In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

*********************
DOUGLAS H. McELROY,                  *
                                     *     No. 17-1083V
                 Petitioner,         *     Special Master Christian J. Moran
                                     *
v.                                   *
                                     *     Filed: October 11, 2019
SECRETARY OF HEALTH                  *
AND HUMAN SERVICES,                  *     Attorneys’ fees and costs,
                                     *     reasonable basis.
                 Respondent.         *
*********************
Nancy R. Meyers, Ward Black Law, Greensboro, NC, for petitioner;
Amy P. Kokot, United States Dep’t of Justice, Washington, DC, for respondent.


              PUBLISHED DECISION DENYING PETITIONER’S
               MOTION FOR ATTORNEYS’ FEES AND COSTS1
       On October 19, 2018, the undersigned issued an order concluding
proceedings on Mr. McElroy’s petition pursuant to Vaccine Rule 21(a). Mr.
McElroy filed a timely motion for attorneys’ fees and costs, requesting $23,380.14.
In his response, filed October 24, 2018, the Secretary challenged the reasonable
basis for Mr. McElroy’s petition and, accordingly, his eligibility for an award of
fees and costs. Both parties were then given the opportunity to file supplemental
briefs on the issue of reasonable basis, concluding with petitioner’s reply on April
26, 2019. Based upon a review of the facts of Mr. McElroy’s petition, the
undersigned finds that Mr. McElroy never possessed a reasonable basis for



       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. 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-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
pursuing a claim that he was injured as a result of a vaccination. Accordingly, he
is not eligible for an award of fees and costs and his motion is DENIED.
     I.      Factual History
      A.     Medical History before Vaccination
      Mr. McElroy had a somewhat extensive medical history prior to the
vaccination in question. This history showed that he had suffered from alcoholism,
anxiety, back pain, basal cell carcinoma, diabetes, hypertension, insomnia, and
pancreatitis. Exhibit 2 at 10.
       However, the records do not indicate that Mr. McElroy was chronically
seeking care up to the date of the vaccination. For example, he visited his
physician on October 19, 2012, for complaints of joint pain, diabetes, and
insomnia. Id. at 5-6. He was seen on January 2, 2013, with complaints of bilateral
lower extremity pain. Id. at 22. He noted that this pain was ongoing from the pain
that precipitated his October 19, 2012 visit and that the pain had been present ever
since and has been evolving since that date. Id. It is not clear if there is tingling or
numbness associated with the pain, but Mr. McElroy did note a burning sensation.
Id. He was diagnosed with degeneration of lumbar intervertebral disc, lumbar
spondylosis, and lumbar radiculopathy. Id.
        Mr. McElroy returned to the physician on April 17, 2013, noting ongoing
problems related to diabetes, hypertension, and back pain. Id. at 30. At discharge
he was advised to follow up in four months. Id. at 32. He was seen four months
later, on August 15, 2013, for back pain and he noted during the visit that he had
been under a lot of stress recently. Id. at 38. It was nearly a year after this visit, on
August 6, 2014, that he next sought medical treatment. At this visit he complained
of an inability to focus at work and that he was often late for personal and
professional events. Id. at 43. Mr. McElroy was discharged with referrals to
endocrinology for his diabetes, psychology for his concentration issues, and
dermatology for a skin growth. Id. at 53. Otherwise, the exam was unremarkable,
and Mr. McElroy was advised to return in three months. Id. at 55.
       Before three months’ time, Mr. McElroy was seen in an urgent care facility
on October 31, 2014. Exhibit 1 at 1. His chief complaint was pain in his lower left
back that he attributed to moving heavy items the previous week. Id. Mr.
McElroy did not experience any burning or tingling or weakness in his limbs. He
stated that he believed the pain could be relieved with a shot of cortisone, some
Vicodin, muscle relaxant, and a Lidoderm patch. Id. at 4. The physician appeared
to agree since Mr. McElroy was assessed with a lumbar strain and was

                                           2
administered a corticosteroid shot, Vicodin, a muscle relaxant, and a Lidoderm
patch. Id. The facility noted that Mr. McElroy had not had a pneumonia vaccine
in over 10 years and was out of date for his flu vaccine and that he had requested,
and was administered, both. Id. at 1, 5. Mr. McElroy’s August 9, 2017 petition
claimed that the October 31, 2014 flu and/or pneumonia vaccine caused him to
suffer “small fiber neuropathy and debilitating paresthesias.” Pet. ¶ 23.
      B. Medical History after Vaccination
       Mr. McElroy returned to urgent care nearly a month later on November 28,
2014. Exhibit 3 at 3. Mr. McElroy presented with complaints of numbness in his
left thumb beginning two days earlier. Id. Since the onset of numbness in his
thumb, Mr. McElroy experienced more diffuse numbness in left upper and lower
extremities. Mr. McElroy stated a concern that his symptoms were attributable to
Guillain-Barré related to his recent flu shot. Id. Labs, imaging, and a physical
exam were normal. Id. at 8. Mr. McElroy was offered admission to the hospital,
but refused, stating that he would follow up, outpatient, with neurology and his
PCP. Id.
       On December 3, 2014, Mr. McElroy followed up with his primary care
physician. Exhibit 2 at 61. The report to the PCP relayed substantially similar
complaints as the report provided to urgent care just days earlier. Id. The
physician’s notes indicate that he suspected that the new onset of symptoms could
be related to poor management of Mr. McElroy’s diabetes and/or a “significant
amount of stress at this time in his personal life.” Id. The physician repeatedly
noted that Mr. McElroy would be evaluated by a neurologist the next day and
appeared to refrain from making conclusions regarding his condition other than an
advisement to seek urgent care if his symptoms changed or worsened. Id. at 63.
      Mr. McElroy visited with his neurologist, Howard Kraft, the next day.
Exhibit 4 at 1. During the visit, Mr. McElroy communicated that he noticed the
onset of numbness shortly after putting together a swing set and that he “might
have pulled something”. Id. Dr. Kraft noted that labs, imaging, and exam were all
normal. Id. at 7. Dr. Kraft concluded that Mr. McElroy’s condition should be
considered the result of “a small stroke until proven otherwise.” Id. at 9. Dr. Kraft
ordered an MRI of Mr. McElroy’s brain. Id.
       Mr. McElroy returned to the emergency department on December 15, 2014,
with a complaint that he began experiencing the numbness and tingling on the right
side of his body (previously he experienced these symptoms on the left). Exhibit 5
at 2. The treating physician noted that Mr. McElroy appeared to be suffering from
high levels of stress (petitioner himself described it as “the most stress he’s ever
                                          3
dealt with his entire life”) and that Mr. McElroy had been “googling” his
symptoms and is concerned that his symptoms may be a reaction to the flu shot he
received in October. Id. Mr. McElroy stated that this concern was amplifying his
stress. Id. The notes state that both Mr. McElroy’s wife and daughter spoke with
the treating physician privately and expressed an opinion that the symptoms were
associated with stress. Id. The overall impression by the physician was non-
specific, and the physician encouraged Mr. McElroy to be sure to attend the
neurology appointment he had scheduled in two days. See id. at 4.
       Mr. McElroy visited with his neurologist, Dr. Kraft, on December 17, 2014,
to discuss the results from his MRI. Exhibit 4 at 24. Dr. Kraft noted that the MRI
was “relatively normal” and that it did not explain Mr. McElroy’s symptoms. Id.
Dr. Kraft stated that he would like to order additional MRIs of his cervical and
thoracic regions before making his assessment. Id.
       Mr. McElroy revisited Dr. Kraft on December 30, 2014. Exhibit 4 at 35.
Dr. Kraft noted that petitioner continued to have sensory complaints. Id. More
specifically, Mr. McElroy continued to experience a loss of sensation around his
trunk and his upper and lower extremities in addition to his genitals. Id. Dr. Kraft
noted that his cervical and thoracic MRIs were normal aside from some
degenerative changes that did not explain Mr. McElroy’s condition. Id. Dr. Kraft
concluded that the combination of the continued symptoms in light of an
unremarkable work-up indicated that Mr. McElroy’s condition “could be related to
small fiber involvement, especially if it is involving the sensory enervation to the
rectum and anus.” Id. at 37. Dr. Kraft noted that Mr. McElroy’s metabolic
condition should thus be more closely examined and that his condition could be
related to diabetes. Id. at 37-38. Dr. Kraft recommended nerve conduction
studies. Id.
       Nerve conduction studies and EMGs were performed on January 28, 2015,
and February 11, 2015. Exhibit 4 at 39-59. Dr. Kraft concluded from these studies
that there was evidence of “chronic denervation reinnervation changes.” Id. at 75.
Dr. Kraft ordered a lumbar puncture to help with the differential diagnosis. Id.
        Mr. McElroy and Dr. Kraft exchanged several emails in March of 2015. Id.
at 98-99. In those emails, Mr. McElroy expressed continued concern about his
symptoms and notes that the numbness has not subsided and continues to impact
his life as well as his outlook on his life. Id. at 98. Mr. McElroy noted that he was
concerned that the symptoms started in relative proximity to the flu and pneumonia
vaccinations he received in October 2014. Id. In his responses, Dr. Kraft stated
that the lumbar puncture did not reveal any abnormalities and he recommended

                                          4
that Mr. McElroy simultaneously seek a second opinion regarding his condition.
Id. at 99. He did not acknowledge or address the comment regarding the
vaccination. Id.
       In May of 2015, Mr. McElroy obtained a second opinion from Dr. Vanessa
Baute, a neurologist. Exhibit 5 at 161. Dr. Baute noted that the skin biopsy was
positive for small fiber neuropathy, which “is most likely related to his diabetes.”
Id. During the visit, Mr. McElroy communicated that he was struggling with
several psychological issues and continued to have concerns about the effects the
numbness he is experiencing has affected his life. Id. at 161-62. In Dr. Baute’s
assessment, her statements regarding the cause of Mr. McElroy’s disease are more
conclusory, noting “skin biopsy confirmed small fiber neuropathy due to diabetes.
I do not suspect Lyme’s disease or vaccine reaction.” Id. at 164. Dr. Baute
recommended that Mr. McElroy start on Neurontin for the neuropathic pain and
noted that there was no further neurological work needed at that time. Id. She also
strongly recommended that Mr. McElroy seek a psychological/psychiatric referral
for his psychological struggles and that Mr. McElroy address his small fiber
neuropathy through control of his diabetes. Id.
       Mr. McElroy also sought a second opinion from Dr. Temple Day on May 8,
2015. Id. at 174. Dr. Day also concluded that the small fiber neuropathy that
petitioner was suffering from was “likely related to his [diabetes].” Id. at 176.
However, Dr. Day also noted that she was “not sure the whole of his
symptomatology is attributable to this [diagnosis].” Id. Dr. Day reviewed that the
differential for the neuropathy included many things in addition to diabetes,
including autoimmune, Lyme disease, environmental, and idiopathic causes. Id.
Dr. Day did note that she thought that Mr. McElroy’s psychological state was
“likely contributing to some of his [symptoms] as well.” Id.
       In an email to Dr. Day on June 23, 2015, Mr. McElroy emailed Dr. Day in
response to an ongoing discussion about what may have caused his condition. Id.
at 241. In the emails, Mr. McElroy noted that he was convinced that the cause was
related to either 1) a tick bite he received in May or June 2014, 2) the vaccinations
he received on October 31, 2014, or 3) the physical strain he exerted building the
swing set the day before the numbness started. Id. It does not appear that Dr. Day
commented on these potential causes in that email chain. Id. at 241-42.
      Mr. McElroy visited with an infectious disease specialist, Dr. Shara Ann
Betito, on June 25, 2015, to explore whether the tick bite may be the underlying
cause of his symptoms. Id. at 257. The physician concluded that there was “no
evidence of Lyme disease to explain his sensory symptoms.” Id. The physician,

                                          5
who noted herself that it was outside of her specialty, remarked that Mr. McElroy’s
symptoms were an “unusual presentation” of peripheral neuropathy. Id. She
further stated that there should be a work-up for other possible etiologies by
neurology and also notes that “some researchers believe this to be a psychosomatic
disorder” that “has had some success with anti-depressants.” Id.
      The psychosomatic theory for Mr. McElroy’s condition was also endorsed in
the notes by Dr. Kristopher Hansen, DO, a rheumatologist following a visit on
September 16, 2015. At this visit, after Lyme disease had been largely ruled out,
Mr. McElroy expressed a concern that the flu and pneumonia vaccines he received
in October 2014 may be related to his presentation. Exhibit 5 at 284. Dr. Hansen
reviewed some of the personal and professional stressors that coincided with Mr.
McElroy’s presentation. Dr. Hansen remarked that he did not believe that Mr.
McElroy had an underlying autoimmune joint disorder, noting that the ANA titer
was “weakly positive at 1:40” and that he did “not feel this to be contributory.” Id.
at 286. Ultimately, Dr. Hansen concluded that he felt that Mr. McElroy’s
“presentation is likely consistent with Conversion Disorder given social stressors
and temporal association with symptoms and distribution of symptoms in setting of
extensive neurological work up as above.” Id. at 286-87.
      Following on these recommendations, Mr. McElroy was seen by a
psychiatrist, Dr. Shaji Puthuvel, M.D., on February 4, 2016. Exhibit 7 at 13. Dr.
Puthuvel diagnosed Mr. McElroy with Conversion Disorder with anesthesia or
sensory loss, persistent with psychological stressor. Id. at 14.
      Mr. McElroy’s primary care physician referred him to another neurologist,
Dr. Michael Reynolds, for a consultation on February 24, 2016. Exhibit 6 at 10.
Dr. Reynolds’s notes in the initial consult reflect the uncertainty surrounding Mr.
McElroy’s condition:
      His symptoms and exam findings are actually consistent with small
      fiber neuropathy. However, the history is very strange. It is possible
      that he had an acute small fiber neuropathy, and for whatever reason
      experienced it in an unusual fashion. However, it is also possible that
      he has some degree of small fiber neuropathy from poorly controlled
      long-standing diabetes, which was never very symptomatic, and is
      now experiencing psychogenic symptoms.
Id. at 12. Dr. Reynolds concluded that he would like to repeat the nerve
conduction studies, examine him for somatosensory evoked potentials, and gather
more information about his skin biopsy. Id. Mr. Reynolds did make a point of
communicating to Mr. McElroy that “if we went through this entire workup and it
                                          6
was negative, I would be left with no explanation except for a psychogenic
etiology for his symptoms, and at that point I would recommend ongoing work
with a mental health professional who was skilled in the management of these
conditions.” Id.
        Mr. McElroy returned to Dr. Reynolds on March 29, 2016, to discuss the
results from the EMG and NCS testing. Exhibit 6 at 35. Dr. Reynolds noted that
the results were “mildly abnormal” and suggest “a mild sensorimotor
polyneuropathy of mixed character.” Id. Based on these results, Dr. Reynolds
concluded that “[b]ecause of the profound disconnect between the extent of the
patient's apparent large fiber neuropathy and small fiber symptoms, we will
proceed with skin biopsy today for further evaluation of suspected small fiber
neuropathy.” Id.
      The results from the skin biopsy confirmed small fiber neuropathy. Id. at
61. Because none of the labs were able to identify a cause, Dr. Reynolds
concluded that “the only reason for it that I can find is diabetes.” Id.
       Mr. McElroy then sought an opinion from an additional neurologist, Dr.
Andreas Runheim, in October 2016. Exhibit 8 at 1. Dr. Runheim ran several labs
to evaluate the cause of Mr. McElroy’s symptoms and noted that they were
remarkable for, amongst other things, positive ANA. Id. Dr. Runheim concluded
by noting that Mr. McElroy’s neuropathic problems “may be stemming from” his
October vaccinations. Id. at 4.
       Mr. McElroy returned to Dr. Kraft, the original neurologist, in December
2016, complaining of continued numbness and tingling, in addition to muscle
tightness and stiff hands. Exhibit 4 at 109. Although Mr. McElroy reminded Dr.
Kraft of the vaccinations he was administered shortly before the onset of his
symptoms, id., Dr. Kraft again concluded that the most likely explanation of Mr.
McElroy’s small fiber sensory neuropathy was his diabetes. Id. at 113. However,
Dr. Kraft ordered additional NCS/EMG before making a more conclusory
assessment. Id.
       Based on the results from the NCS/EMG performed, on December 14, 2016,
Dr. Kraft concluded that Mr. McElroy had neurophysiological evidence of an
axonal sensorimotor polyneuropathy without demyelinating features. Id. at 126.
In a follow-up to discuss the results, Dr. Kraft noted that Mr. McElroy “expounded
on his history of flu vaccination followed 2 weeks later [by] the onset of
hemisensory symptoms.” Id. at 147. Dr. Kraft recorded his impression of Mr.
McElroy as follows:

                                        7
      Impression: #1. 67-year-old with onset of sensory symptoms as
      outlined in previous notes approximately 2 weeks after flu
      vaccination. The connection between the flu vaccination and the
      patient's constellation of symptoms is unclear however a vaccination
      reaction cannot be completely excluded. Whether the patient's
      symptoms were related to an immune reaction with cross reactivity is
      not clear but possible. #2. Diabetes induced sensorimotor
      polyneuropathy. #3. Lumbosacral spinal disease, stable.
Id. at 150. Dr. Kraft’s most recent examinations of Mr. McElroy in July and
August 2017 mirror this same impression, noting that he continues to have a loss of
sensitivity and abnormal sensation around his truncal area that “is not explained by
diabetes induced sensorimotor polyneuropathy,” and is, otherwise,
“[u]nexplained.” Exhibit 10 at 20; Exhibit 13 at 12. Further evaluation by a
neurosurgeon was similarly unhelpful for diagnosing the cause of Mr. McElroy’s
condition. Exhibit 11 at 6.
   II.       Procedural History
       Mr. McElroy filed his petition for compensation on August 9, 2017.
Petitioner sought his award under the National Childhood Vaccine Injury Act of
1986, 42 U.S.C. §§ 300aa-1 to -34, as amended. In his petition, Mr. McElroy
claimed that the influenza and pneumonia vaccines he received on October 31,
2014, caused him to suffer “small fiber neuropathy and debilitating paresthesias.”
Pet. ¶ 23.
       On June 1, 2018, the Secretary filed his Rule 4(c) report. The Secretary’s
report argued that compensation was not appropriate under the Act because
“petitioner has submitted no reliable evidence of actual causation” beyond the
temporal association between the vaccination and the onset or worsening of his
condition. Resp’t’s Rep. at 10-11.
        A status conference was held on June 7, 2018. During the conference,
petitioner stated that he would like to proceed by obtaining and filing an expert
report in support of causation. The undersigned issued an order proposing
instructions to any expert submitting an expert report. Order, issued June 8, 2018.
After the parties did not object or comment on the proposed expert instructions, the
instructions were issued on June 28, 2019.
       Petitioner filed multiple status reports in July, August, and September 2018,
stating that he was having difficulty finding an expert to provide an opinion. In an
affidavit submitted as part of the pending motion, petitioner’s counsel, Ms. Nancy

                                         8
Meyers, noted that during this time period she contacted two experts, Dr. Lawrence
Steinman of Stanford University and Dr. Norman Latov, of Weill Medical College
at Cornell University. Pet’r’s Reply, filed Nov. 16, 2018, Aff. of Nancy Meyers at
¶¶ 13-14. Both physicians have participated in the Vaccine Program.
Unfortunately for Mr. McElroy, both physicians declined to take on his case, citing
the difficulty they would have establishing causation in the face of his pre-existing
diabetes. Id.
      On October 16, 2018, citing difficulty finding an expert report, the parties
signed a joint stipulation calling for the dismissal of Mr. McElroy’s petition under
Vaccine Rule 21(a). Pursuant to the stipulation, the proceedings were ordered
concluded. Order, issued Oct. 19, 2018, 2018 WL 6241546.
       Mr. McElroy moved for reimbursement of attorneys’ fees and costs shortly
before the proceedings were concluded. Pet’r’s Mot., filed Oct. 10, 2018.
Petitioner’s initial motion did not provide any argument in support of his eligibility
for an award of fees and costs under the Vaccine Act.
       The Secretary filed a response in opposition to petitioner’s motion on
October 24, 2018. The Secretary challenged the petition’s reasonable basis. With
leave of the court, Mr. McElroy addressed the merits of his eligibility for fees and
costs in a reply filed on November 16, 2018.
       In the ensuing months, the undersigned determined that additional briefing
from the parties was necessary. In an order issued on February 6, 2019, the
undersigned directed the parties to file supplemental briefs that addressed several
issues presented by Mr. McElroy’s request for fees and costs. Petitioner filed his
supplemental motion on February 22, 2019. Respondent filed a response on April
19, 2019, and petitioner filed a reply on April 26, 2019.
       In his supplemental motion, petitioner provides a well-written, if not
persuasive, argument in support of the reasonable basis of the petition. Mr.
McElroy’s brief marshals six premises that, he argues, when considered in their
totality, sum up to a finding that the petition was brought with a reasonable basis.
These are:
      (1) Petitioner had a flu vaccination (Fluarix) and a pneumonia (Prevnar 13)
      vaccination less than a month prior to developing his neurologic symptoms,
      meeting the temporal requirement;




                                          9
      (2) Petitioner had two skin biopsies, both of which confirmed small fiber
      neuropathy, along with positive nerve conduction studies, objective findings
      that discredit any suggestion of conversion disorder;
      (3) Petitioner never had prior diabetic neuropathy symptoms and the
      symptoms he experienced after the flu vaccination were not typical of
      diabetic neuropathy;
      (4) Petitioner’s neurologists were supportive and considered the vaccine as a
      possible cause and documented that possibility in their records;
      (5) Prior claims of flu vaccinations followed by small fiber neuropathy have
      all been settled by the Program; and
      (6) No definitive alternate causes existed for Petitioner’s complaints despite
      extensive testing.
Pet’r’s Br., filed Feb. 22, 2019, at 6-7.
       Respondent agrees, or at least does not directly contradict, most of
petitioner’s premises in support of a reasonable basis determination. However,
there is at least one important exception. The Secretary opposes Mr. McElroy’s
characterization that his neurologists were “supportive” of the conclusion that the
vaccine was a possible cause. Respondent argues that Mr. McElroy’s physicians
“consistently linked his numerous complaints to causes unrelated to vaccination.”
Resp’t’s Br., filed Apr. 19, 2019, at 5.
       The Secretary connects his assessment of the views of the treating doctors
with the views petitioner’s own counsel expressed. Years later, after all medical
records had been obtained, petitioner’s attorney noted that the newly obtained
records “don’t reflect neurologic complaints or make reference to their relatedness
to the vaccine, as we had hoped.” Resp’t’s Br., filed Oct. 24, 2019, at 11-12 (citing
Pet’r’s Fees Mot., attachment 2 at 8). The Secretary argues that by filing the
petition and then hoping that the content of the medical records would turn out
differently, “petitioner’s attorney assumed the risk that she would not be able to
later establish a reasonable basis for this claim.” Resp’t’s Br., filed Oct. 24, 2018,
at 12.
   III.      Standards for Adjudication
      Petitioners who have not been awarded compensation are eligible for an
award of attorneys’ fees and costs when “the petition was brought in good faith
and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa—15(e)(1). As

                                            10
the Federal Circuit has stated, “good faith” and “reasonable basis” are two separate
elements that must be met for a petitioner to be eligible for attorneys’ fees and
costs. Simmons v. Secʼy of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir.
2017).
       “Good faith” is a subjective standard. Id.; Hamrick v. Secʼy of Health &
Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.
19, 2007). A petitioner acts in “good faith” if he or she honestly believes that a
vaccine injury occurred. Turner v. Secʼy of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has
not challenged petitioner’s good faith here2 and the undersigned finds the
Secretary’s position that good faith exists to be reasonable. Accordingly, Mr.
McElroy’s eligibility for compensation turns on the question of the reasonable
basis for the petition.
       Reasonable basis, in contrast, is purely an evaluation of the objective weight
of the evidence. Simmons, 875 F.3d at 636. Because evidence is “objective,” the
Federal Circuit’s description is consistent with viewing the reasonable basis
standard as creating a test that petitioners meet by submitting evidence. See
Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at
*12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that reasonable basis is
met with evidence), mot. for rev. denied, 116 Fed. Cl. 276 (2014).
       In practice, it has proven difficult to define the modicum of evidence that
confers reasonable basis onto a petitioner. When the Federal Circuit and judges of
the Court of Federal Claims have commented on the reasonable basis standard they
often do not speak of the amount of evidence that confers reasonable basis.
Instead, they have spoken to the types of situations where reasonable basis cannot
be said to exist. For example, a petition based purely on “unsupported


       2
         In his most recent brief, the Secretary conceives of a potential challenge to whether Mr.
McElroy’s petition was brought in good faith. He states that Ms. Meyers “arguably did not meet
the good faith requirement to file the claim before attempting to procure an expert to opine
despite the records.” Resp’t’s Br., filed Apr. 19, 2019, at 9. Nevertheless, the Secretary appears
to maintain the position that, on balance, Mr. McElroy’s petition was supported by good faith.
See Resp’t’s Br., filed Oct. 24, 2018, at 9, note 3 (the Secretary stating that he “does not
challenge petitioner’s good faith in bringing this petition”); Resp’t’s Br., filed Apr. 19, 2019, at 8
(“respondent did not challenge petitioner’s good faith in filing this petition”). Accordingly,
because the parties do not contest the issue of good faith, the undersigned declines to analyze it
here. Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame
the issues for decision and assign to courts the role of neutral arbiter of matters the parties
present”).
                                                 11
speculation,” even speculation by a medical expert, is not sufficient to find a
reasonable basis. Perreira v. Secʼy of Health & Human Servs., 33 F.3d 1375, 1377
(Fed. Cir. 1994) (“Congress must not have intended that every claimant, whether
being compensated or not under the Vaccine Act, collect attorney fees and costs by
merely having an expert state an unsupported opinion that the vaccine was the
cause in-fact of the injury”). As another example, when “the medical and other
written records contradict the claims brought forth in the petition,” a special master
is not arbitrary in concluding that reasonable basis for the petition did not exist.
Murphy v. Secʼy of Health & Human Servs., 30 Fed. Cl. 60, 62 (1993), affʼd
without opinion, 48 F.3d 1236 (Fed. Cir. 1995) (table).
       In Simmons, a judge found petitioner’s failure to submit a petition that
complied with the Vaccine Act’s requirements supported a finding that reasonable
basis for the petition did not exist. The judge reasoned that section 11(c) of the
Vaccine Act requires that petitions “be accompanied with evidence of injury” [to]
ensure[] that petitioners and their counsel make some effort to establish that there
was a vaccination and an injury that may be linked to the vaccine.” Simmons v.
Sec'y of Health & Human Servs., 128 Fed. Cl. 579, 583 (2016), aff'd, 875 F.3d 632
(Fed. Cir. 2017).
       One such requirement of the Act is that special masters cannot award
compensation “based on the claims of petitioner alone, unsubstantiated by medical
records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and
judges of the Court of Federal Claims have interpreted this portion of the Act to
mean that petitioners must submit expert medical opinion, either contained in the
form of their medical records or in the form of expert opinion testimony, to support
claims of causation-in-fact. See Waterman v. Sec'y of Health & Human Servs.,
123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Human Servs.,
35 Fed. Cl. 593, 599 (1996) (referring to “the firm requirement that medical
opinion evidence is ... necessary ... to support an on-Table theory” where medical
records fail to establish the existence of a Table injury by a preponderance of the
evidence); Schneider v. Sec'y of Health & Human Servs., No. 99-0160V, 2005 WL
318697, at *2 (Fed. Cl. Feb. 1, 2005) (stating that numerous cases construing 42
U.S.C. § 300aa–13(a) “hold uniformly that if an injured person's medical records
do not disclose a diagnosis that the injured person's symptoms constitute a Table
injury, then the petitioner must submit a medical expert's opinion interpreting the
injured person's symptoms as a Table injury”)).
      If compensation is unavailable without medical opinion supporting
causation, it follows that the absence of medical opinion evidence undermines the
reasonable basis of the claim. See Mullen v. Sec'y of Health & Human Servs., 143
                                         12
Fed. Cl. 504 (2019) (denying motion for review of decision finding no reasonable
basis when a petitioner failed to comply with the requirements of 42 U.S.C. § 300aa-
13(a)(1)).
   IV.       Discussion
       If petitioner had obtained a “medical opinion” supporting the claim set forth
in the petition, then the analysis of reasonable basis could start there. However,
neither Dr. Steinman nor Dr. Latov could present such an opinion. Thus, as an
alternative to “medical opinion,” petitioner may rely upon “medical records.” See
42 U.S.C. § 300aa–13(a).
       Although numerous physicians considered the possibility that Mr.
McElroy’s small fiber neuropathy was the result of his vaccination, none endorsed
that viewpoint. Statements that physicians considered a vaccine as a possible
cause--statements often made at the suggestion of patients--do not constitute
medical record supporting causation. The hesitancy of Mr. McElroy’s treating
physicians to associate the vaccination with his injury seems to mirror the reaction
of Dr. Steinman and Dr. Latov. Both appeared to find that the facts of the case did
not lend themselves to a conclusion indicating causality.
       In lieu of objective evidence supporting the claim set forth in the petition,
Mr. McElroy argues that his petition was supported by reasonable basis up and
until his attorney learned he would not be able to provide a supportive medical
opinion. In other words, it appears that Mr. McElroy acknowledges that a petition
without medical opinion supporting causation is a petition without reasonable basis
to continue. But, petitioner argues, reasonable basis existed up and until the point
when the unavailability of medical opinion testimony was discerned. Pet’r’s Mot.,
filed Feb. 22, 2019, at 21. In petitioner’s words, he claims he had “a reasonable
basis for instituting a claim and litigating the claim through and including the
efforts of seeking an expert and concluding the case.” Id.
       While reasonable basis may come and go during the pendency of a
proceeding, see R.K. v. Sec'y of Health & Human Servs., 760 F. App'x 1010, 1012
(Fed. Cir. 2019); Perreira v. Sec'y of Health & Human Servs., 33 F.3d 1375, 1377
(Fed. Cir. 1994), the change is usually because of a change in evidence. After all,
reasonable basis is satisfied with evidence. Chuisano, 2013 WL 6234660, at *12-
13. In all cases, evidence develops throughout its pendency. New medical testing
is performed, new medical research is found, and new expert opinions are
obtained. Some of that evidence will support a claim of causation; some of it will
not.

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       Mr. McElroy’s position that reasonable basis should exist up and through the
point when he discovered he would not be able to obtain medical opinion evidence
directly contradicts the Federal Circuit’s recent statements on the reasonable basis
standard. In Simmons, the Circuit held that the reasonable basis standard must be
rooted in an evaluation of the objective evidence and cannot consider the
“attorney’s conduct.” Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632,
635 (Fed. Cir. 2017). The objective evidence in Mr. McElroy’s case did not
change when Ms. Meyers came to the realization that she would not be able to
obtain medical opinion evidence supporting her client’s case. From the standpoint
of evidence, the record did not change from October 15, 2018, the date before Mr.
McElroy filed a motion to dismiss his case, to October 17, 2018, the date after Mr.
McElroy filed the motion to dismiss.
       While the evidence did not change, petitioner’s subjective evaluation of the
strength of the case changed. To find that reasonable basis was lost when Ms.
Meyers realized that an expert report was not forthcoming would be to consider the
attorney’s conduct in the reasonable basis analysis in the same way proscribed by
the Federal Circuit in Simmons.
       Of course, Ms. Meyer’s realization that expert support could not be obtained
led to a prompt dismissal of the case. To Ms. Meyer’s credit, she appropriately
wound down the proceeding as soon as this development materialized.3 But, a
prompt dismissal does not change the (lack of) evidence.
      Ultimately, Mr. McElroy brought a petition that was not fully developed.
He waited, for whatever reason, until after the filing of the petition to perform the
type of diligence that would reveal whether the case could possibly be
compensated. When Ms. Meyers decided to forgo a comprehensive pre-filing
review of the petition, she assumed the risk that neither medical records nor
medical opinion supported the claim that the vaccinations caused small fiber
neuropathy. Here, the evidence does not establish that Mr. McElroy had a
reasonable basis for the claim set forth in the petition and because it is petitioner’s
burden to establish such a reasonable basis before an award of attorneys’ fees and



       3
          Additionally, given that the reasonable basis determination is based solely on an
evaluation of the objective within the case at hand, past settlements of similar types of claims
have no bearing on whether reasonable basis existed in Mr. McElroy’s case. Thus, Mr.
McElroy’s assertion related to past settlements of small fiber neuropathy claims is irrelevant to
this determination. Pet’r’s Br. filed Feb. 22, 2019, at 8-9.

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costs can be made, the undersigned finds that petitioner’s motion for attorneys’
fees and costs must be DENIED.
       In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.4
       IT IS SO ORDERED.


                                                   S/ Christian J. Moran
                                                   Christian J. Moran
                                                   Special Master




       4
         Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party,
either separately or jointly, filing a notice renouncing the right to seek review.

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