec’y of Dep’t of Health & Human Servs., 9
F.3d 958, 961 (Fed. Cir. 1993). And so, the Court will not substitute its judgment for that of the
special master, “if the special master has considered all relevant factors, and has made no clear
error of judgment.” Lonergan v. Sec’y of Dep’t of Health & Human Servs., 27 Fed. Cl. 579,
580 (1993).

       Under the Vaccine Act, the Court must award compensation if a petitioner proves, by a
preponderance of the evidence, all of the elements set forth in 42 U.S.C. § 300aa–11(c)(1),
unless there is a preponderance of evidence that the illness is due to factors unrelated to the
administration of the vaccine. 42 U.S.C. § 300aa–13(a)(1). A petitioner can recover either by
proving an injury listed on the Vaccine Injury Table (the “Table”), or by proving causation-in-
fact. See 42 U.S.C. §§ 300aa–11(c)(1)(C); Althen v. Sec’y of Health & Human Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005). And so, to receive compensation under the National Vaccine
Injury Compensation Program, a petitioner must prove either that: (1) the petitioner suffered a
“Table Injury” that corresponds to one of the vaccinations in question within a statutorily
prescribed period of time or, in the alternative, (2) the petitioner’s illnesses were actually caused
by a vaccine. See 42 U.S.C. §§ 300aa–11(c)(1)(C)(i)-(ii), 300aa–13(a)(1)(A), 300aa–14(a); see
also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010);
Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1319-20 (Fed. Cir. 2006).

       In addition, in Table and non-Table cases, a petitioner bears a “preponderance of the
evidence” burden of proof. 42 U.S.C. § 300aa–13(a)(1)(A); Althen, 418 F.3d at 1278 (citing
Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)). And so,
a petitioner must offer evidence that leads the “trier of fact to believe that the existence of a fact
is more probable than its nonexistence before [he] may find in favor of the party who has the
burden to persuade the [judge] of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2 (brackets
existing) (internal quotation omitted) (citation omitted); see also Snowbank Enter. v. United
States, 6 Cl. Ct. 476, 486 (1984) (holding that mere conjecture or speculation is insufficient
under a preponderance standard).



                                                   9
        To establish a prima facie case when proceeding on a causation-in-fact significant
aggravation theory, a petitioner must “prove, by a preponderance of the evidence, that the
vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about
the injury.” Shyface, 165 F.3d at 1352. In addition, petitioner must prove by a preponderance
of the evidence: (1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for the injury;
and (3) a showing of a proximate temporal relationship between the vaccination and the injury.
Althen, 418 F.3d at 1278. But, medical or scientific certainty is not required. Knudsen by
Knudsen v. Sec’y of Dep’t of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994).

        In Althen, the Federal Circuit addressed these three elements to prove causation-in- fact.
Althen, 418 F.3d at 1278. All three elements “must cumulatively show that the vaccination was
a ‘but-for’ cause of the harm, rather than just an insubstantial contributor in, or one among
several possible causes of, the harm.” Pafford v. Sec’y of Health & Human Servs., 451 F.3d
1352, 1355 (Fed. Cir. 2006). In addition, if a petitioner establishes a prima facie case, the
burden shifts to the respondent to show, by a preponderance of the evidence, that the injury was
caused by a factor unrelated to the vaccine. See 42 U.S.C. § 300aa–13(a)(1)(B); Shalala v.
Whitecotton, 514 U.S. 268, 270-71 (1995). But, regardless of whether the burden of proof ever
shifts to the respondent, the special master may consider the evidence presented by the
respondent in determining whether the petitioner has established a prima facie case. See Stone
v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379 (Fed. Cir. 2012) (“[E]vidence of other
possible sources of injury can be relevant not only to the ‘factors unrelated’ defense, but also to
whether a prima facie showing has been made that the vaccine was a substantial factor in
causing the injury in question.”); De Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347,
1353 (Fed. Cir. 2008) (“The government, like any defendant, is permitted to offer evidence to
demonstrate the inadequacy of the petitioner’s evidence on a requisite element of the
petitioner’s case[-]in-chief.”).




                                                 10
          B. Statute Of Limitations And Equitable Tolling

          The statute of limitations for claims brought pursuant to the Vaccine Act is set forth in
section 16(a) of that Act. 42 U.S.C. § 300aa-16(a)(2). Specifically, the Vaccine Act provides,
in relevant part, that:

          (a) General rule. In the case of-- . . . .

               (2) a vaccine set forth in the Vaccine Injury Table which is administered
               after [the effective date of this part], if a vaccine-related injury occurred as
               a result of the administration of such vaccine, no petition may be filed for
               compensation under the Program for such injury after the expiration of 36
               months after the date of the occurrence of the first symptom or
               manifestation of onset or of the significant aggravation of such injury, . . .
               .
Id. And so, this statute of limitations begins to run on the date of occurrence of the first
symptoms or manifestation of onset of the vaccine–related injury and petitions that have been
filed more than 36 months after this date are time-barred. Id.; Cloer, 654 F.3d at 1324.

          The Federal Circuit has held that the doctrine of equitable tolling applies to Vaccine Act
Claims. Cloer, 654 F.3d at 1340-44; see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
95-96 (1990) (establishing a presumption that suits against the government are subject to
equitable tolling absent a provision by Congress to the contrary). But, the Federal Circuit has
also recognized that this doctrine should be employed “sparingly” and only when “extraordinary
circumstances” warrant its use. Cloer, 654 F.3d at 1344-45 (citing Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)); see also Irwin, 498 U.S. at 96. Such extraordinary circumstances could
include, for example, if a petitioner was the victim of fraud or duress, or filed a procedurally
defective claim. See, e.g., Cloer, 654 F.3d at 1344; Bailey v. Glover, 88 U.S. 342, 349–50
(1875).

          In addition, the Federal Circuit has also recognized within the context of veterans’
benefits claims that mental or physical impairment could be considered a potential ground for
tolling the statute of limitations that applies to those claims. See Barrett v. Principi, 363 F.3d
1316, 1320 (Fed. Cir. 2004) (holding that equitable tolling is allowed because the mental
condition preventing a veteran from timely filing is often the same illness for which
compensation is sought); see also Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005)
(holding that if mental illness can justify equitable tolling, physical illness can justify tolling for


                                                       11
veteran appeals claims as well); 38 U.S.C. § 7266(a). In such cases, the Federal Circuit has held
that a court must focus on whether the particular infirmity prevented the veteran from engaging
in “rational thought or deliberate decision making,” or rendered him “incapable of handling
[his] own affairs or unable to function [in] society,” to determine if a mental or physical
infirmity warrants equitable tolling. Arbas, 403 F.3d at 1381 (citing Barrett, 363 F.3d at 1321)
(alterations in original).

IV.     LEGAL ANALYSIS

        In his motion for review, petitioner raises two objections to the special master’s August
15, 2017, Decision. First, petitioner argues that the special master erred by failing to properly
apply the doctrine of equitable tolling for physical impairment. Pet’r’s Mot. at 2. Second,
petitioner argues that the special master abused her discretion, and acted contrary to law, by
ignoring his argument that pro se petitioners are at a disadvantage and that, for this reason,
equitable tolling should apply to this case. Id.

        The Secretary counters that the special master correctly determined that petitioner failed
to show that his physical impairments justified equitable tolling of the Vaccine Act’s statute of
limitations. Resp. at 6-12. The Secretary also argues that the special master did not abuse her
discretion, or act contrary to law, in rejecting petitioner’s argument that equitable tolling should
be applied in this case because he is a pro se petitioner. Id. at 12-15. And so, the Secretary
requests that the Court deny petitioner’s motion for review and sustain the decision of the
special master. Id. at 15.

        For the reasons discussed below, the evidence before the Court shows that the special
master did not abuse her discretion, or act contrary to law, in reaching the decision to dismiss
petitioner’s Vaccine Act claim as untimely. And so, the Court DENIES the petitioner’s motion
for review and SUSTAINS the sound decision of the special master.

        A. The Special Master Reasonably Concluded That Application Of The
           Doctrine Of Equitable Tolling Due To Physical Impairment Was Unwarranted

                1. Equitable Tolling Due To Physical Or Mental Impairment
                   Is At Odds With The Vaccine Injury Compensation Program

        As a preliminary matter, the Secretary persuasively argues in his response that equitable
tolling due to a physical or mental impairment is incompatible with the vaccine injury


                                                   12
compensation program. Resp. at 8. The Federal Circuit has recognized that the doctrine of
equitable tolling may apply to Vaccine Act claims. Cloer v. Sec’y of Health & Human Servs.,
654 F.3d 1322, 1340-44 (Fed. Cir. 2012) (establishing that Vaccine Act Claims are subject to
equitable tolling). But, the Federal Circuit has also recognized that this doctrine should be
employed “sparingly” and only when “extraordinary circumstances” warrant its use. Cloer, 654
F.3d at 1344-45 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Irwin, 498
U.S. at 96.

       Notably, the Federal Circuit has never held that the Vaccine Act’s 36-month statute of
limitations period may be equitably tolled, due to either a physical or mental impairment. In
fact, as the Secretary points out in his response, the Vaccine Act contains other safeguards to
protect the legal rights of petitioners in the event of a physical or mental impairment. Id. at 6-8.

       For example, Section 11(b)(1)(A) of the Vaccine Act provides that minor or disabled
petitioners may have their legal rights advanced and protected by a legal representative in
Vaccine Act proceedings. 42 U.S.C. § 300aa-11(b)(1)(A). The Vaccine Injury Table also
expressly covers encephalopathy—an injury to the brain that can result in permanent cognitive
impairment. Resp. at 8. Nonetheless, Vaccine Act petitions alleging a vaccine-caused
encephalopathy must still be filed within the 36-month limitations period. See Vaccine Injury
Table, 42 U.S.C. § 300aa-14; see also 42 U.S.C. § 300aa-16(a)(2). And so, the requirements of
the Vaccine Act appear to be incompatible with the notion that a physical or mental
impairment−alone−is sufficient to toll the Act’s statute of limitations period. Cf. Barrett v.
Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (holding that mental illness that is the direct
result of an illness that rendered a veteran incapable of rational thought or deliberate decision
making may warrant tolling of statute of limitations in veterans’ benefits cases); Arbas v.
Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005) (finding that equitable tolling of a limitations
period is available for a veteran filing a notice of appeal due to physical illness).

       The Court’s misgivings about applying the doctrine of equitable tolling due to physical
or mental impairment within the context of Vaccine Act claims notwithstanding, the record
evidence in this matter shows that the special master reasonably concluded that equitable tolling
due to petitioner’s physical impairment was not warranted in this case. And so, the Court must
sustain the decision of the special master.



                                                  13
               2. The Special Master Reasonably Concluded That Petitioner’s
                  Physical Impairments Did Not Warrant Equitable Tolling

       Petitioner argues in his motion for review that the special master failed to properly apply
the doctrine of equitable tolling due to physical impairment, because the evidence shows that
his physical impairments rendered him incapable of handling his own affairs or unable to
function in society. Pet’r’s Mot. at 7-8. Petitioner further argues that the special master erred
by “conflating the requirements for demonstrating cognitive and physical impairment sufficient
to trigger the application of equitable tolling.” Id. at 8. Neither of petitioner’s objections to the
special master’s decision are substantiated by the record evidence.

       First, petitioner’s claim that his physical impairments rendered him incapable of
handling his own affairs, or unable to function in society, is belied by the record evidence. In
Barrett v. Principi, the Federal Circuit recognized that mental illness could be a potential
ground for tolling the 120-day statute of limitations for filing a notice of appeal of a decision on
a veterans’ benefit claim with the United States Court of Appeals for Veterans Claims. Barrett
v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (holding that equitable tolling is allowed
because the mental condition preventing a veteran from timely filing is often the same illness
for which compensation is sought). The Federal Circuit subsequently extended this view of
equitable tolling to physical impairments in veterans’ benefit claims cases in Arbas v.
Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005). And so, within the context of veterans’
benefits cases, the Federal Circuit has held that a court must focus on whether the particular
infirmity either, (1) prevented the veteran from engaging in “rational thought or deliberate
decision making,” or (2) rendered him “incapable of handling [his] own affairs or unable to
function [in] society,” to determine if a mental or physical infirmity warrants application of the
doctrine of equitable tolling. Id. (citing Barrett, 363 F.3d at 1321) (citations omitted).

       Even if the Court were to accept that the framework articulated in Barrett and Arbas
should be applied within the context of Vaccine Act claims, the record evidence in this case
shows that the special master appropriately concluded that petitioner did not satisfy the high
standard for allowing equitable tolling due to physical or mental impairment. Dec. at 6-9.
Indeed, the record evidence here makes clear that the special master carefully reviewed
petitioner’s medical records and reasonably determined that petitioner’s physical impairments
did not render him incapable of handling his own affairs, or unable to function in society. Dec.


                                                  14
at 6-7. For example, the special master observed in the August 15, 2017, Decision that
petitioner’s medical records detailed hospital admissions and that petitioner stated that he was
non-ambulatory and bed-bound due to paralysis during his hospitalization. Id. at 6. The special
master also observed that petitioner suffered from facial paralysis and difficulty eating and
swallowing at the time of his hospitalization in August 2012. Id.

           While the special master recognized that petitioner’s physical impairments impacted his
ability to independently perform certain activities, the special master reasonably concluded that
these impairments did not rise to a level of severity to warrant equitable tolling. Dec. at 7-8; see
Barrett, 363 F.3d at 1321; see also Arbas, 403 F.3d at 1381; see also Pet. Ex. 4 at 14-16. In
fact, as the special master found in her decision, petitioner’s claim that he lost the ability to
communicate within days and weeks following his vaccination in 2012 is not supported by the
evidence. Dec. at 6-7. Petitioner also points to no evidence to explain how any other physical
impairments associated with his CIPD prevented him from timely filing this matter. Pet’r’s
Mot. 9-12. And so, the record evidence makes clear that the special master reasonably
determined that petitioner’s impairments did not justify application of the doctrine of equitable
tolling.

           Petitioner’s argument that the special master erred by conflating the requirements for
demonstrating cognitive and physical impairment is similarly unsubstantiated by the evidence.
Id. at 8. The record evidence shows that petitioner argued during the proceedings before the
special master that his impairments rendered him incapable of carrying out daily affairs, “in a
manner that would allow him to pursue his legal rights for a material period of time.” Dec. at 6.
And so, in the August 15, 2017, Decision, the special master considered whether the petitioner’s
physical limitations affected his cognitive abilities in a way that would prevent petitioner from
pursuing his legal rights. Dec. at 7. Given petitioner’s claim that equitable tolling is
inappropriate because his impairments prevented him from pursuing his legal rights for a period
of time, the special master appropriately considered whether petitioner’s cognitive abilities
impeded his ability to timely file this matter. Pet’r’s Mot. at 9-12.

           Petitioner’s argument that the Court should set aside the special master’s decision
because the special master improperly focused on his cognitive abilities and speech, in assessing
whether to equitably toll the statute of limitations, is also unavailing. Id. Even if the special



                                                   15
master erred in this regard, the record evidence makes clear that petitioner’s physical
impairments do not justify application of the doctrine of equitable tolling. Dec. at 6-8. The
record evidence shows that the special master considered evidence showing that petitioner had
experienced physical symptoms such as “‘persistent numbness in his feet and hands,’ severe
motor skill dysfunction and sensory impairment, difficulty ingesting food, fatigue, and
[paresthesia].” Id. at 6-7. Petitioner does not, however, point to any evidence in the record to
show how these physical symptoms prevented him from timely filing his Vaccine Act petition.
Pet’r’s Mot. at 9-12. Given this, petitioner’s second objection to the special master’s decision
simply lacks support in the evidentiary record.

        In sum, petitioner bears the burden of showing that his failure to timely file this matter
was the direct result of an illness that rendered him incapable of handling his own affairs, or
unable to function in society. See Bove v. Shinseki, 25 Vet. App. 136, 144 (2011) (holding that
petitioner failed to provide evidence that his symptoms of schizophrenia had manifested to such
an extent that his failure to file his notice of appeal was the “direct result” of his medical
condition); Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005), aff’d, 173 F. App’x 826 (Fed.
Cir. 2006) (holding that mental illness of dementia and alzheimer’s disease did not justify
equitable tolling in filing a notice of appeal with Court of Veterans Appeals). Petitioner points
to no evidence in the record to show that his CIDP has rendered him unable to handle his
affairs, or that his failure to file a Vaccine Act petition before the 36-moth limitations period
expired was the direct result of physical impairments due to his CIPD. Pet’r’s Mot. at 2-5. And
so, petitioner has not met his burden to justify an equitable tolling of the Vaccine Act’s statute
of limitations.5

                   3. The Special Master Correctly Weighed The Medical Evidence

        Petitioner’s argument that the special master failed to properly weigh the medical
evidence in this case is equally unavailing. In his motion for review, petitioner argues that the

5
  Petitioner acknowledges in his motion for review that it was his lack of knowledge about the vaccine
injury compensation program prior to August 17, 2015, that resulted in his untimely petition. Pet’r’s
Mot. at 15; see also Resp. at 14. It is well-established that unawareness of the vaccine injury
compensation program is not a proper basis for applying equitable tolling. See, e.g., Wax v. Sec’y of
Dep’t of Health & Human Servs., No. 03-2830V, 2012 WL 3867161, at *11 (Fed. Cl. Spec. Mstr. Aug.
7, 2012), aff’d, 108 Fed. Cl. 538 (2012).



                                                   16
special master improperly allocated greater weight to his speech impairment and ignored, or
disregarded, evidence regarding his other physical impairments. Pet’r’s Mot. at 10. But, as
discussed above, the record evidence shows that the special master carefully considered all of
the medical evidence regarding petitioner’s physical impairments in this case. Dec. at 7.

       The special master observed in the August 15, 2017, Decision that petitioner’s medical
records showed that petitioner suffered from facial paralysis and difficulty eating and
swallowing at the time of his hospitalization in August 2012. Id. at 6. As discussed above, the
special master also considered medical evidence showing that petitioner experienced
“‘persistent numbness in his feet and hands,’ severe motor skill dysfunction and sensory
impairment, difficulty ingesting food, fatigue, and [paresthesias],” as well a loss of
independence resulting from his CIPD diagnosis. Id. at 7; Pet. Ex. 4 at 14-16. Tellingly,
petitioner does not identify any medical evidence that the special master failed to consider in his
motion for review. See generally Pet’r’s Mot. at 8-12; Dec. at 6. (stating that the special master
based her decision on the “totality of the [medical] record”). And so, again, petitioner’s
objection to the special master’s decision is not substantiated by the evidentiary record.

       B. The Special Master Appropriately Concluded That Application Of
          Equitable Tolling Due To Petitioner’s Pro Se Status Is Unwarranted

       As a final matter, petitioner’s claim that the special master erred by ignoring his
argument that equitable tolling is appropriate in this case because pro se petitioners are
disadvantaged is also unsupported by the evidentiary record. In the August 15, 2017, Decision,
the special master rejected petitioner’s argument that equitable tolling was appropriate in this
case due to his alleged disadvantage status as a pro se petitioner. Dec. at 9. In rejecting this
argument, the special master observed that petitioner had not been precluded from obtaining
counsel prior to filing his Vaccine Act claim. Id. In addition, the special master correctly
observed that the vaccine injury compensation program will often pay attorneys’ fees even
when a petitioner is unsuccessful, and that this practice increases the ease with which petitioners
may procure legal representation. Id.; see also Vaccine Rule 15(e).

       The special master’s conclusions in this regard are reasonable. The Federal Circuit
recognized in Cloer that equitable tolling of the Vaccine Act’s statute of limitations should not
be applied simply because the application of the statute of limitations would otherwise deprive a



                                                 17
petitioner of the opportunity to bring a claim. Cloer, 654 F.3d at 1344-45; see also Irwin, 498
U.S. at 96; Wax v. Sec’y of Dep’t of Health & Human Servs., No. 03-2830V, 2012 WL
3867161, at *3 (Fed. Cl. Spec. Mstr. Aug. 7, 2012), aff’d, 108 Fed. Cl. 538 (2012). Rather,
petitioner must show diligence in pursuing his rights. Cloer, 654 F.3d at 1344-45 (citing Pace
v. DiGugliemo, 544 U.S. 408, 418 (2005)). And so, courts have recognized that extraordinary
circumstances that justify equitable tolling exist, only in limited situations, such as situations
involving deception or a procedurally defective pleading that was timely filed. Id. (citing Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

        Petitioner identifies no such extraordinary circumstances here. In fact, petitioner neither
shows that he diligently pursued his rights before the statute of limitations period expired in this
case, nor that his inability to electronically file a Vaccine Act petition warrants application of
the doctrine of equitable tolling. In this regard, petitioner acknowledges in his motion for
review that he first discovered the vaccine injury compensation program on August 17, 2015—
just before the expiration of the statute of limitations period for his claim. Pet’r’s Mot. at 15.
Although petitioner alleges that this discovery occurred “after a diligent inquiry into vaccine-
related injuries and remedial avenues,” he also provides no information about the nature of this
inquiry to show that he diligently pursued his claim. Id. at 15-16.

        In addition, as the Secretary observes in his response, petitioner also fails to explain why
he could not have availed himself of a courier or process server to ensure that his petition was
timely filed with the Court. Resp. at 12-13. And so, even if the Court were to accept that
petitioner’s pro se status creates a disadvantage, petitioner has not demonstrated that equitable
tolling due to such status is appropriate in this case.

V.      CONCLUSION

        In sum, petitioner has not shown that the special master erred in applying the law, or in
considering the record evidence, in reaching her sound decision that equitable tolling due to
physical impairment or his pro se status was unwarranted in this case. While petitioner’s case is
certainly a sympathetic one−given that he missed the statute of limitations deadline by a matter
of hours−he simply has not shown that the physical limitations associated with his CIPD, or his




                                                  18
pro se status, rendered him incapable of timely filing his petition. And so, for these reasons, the
Court:

         1. DENIES petitioner’s motion for review of the special master’s August 15, 2017,
Decision; and

         2. SUSTAINS the decision of the special master.

         The Clerk is directed to enter judgment accordingly.

         Each party to bear its own costs

         Some of the information contained in this Memorandum Opinion and Order may be
considered privileged, confidential or sensitive personally-identifiable information that should
be protected from disclosure. And so, this Memorandum Opinion and Order shall be FILED
UNDER SEAL. The parties shall review the Memorandum Opinion and Order to determine
whether, in their view, any information should be redacted prior to publication. The parties
shall also FILE, by March 7, 2018, a joint status report identifying the information, if any, that
they contend should be redacted, together with an explanation of the basis for each proposed
redaction.

         IT IS SO ORDERED.



                                                  s/Lydia Kay Griggsby
                                                  LYDIA KAY GRIGGSBY
                                                  Judge




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