    In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                        No. 12-706V
                                    Filed: April 13, 2016

*************************                                  UNPUBLISHED
ERICA EVANS, M.D.,                          *
                                            *              Special Master Roth
                      Petitioner,           *
                                            *
v.                                          *              Petitioner’s Motion for Dismissal
                                            *              Decision; Influenza (“Flu”) Vaccine;
SECRETARY OF HEALTH                         *              Orthostatic Hypotension;
AND HUMAN SERVICES,                         *              Tingling in Extremities; Residual
                                            *              Symptoms.
                      Respondent.           *
                                            *
*************************
Andrew D. Downing, Van Cott & Talamante, PLLC, LLC, Phoenix, AZ, for Petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.

                                           DECISION1

        On October 17, 2012, Erica Evans, M.D. (“Petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”). In an amended Petition filed on December 15, 2014, Petitioner alleged that she
suffers from “orthostatic hypotension . . . due to autonomic nervous system dysfunction that can
be triggered by vaccination”, intermittent numbness and tingling in extremities, and residual
physical and psychological symptoms as a result of the influenza (“flu”) vaccination2 she
received on October 7, 2009. Amended Petition (“Amend. Pet”) at 1-8. The undersigned now
finds that the information in the record does not show entitlement to an award under the
Program.

       On April 12, 2016, Petitioner filed a Motion for Decision Dismissing her Petition.

1
 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, codified as amended at 44 U.S.C. §
3501 (2012). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move
to delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further,
consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, the undersigned agrees that the identified material fits within the
requirements of that provision, such material will be deleted from public access.
2
  Petitioner discusses the H1N1 Vaccination in her petition and amended petition; however, this
is not a covered vaccination. See § 300aa-14.
Motion, ECF No. 74. According to the motion, petitioner “recognizes that she will likely be
unable to meet her burden of proof and establish that she is entitled to compensation in the
Vaccine Program.” Motion at 1. Petitioner further states that she understands that a dismissal
decision will result in a judgment against her, and that such a judgment will end all of her rights
in the Vaccine Program. Id.

        To receive compensation under the Vaccine Act, Petitioner must prove either 1) that she
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of her vaccinations, or 2) that she suffered an injury that was actually caused by a vaccine.
See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover
any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain any
persuasive evidence indicating that her injuries were caused by a vaccination.

        Although the record contains a medical expert opinion, this opinion and the other
evidence submitted, is not persuasive evidence connecting petitioner’s injuries to her flu
vaccination. See Petitioner’s Exhibit (“Pet. Ex.”) 18. Petitioner’s expert, Dr. David Axelrod,
opined that petitioner suffered from dysautonomia with neurogenic orthostatic hypotension,
which was caused by cytokine release after she received her vaccination. See generally Pet. Ex.
18. The Special Master assigned to the case at the time expressed “several concerns with the
above-captioned case including . . . an unclear diagnosis, onset timing, a potential pre-existing
condition, and incomplete testing due to medication.” Order, ECF No. 56. Furthermore, the
Special Master explained that like petitioner’s treating physicians, the parties’ experts could not
agree upon a diagnosis of any injury related to the vaccine and a neuropsychological evaluation
was ordered. Id. During a status conference with the undersigned, petitioner’s counsel stated
that he could not retain a neuropsychiatrist willing to assist in this case. Petitioner’s alleged
injuries remain unclear. Order, ECF No. 73. Therefore, petitioner filed a motion to dismiss her
case.

        Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims alone. Rather, the petition must be supported by either medical records or
by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner’s expert report is also insufficient. Therefore, the only alternative
remains to DENY this petition. Thus, this case is dismissed for insufficient proof. In the
absence of a motion for review, the Clerk shall enter judgment accordingly.


       IT IS SO ORDERED.

                                                      /s/Mindy Michaels Roth
                                                      Mindy Michaels Roth
                                                      Special Master




                                                 2
