           In the United States Court of Federal Claims
                                          No. 11-631V
                             (Filed Under Seal: February 27, 2018)
                           (Reissued for Publication: March 14, 2018)1

*************************************
ROY GREENE,                         *
                                    *
                  Petitioner,       *                 Vaccine Act; Motion for Review; Tetanus-
                                    *                 Diphtheria Vaccine; Brachial Neuritis;
v.                                  *                 Causation-in-Fact; Althen Prong Three;
                                    *                 Motion for Reconsideration Under Vaccine
SECRETARY OF HEALTH AND             *                 Rule 10(e)
HUMAN SERVICES,                     *
                                    *
                  Respondent.       *
*************************************

Richard Gage, Cheyenne, WY, for petitioner.

Robert P. Coleman III, United States Department of Justice, Washington, DC, for respondent.

                                    OPINION AND ORDER

SWEENEY, Judge

        Petitioner Roy Greene seeks compensation under the National Childhood Vaccine Injury
Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34 (2012), for an alleged vaccine-caused
injury. Before the court is petitioner’s motion for review of the special master’s decision denying
compensation. Because the special master applied the incorrect legal standard when evaluating
the evidence offered by petitioner, the court grants petitioner’s motion and vacates the special
master’s decision.

                                       I. BACKGROUND

       Petitioner filed a petition for compensation under the Vaccine Act on September 29,
2011, alleging that he developed brachial neuritis as a result of a July 22, 2009 tetanus-diphtheria


       1
          Vaccine Rule 18(b), contained in Appendix B of the Rules of the United States Court of
Federal Claims, affords each party fourteen days in which to object to the disclosure of (1) trade
secrets or commercial or financial information that is privileged or confidential or (2) medical
information that would constitute “a clearly unwarranted invasion of privacy.” Neither party
objected to the public disclosure of any information contained in this opinion.
(“Td”) vaccination.2 He asserted two theories of recovery: first, that he was entitled to
compensation pursuant to the Vaccine Injury Table, which provides that brachial neuritis that
develops between two and twenty-eight days after receiving a vaccine containing tetanus toxoid
is a compensable injury; and second, that he was entitled to compensation because the Td
vaccine actually caused his brachial neuritis.

        The special master held a fact hearing in March 2015 to determine the onset date of
petitioner’s brachial neuritis. In a July 31, 2015 decision, the special master found that
petitioner’s symptoms began no earlier than September 1, 2009–forty-one days after the Td
vaccination. Because petitioner’s symptoms arose after the time period prescribed in the Vaccine
Injury Table, the special master dismissed petitioner’s Table claim.

        Over the next two years, in an effort to resolve petitioner’s remaining claim of actual
causation, petitioner filed two expert reports from Thomas W. Wright, M.D., and the parties
engaged in settlement discussions. In September 2016, the special master learned that the
settlement discussions had not been successful because respondent rejected as inadequate
petitioner’s showing that forty-one days was a medically acceptable time frame for the Td
vaccine to cause brachial neuritis. Thus, the special master directed petitioner to file a
supplemental expert report. In early 2017, petitioner filed an expert report from Marcel
Kinsbourne, M.D.

        In March 2017, respondent filed a motion for a ruling on the record, to which petitioner
responded the following month. In a May 26, 2017 decision, the special master found that the
record did not support petitioner’s claim that the Td vaccine caused his brachial neuritis because
petitioner could not establish, more probably than not, that a forty-one-day period between the
vaccination and the first symptoms of the injury was medically acceptable.

        On June 16, 2017, petitioner filed a motion for reconsideration pursuant to Vaccine Rule
10(e), as well as a supplemental expert report from Dr. Kinsbourne and supporting
documentation (including eighteen medical and scientific articles and a letter/report from Vera S.
Byers, M.D., Ph.D.). In his motion, petitioner argued that he had provided sufficient evidence to
establish that a forty-one-day onset period was medically acceptable, but that if the special master
continued to deem the existing evidence insufficient, Dr. Kinsbourne’s supplemental expert
report and supporting documentation would establish the medical acceptability of the onset
period.

       Vaccine Rule 10(e)(3) provides that a “special master has the discretion to grant or deny”
a motion for reconsideration “in the interest of justice.” If a special master grants a motion for
reconsideration, Vaccine Rule 10(e)(3)(A) provides that “the special master must file an order


       2
          The court derives much of the background from the special master’s September 26,
2017 decision. See generally Greene v. Sec’y of HHS, No. 11-631V, 2017 WL 5382856 (Fed.
Cl. Spec. Mstr. Sept. 26, 2017). The remaining background is taken from the docket of the case.

                                                -2-
withdrawing the challenged decision” and that the withdrawn decision “becomes void for all
purposes and the special master must subsequently enter a superseding decision.” Pursuant to
Vaccine Rule 10(e)(3)(A)(ii), “[t]he special master may not . . . issue a superseding decision
reaching a different result from the original decision without affording the nonmoving party an
opportunity to respond to the moving party’s arguments.”

        The special master granted petitioner’s motion for reconsideration in a June 19, 2017
order, which provided:

         ORDER GRANTING PETITIONER’S MOTION FOR RECONSIDERATION

              On May 26, 2017, I issued a decision denying Petitioner’s request for
       compensation and dismissing his claim. ECF No. 93. Petitioner then filed a
       motion for reconsideration of my decision on June 16, 2017, along with a
       supplemental (albeit unauthorized) expert report and several items of
       previously-unfiled medical literature. ECF Nos. 94-97.

              I hereby grant the motion for reconsideration. Accordingly, the clerk of
       the Court is hereby instructed to withdraw the original decision issued on May 26,
       2017.

               I will discuss the next steps for resolving this claim with the parties during
       the status conference currently set for June 28, 2017.

In accordance with this order, the docket entry for the May 26, 2017 decision was amended to
reflect that the decision had been withdrawn. Specifically, the following language was added at
the beginning of the docket entry: “**VACATED PURSUANT TO ORDER . . . OF
6/19/2017.**”

        The special master conducted a status conference with the parties on June 28, 2017, and
issued an order later that day memorializing the proceedings:

              The status conference was held to discuss Petitioner’s recent motion for
       reconsideration and supporting materials filed on June 16, 2017. . . .

               . . . [After I granted Respondent’s motion for a ruling on the record],
       Petitioner filed a fourth supplemental expert report and numerous additional
       pieces of literature aimed at bulwarking the onset/timing issue. Although these
       materials were filed late, I have determined that in fairness to Petitioner I must at
       least consider them (although I will weigh their persuasiveness against the fact of
       their dilatory submission), and therefore I am reconsidering my dismissal
       decision.



                                                -3-
              Prior to deciding reconsideration, however, I informed the parties that I
       would give them one final opportunity to engage in litigative risk settlement
       negotiations. . . . If petitioner cannot compromise on the amount of requested
       damages, he risks a determination on reconsideration that the new evidence is
       simply too dilatory to change my previous decision. . . .

              If the parties fail to reach an agreement, Respondent will have the
       opportunity to submit an opposition to Petitioner’s motion for reconsideration.

(first and third emphasis added). The parties were unable to reach a settlement, and thus
respondent filed a response to petitioner’s motion for reconsideration on August 23, 2017.

        On September 26, 2017, the special master issued a “Decision on Reconsideration
Denying Entitlement.” At the outset of the decision, he stated that he had withdrawn his earlier
entitlement decision “to evaluate the merits of the reconsideration request.” Greene, 2017 WL
5382856, at *1. Then, in a section containing the case’s factual and procedural history, the
special master indicated that he was “incorporat[ing] by reference” the facts and procedural
history set forth in his withdrawn decision. Id. He also succinctly described the conclusion he
reached in the withdrawn decision, indicating that he had cautioned petitioner that he could not
“rely on a timeframe set for a Table claim to justify the timeframe for a comparable non-Table
claim,” that petitioner’s experts nevertheless relied solely on the Vaccine Injury Table’s twenty-
eight-day time frame to support the reasonableness of a forty-one-day time frame, that “neither of
Petitioner’s experts offered any substantiation for why 41 days was medically acceptable,” and
that petitioner’s experts “merely set forth an opinion on timeframe based on their ipse dixit.” Id.
at *2.

       The special master then described the arguments advanced by petitioner in his motion for
reconsideration and the new evidence submitted by petitioner in conjunction with his motion.
With respect to the latter, the special master remarked:

       [O]f the 19 [documents] filed [in support of Dr. Kinsbourne’s supplemental expert
       report], only seven directly involve brachial neuritis or an arguably parallel
       condition. Some are inapposite case studies in which the affected individual
       experienced a possible vaccine-related reaction far sooner than relevant herein.
       Dr. Kinsbourne nevertheless argues that the risk interval incorporated into the
       Table’s brachial neuritis claim would have been longer if the relevant studies
       when the Table claim was created had not over-relied on such limited instances
       (or excluded longer timeframe occurrences outright). Of course, in making that
       argument, Petitioner was once again attempting to leverage the adequacy of the
       Table timeframe in his favor–a posture I have already rejected in my initial
       entitlement decision.




                                                -4-
               Dr. Kinsbourne also attempts to analogize brachial neuritis to other
       autoimmune diseases such as [Guillain-Barré syndrome (“GBS”)], given the fact
       the both involve peripheral nerve damage, and possibly the same autoimmune
       target and/or antibodies. But to do so, he invoked scientific or medical literature
       that upon close inspection was not reliable for the purpose cited. Thus, Dr.
       Kinsbourne cites [an article by R. Verma] (“Verma”) as helping establish the
       association between GBS and brachial neuritis mechanistically (and therefore in
       turn allowing for the conclusion that timeframes associated with one could be
       applied to the other). Verma, however, not only involved a three-person case
       study (a type of evidence that [Vaccine] Program case law generally gives less
       weight), but addressed brachial neuritis arising after an active dengue fever
       infection rather than post-vaccination. And each case study evaluated in Verma
       involved post-infectious onset occurring in a far more acute manner than herein.

               In seeking to establish a longer timeframe for Td-induced brachial neuritis,
       Petitioner offered some reliable items of literature discussing the timeframes
       accepted in the medical community for autoimmune illnesses. [An article by A.
       Rowhani-Rahbar (“Rowhani-Rahbar”)] proposed risk interval estimates for two
       adverse events following vaccine administration–febrile seizures and acute
       disseminated encephalomyelitis (“ADEM”). For ADEM (the closest analog to
       Petitioner’s brachial neuritis, given its neurologic nature), Rowhani-Rahbar
       concluded that the likely time period from vaccination to onset “best substantiated
       by available biological and epidemiologic data” was five to 28 days. A secondary,
       longer interval of two to 42 days was also deemed “biologically plausible,” and
       therefore worthy of consideration in order to fully assess a potential safety
       problem, but was more uncertain, since “there might be reason to suspect that
       most of the excess risk, if any, is concentrated in a much shorter period of time.”
       This secondary interval has nevertheless been found persuasive by other special
       masters despite its admitted foundational limitations.

Id. at *3 (citations and footnote omitted).

        After describing the parties’ arguments on reconsideration, the special master set forth his
analysis. He began by noting that he would be applying the standard set forth in Vaccine Rule
10(e)(3) for ruling on a motion for reconsideration (the “interest-of-justice standard”),
explaining: “Although I voluntarily withdrew my earlier decision, I shall still apply and consider
the standards for reconsideration, since the underlying merits of Petitioner’s request have not yet
been resolved.” Id. at *4. Then, after setting forth the standard, he stated: “Having reviewed the
materials offered by Petitioner relevant to onset, I do not find that he has established persuasive
grounds for reversing my earlier entitlement decision, and therefore I will reinstitute my initial
decision denying compensation.” Id.




                                                -5-
        The special master proceeded to explain his decision in more detail. Initially, he found
that “Petitioner was unreasonably dilatory in substantiating the long-identified deficiencies” in
his showing that forty-one days was a medically acceptable time period between a Td vaccination
and the onset of brachial neuritis. Id. at *5. Then, noting that he was “loathe to reject
Petitioner’s reconsideration request solely on the unjustifiably dilatory nature of [that] showing,”
the special master “reviewed and considered the 20-plus pieces of literature, plus supplemental
report, filed after [his withdrawn] Decision, to evaluate if they fill[ed] the evidentiary hole in
[Petitioner’s] overall showing.” Id. at *6. He found that they did not:

               Petitioner has offered little evidence directly relevant to the injury at
       issue–a failing not completely fatal to his claim, but still a factor to be taken into
       account in determining how much weight to give the evidence offered overall. He
       has offered case studies which largely underscore the reliability of the Table’s
       timeframe, but do not bulwark his claims that a longer period is acceptable. He
       has also made an inadequately specific showing with respect to either the illness
       in question or the Td vaccine. And he has done all the above utilizing an expert,
       Dr. Kinsbourne, who has not been demonstrated to have specific, applicable
       experience with peripheral neuropathies of any kind, or brachial neuritis itself,
       sufficient to render his interpretation of the facts of this case or background
       science persuasive in the absence of other direct convincing proof.

                By contrast, there is applicable law relating to what is medically
       reasonable for onset of post-vaccination brachial neuritis–but it is not favorable to
       Petitioner. For example, in Garner . . . , I considered a claim that the Hepatitis A
       and B vaccines caused Parsonage-Turner Syndrome (a parallel descriptor for
       brachial neuritis). The earliest onset possible in Garner was 45 days after
       vaccination . . . . Respondent’s expert, however, argued that the condition was far
       more acute in nature (and in terms of the causative mechanism), making in his
       opinion four weeks the outer limit for latency. I found this point to be dispositive
       . . . . Nothing Petitioner has argued in this case is any more persuasive than what I
       have previously rejected in like circumstances.

               I acknowledge that Petitioner has offered some reliable evidence
       supporting the medical acceptability of a 41-day onset for other autoimmune
       conditions. Rowhani-[Rahbar], for example, supports the assertion that an
       autoimmune process could begin in the same timeframe that [Petitioner]
       experienced. But the fact that this article does not involve brachial neuritis, or any
       comparable peripheral neuropathic injury, does somewhat limit its applicability.
       More generally, it is too sweeping to maintain that there is a single temporal
       yardstick applicable to any autoimmune illness. To so argue is to ignore the
       different ways in which specific kinds of injuries unfold. . . . Petitioner’s
       showing is thus too nonspecific to the injury at issue, even if it is based in reliable
       science.


                                                -6-
Id. (citations omitted). Considering his procedural and substantive objections together, the
special master stated:

               Although I have attempted to avoid resolving this reconsideration request
       solely on the basis of Petitioner’s untimely acts, my weighing of the late-filed
       substantive evidence is nevertheless reasonably informed by the temporal
       circumstances of its filing. If Petitioner had been able to marshal more
       straightforward and/or compelling evidence supporting the conclusion that the
       timing of onset of his brachial neuritis was medically acceptable–either due to
       directly on-point literature or by citing prior decisions involving the same
       injury–the strength of that showing would not be as diminished by its dilatory
       character. Here, however, the evidence is mixed at best, and requires too much
       reliance on timeframes relevant to distinguishable autoimmune illnesses. Such
       evidence is thus insufficiently novel or persuasively striking enough on its own to
       ignore its unjustifiably late assertion.

Id. (emphasis added).

       Thus, at the end of his decision, the special master concluded:

               The record does not support Petitioner’s allegation that his Td vaccine
       more likely than not caused his brachial neuritis 41 days following the
       vaccination. Petitioner has not established entitlement to compensation, and
       therefore I must DISMISS the claim.

               In the absence of a timely-filed motion for review . . . , the Clerk shall
       enter judgment in accordance with this decision.

Id. at *7. Notably, the special master did not direct the clerk to reinstate or refile his withdrawn
decision (or to remove the text from the docket entry for the May 26, 2017 decision indicating
that the decision had been withdrawn3). Nor does the withdrawn decision appear on the website
of the United States Court of Federal Claims (“Court of Federal Claims”) or in the online
databases maintained by Westlaw and LexisNexis.

        Petitioner timely filed a motion for review of the special master’s September 26, 2017
decision on reconsideration, which respondent opposes. Upon reviewing the record that was
before the special master and hearing argument on February 13, 2018, the court is prepared to
rule.


       3
          Instead, a note was added to the docket entry for the May 26, 2017 decision to indicate
that the entry was modified on September 26, 2017 “to correct docket text and to remove
restriction on [the] attachment.”

                                                 -7-
                                        II. DISCUSSION

                                     A. Standard of Review

       The Court of Federal Claims has jurisdiction to review the record of the proceedings
before a special master, and upon such review, may:

       (A) uphold the findings of fact and conclusions of law of the special master and
       sustain the special master’s decision,

       (B) set aside any findings of fact or conclusion of law of the special master found
       to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law and issue its own findings of fact and conclusions of law, or

       (C) remand the petition to the special master for further action in accordance with
       the court’s direction.

42 U.S.C. § 300aa-12(e)(2). The standards set forth in section 12(e)(2)(B) “vary in application as
well as degree of deference. . . . Fact findings are reviewed . . . under the arbitrary and
capricious standard; legal questions under the ‘not in accordance with law’ standard; and
discretionary rulings under the abuse of discretion standard.” Munn v. Sec’y of HHS, 970 F.2d
863, 870 n.10 (Fed. Cir. 1992).

         In the instant case, petitioner enumerates, pursuant to Vaccine Rule 24, two objections to
the special master’s September 26, 2017 decision. First, petitioner contends that “[t]he special
master erred as a matter of law in applying the standard for considering a motion for
reconsideration under Vaccine Rule 10(e) to his actual consideration of the case on the merits
after granting a Vaccine Rule 10(e) motion.” Mot. 1. Second, petitioner asserts that “[t]he
special master erred as a matter of law by increasing the burden of proof on Petitioner to supply
direct evidence instead of circumstantial evidence of a medically appropriate time frame for
onset . . . .” Id. Petitioner accordingly requests that the “Court rule that Petitioner has made a
legally adequate showing of causation and remand this case [to the special master] for a
determination of damages.” Id. at 20. Petitioner further requests that the “Court order that this
case be reassigned to a new special master.” Id.

 B. The Special Master’s Application of the Interest-of-Justice Standard Was Legal Error

        Petitioner first argues that the special master, in his September 26, 2017 decision, should
not have applied the interest-of-justice standard because the special master had already ruled on
petitioner’s motion for reconsideration on June 19, 2017. Respondent disagrees, asserting that
the special master explained in his June 28, 2017 order that he considered the merits of
petitioner’s motion for reconsideration to be unresolved, and that the special master’s application
of the interest-of-justice standard in his September 26, 2017 decision did not prejudice


                                                -8-
petitioner.4 As explained below, the court concludes that the special master erred by applying the
interest-of-justice standard in his September 26, 2017 decision, and that in doing so, he
prejudiced petitioner.

        Pursuant to Vaccine Rule 10(e)(3), special masters have “the discretion to grant or deny”
a motion for reconsideration “in the interest of justice.” As the special master noted in his
September 26, 2017 decision, there is a paucity of case law construing the interest-of-justice
standard. The prevailing assumption is that the standard “is congruent with the ‘manifest
injustice’ standard utilized under Rule 59(a) of the Rules of the Court of Federal Claims, which
has been defined to be unfairness that is ‘clearly apparent or obvious.’” Greene, 2017 WL
5382856, at *4 (quoting Amnex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002)). But see
Krakow v. Sec’y of HHS, No. 03-632V, 2010 WL 5572074, at *5 (Fed. Cl. Spec. Mstr. Nov. 12,
2010) (“[T]he ‘interest of justice’ standard is likely less onerous than ‘manifest injustice.’”).
According to the special master, “[a]t bottom, the question is whether reconsideration would
provide a Vaccine Act petitioner a full opportunity to prove her case.” Greene, 2017 WL
5382856, at *4. As such, the interest-of-justice standard is separate and distinct from the
standard for resolving the merits of the underlying claim for compensation.5


       4
         Although respondent observes that petitioner did not object to the special master’s
characterization of the motion for reconsideration as unresolved, he does not advance a waiver
argument. Accordingly, the court need not consider whether petitioner waived his objection.
       5
         Petitioner seeks compensation under a theory of actual causation. To prove causation
under the Vaccine Act, a petitioner must

       show by preponderant evidence that the vaccination brought about [his] injury by
       providing (1) a medical theory causally connecting the vaccination and the injury;
       (2) a logical sequence of cause and effect showing that the vaccination was the
       reason for the injury; and (3) a showing of a proximate temporal relationship
       between vaccination and injury.

Althen v. Sec’y of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). Establishing the third element of
the Althen test “requires preponderant proof that the onset of symptoms occurred within a
timeframe for which, given the medical understanding of the disorder’s etiology, it is medically
acceptable to infer causation-in-fact.” de Bazan v. Sec’y of HHS, 539 F.3d 1347, 1352 (Fed. Cir.
2008).

        “The determination of causation in fact under the Vaccine Act involves ascertaining
whether a sequence of cause and effect is ‘logical’ and legally probable, not medically or
scientifically certain.” Knudsen v. Sec’y of HHS, 35 F.3d 543, 548-49 (Fed. Cir. 1994). Thus,
causation can be established with circumstantial evidence–in other words, with medical records
or medical opinion. Althen, 418 F.3d at 1279-80 (citing 42 U.S.C. § 300aa-13(a)(1)). A
petitioner “need not produce medical literature or epidemiological evidence to establish

                                               -9-
        In his June 19, 2017 order, the special master unambiguously and unconditionally granted
petitioner’s motion for reconsideration. Although the special master subsequently stated, in his
June 28, 2017 order, that he had not yet “decid[ed] reconsideration,” the June 19, 2017 order
granting reconsideration did not explicitly or implicitly indicate that the motion had not been
fully resolved.6 In other words, the special master’s June 28, 2017 statements regarding the
status of petitioner’s motion for reconsideration did not alter the legal effect of the June 19, 2017
order granting reconsideration.7 Thus, the special master should not have applied the interest-of-
justice standard in his September 26, 2017 decision.8


causation,” but “where such evidence is submitted, the special master can consider it in reaching
an informed judgment as to whether a particular vaccination likely caused a particular injury.”
Andreu v. Sec’y of HHS, 569 F.3d 1367, 1379 (Fed. Cir. 2009); see also id. at 1380 (remarking
that a special master may assess “the relevant scientific data” when determining whether a
petitioner has offered a reputable and reliable explanation supporting his theory of causation);
Capizzano v. Sec’y of HHS, 440 F.3d 1317, 1325 (Fed. Cir. 2006) (“[R]equiring either
epidemiologic studies, rechallenge, the presence of pathological markers or genetic disposition,
or general acceptance in the scientific or medical communities to establish a logical sequence of
cause and effect is contrary to what we said in Althen[, and] impermissibly raises a claimant’s
burden under the Vaccine Act . . . .”). But see LaLonde v. Sec’y of HHS, 746 F.3d 1334, 1341
(Fed. Cir. 2014) (“In Vaccine Act cases, petitioners must proffer trustworthy testimony from
experts who can find support for their theories in medical literature in order to show causation
under the preponderance of the evidence standard. The level of specificity of such support may
vary from circumstance to circumstance.”).
       6
          Other special masters have stated such an intent in orders addressing motions for
reconsideration. See, e.g., Order Granting Recons., July 28, 2015, Cozart v. Sec’y of HHS, No.
00-590V (“Petitioner’s motion is GRANTED to the extent that the June 30, 2015 decision is
WITHDRAWN. Whether petitioners will be entitled to the substantive relief that they request
will be determined after further analysis. Respondent shall file a response to petitioner’s Motion
for Reconsideration . . . .”); Order Granting Recons., Mar. 4, 2014, Lerwick v. Sec’y of HHS, No.
06-847V (“The Secretary’s motion is GRANTED to the extent that the February 7, 2014 decision
is WITHDRAWN. Whether the Secretary will be entitled to the substantive relief that she
requests will be determined after further analysis. Ms. Lerwick shall file a response to the
Secretary’s Motion for Reconsideration . . . .”).
       7
         The special master did not amend or reissue his June 19, 2017 order granting
reconsideration to accurately reflect his purported intent.
       8
          The court also has a housekeeping concern not raised by petitioner in his motion for
review: it is not convinced that the special master’s September 26, 2017 decision constitutes the
“superseding decision” required by Vaccine Rule 10(e)(3)(A). That rule provides: “If the special
master grants the motion for reconsideration, the special master must file an order withdrawing
the challenged decision. The decision, once withdrawn, becomes void for all purposes and the

                                                -10-
        Furthermore, the special master’s application of the interest-of-justice standard prejudiced
petitioner. The special master explicitly stated in his decision, when assessing the probative
value of petitioner’s newly submitted evidence, that his “weighing of the late-filed substantive
evidence [was] . . . reasonably informed by the temporal circumstances of its filing,” and that
had petitioner “been able to marshal more straightforward and/or compelling evidence supporting
the conclusion that the timing of onset of his brachial neuritis was medically acceptable . . . the
strength of that showing would not [have been] as diminished by its dilatory character.” Id. at
*6. While special masters have the discretion to determine the probative value of evidence,
Munn, 970 F.2d at 871, the timing of the submission of an expert report and medical and
scientific literature should not affect their probative value. Because the special master did not
weigh all of the evidence offered by petitioner based solely on its quality, his assessment of the
evidence as a whole is compromised, prejudicing petitioner.

                                       III. CONCLUSION

        Because the special master’s application of the interest-of-justice standard tainted his
entire entitlement decision, the court need not address petitioner’s second objection–that the
special master improperly increased petitioner’s burden of proving a medically acceptable time
frame for onset by requiring him to produce direct, rather than just circumstantial, evidence.9


special master must subsequently enter a superseding decision.” Vaccine Rule 10(e)(3)(A).
When the special master granted petitioner’s motion for reconsideration, he withdrew his initial
entitlement decision, rendering that decision “void for all purposes” and triggering the
requirement to issue a “superseding decision.” By definition, a “superseding decision” is a
decision that replaces the withdrawn, void decision. See The American Heritage College
Dictionary 1386 (4th ed. 2004) (defining “supersede” as “[t]o take the place of; replace”). The
special master obviously intended his September 26, 2017 decision–in which he “incorporated by
reference” the facts and procedural history included in his initial entitlement decision and then
purported to “reinstitute” the initial entitlement decision–to be a replacement decision. However,
the special master’s initial entitlement decision remains “vacated” on the case’s docket and is
unavailable on the court’s website or in online databases–circumstances that may be attributable
to the fact that the special master did not specifically direct the clerk, in the summation section of
his September 26, 2017 decision, to reinstate or reissue his initial entitlement decision. See, e.g.,
Cozart v. Sec’y of HHS, No. 00-590V, 2015 WL 6746499, at *10 (Fed. Cl. Spec. Mstr. Oct. 15,
2015) (“For the aforementioned reasons, the undersigned hereby DENIES petitioners’ Motion for
Reconsideration. The Original Decision will be reinstated and considered filed as of today’s
date, October 15, 2015.”). Consequently, because the September 26, 2017 decision does not
contain both the special master’s original findings and conclusions (in their entirety) and the
special master’s new findings and conclusions, it appears not to constitute a replacement decision
as contemplated by Vaccine Rule 10(e)(3)(A).
       9
          It bears noting, however, that although the special master never explicitly stated that
petitioner was required to submit direct evidence of a medically acceptable onset period for post-

                                                -11-
        Thus, for the reasons stated above, the court GRANTS petitioner’s motion for review,
VACATES the special master’s September 26, 2017 decision, and REMANDS the case to the
special master to issue a new entitlement decision.10 In the new entitlement decision, the special
master shall address all of the evidence offered by petitioner in support of his position that a
forty-one-day onset period is medically acceptable, and not just the evidence submitted by
petitioner with his motion for reconsideration. See Vaccine Rule 10(e)(3)(A); supra note 8.
Further, the special master shall evaluate that evidence under the proper legal standard. See
supra note 5. Finally, the special master shall issue his new entitlement decision within ninety
days of the date of this decision. See 42 U.S.C. § 300aa-12(e)(2); Vaccine Rule 28(b).

       IT IS SO ORDERED.

                                                       s/ Margaret M. Sweeney
                                                       MARGARET M. SWEENEY
                                                       Judge




Td vaccination brachial neuritis, and did acknowledge that petitioner’s “offer[ing of] little
evidence directly relevant to the injury at issue [was] a failing not completely fatal to his claim,”
Greene, 2017 WL 5382856, at *6, he strongly suggested that direct evidence from medical or
scientific literature was necessary, see, e.g., id. at *3 (“[O]f the 19 new items filed, only seven
directly involve brachial neuritis or an arguably parallel condition.” (emphasis added)), *6
(“[Petitioner] has . . . made an inadequately specific showing with respect to either the illness in
question or the Td vaccine. . . . [He has] utiliz[ed] an expert, Dr. Kinsbourne, who [lacks the]
specific, applicable experience . . . sufficient to render [his opinion] persuasive in the absence of
other direct convincing proof. . . . Rowhani-Rahbar . . . does not involve brachial neuritis, or
any comparable peripheral neuropathic injury . . . . Petitioner’s showing is thus too nonspecific
to the injury at issue, even if it is based in reliable science. . . . If Petitioner had been able to
marshal more straightforward and/or compelling evidence supporting the conclusion that the
timing of onset of his brachial neuritis was medically acceptable–either due to directly on-point
literature or by citing prior decisions involving the same injury–the strength of that showing
would not be as diminished by its dilatory character.” (emphasis added)). Such a requirement
would be an improper heightening of petitioner’s burden of proof.
       10
          The court denies petitioner’s request for an order directing that the case be reassigned
to another special master.

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