              In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 17-0800V
                                     Filed: January 30, 2020
                                         UNPUBLISHED


    DARON NELSON,
                                                              Special Master Horner
                         Petitioner,
    v.                                                        Tetanus diptheria and acellular
                                                              pertussis vaccine; Tdap; transverse
    SECRETARY OF HEALTH AND                                   myelitis; neuromyelitis optica;
    HUMAN SERVICES,                                           attorney’s fees and costs; denial;
                                                              reasonable basis; onset
                        Respondent.


Joseph Vuckovich, Maglio Christopher, and Toale, PA, Washington, DC, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.

                   DECISION DENYING ATTORNEYS’ FEES AND COSTS1

      Petitioner filed a petition for compensation on June 14, 2017 alleging that a
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered on January 13,
2015, caused or significantly aggravated his transverse myelitis (“TM”) and
neuromyelitis optica (“NMO”). (ECF No. 1.) The petition was dismissed on June 6,
2019. On September 11, 2019, petitioner filed the current motion for attorneys’ fees
and costs. For the reasons discussed below, the motion is denied.

         I.    Procedural History

        On August 23, 2017, Special Master Millman issued an order identifying and
discussing the issues presented by the petition and the medical records, including
significant questions regarding the onset of petitioner’s alleged injuries. (ECF No. 9.)
On September 21, 2017, a status conference was held at which the parties discussed

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
Special Master Millman’s order. On July 6, 2018, respondent filed a Rule 4(c) report
recommending against compensation. (ECF No. 22.) That same day, Special Master
Millman ordered petitioner to file an expert report, the expert’s CV, and any medical
literature cited in the report.

        However, on May 5, 2019, petitioner filed a status report indicating that he would
not be filing an expert report and requesting additional time to file either a motion for a
ruling on the record or a motion for a decision denying compensation. (ECF No. 26.)
On June 3, 2019, petitioner filed a motion for a decision denying compensation. (ECF
No. 28.) Subsequently, on June 4, 2019, this case was assigned to my docket. (ECF
No. 30.) I granted petitioner’s motion and issued a decision dismissing the petition on
June 6, 2019. Judgment was entered on July 11, 2019. (ECF Nos. 31, 33.)

       On September 11, 2019, petitioner filed this motion for attorneys’ fees and costs,
requesting $19,572.10 in attorneys’ fees and $688.49 in costs. (ECF No. 36.) On
October 23, 2019, respondent filed an opposition to petitioner’s request for fees and
costs, alleging that petitioner failed to establish a reasonable basis for his claim. (ECF
No. 37.) In his reply, petitioner maintained that he provided objective support for his
claim and had reasonable basis when the claim was filed. (ECF No. 38.)

   II.    Fact Summary

        Four months prior to vaccination, on September 3, 2014, petitioner underwent a
work-related medical examination. (Ex. 3, pp. 19-21.) No health concerns were noted,
but he was only cleared to work for three months due to elevated blood glucose. (Id. at
21.) About two months prior to vaccination, on November 12, 2014, petitioner was
diagnosed with diabetes with neurological manifestations, after reporting progressive
tingling from his toes up to his legs, lower chest, and hands for the previous 18 months.
(Ex. 6, p. 13.)

        Subsequently, petitioner received the Tdap vaccination forming the basis for his
claim on January 13, 2015. (ECF No. 1, p. 1.) Three months later, on March 5, 2015,
petitioner went for a diabetes follow up visit at Health Clinics of Utah, where he reported
“increased difficulty with numbness and tingling of his feet, legs, chest, and the thumb
and index fingers of both hands.” (Ex. 6, p. 16.) An additional three months later, on
June 10, 2015, he saw Dr. Corey Sondrup, DC and reported neuropathy in his feet
beginning “2.5 yrs ago.” (Ex. 2, p. 2.) In December of that same year, petitioner again
reported tingling and weak grip strength. (Ex. 6, p. 18.)




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       The next year, on June 22, 2016, petitioner visited Ogden Clinic for neuropathy.
He reported that the onset of his numbness and tingling, which he now described as
including “electrical flutters,” was “three years ago” and that it occurred from his feet up
through his hand. (Ex. 5, p. 31.) On July 18, 2016, petitioner received an MRI exam
which demonstrated “abnormal signal throughout the cervical spinal cord.” (Id. at 42.)
On July 26, 2016, he was diagnosed with transverse myelitis with possible neuromyelitis
optica in addition to his ongoing neuropathy, which was still characterized as “likely
diabetic neuropathy.” (Id. at 23-26.)

   III.   Party Positions

        In his opposition to petitioner’s request for fees and costs, respondent argues
that petitioner’s medical records present two possibilities. Petitioner “either suffered the
onset of his alleged vaccine-related injuries prior to his vaccination, in which case he
could not prevail on the claims in the petition, or his alleged injuries began more than 18
months after vaccination, in which case he would have to establish that the onset of his
symptoms occurred within a reasonable time frame to ascribe causation.” (ECF No. 37,
p. 12.) In response, petitioner highlights his March 5, 2015 visit, which occurred 52 days
after the vaccination date, and asserts that his symptoms of TM and/or NMO “either
began or became significantly more severe” on that date. (ECF No. 38, p. 2.)

   IV.    Legal Standard

        Section 15(e)(1) of the Vaccine Act allows for the special master to award
“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are
entitled to an award of reasonable attorneys' fees and costs if they are entitled to
compensation under the Vaccine Act, or, even if they are unsuccessful, if the special
master finds that the petition was filed in good faith and with a reasonable basis. Avera
v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).

        “Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human
Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A
petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury
occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030,
at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this case, respondent does not challenge
petitioner’s good faith in bringing this claim.

       “Reasonable basis” however, is an objective standard. Unlike the good faith
inquiry, reasonable basis requires more than just petitioner’s belief in his claim. See
Turner, 2007 WL 4410030, at *6. Instead, a reasonable basis analysis “may include an


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examination of a number of objective factors, such as the factual basis of the claim, the
medical and scientific support for the claim, the novelty of the vaccine, and the novelty
of the theory of causation.” Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl.
282, 289 (2018).

       Deciding whether a claim was brought in good faith and had a reasonable basis
“is within the discretion of the Special Master.” Simmons v. Sec’y of Health & Human
Servs., 128 Fed. Cl. 579, 582 (2016), aff’d, 875 F.3d 632 (Fed. Cir. 2017) (quoting
Scanlon v. Sec’y of Health & Human Servs., 116 Fed. Cl. 629, 633 (2014)). However,
the Federal Circuit has clarified in Simmons that the reasonable basis determination is
“an objective inquiry unrelated to counsel’s conduct.” 875 F.3d at 636. Moreover, the
court looks “not at the likelihood of success [of a claim] but more to the feasibility of the
claim.” Turner, 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of Health & Human
Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)).

   V.     Discussion

        A. Temporal Association

      Since petitioner did not allege a Table injury, he had the burden of proving by a
preponderance of the evidence that his January 13, 2015 vaccination either caused or
aggravated his alleged injury. Each will be addressed in turn.

              i.   Cause in Fact

        If petitioner intended to establish causation in fact, then he was required to
establish “(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 Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). In that regard, petitioner alleged in his petition that he began to notice
“worsening tingling sensations in his legs and lower abdomen” “approximately two
weeks after the vaccination.” (ECF No. 1, p. 1.)

        However, the petition did not cite to any medical record nor any affidavit from
petitioner to support a two-week onset. In fact, the medical records supported an onset
of tingling approximately two years prior to petitioner’s January 13, 2015 vaccination. At
a November 12, 2014 visit at Health Clinics of Utah, petitioner reported a “1 and ½ year
history of tingling in his toes. After 1 year, he felt it up to his knees.” (Ex. 6, p. 13.) He
also reported that in the three months prior to the November 12th visit, the tingling had


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“progressed to his lower chest and hands starting with the thumbs and now spreading
over the 2nd and 3rd fingers.” (Id.)

       Almost immediately after the petition was filed, on August 23, 2017, Special
Master Millman issued an order detailing her concerns with the case, specifically
highlighting the issue of onset and petitioner’s pre-existing conditions. (ECF No. 9.)
Special Master Millman explained that “[r]epeatedly, petitioner put the onset of his
neurologic symptoms in 2013, which is two years before the vaccination at issue.” (ECF
No. 9, p. 1.) The Special Master then suggested that petitioner’s counsel review the
medical records. (Id.) Petitioner subsequently filed an affidavit on September 21, 2017
averring that his transverse myelitis and neuromyelitis optica were caused by his Tdap
vaccine; however, even after the Special Master’s order, he did not address the issue of
onset. (Ex. 8.) Petitioner was also provided the opportunity to file an expert report to
support his claim. Petitioner never filed an expert report, anything suggesting a two-
week onset, or anything addressing the issue of onset at all.

        Instead, in his reply brief on the instant motion, petitioner maintains that his
symptoms, which would be eventually diagnosed as TM and NMO, “either began or
became significantly more severe on March 5, 2015,” which is 52 days post vaccination.
(ECF No. 38, p. 2.) However, petitioner’s records contradict this claim as well, as it is
clear by petitioner’s earlier reports that his symptoms were progressive and began as
early as 2013. (Ex. 6, p. 13.) Moreover, petitioner’s March 5, 2015 visit was in follow
up to his previously diagnosed diabetes mellitus. (Id. at 16.) The problems assessed for
that visit include Type II diabetes mellitus and paresthesia, but not TM or NMO.
Accordingly, without further support in the medical records or from an expert report, the
assertion that petitioner’s complaints of increased numbness and tingling were
attributable to onset of TM or NMO, rather than related to the pre-existing diabetes, is
speculative. When petitioner was later diagnosed with TM following an MRI, his
neuropathy was still attributed to his diabetes. (Ex. 5, p. 26.) At that time, petitioner
reported that his symptoms of numbness and tingling began three years prior, and no
distinct onset of TM or NMO symptoms was recorded. (Id.)

       Pursuant to the Vaccine Act, a special master may not find in petitioner’s favor
“based on the claims of a petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Petitioner here claims a two-week
period of onset in his petition, but the records provided indicate an onset of the relevant
symptoms occurring eighteen months prior to vaccination. Thus, petitioner’s claim of an
onset of two weeks post-vaccination was wholly unsubstantiated by medical records.
When the then-presiding special master pointed out the onset issue in this case,



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petitioner was afforded the opportunity to file additional records, affidavits, or expert
reports to help bolster his claim. He did not.

              ii. Significant Aggravation

       Alternatively, petitioner maintains that there was reasonable basis to bring his
claim under the theory of significant aggravation. (ECF No. 38, p. 2.) To prevail on a
claim under the theory of significant aggravation, a petitioner must show preponderant
evidence of

       (1) the person's condition prior to administration of the vaccine, (2) the
       person's current condition (or the condition following the vaccination if that
       is also pertinent), (3) whether the person's current condition constitutes a
       “significant aggravation” of the person's condition prior to vaccination, (4) a
       medical theory causally connecting such a significantly worsened
       condition to the vaccination, (5) a logical sequence of cause and effect
       showing that the vaccination was the reason for the significant
       aggravation, and (6) a showing of a proximate temporal relationship
       between the vaccination and the significant aggravation.

Loving ex rel. Loving v. Sec'y of Health & Human Servs., 86 Fed. Cl. 135, 144 (2009).

        Petitioner filed no objective medical evidence to support a theory of significant
aggravation. Petitioner emphasizes the March 5, 2015 medical record where petitioner
reports “increased difficulty with numbness,” however, as discussed above, this was
reported in the context of a follow up for Type II diabetes and none of his medical
records attribute these symptoms to his later diagnosed TM and NMO. Moreover, at his
next visit in December 2015, petitioner noted significant improvement related to
management of his diabetes. (Ex. 6, p. 18.) The physician assistant recorded that
while petitioner had reported significant symptoms of neuropathy up to the waist or
chest level during the first visit, at the December 2015 visit, he reported significant
improvement “following a chiropractic adjustment and getting the diabetes under
control”. (Id.) Furthermore, at the time he was diagnosed with TM and NMO, petitioner
noted that his numbness and tingling had been significantly increasing years before the
date of vaccination. He reported “electrical flutters” which started “in his toes three
years ago, after one year it had moved up to his ankles and then started progressing
faster.” (Ex. 5, p. 23.)

      On the whole, petitioner’s medical records filed with the petition reflect that his
symptoms consistently progressed beginning in 2013. Apart from the March 5, 2015


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record, petitioner does not point to any record in which petitioner’s symptoms increased
or were aggravated following vaccination, and further does not provide any objective
evidence linking petitioner’s condition to the vaccination. A petitioner does not
demonstrate a significant aggravation claim if his medical history is consistent with the
expected or normal course of his condition. See Locane v. Sec’y of Health & Human
Servs., 99 Fed. Cl. 715 (2011).

         B. There is no Medical or Expert Opinion Supporting Causation

       Finally, regardless of whether he claims significant aggravation or causation-in-
fact, no medical professional ascribed petitioner’s TM or NMO to his Tdap vaccination.
Petitioner cites to Austin v. Secretary of Health & Human Servs., No. 10-362V, 2013 WL
659574 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) for the proposition that “the history of
settlements in particular types of cases may provide a reasonable basis for filing a
claim, even in the absence of a medical opinion or medical records supportive of
vaccine causation.” (ECF No. 38, p. 8.) However, in Austin, the special master was
clear that “[t]he only notation that salvage[d] the reasonable basis for th[e] case is the
one medical record suggesting a link between [petitioner’s] seizures and her
vaccination.” 2013 WL 659574, at *11. The special master went on to conclude that
there was a reasonable basis in Austin, “albeit an extremely weak one.” Id.

        In contrast, the current petitioner has not filed any expert report supporting his
claim, nor has he filed any record with any notation suggesting a link between
petitioner’s condition and his Tdap vaccination. Moreover, the medical records filed in
the Austin case suggested a temporal association between the vaccination and the
injury. Here, no such association exists for all the reasons discussed above. This
makes the rationale in Austin much less compelling in this specific case.

   VI.      Conclusion

       Accordingly, I find that petitioner had no reasonable basis to bring this claim, as
the claim was not feasible. In light of all of the above, petitioner’s motion for attorneys’
fees and costs is DENIED and no award for attorneys’ fees and costs is made.


IT IS SO ORDERED.

                                                  s/Daniel T. Horner
                                                  Daniel T. Horner
                                                  Special Master



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