       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 ILYA DOBRYDNEV,
                  Petitioner-Appellee,

                           v.

      SECRETARY OF HEALTH AND HUMAN
                  SERVICES,
              Respondent-Appellant.
             ______________________

                      2013-5118
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 04-VV-1593, Judge Susan G. Braden.
                 ______________________

                Decided: June 19, 2014
                ______________________

   MARK P. FRIEDLANDER, JR., Friedlander, Friedlander
& Earman PC, of McLean, Virginia, argued for petitioner-
appellee.

    JOSHUA WALDMAN, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, of Wash-
ington, DC, argued for respondent-appellant. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, and MICHAEL S. RAAB, Attorney. Of counsel was
HEATHER L. PEARLMAN, Attorney, Torts Branch.
2                                        DOBRYDNEV   v. HHS



                 ______________________

     Before MOORE, CLEVENGER, and O’MALLEY, Circuit
                      Judges.
CLEVENGER, Circuit Judge.
    Petitioner Ilya Dobrydnev seeks relief under the Na-
tional Childhood Vaccine Injury Act (“Vaccine Act”), 42
U.S.C. §§ 300aa-1 through 300aa-34, for injuries allegedly
sustained following a hepatitis B vaccination. The United
States Court of Federal Claims overturned the findings
and conclusions of the special master and entered final
judgment in favor of Ilya. See Dobrydnev v. Sec’y of Health
& Human Servs., 94 Fed. Cl. 134 (Fed. Cl. 2010) (“Do-
brydnev II”); Dobrydnev v. Sec’y of Health & Human
Servs., 98 Fed. Cl. 190 (Fed. Cl. 2011) (“Dobrydnev IV”).
For the reasons set forth below, we reverse the final
judgment of the Court of Federal Claims.
                      BACKGROUND
    Ilya Dobrydnev alleges that a hepatitis B vaccination
he received at the age of 10 on November 5, 2001 caused
him to contract chronic fatigue syndrome (“CFS”). CFS is
a disease characterized by “severe fatigue, orthostatic
intolerance, muscle and joint pain, cognitive dysfunction,
sleep disturbance, sore throat, lymph node pain, ab-
dominal symptoms, lightheadedness, and other somatic
symptoms.” Report of Dr. David S. Bell 1 (Oct. 11, 2004).
                             I
     Ilya was born in 1991 and received a series of 3 hepa-
titis B vaccines between 1992 and 1993. No adverse
reactions from these vaccinations were reported.
    In July 1996, Ilya’s mother stated on a kindergarten
registration form that Ilya experienced frequent colds,
sore throat, and ear infections. Between 1996 and 2000,
Ilya was seen by his primary physician, Dr. Fink, approx-
DOBRYDNEV     v. HHS                                      3



imately 12 times for various complaints including fevers,
sore throat, fatigue, and weakness.
    In December 2000 or January 2001, Ilya contracted
the Epstein-Barr virus. 1 He saw his doctors more than 10
times during the period from January 2001 to July 2001
with reports of upper respiratory infection, sore throat,
fever, and severe fatigue.
    In May, June, and July of 2001, Ilya visited Dr. Fink
with reports of fever, white patches on his throat, and
severe fatigue although, according to Dr. Fink, Ilya’s
mononucleosis was resolved by May. In July, Dr. Fink
reported that Ilya’s father has common variable immuno-
deficiency (“CVID”), a genetic immune disorder, and noted
Ilya’s mother’s concern that her son might have the same
disorder. Dr. Robert Fink, Medical Record of Ilya Do-
brydnev (July 2, 2001). According to Dr. Fink, Mrs. Do-
brydneva had shown her son’s lab reports to a
microbiologist who “felt that Ilya most likely did have
CVID.” Id.
    In the summer of 2001, Ilya attended summer camp
and participated in physical activities. In September, he
took a trip to Disney World with his parents.
    On November 5 2001, Ilya received a fourth hepatitis
B vaccination—the vaccination at issue here. His mother
testified before a special master that immediately follow-
ing the vaccination he had flu-like symptoms, malaise,
pallor, sore throat, and lymph-node swelling, and that he
missed school on November 6 and 7. Ilya visited Dr.
Kagan on November 19 with a “2–3 day history of low
grade temperature elevation” and sore throat and was
diagnosed with febrile illness. Dr. Harvey J. Kagan,
Medical Record of Ilya Dobrydnev (Nov. 19, 2001). On


       1   Epstein-Barr is the virus that causes mononucleo-
sis.
4                                         DOBRYDNEV   v. HHS



November 26 he suffered from nasal discharge and head-
ache and was prescribed an antibiotic. On November 30
he was taken to the emergency room with severe dizziness
and nausea and was diagnosed with vestibular neuronitis,
an inner ear condition.
    Ilya again visited Dr. Fink on December 10 with a
sore throat and white patches on his throat and was
diagnosed with tonsillitis. He visited Dr. Fink’s partner,
Dr. Holland, on January 2, 2002, and Ilya’s mother told
the doctor that he had been sick since “[t]wo weeks after”
his vaccination. Dr. Jennifer M. Holland, Medical Record
of Ilya Dobrydnev (Jan. 2, 2002). He visited Dr. Holland
again on January 9, and the doctor reported that he
appeared to be in good health. Dr. Fink noted that Ilya
again generally appeared in good health on a January 14,
2002 visit, despite reported dizziness.
    Ilya visited the immunologist Dr. Kelly on January
23, 2002. Dr. Kelly reported that allergies were probable
but Ilya’s mother refused the allergy test that would
confirm this diagnosis. On February 19, Dr. Kelly report-
ed that Ilya still fatigued easily although his vestibular
neuronitis had improved. On February 11 and March 20,
Ilya visited the infectious disease specialist Dr. Mitchell,
who reported symptoms of achy legs and fatigue. Dr.
Mitchell listed as a possible diagnosis “a chronic [Epstein-
Barr virus].” Dr. Douglas Mitchell, Consultation Report
(Mar. 20, 2002). In his recommendations, he stated his
“belie[f] that there is a behavioral psychological compo-
nent contributing to this continued subjective fatigue and
possibly school avoidance,” and noted that “[c]hronic
fatigue syndrome itself may be considered in this child.”
Id. On April 1, 2002, Dr. Fink noted as possible diagnoses
“[p]ossible chronic fatigue secondary to chronic [Epstein-
Barr virus] or HSV [herpes simplex virus], though doubt.”
Dr. Robert Fink, Medical Record of Ilya Dobrydnev (Apr.
1, 2001).
DOBRYDNEV   v. HHS                                        5



    In their post-hearing brief before the special master
below, Ilya and his parents (“petitioners”) did not cite any
medical records after April 2002. Subsequent records
reflect uncertainty about Ilya’s medical condition, but
indicate that he continued to experience weakness and
fatigue. In 2010, Ilya was successfully attending universi-
ty on a reduced schedule and with other accommodations
for his illness.
                             II
    This case arises as an “off-Table” claim under the
Vaccine Act. An off-Table claim is one for which causation
is not presumed. For this type of claim, a petitioner bears
the burden of proving by a preponderance of the evidence
that his injury was caused-in-fact by a vaccine covered by
the Act. 42 U.S.C. §§ 300aa-11(c)(1)(C), 300aa-13(a)(1)(A).
The petitioner must prove each of three factors, known as
the Althen factors: (1) a medical theory causally connect-
ing the vaccination and the injury; (2) a logical sequence
of cause and effect showing that the vaccination caused
the injury; and (3) a proximate temporal relationship
between the vaccine and the injury. Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005).
     Ilya’s parents filed an off-Table Vaccine Act claim on
his behalf in October 2004. The case was referred to a
special master who issued a first decision denying enti-
tlement on March 12, 2010. See Dobrydneva ex rel. Do-
brydnev v. Sec’y of Health & Human Servs., No. 04-1593V,
2010 WL 2143481 (Fed. Cl. Mar. 12, 2010) (“Dobrydnev
I”). The special master based his rejection on the third
Althen factor, concluding that petitioners had failed to
prove by a preponderance of evidence a proximate tem-
poral relationship between vaccination and injury. Id. at
*18.
   On July 30, 2010, the Court of Federal Claims vacated
and remanded the special master’s first decision denying
6                                         DOBRYDNEV   v. HHS



entitlement. See Dobrydnev II, 94 Fed. Cl. 134. The court
overturned the special master’s findings on Althen factor
3 and replaced them with its own findings. Id. at 146–48.
It concluded that petitioners had met their burden with
respect to this prong. On remand, the court directed the
special master to issue findings and conclusions on the
first and second Althen factors. Id. at 149.
    In a second decision dated October 27, 2010, the spe-
cial master issued findings and analysis on the first and
second Althen factors. See Dobrydneva ex rel. Dobrydnev
v. Sec’y of Health & Human Servs., No. 04-1593V, 2010
WL 8106881 (Fed. Cl. Oct. 27, 2010) (“Dobrydnev III”). He
concluded that petitioners had not met their burden with
respect to either of these factors, and denied entitlement.
    The Court of Federal Claims on May 9, 2011 reversed
and vacated the special master’s second decision and
replaced it with its own findings of fact and conclusions of
law. See Dobrydnev IV, 98 Fed. Cl. at 211–12. Based on
these findings and conclusions, the court determined that
petitioners had met their burden under the first two
Althen factors. Because the court had previously conclud-
ed that petitioners had met their burden under the third
Althen factor, it remanded to the special master for a
finding of compensation due. Id. at 211–12. After the
special master’s finding in this respect, the court entered
final judgment awarding petitioners $1,076,412.15. The
government now appeals.
                       DISCUSSION
    On appeal, the government maintains that the special
master was correct in his analysis of each of the three
Althen factors. It asserts that the Court of Federal Claims
erred by vacating the special master’s findings and enter-
ing its own conclusion that petitioners met their burden
under Althen.
DOBRYDNEV   v. HHS                                         7



                              I
    Because petitioners must meet their burden under all
three Althen factors to prevail, a failure to do so on any
one of these factors is dispositive. For purposes of this
appeal, therefore, we focus on Althen factor 2. This factor
requires a petitioner to demonstrate, by preponderant
evidence, “a logical sequence of cause and effect showing
that the vaccination was the reason for the injury.” Al-
then, 418 F.3d at 1278.

    In his second decision, the special master concluded
that petitioners had not met their burden under Althen
factor 2. First, he found that petitioners had successfully
eliminated from consideration two alternative causes of
Ilya’s condition: (1) the Epstein-Barr virus he contracted
in January 2001; and (2) the infection he suffered in mid-
November 2001 following his fourth hepatitis B vaccina-
tion. Dobrydnev III, 2010 WL 8106881, at *9–11. 2 Howev-
er, the special master observed that “neither a mere
showing of a proximate temporal relationship between
vaccine and injury, nor a simplistic elimination of other
potential causes of the injury suffices, without more, to
meet the burden of showing actual causation.” Id. at *11
(quoting Moberly v. Sec’y of Health & Human Servs., 592
F.3d 1315, 1323 (Fed. Cir. 2010)).
    Relying on our case law, the special master noted that
“treating physicians are likely to be in the best position to
determine whether” the second Althen factor has been
met. Id. (quoting Capizzano v. Sec’y of Health & Human


    2   The latter finding depended on the special mas-
ter’s determination that the Court of Federal Claims had
implicitly found in its first opinion that (1) Ilya actually
had CFS; and (2) the onset of the disease happened within
days of his vaccination. Dobrydnev III, 2010 WL 8106881,
at *11.
8                                         DOBRYDNEV   v. HHS



Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006)). Here, citing
to medical records from treating physicians Fink, Fisher,
and Kelly, the special master concluded that despite Ilya’s
family’s expressed concern that the November 2001
hepatitis B vaccination had caused him to contract CFS,
none of his treating physicians had ratified this theory.
Id. at *12.
    The special master acknowledged in his Althen factor
2 analysis that “some evidence supports the petitioners’
claim,” including the opinions of Drs. Oleske and Bell,
petitioners’ experts. Id. But he concluded that “this sup-
porting evidence is outweighed by other evidence, includ-
ing the opinions of Dr. Brenner [and] Dr. Wientzen,” the
government’s experts, and the fact that no treating physi-
cian had endorsed petitioners’ theory of causation. Id. He
thus determined that the second factor had not been
established. Id. at *12–13.
    On appeal, the Court of Federal Claims concluded
that the special master’s findings under Althen factor 2
were arbitrary and capricious. See Dobrydnev IV, 98 Fed.
Cl. at 207–11. The court determined that the special
master had improperly discounted the opinions of peti-
tioners’ expert witnesses Drs. Oleske and Bell, who each
opined that the November 2001 hepatitis B vaccine
caused Ilya to contract CFS. Id. at 208–09. According to
the court, the special master should have afforded more
weight to Dr. Bell’s opinion in particular, since he was the
only expert witness to physically examine Ilya. Id.
    The court also took issue with the special master’s
finding that no treating physician had ratified petitioners’
theory of causation. Specifically, the court found error in
the special master’s failure to consider a Vaccine Event
Reporting System (“VAERS”) report filed by Dr. Fink on
May 6, 2004. Id. at 208. This report included Dr. Fink’s
statement that Ilya suffered “an episode of vestibular
DOBRYDNEV   v. HHS                                      9



neuronitis” following his vaccination and “has had chronic
fatigue since.” Id.
     Finally, the court determined that the special master
had improperly failed to consider medical records demon-
strating that Ilya had been ill in the days and months
following the vaccine. Id. at 209.
    The court noted its authority to correct errors of the
special master when his findings of fact or conclusions of
law are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. at 211 (citing
42 U.S.C. § 300aa-12(e)(2)(B)). Because the court had
determined that the special master’s findings here were
arbitrary and capricious, it entered its own conclusion
that “as a matter of law, Petitioners have established
through medical records and medical opinion a logical
sequence of cause and effect showing that a fourth, and
unnecessary, hepatitis B vaccine was the reason for
Petitioner’s Chronic Fatigue Syndrome.” Id.
                            II
    We review legal determinations of the Court of Feder-
al Claims de novo. Moberly, 592 F.3d at 1321. We use the
same standard used by the Court of Federal Claims—an
arbitrary and capricious standard—to evaluate the spe-
cial master’s findings of fact. Lampe v. Sec’y of Health &
Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000).
Here, we conclude that the Court of Federal Claims erred
by overturning the special master’s findings on the second
Althen factor, which were neither arbitrary nor capri-
cious.
                            A
    In vacating the findings on Althen factor 2, the Court
of Federal Claims concluded that the special master erred
by giving insufficient weight to petitioners’ experts Dr.
Bell and Dr. Oleske—particularly in light of the fact that
Dr. Bell was the only expert witness who physically
10                                        DOBRYDNEV   v. HHS



examined Ilya. Dobrydnev IV, 98 Fed. Cl. at 208–09. But
the special master explicitly acknowledged that the
opinions of Drs. Bell and Oleske supported petitioners’
contentions. Dobrydnev III, 2010 WL 8106881, at *12.
Nevertheless, he determined that these opinions were
“outweighed by . . . the opinions of Dr. Brenner [and] Dr.
Wientzen,” the government’s experts. Id.
    Dr. Wientzen in particular rebutted Dr. Bell’s opinion
on the basis that it was premised on an incorrect assump-
tion—that Ilya had enjoyed good health before receiving
the November 2001 hepatitis B vaccination. In a 2004
letter to Dr. Fink written after his examination of the
child, Dr. Bell stated that
     Ilya was in good health up until November 5th of
     2001. At that time he had a hepatitis B immun-
     ization and that evening became ill with a fever.
     This was somewhat unusual as he had never had
     fever with shots before and actually rarely got fe-
     ver.
Letter from Dr. David S. Bell to Dr. Robert Fink (Aug. 2,
2004).
    In his report responding to Dr. Bell’s opinion, Dr.
Wientzen observed that “the many medical records re-
counting Ilya’s many illnesses, evaluations and therapies
antedating the events of November 2001” contradicted Dr.
Bell’s assumption about Ilya’s health before receiving the
November 2001 vaccination. Expert Report of Dr. Raoul
Wientzen 1 (Feb. 21, 2005). Dr. Bell had an opportunity to
address this observation in his rebuttal report, but did not
do so. See Rebuttal Report of Dr. David S. Bell (Apr. 21,
2005).
   Thus, even though Dr. Bell was the only expert wit-
ness to conduct a physical examination of Ilya, as Dr.
Wientzen pointed out, this examination was conducted
under a premise belied by the record—that the child had
DOBRYDNEV   v. HHS                                        11



enjoyed good health prior to the vaccination in question.
Similarly, Dr. Oleske, petitioners’ second expert witness,
testified that Ilya was in good health prior to receiving
the fourth hepatitis B vaccination. 3 As the special master
correctly observed elsewhere in his second decision,
“[w]hen an expert assumes facts that are not supported by
a preponderance of the evidence, a finder of fact may
properly reject the expert’s opinion.” Dobrydnev III, 2010
WL 8106881, at *9 n.12 (citing Brooke Group Ltd. v.
Brown & Williamson Tobacco Corp., 509 U.S. 209, 242
(1993)).
    Dr. Wientzen testified for the government that there
was “[a]bsolutely not” any evidence of “a good causal
connection made between hepatitis B and chronic fatigue
syndrome in this case.” Hearing Tr. 654:25–655:5 (Apr.
26, 2007). See also id. at 655:11–13 (“I do not believe
hepatitis B vaccine in this case had anything to do with
Ilya’s chronic fatigue syndrome if he were to have it.”).
Given the deficiencies in Dr. Bell’s and Dr. Oleske’s
opinions and in light of Dr. Wientzen’s competing report
and testimony, the special master did not act arbitrarily
in choosing to afford more weight to the government’s
experts. Nor does the fact that Dr. Bell was the only



    3   For example, in response to the question: “Can
you explain the standard that you used in this case to
diagnose or reach a conclusion that Ilya’s chronic fatigue
syndrome was caused by the hepatitis-B vaccine?” Dr.
Oleske testified that “prior to getting the hepatitis-B
vaccine, this was a relatively healthy child . . . there were
a number of visits, but nothing extremely abnormal and
out of the ordinary.” Hearing Tr. 1089:23–1090:1 (Sept.
29, 2010). See also id. at 110:22–25 (“this child was
brought to the doctor, was felt to be healthy, was given a
shot, and soon after developed symptoms that became
chronic.”).
12                                        DOBRYDNEV   v. HHS



expert to physically examine Ilya transform him into a
treating physician such that increased deference to his
opinion was required, particularly when this examination
was performed without a full understanding of the child’s
medical history. 4
                             B
     The Court of Federal Claims also vacated the special
master’s finding that no treating physician had endorsed
petitioners’ theory of causation. According to the court,
the special master erred in failing to consider the VAERS
report filed by Dr. Fink in May 2004. The report stated
that Ilya suffered “an episode of vestibular neuronitis”
following his 2001 vaccination and “has had chronic
fatigue since.” Dobrydnev IV, 98 Fed. Cl. at 208. The court
considered this report to be “highly relevant evidence” of
causation that the special master should not have ne-
glected. Id.
    As the government points out, however, petitioners
did not include the VAERS report in their original peti-
tion, and the special master may not have considered it
for this reason. Appellee Rep. 14 n.3; see Hearing Tr.
524:8–526:9 (Apr. 26, 2007). The report was filed only
after the conclusion of the hearings below, and as Dr.
Fink explained, was filed at the express urging of Ilya’s
parents. See Dr. Robert Fink, Medical Record of Ilya
Dobrydnev (June 16, 2003) (describing an interview with
Ilya’s parents and stating that “[t]here is also concern



     4  In this respect, Dr. Wientzen stated that, given
the discrepancy between Dr. Bell’s statements about
Ilya’s health prior to the November 2001 vaccination and
the child’s medical records, “it is apparent that [Dr. Bell]
did not have the time and/or opportunity” to review these
records. Expert Report of Dr. Raoul Wientzen 1 (Feb. 21,
2005).
DOBRYDNEV   v. HHS                                        13



mentioned that the additional hepatitis B vaccination
that Ilya received could be related to his chronic fatigue
syndrome, and they would like me to report this as a
potential adverse effect.”).
    Further, although Dr. Fink did in fact file the VAERS
report, as he himself has explicitly stated, he did not
independently conclude that the 2001 hepatitis B vaccina-
tion caused Ilya to contract CFS. In a letter to the Court
of Federal Claims dated July 29, 2005 in support of peti-
tioners’ claim, Dr. Fink stated that he “agree[d] with Dr.
Bell’s expert opinion,” but explained that “since I am not
an expert in this field, I deferred to the opinions of Dr.
David Bell” in reaching this conclusion. Letter from Dr.
Robert Fink to the United Stated Court of Federal Claims
2–3 (July 29, 2005).
     Thus, to the extent that the VAERS report evidences
Dr. Fink’s endorsement of petitioners’ theory of causation,
Dr. Fink later made clear that any such endorsement
resulted from a reliance on the expertise of Dr. Bell. But
the special master, as explained above, found Dr. Bell’s
opinions unpersuasive as compared to the opinions of the
government’s experts. If a fact finder may reject an ex-
pert’s opinion when the expert—as Dr. Bell did here—
assumes facts that are not supported by the record, logic
dictates that he may reject evidence from a treating
physician when the physician explicitly defers to the
expert whose opinion has been rejected. Even assuming,
therefore, that the VAERS report was timely brought to
the special master’s attention, he did not act arbitrarily in
failing to give it any weight.
                             C
    The Court of Federal Claims found further error in
the special master’s Althen factor 2 findings because the
special master allegedly ignored “unchallenged medical
records” showing that Ilya had been ill in the days and
months after the 2001 vaccination. Dobrydnev IV, 98 Fed.
14                                         DOBRYDNEV   v. HHS



Cl. at 209. The facts cited by the court in this regard are
the same facts used by the court in its first opinion to
establish a proximate temporal relationship under Althen
factor 3. Compare id. (citing medical and school records
demonstrating Ilya’s illnesses and absences from school
in November 2001 through March 2002), with Dobrydnev
II, 94 Fed. Cl. at 146 (citing the same records in support
of its conclusion that petitioners had established a proxi-
mate temporal relationship under Althen factor 3).
    The court is correct that “evidence used to satisfy one
of the Althen . . . prongs can[] overlap to satisfy another
prong.” Dobrydnev IV, 98 Fed. Cl. at 209 (quoting Capiz-
zano, 440 F.3d at 1326). But the court erred in finding
that the special master ignored this evidence. To the
contrary, the special master explicitly considered this
evidence and found it outweighed by other evidence. He
stated:
     It is certainly the case that some evidence sup-
     ports the petitioners’ claim, including the evidence
     relied upon by the Court in finding that there was
     a proximate temporal relationship between Ilya’s
     vaccination and the onset of his chronic fatigue
     syndrome. . . . Nevertheless, this supporting evi-
     dence is outweighed by other evidence, including
     the opinions of Dr. Brenner [and] Dr.
     Wientzen . . . .
Dobrydnev III, 2010 WL 8106881, at *12.
    The Court of Federal Claims, in the first instance,
might have weighed this evidence differently from the
special master. But under an arbitrary and capricious
standard of review, the court may not reweigh the evi-
dence if the special master has “considered the relevant
evidence of record, drawn plausible inferences, and articu-
lated a rational basis for [his] decision.” Hazlehurst v.
Sec’y of Health & Human Servs., 604 F.3d 1343, 1349
(Fed. Cir. 2010). The special master has done so here, and
DOBRYDNEV   v. HHS                                       15



the Court of Federal Claims erred in vacating his find-
ings.
                       CONCLUSION
    The Court of Federal Claims erred by vacating the
special master’s findings under Althen factor 2. Because
these findings demonstrate that petitioners have not met
their burden under this factor, the final judgment of the
Court of Federal Claims in favor of petitioners is reversed.
                       REVERSED
                          COSTS
   Each side shall bear its own costs.
