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OFFICE OF SPECIAL MASTERS  
.71.} 1 3 205
***********************
CARMEN RAMIREZ on behalfof * U-S- COURT OF
’ LC 1M8
LUIS ARROYO—RAMIREZ * No. 14-866V FEDERA LA
* Special Master Christian J. Moran
Petitioner, *
* Filed: February 13, 2015
V. *
* Dismissal; HlNl vaccine;
SECRETARY OF HEALTH * no subject matter jurisdiction;
AND HUMAN SERVICES, * statute of limitations.
*
Respondent. *
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Carmen Ramirez, pro se, Rancho Cucamonga, CA, for petitioner;
Justine E. Walters, United States Dep’t of Justice, Washington, DC, for
respondent.

UNPUBLISHED DECISION DENYING COMPENSATIONl

Carmen Ramirez ﬁled a petition on behalf of her son, Luis Arroyo—Ramirez,
under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-l to 300aa—
34, on September 17, 2014. Her petition alleged that her son suffered from
postural orthostatic tachycardia syndrome (POTS), resulting from the receipt of the
H1N1 vaccine administered to him on October 25, 2009. This case is dismissed
because the undersigned lacks subject matter jurisdiction and the statute of
limitations has run.

 

2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),

the parties have 14 days to ﬁle a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-l2(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

I. Procedural History

On September 17, 2014, Ms. Ramirez, representing herself, ﬁled a petition.
She ﬁled six pages of medical records with her petition as required by 42 U.S.C.
§ 300aa-11(c).

An initial status conference was held on October 16, 2014. During the status
conference, respondent noted that the 2009 H1N1 vaccine is not covered and a
separate program, Countermeasures Injury Compensation Program, may offer
compensation. Petitioner indicated that she had ﬁled a claim in this program.
Respondent stated that she would inquire on the status of petitioner’s claim.

After the status conference, the respondent was ordered to ﬁle a status report
or motion to dismiss and the petitioner a response in 30 days. Order, issued Oct.
17, 2014. On November 13, 2014, respondent ﬁled her Rule 4 report and motion
to dismiss. In her motion to dismiss, respondent stated that the 2009 HlNl
vaccination is not covered under the Vaccine Act. Resp’t’s Rep’t at 2. She noted
that since the 2009 H1N1 is not covered, petitioner is unable to show that Luis
“received a vaccine set forth in the Vaccine Injury Table.” Id.

Additionally, respondent stated that Luis’s claim is time—barred. Resp’t’s
Rep’t at 3. Luis received the vaccination on October 25, 2009. M. The petition
stated that Luis suffered the onset of POTS that day. Pet. at 3. The medical
records indicated that Luis’s symptoms have been occurring for at least three years.
M. at 9, 11, 14; Resp’t’s Rep’t at 3. If correct, the cause of action accrued in
October 2009, and time for ﬁling a claim elapsed in October 2012. 42 U.S.C.
§ 300aa-16(a)(2).

A status conference was held on December 10, 2014, petitioner told the
undersigned that she wished to respond to respondent’s report and motion to
dismiss. On December 29, 2014, petitioner’s response was ﬁled. 2 Petitioner
noted that somebody needs to take responsibility for the damage to her son. Pet’r’s
Resp. at 1. She continued that before the vaccine his health was good. m. Ms.
Ramirez stated that Luis’s POTS condition damaged many areas of his body and
he will continue to have future health problems. I_d. at 2.

2 The clerk’s ofﬁce docketed petitioner’s response incorrectly. Thus, the undersigned
ordered petitioner to ﬁle her response on January 16, 2015, although the clerk’s ofﬁce had
received her response on December 29, 2014.

II. Analysis

The basis for this motion to dismiss was the 2009 H1N1 vaccination is not
covered under the Vaccine Act. On April 12, 2005, the trivalent inﬂuenza vaccine
was added to the Vaccine Injury Table. 42 CPR. § 100.3(a). The H1N1 vaccine
was administered as a monovalent vaccine during the 2009-10 ﬂu season and is not

included in the seasonal trivalent inﬂuenza vaccine. Karol v. Sec’y of Health &
Human Servs., No. 12—433V, 2012 WL 3744655, at *2 (Fed. Cl. Spec. Mstr. July

27, 2012). Therefore, this vaccine is not within the jurisdiction of the Ofﬁce of
Special Masters. 1d, Since Ms. Ramirez cannot receive compensation on a claim

based on a vaccine not listed on the Vaccine Injury Table, the petition must be
dismissed.

A second basis for this motion to dismiss is petitioner’s case is time—barred.
Under the Vaccine Act, the petition is required to be ﬁled prior to the expiration of
36 months after the ﬁrst symptom or manifestation of onset of the alleged vaccine
injury. 42 U.S.C. §300aa~16(a)(2). The statute of limitations begins to run on the
date of occurrence of the ﬁrst symptom of onset. 1d,; Cloer v. Sec’y of Health &
Human Servs., 654 F.3d 1322, 1334 (Fed. Cir. 2011) (en banc). According to
petitioner’s medical records, the doctor’s evaluations on January 31, 2014, March
26, 2014, and June 3, 2014 noted that his symptoms have been ongoing for at least
three years. Pet. at 9, 11, 14. Petitioner explained that the delay in ﬁling her
petition resulted from the difﬁculty in diagnosis. 1d. at 1. Yet, the ﬁrst symptom
or manifestation of onset is not always the date of diagnosis. Carson V. Sec’y of
Health & Human Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013). Here, ifLuis’s
condition began shortly after his HlNl vaccine on October 25, 2009, the statute of
limitations required this case to be ﬁled no later than October 26, 2012. The
petition should be dismissed because it is not timely ﬁled.3

 

Thus, this case is dismissed for lack of subject matter jurisdiction, and
statute of limitations. The Clerk shall enter judgment accordingly.

The Clerk’s Ofﬁce is instructed to mail a courtesy copy of this order to Ms.
Ramirez return receipt requested.

 

3 Petitioner did not claim equitable tolling. Even if the petitioner presented a persuasive
equitable tolling argument, the petition would still be dismissed for lack of subject matter
jurisdiction.

Any questions may be directed to my law clerk, Christina Gervasi, at (202)
357-6521.

IT IS SO ORDERED.
u " ' k.

Christian J Moran
Special Master

