        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1154V
                                      Filed: April 12, 2016
                                          Unpublished


****************************
MAURICE HOSS,                             *
                                          *
                    Petitioner,           *    Petitioner’s Motion for a Dismissal
                                          *    Decision; Pneumovax 23 Vaccine;
              v.                          *    Vaccine Not Covered Under the
                                          *    Program; Vaccine Act Entitlement;
SECRETARY OF HEALTH AND                   *    Shoulder Injury Related to Vaccine
HUMAN SERVICES,                           *    Administration (“SIRVA”); Special
                                          *    Processing Unit (“SPU”)
                    Respondent.           *
                                          *
****************************
Curtis R. Webb, Twin Falls ID, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

                                               DECISION 1

Dorsey, Chief Special Master:

       On October 8, 2015, Maurice Hoss (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.2 (the “Vaccine Act” or “Program”). Petitioner alleged that he “received a trivalent
influenza vaccination (Fluvirin 2012-2013) in his right shoulder on October 14, 2012 . . .
[which] caused him to develop a Shoulder Injury Related to Vaccine Administration


1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
(SIRVA).” Petition at ¶¶ 1-2. The case was assigned to the Special Processing Unit of
the Office of Special Masters.

        On April 7, 2016, petitioner moved for a decision dismissing his petition,
acknowledging that the evidence shows he received the trivalent influenza vaccination
in his left arm and the Pneumovax 23 vaccination in his right arm where he sustained
his injury. Petitioner’s Motion at 1 (ECF No. 17). Petitioner further acknowledges that
“[s]ince that vaccination is not covered by the National Vaccine Injury Compensation
Program, the petitioner is not entitled to compensation from the Program.” Id. at 1-2.

         Petitioner’s motion is GRANTED, and his claim is hereby DISMISSED.

   I.       Legal Standards.

      To be entitled to compensation under the Vaccine Act, a petitioner must
demonstrate that he or she received a vaccine set forth in the Vaccine Injury Table (the
“Table”). See §11(c)(1)(A). Compensation is awarded only to individuals “who have
been injured by vaccines routinely administered to children.” H.R. Rep. 99-908, 1986
U.S.C.C.A.N. 6344 at 3.

      “There are two types of pneumococcal vaccines . . . pneumococcal conjugate
and polysaccharide vaccine[s].” Bundy v. Sec’y of Health & Human Servs., No. 12-
769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014). Only pneumococcal
conjugate vaccines, routinely administered to children, are covered by the Vaccine
Program. See Morrison v. Sec’y of Health & Human Servs., No. 04-1683, 2005 WL
2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005) (describing how and when
pneumococcal conjugate vaccines were added to the Vaccine Table).

   II.      Procedural History.

       Petitioner filed his petition on October 8, 2015. Within two weeks, he filed
medical records and a statement of completion. See Exhibits 1-7, filed Oct. 19, 2015
(ECF Nos. 7-8); Statement of Completion, filed Oct. 20, 2015 (ECF No. 9). The initial
status conference call was held on November 18, 2015 with the OSM staff attorney
managing this SPU case.

       During the call, the OSM staff attorney noted that the Vaccine Adverse Event
Reporting System (“VAERS”) report and medical records which were all created shortly
after vaccination indicate petitioner received the Pneumovax 23 vaccine (which is not a
pneumococcal conjugate vaccine and thus not covered by the Program) in the right
(injured) arm and the trivalent influenza vaccine in the left arm. See Order, issued Nov.
20, 2015, at 1 (ECF No. 11) (citing Exhibits 3 at 2; 4 at 4). In his affidavit, petitioner
acknowledges that he “did not know which vaccination [he] received in [his] right arm
until September 17, 2015” when he met with petitioner’s counsel. Exhibit 1 at 2 (ECF
                                            2
No. 7). Respondent’s counsel raised a second potential problem with petitioner’s claim,
noting a reference in the medical records to right shoulder pain experienced by
petitioner prior to his October 14, 2012 vaccinations. Petitioner was allowed sixty to file
additional medical records, affidavits, and other documentation to address the two
issues. See id. at 2.

        On February 18, 2016, petitioner filed a status report regarding the unavailability
of his earlier medical records and difficulties he had encountered obtaining an affidavit
from the pharmacist who administered his October 12, 2012 vaccinations. (ECF No.
13). The OSM staff attorney held a second status conference call on March 1, 2016,
and petitioner was allowed an additional 30 days to file the pharmacist’s affidavit and
any additional medical records or other documentation to support his assertion that he
received the trivalent influenza vaccine in his right arm.

        On April 7, 2016, petitioner filed a more detailed vaccination record, a second
statement of completion, and a motion for a ruling on the record. The record shows that
petitioner received the Pneumovax 23 vaccine in his right arm, the arm alleged as
injured, and the trivalent influenza vaccine in his left arm. Exhibit 8 at 2 (ECF No. 15).
Petitioner acknowledges that he “is not entitled to compensation . . . [and] asks the court
to dismiss his claim for compensation.” Petitioner’s Motion at 2 (ECF No. 17).

    III.     Conclusion.

       Petitioner has failed to demonstrate that he was injured by a vaccine covered
under the Vaccine Program. This case is dismissed for failure to state a claim upon
which relief can be granted. The clerk shall enter judgment accordingly.3

IT IS SO ORDERED.

                                                            s/Nora Beth Dorsey
                                                            Nora Beth Dorsey
                                                            Chief Special Master




3
 If petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
                                                       3
