                                                                                 REISSUED FOR PUBLICATION
                                                                                                  APR 2 2019
                                                                                                  OSM
                                                                                      U.S. COURT OF FEDERAL CLAIMS
               Jfn tbe mlniteb ~tates QCourt of §eberal QClaints
                                    OFFICE OF SPECIAL MASTERS
                                            No. 17-2026V
                                         (not to be published)


* ** * * * * * ** ** *** ***** *** **                                    Special Master Corcoran
DANIELLE GILMORE,                   *
                                                       *                 Filed: February 26, 2019
                           Petitioner,                 *
         V.                                            *                 Decision Without Hearing;
                                                       *                 Dismissal; Autism Spectrum
SECRETARY OF HEALTH                                    *                 Disorder ("ASD").
AND HUMAN SERVICES,                                    *
                                                       *
                           Respondent.                 *
                                                       *
** ***** * ** * * *** ** * ***** **

Danielle Gilmore, prose, Bradenton, FL.

Lara Englund, U.S. Dep't of Justice, Washington, DC, for Respondent.


                                     DECISION DISMISSING CASE 1

        On December 26, 2017, Danielle Gilmore, on behalf of her son, H.G., filed a petition
seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine
Program"). 2 In it, she alleged that the Diphtheria-tetanus-acellular pertussis ("DTaP"), Hepatitis
B, Hib, Inactivated Polio ("IPV"), pneumococcal, and influenza ("flu") vaccines H.G. received on
January 13, 2015, caused him to experience eczema, atopic dermatitis, and thereafter to develop


1 Although this Decision has not fo1mally been designated for publication, it will be posted on the Court of Federal
Claims's website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the
Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the parties may object to the decision's inclusion of certain kinds of confidential information. Specifically,
under Vaccine Rule 18(b), each party has fourteen days within which to request redaction "of any information
furnished by that party: (]) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy." Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available.
Id.

1The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
JOO Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter "Vaccine Act" or "the
Act"]. Individual section references hereafter will be to § 300aa of the Act.
an autism spectrum disorder ("ASD"). Petition at I.

        After medical records were filed, Respondent filed his Rule 4( c) Report, which included a
motion to dismiss the petition - for failure to substantiate an association between H.G.'s
vaccinations and his skin conditions, and also because the claim pursues the kind of autism injury
claim that has repeatedly been rejected in the Vaccine Program. See Respondent's Rule 4( c)
Report, filed on October 31, 2018 (ECF No. 18) ("Mot."). Shortly thereafter, I issued an order
directing Petitioner to respond to the motion. See Order, dated November I, 2018 (ECF No. 19).
Petitioner filed a responsive brief in December 2018, attempting to support her claim. See Brief,
filed December 19, 2018 (ECF No. 23) ("Opp."). Now, having reviewed the filed medical records
and the parties' respective briefs, I hereby GRANT Respondent's motion to dismiss the claim.


I.      Factual Background

        H.G. was born on July 11, 2014-making him approximately six-months old at the time of
the January 2015 vaccinations at issue. Ex. 10 at I. Between his date of birth and January 2015,
he received earlier doses of several of the vaccines alleged to have harmed him (i.e., Hep B, DTaP,
Hib, IPV, and pneumococcal). Ex. l at 1-2. 3 He had several well-child visits in the fall of 2014,
and at all was deemed to be developing normally. See, e.g., Ex. I at 114, 121-23; Ex. 2 at 2.
However, H.G. was taken to the emergency room on October 10, 2014, and at a follow-up visit
with his pediatrician the next day was assessed with a rash. Ex. I at 119-20. He also displayed dry
spots on his skin at the pediatric visit on January 13, 2015, when he received the vaccines that are
the basis for this claim. Id. at 124-26.

        Nine days later, on January 22, 2015, H.G. was taken back to his pediatrician based upon
a red spot on his right cheek that had existed for two weeks (which if so would place its onset
before the vaccinations). Ex. I at 127-28. He was assessed with impetigo and atopic dermatitis. Id.
The following week, he was brought back after his symptoms worsened, and was thereafter
refe1Ted to a dermatologist. Id. at 129-31. H.G. saw the dermatologist on January 29, 2015, at
which time Petitioner reported an onset in early January (thus again preceding the vaccinations).
Id. at 179-80. The dermatologist diagnosed H.G. as having impetigo on his face and eczema
elsewhere on his body. Id. at 180.

       H.G. continued to see the same dermatologist in the following months, and his skin
conditions were treated with topical creams and ointments. Ex. 1 at 252-61, 181-86. His symptoms
waxed and waned throughout the month of February and began appearing more inflamed and
oozed at times, leading to another ER visit. Id. at 187, 189, 227-31. However, the assessments


3In citing exhibits in this Decision, I am following Respondent's convention as set forth in his Rule 4(c) Report. See
Mot. at 2 n.1.

                                                          2
remained the same (and there is no evidence any treater associated H.G.'s skin condition with
vaccination). By late March, Petitioner took H.G. to an allergist, reporting her view at this time
that H.G.'s eczema was prompted by a vaccine (while also identifying its onset to when he was
five-months old, or before January 2015). Id. at 198-200. The allergist proposed dietary changes
aimed at helping H.G. avoid foods to which he might be allergic, and otherwise proposed further
eczema treatment. Id.

        In mid-April 2015, at a nine-month well child pediatric visit, H.G. was assessed with
"possible slight gross motor delay," and his existing history of atopic dermatitis/eczema was also
evaluated. Ex. 1 at 135-37. By his July 2015 one-year pediatric visit, his developmental delay was
more obvious (although Petitioner deemed it a byproduct of his eczema). Id. at 142-44. At his nine-
month visit he was assessed as only possessing "mild expressive speech delay." Id. at 145-47. By
February 2016, however, H.G. was considered to present sufficient developmental and speech
delay to place him on the autism spectrum, and he was recommended for early intervention. Id. at
158-60. Since then, he has formally been diagnosed with an ASD. Id. at 167-69, 173-74.

        In the same overall time period, H. G. has continued to receive a variety of treatments for
his eczema/atopic dermatitis. He returned to the allergist several times, where treatment focus was
on eliminating foods from his diet to which he appeared to react. Ex. 1 at 201-03 (April 2015 visit),
204-05 (June 2015 visit), 207-08 (August 2015 visit), 210-11 (March 2016 visit). By the time he
was nearly twenty months old, it appeared his allergies had sufficiently resolved to permit him to
normalize his diet. Id. at 21011. H.G. also received homeopathic treatments between June 2015
and September 2017. Id. at 262-64.


II.      Parties' Respective Arguments

         In his Rule 4 (c) Report, Respondent formally moves for dismissal of the case. He argues
that the part of Petitioner's claim based on H.G. 's eczema/atopic dermatitis fails because the record
suggests onset of that condition predated the January 2015 vaccinations. Mot. at 9 (citing Ex. 1 at
124-26, 127,28, 179-80, 227-31). He also notes that claims that vaccines cause autism have been
thoroughly debunked after the Vaccine Program's Omnibus Autism Proceeding, 4 and that no

4 Several years ago, more than 5,400 cases were initially filed under short form petition in the OAP, where thousands
of petitioners' claims that certain vaccines caused autism were joined for purposes of efficient resolution. A
"Petitioners' Steering Committee" was formed by many attorneys who represent Vaccine Program petitioners, with
about 180 attorneys participating. This group chose "test" cases to represent the entire docket, with the understanding
that the outcomes in these cases would be applied to cases with similar facts alleging similar theories.

  The Petitioners' Steering Committee chose six test cases to present two different theories regarding autism causation.
The first theory alleged that the measles portion of the measles, mumps, rubella ("MMR") vaccine precipitated autism,
or, in the alternative, that MMR plus thimerosal-containing vaccines caused autism, while the second theory alleged
that the mercury contained in thimerosal-containing vaccines could affect an infant's brain, leading to autism.

                                                           3
subsequent non-Table decisions in such cases have been favorable to petitioners. Mot. at 9-10
(citations omitted). Respondent also maintains that Petitioner has offered no reliable scientific or
medical evidence that would link H.G.'s skin conditions with the manifestation of his
developmental problems that later resulted in an ASD diagnosis. Id at 9.

        Petitioner's opposition is mostly devoted to an extensive review ofH.G. 's medical history,
including periods of time well outside of the months after vaccination. See Opp. at 1-16. She makes
some attempt to rebut records suggesting H.G.'s skin condition began before mid-January 2015,
although that effort largely consists of her own unsworn assertions; she also contends that certain
skin problems observed with respect to H.G., such as diaper rash, are distinguishable from her
actual claim. Id. at 3-5. She then proposes her own causation theory (unsupported by an expert
report) which proposes a multi-factorial explanation for how the vaccines could have injured H.G.,
including their components, via "mitochondrial dysfunctions affecting his detoxification
pathways," and an interaction between alum added to some of the vaccines as an adjuvant and an
inborn inability of H.G. to detoxify, evidenced by his skin condition and later producing a brain
injury. Id at I 6-17. Petitioner cites, but did not file, twenty-nine items of literature or medical
sources in support of her contentions, a majority of which deal with autism. Id at 19-23.


III.     Applicable Legal Standards

         A.       Claimant's Burden in Vaccine Program Cases

       To receive compensation in the Vaccine Program, a petitioner must prove either: (I) that
he suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table -
corresponding to one of the vaccinations in question within a statutorily prescribed period of time

  The first theory was rejected in three test case decisions, all of which were subsequently affirmed. See generally
Cedillo v. Sec'y of Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot.
for review den'd, 89 Fed. Cl. 158 (2009), ajf'd, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. Sec'y of Health &
Human Servs., No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for review den'd, 88 Fed.
Cl. 473 (2009), ajf'd, 605 F.3d 1343 (Fed. Cir. 201 0); Snyder v. Sec'y of Health & Human Servs., No. 01-162V, 2009
 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed. Cl. 706 (2009).

  The second theory was similarly rejected. Dwyer v. Sec'y of Health & Human Servs., No. 03-1202V, 2010 WL
892250 (Fed. Cl. Spec. Mstr. Mar. 12,201 0); Kingv. Sec'y ofHealth & Human Servs., No. 03-584V, 2010 WL 892296
(Fed. Cl. Spec. Mstr. Mar. 12, 2010); Meadv. Sec'y a/Health & Human Servs., No. 03-215V, 2010 WL 892248 (Fed.
Cl. Spec. Mstr. Mar. 12, 20 I 0).

  Ultimately a total of eleven lengthy decisions by special masters, the judges of the U.S. Court of Federal Claims, and
the panels of the U.S. Court of Appeals for the Federal Circuit, unanimously rejected petitioners' claims. These
decisions found no persuasive evidence that the MMR vaccine or thimerosal-containing vaccines caused autism. The
OAP proceedings concluded in 2010.


                                                           4
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a "Non-Table
Injury"). See Sections 13(a)(l)(A), l l(c)(l), and 14(a), as amended by 42 C.F.R. § 100.3; §
11 (c)(1 )(C)(ii)(I); see also Moberly v. Sec'y ofHealth & Human Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 201 0); Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006). 5
Here, Petitioner alleges only a non-table injury.

        For both Table and Non-Table claims, Vaccine Program petitioners bear a "preponderance
of the evidence" burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the "trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact's
existence." Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec'y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was "not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury."
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec'y of Health & Human Servs., 165 F.3d 1344,
1352-53 (Fed. Cir. 1999)); Pafford v. Sec'y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(l).

        In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): "(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, 418 F.3d at 1278.

        Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners
must provide a "reputable medical theory," demonstrating that the vaccine received can cause the
type of injury alleged. Pafford, 451 F.3d at 1355-56 (citations omitted). To satisfy this prong, a
petitioner's theory must be based on a "sound and reliable medical or scientific explanation."
Knudsen v. Sec'y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory
must only be "legally probable, not medically or scientifically certain." Id. at 549.


5Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding authority.
Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Gui/lo,y v. Sec'y a/Health & Human Servs., 59 Fed. Cl. 121,
124 (2003), afj'd, 104 F. App'x 712 (Fed. Cir. 2004); see also Spooner v. Sec'y a/Health & Human Servs., No. 13-
159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).



                                                           5
        Petitioners may satisfy the first A/then prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec'y ofHealth & Human Servs., 569 F.3d 1367, 1378-79 (Fed. Cir. 2009) (citing
Capizzano, 440 F.3d at 1325-26). Special masters, despite their expe1iise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
thus scientific evidence offered to establish A/then prong one is viewed "not through the lens of
the laboratorian, but instead from the vantage point of the Vaccine Act's preponderant evidence
standard." Id. at 1380. Accordingly, special masters must take care not to increase the burden
placed on petitioners in offering a scientific theory linking vaccine to injury. Contreras v. Sec'y of
Health & Human Servs., 121 Fed. Cl. 230,245 (2015) ("[p]lausibility ... in many cases may be
enough to satisfy A/then prong one" (emphasis in original)), vacated on other grounds, 844 F.3d
1363 (Fed. Cir. 2017); see also Andreu, 569 F.3d at 1375. But this does not negate or reduce a
petitioner's ultimate burden to establish his overall entitlement to damages by preponderant
evidence. W. C. v. Sec'y ofHealth & Human Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013)(citations
omitted).

        The second A/then prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner's medical records. A/then, 418 F.3d at 1278; Andreu,
569 F.3d at 1375-77; Capizzano, 440 F.3d at 1326; Grant v. Sec'y of Health & Human Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine "did cause" injury, the opinions
and views of the injured party's treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 ("medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
'logical sequence of cause and effect show[s] that the vaccination was the reason for the injury'")
(quoting A/then, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

        However, medical records and/or statements of a treating physician's views do not per se
bind the special master to adopt the conclusions of such an individual, even if they must be
considered and carefully evaluated. Section 13(b)(l) (providing that "[a]ny such diagnosis,
conclusion, judgment, test result, report, or summary shall not be binding on the special master or
court"); Snyder v. Sec'y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) ("there is
nothing ... that mandates that the testimony of a treating physician is sacrosanct - that it must be
accepted in its entirety and cannot be rebutted"). As with expert testimony offered to establish a
theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the
reasonableness of their suppositions or bases. The views of treating physicians should also be
weighed against other, contrary evidence also present in the record- including conflicting opinions
among such individuals. Hibbardv. Sec'y ofHealth & Human Servs., 100 Fed. Cl. 742, 749 (2011)


                                                  6
(not arbitrary or capricious for special master to weigh competing treating physicians' conclusions
against each other), afl'd, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec'y of Health & Human
Servs., I 00 Fed. Cl. 119, 136 (2011), afl'd, 463 F. App'x 932 (Fed. Cir. 2012); Veryzer v. Sec'y of
Health & Human Servs., No. 06-522V, 2011 WL 1935813, at* 17 (Fed. Cl. Spec. Mstr. Apr. 29,
2011), mot. for review den 'd, 100 Fed. Cl. 344, 356 (2011), aff'd without opinion, 475 Fed. App'x
765 (Fed. Cir. 2012).

        The third A/then prong requires establishing a "proximate temporal relationship" between
the vaccination and the injury alleged. A/then, 418 F.3d at 1281. That term has been equated to the
phrase "medically-acceptable temporal relationship." Id. A petitioner must offer "preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder's etiology, it is medically acceptable to infer causation." Bazan v.
Sec'y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what
is a medically acceptable timeframe must also coincide with the theory of how the relevant vaccine
can cause an injury (A/then prong one's requirement). Id. at 1352; Shapiro v. Sec'y of Health &
Human Servs., I 01 Fed. Cl. 532, 542 (2011), recons. den 'dafter remand, 105 Fed. Cl. 353 (2012),
aff'd mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Human Servs., No.
 l 1-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot.for review den 'd (Fed. Cl.
Dec. 3, 2013), aff'd, 773 F.3d 1239 (Fed. Cir. 2014).

        B.     Law Governing Factual Determinations

        The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section I I (c)(2). The special master is required
to consider "all [] relevant medical and scientific evidence contained in the record," including "any
diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained in the
record regarding the nature, causation, and aggravation of the petitioner's illness, disability, injury,
condition, or death," as well as "the results of any diagnostic or evaluative test which are contained
in the record and the summaries and conclusions." Section 13(b)(l)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 415,417 (Fed. Cir. 1993) (it is
within the special master's discretion to determine whether to afford greater weight to
contemporaneous medical records than to other evidence, such as oral testimony surrounding the
events in question that was given at a later date, provided that such a determination is evidenced
by a rational determination).

        Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and "complete" (i.e., presenting all relevant information on a patient's
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec'y of Health & Human Servs., 95 Fed.
Cl. 598, 608 (2010) ("[g]iven the inconsistencies between petitioner's testimony and his
contemporaneous medical records, the special master's decision to rely on petitioner's medical

                                                   7
records was rational and consistent with applicable law"), ajf'd, Rickett v. Sec '.Y of Health &
Human Servs., 468 F. App'x 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption is
based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record
what they are told or observe when examining their patients in as accurate a manner as possible,
so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez
v. Sec '.Y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. I 0, 2013); Cucuras v. Secy ofHealth & Human Servs., 26 Cl. Ct. 537, 543 (1992), ajf'd, 993
F.2d 1525 (Fed. Cir. 1993) ("[i]t strains reason to conclude that petitioners would fail to accurately
report the onset of their daughter's symptoms. It is equally unlikely that pediatric neurologists,
who are trained in taking medical histories concerning the onset of neurologically significant
symptoms, would consistently but erroneously report the onset of seizures a week after they in fact
occurred").

        Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec'y of Health & Human Servs., No. 03-1585V, 2005
WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneously medical
records are generally found to be deserving of greater evidentiary weight than oral testimony -
especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528;
see also Murphy v. Sec'y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991), ajj'd, 968 F.2d
1226 (Fed. Cir.), cert. den 'd, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v.
United States Gypsum Co., 333 U.S. 364, 396 (1947) ("[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.")).

        However, there are situations in which compelling oral testimony may be more persuasive
than written records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec'y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) ("like any norm based upon
common sense and experience, this rule should not be treated as an absolute and must yield where
the factual predicates for its application are weak or lacking"); Lowrie, 2005 WL 6117475, at *19
("[w]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent") (quoting Murphy v. Sec'y of Health & Human Servs., 23
Cl. Ct. 726, 733 (1991), affd per curiam, 968 F.2d 1226 (Fed. Cir. 1992)). Ultimately, a
determination regarding a witness's credibility is needed when determining the weight that such
testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec'y of Health & Human
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

      When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be "consistent, clear, cogent, and
compelling." Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec'y of Health & Human


                                                   8
Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In
determining the accuracy and completeness of medical records, the Court of Federal Claims has
listed four possible explanations for inconsistencies between contemporaneously created medical
records and later testimony: (1) a person's failure to recount to the medical professional everything
that happened during the relevant time period; (2) the medical professional's failure to document
everything reported to her or him; (3) a person's faulty recollection of the events when presenting
testimony; or (4) a person's purposeful recounting of symptoms that did not exist. La Lande v.
Sec'y Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), ajf'd, 746 F.3d 1334 (Fed. Cir.
2014). In making a determination regarding whether to afford greater weight to contemporaneous
medical records over contrary testimony, there must be evidence that this decision was the result
of a rational determination. Burns, 3 F.3d at 417.


       C.      Determination to Resolve Case Without Hearing

         I have opted to decide entitlement in this case based on written submissions and evidentiary
filings filed by each side. The Vaccine Act and Rules not only contemplate but encourage special
masters to decide petitions on the papers rather than via evidentiary hearing, where (in the exercise
of their discretion) they conclude that the former means of adjudication will properly and fairly
resolve the case. Section 12(d)(2)(D); Vaccine Rule 8( d). The choice to do so has been affirmed
on appeal. See Hooker v. Sec'y of Health & Human Servs., No. 02-472V, 2016 WL 3456435, at
*21 n.19 (Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where special masters
decided on the papers in lieu of hearing and that decision was upheld). I am simply not required to
hold a hearing in every matter, no matter the preferences of the parties. Hovey v. Sec '.Y of Health
& Human Servs., 38 Fed. Cl. 397, 402-03 (1997) (special master acted within his discretion in
denying evidentiary hearing); Burns, 3 F.3d at 417; Murphy v. Sec'y of Health & Human Servs.,
No. 90-882V, 1991 WL 71500, at *2 (Ct. Cl. Spec. Mstr. Apr. 19, 1991).


                                            ANALYSIS

        After careful review of the medical records and Petitioner's filings, I conclude that
Petitioner will not be able to establish preponderant evidence in favor of her claim, and therefore
the matter should not proceed. My decision is rooted in both the facts of this case as well as
applicable decisions in previously-litigated matters involving causation theories highly similar to
the present, and which have been exhaustively litigated since resolution of the OAP test cases.

        First, I find that Petitioner's claim that H.G. 's eczema and atopic dermatitis was induced
by vaccination is not well-supported by the record. In particular, it appears more likely than not
that onset of those conditions preceded vaccination, making it impossible to establish vaccine
causation. Petitioner's efforts to distinguish records that place onset as before vaccination were
not persuasive, relying on her own ipse dixit statements rather than independent evidence. It is

                                                  9
well-understood in the Program (as noted above) that contemporaneous records are presumptively
accurate, absent a specific showing by a party that credibly establishes why the record should be
supplemented. See, e.g., Cucuras, 993 F.3d at 1528 ("[O]ral testimony in conflict with
contemporaneous documentary evidence deserves little weight"); Murphy, 23 Cl. Ct. at 733 (citing
United States v. Gypsum Co., 333 U.S. 364, 396 (1947)); Lowrie, 2005 WL 6117475, at* 19. But
in this case Petitioner has not made that showing. She otherwise has not offered any persuasive
scientific evidence that (assuming onset was after vaccination) suggests the vaccines in question
could induce skin conditions of the sort H.G. experienced, and if so how this would occur, 6 and
had no expert to testify on that matter.

        Second, Petitioner's primary claim - that the vaccines H.G. received caused his ASD - is
even more fundamentally flawed. Unlike many autism claims, Petitioner does not argue that H.G.
suffered an encephalopathic reaction close-in-time to his vaccinations, nor is there any evidence
of such a reaction, and she does not seek to establish a Table claim of encephalopathy occurring
after vaccination. 7 She instead advances a complex theory in which some kind of inborn
susceptibility or metabolism error caused H.G. to have difficulty clearing "toxins," which was
manifested by his skin condition, but also resulted in alum (contained in the vaccines) being stored
in his brain, resulting in his ASD. Opp.at 16-17.

        But non-Table claims that vaccines induce autism have repeatedly failed in the Program.
See, e.g., Hardy v. Sec'y of Health & Human Servs., No. 08-l0SV, 2015 WL 7732603, at *4-5
(Fed. Cl. Spec. Mstr. Nov. 3, 2015) (referencing eleven autism claims unsuccessfully tried, plus
six that were rejected (over the petitioners' objections) without trial). Petitioner's theory takes bits
and pieces from such previously rejected causation theories - the idea that vaccine adjuvants
poison the brain, or that mitochondrial dysfunction results in developmental problems. There is no
reason to expect the present theory would be any more successful. Thus, because Petitioner has
not presented a reliable medical or scientific theory establishing how H.G. 's ASD was vaccine-
caused (and indeed- given existing well-reasoned Program decisions, virtually could not succeed
in the task of establishing a vaccine could cause autism), she cannot satisfy the first, "can cause"
prong.

6 As already noted, Petitioner referenced, but did not file, several items ofliterature, some of which might arguably (if
a competent medical expett had appeared to unify and explain their impmt) have supported her contentions about an
association between the relevant vaccines and skin injuries of the sort experienced by H.G. But her failure to file these
items means that they literally are not in the record before me - and thus inherently receive far less weight than they
might otherwise have been given.

7 In two rare instances, petitioners have succeeded in establishing a Table encephalopathy caused by vaccinations

which in tum resulted in developmental plateauing or regression that resembled the symptoms ofan ASD. See, e.g.,
Wright v. Sec'y of Health & Human Servs., No. 12-423V, 2015 WL 6665600 (Fed. Cl. Spec. Mstr. Sept. 21, 2015);
Poling v. Sec'y of Health & Human Servs., No. 02-1466V, 2011 WL 678559, at *l (Fed. Cl. Spec. Mstr. Jan. 28,
2011). But the facts of this case do not at all suppott such a contention, as H.G. is only alleged to have manifested
skin problems post-vaccination rather than the kinds of symptoms required to establish a Table encephalopathy. See
42 C.F.R. § 100.3.

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        Petitioner's claim also fails on the second Althen prong - and would do so even if she had
suppmted her theory with some new scientific evidence reliably establishing a connection between
vaccination and autism. Sturdivant v. Sec'y of Health & Human Servs., No. 07-788V, 2016 WL
552529, at * 18 (Fed. Cl. Spec. Mstr. Jan. 21, 2016) (prong two requires a fact-based inquiry into
whether the vaccine in question did cause the particular injury). The medical record is bereft of
reliable evidence that H.G. had any reaction to his January 2015 vaccines, that the skin condition
(which more likely preceded vaccination) was a vaccine reaction, or that his ASD symptoms can
be connected to vaccination in any way other than temporally. Nor did any treaters suggest it to be
otherwise. 8

                                                 CONCLUSION

        The factual record does not support the Petitioner's contention that H.G.'s skin condition
was vaccine-caused, and she cannot prevail on a theory that any vaccine could cause autism,
whether directly or in association with a case of dermatitis or eczema. Thus, Petitioner has not
established entitlement to a damages award, and I must DISMISS her claim.

        In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk SHALL ENTER JUDGMENT in accordance with this decision. 9


IT IS SO ORDERED.




8 I also find that Petitioner has not established, under A/then prong three, that the timeframe from vaccination to
manifestation ofH.G. 's ASD symptoms was medically reasonable. The earliest any such symptoms were raised with
treaters was April 20 15, three months post-vaccination. Petitioner has not adequately explained in her brief
(unsupp01ted by filed medical literature or an expert opinion) why it would take that length of time for injmy to occur,
nor has she temporally associated H.G.'s earlier skin symptoms to the subsequent revelation of his developmental
delay.

9 Pursuant to Vaccine Rule 11 (a), the parties may expedite en tty ofjudgment by filing a joint notice renouncing their
right to seek review.

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