    In the United States Court of Federal Claims
                     OFFICE OF SPECIAL MASTERS
                               No. 13-921V
                          (Filed: April 27, 2017)
* * * * * * * * * * * * * *
KEVIN THOMPSON,                   *
                                  *      Dismissal; Influenza (“Flu”) Vaccine;
         Petitioner,              *      Brachial Plexopathy; Insufficient
                                  *      Proof.
v.                                *
                                  *
SECRETARY OF HEALTH               *
AND HUMAN SERVICES,               *
                                  *
         Respondent.              *
* * * * * * * * * * * * * *

Franklin John Caldwell, Jr., Maglio, Christopher, & Toale, Sarasota, FL, for petitioner.
Amy Kokot, U.S. Dept. of Justice, Washington, DC for respondent.

                                          DECISION1

Roth, Special Master:

       On November 21, 2013, petitioner filed a petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program [“the Program”], 2 alleging that an influenza
vaccination caused him to develop brachial plexopathy. The information in the record, however,
does not show entitlement to an award under the Program. On April 27, 2017 petitioner filed a
“Motion to Dismiss Petition,” requesting that his case be dismissed. ECF No. 71.

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner
have 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, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.

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        To receive compensation under the Program, petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 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 persuasive evidence
indicating that petitioner’s alleged injury was vaccine-caused or in any way vaccine-related.

        Under the Act, petitioner may not be given a Program award 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. § 13(a)(1). In this case, because there are insufficient medical records
supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner filed three
expert reports from Dr. Thomas Wright. Pet. Exs. 13, 20, 24; ECF Nos. 52, 58, 69. Dr. Wright
conceded that petitioner had a well-documented issue with his right shoulder and arm, which was
symptomatic at the time that he received the influenza vaccination.3 “Whether this was a flare up
of his known radiculopathy or mild early plexopathy is unknown but it is safe to say the process
was active and present at the time of the vaccination.” Pet. Ex. 20 at 2, ECF No. 58. Dr. Wright
was unable to distinguish between petitioner’s ongoing neurological issues of the right shoulder
and what, if any, additional injuries arose after his vaccine. Additionally, petitioner was unable to
provide any proof that the influenza vaccine was administered in his right arm.

        Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate
either that he suffered a “Table Injury” or that his alleged injuries were “actually caused” by a
vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.

IT IS SO ORDERED.

                                               s/Mindy Michaels Roth
                                               Mindy Michaels Roth
                                               Special Master




3On the day of, but prior to, his receipt of the influenza vaccination, petitioner saw an orthopedic
specialist for his arm pain. Additionally, petitioner had had an MRI the day before due to the
severity of his symptoms, for which he was taking pain medications.

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