                                                                                REISSUED FOR PUBLICATION
                      ORIGf.NAL                JUL 9 2018
                                                                                                 OSM
                                                                                     U.S. COURT OF FEDERAL CLAIMS
     lfn tbe Wniteb ~tates <!Court of jfeberal <!Claims
                                    OFFICE OF SPECIAL MASTERS
                                          Filed: June 14, 2018

* **** ****** **********                                        UNPUBLISHED
                                                                                                     FILED
LEE HALEY,                                    *                                                    JUN 1~ 2018
                                              *                 No. 17-l 742V
                           Petitioner,        *                                                  U.S. COURT OF
                                                                                                FEDERAL CLAIMS
V.                                            *                 Special Master Gowen
                                              *
SECRETARY OF HEALTH                           *                 Petitioner's Motion for Dismissal;
AND HUMAN SERVICES,                           *                 Influenza ("Flu") Vaccination;
                                              *                 Difficulty Breathing; Alternative Causes;
                           Respondent.        *                 Deviated Septum; Allergic Rhinitis.
* **** ** ***** ** ** **** *
Lee Haley, petitioner, prose.
Linda Renzi, United States Depa1tment of Justice, Washington, DC, for respondent.

                                     DECISION ON ENTITLEMENT'

        On November 6, 2017, Lee Haley ("petitioner"), acting prose, filed a claim pursuant to
the National Vaccine Injury Compensation Act ("Vaccine Act" or "the Act"). 2 He alleged that
the influenza ("flu") vaccination he received on September 17, 2017 resulted in difficulty
breathing, inability to sleep, and sinusitis. As discussed herein, the claim is hereby dismissed on
petitioner's oral motion, for failure to meet the Vaccine Act's severity requirement and for
insufficient proof.

     I.      Procedural History

        Petitioner initiated his claim on November 6, 20 17. Petition (ECF No. 1). On December
21 , 2017, the undersigned held an initial status conference with petitioner. Ms. Linda Renzi

1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 350 l note (201 2), because this unpublished decision

contains a reasoned explanation for the action in this case, I intend to post it on t he website of the United
States Court of Federal Claims. The comt's website is at http://www.uscfc.uscomts.gov/aggregator/sources/7.
Before the decision is posted on the cou1t's website, each pa1ty has 14 days to file a motion requesting redaction "of
any information furnished by that paity: ( I) that is a trade secret or commercial or fina ncial in substance and
is privileged or confidential; or (2) that includes medical files or similar files, the disclosure o f which wou ld
constitute a clearly unwarranted invas ion of privacy." Vaccine Rule 18(b). "An objecting party must provide the
court with a proposed redacted version" of the decision. Id. If neither party files a motion for redaction within 14
days, the decision will be posted on the court's website without any changes. Id.

2
 The National Vaccine Injury Compensation Program is set fo1th in 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-l to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
appeared on behalf of respondent. During the status conference, petitioner stated that after
receiving the flu vaccination, he was hospitalized and diagnosed with an upper respiratory
infection. After discharge, he had continued trouble breathing. He had not been sleeping lying
down. A nurse had given him an inhaler and medication. Order (ECF No. 10) at 1. I explained
that under the Vaccine Act, a petitioner is only eligible to seek compensation for an injury which
(1) has residual effects lasting for more than six months; or (2) leads to both hospitalization and
surgical intervention; or (3) leads to death. Id.; see also § 11 (c )(1 )(D). As petitioner did not
allege surgical intervention and did not pass away, the only way for petitioner to seek
compensation under the Act would be for the injury to last for more than six months. Id. As the
six-month date from the time of the vaccination would have been March 2018, I informed
petitioner that he should file a status report at that time, along with substantial medical records if
the injury did not improve. Id. at 1-2. I also encouraged petitioner to get a lawyer, as it is
difficult to succeed prose in the Vaccine Program. Id. at 2.

        Petitioner made no subsequent filings, and no further action was taken until the
undersigned convened another status conference on May 22, 2018. See Transcript ("Tr.") at 1.
During the status conference, petitioner provided an update on his current medical state. Id. at 4.
Petitioner explained that his doctor diagnosed him with a deviated septum3 with nasal turbinate
hypertrophy4 , and allergic rhinitis 5 due to pollen. Additionally, petitioner disclosed that the
deviated septum and other injuries were most likely unrelated to the flu vaccination, and that his
doctor recommended surgery to correct the deviated septum. Petitioner stated at this point that
he wished to dismiss his claim. Id. at 7. The undersigned asked, and petitioner confirmed that
he was seeking voluntary dismissal of his claim. I noted that I would treat this statement as an
oral motion for voluntary dismissal of his petition. Id. Respondent did not object to this course
of action. Id.

       The undersigned ordered the transcript to confirm the accuracy of petitioner's oral
statements before ruling on this dispositive motion. The transcript has now been received and
reviewed. Thus, this matter is now ripe for adjudication.




3
  The nasal septum is a thin structure that divides the two sides of the nose. The correct placement of the septum is
in the center of the nose; if the septum is not in the center, it is considered "deviated". This leads to sympto1ns such
as difficulty breathing and restricted mucus and airflow. The main treatment for this injury is surgery to repair the
displaced septum. Deviated Septum. Farflex Partner Medical Dictionary 2012, https://medical-
dictionary.thefreedictionary.com/deviated+septum (last visited June 6, 2018).

4 Nasal Turbinate Hypertrophy is "a condition characterized by chronic swelling of the nasal turbinates." Nasal
turbinat~s  are structures in the nose that trap dust, dirt, and other particles to prevent them fro1n entering the lungs.
What Are Nasal Turbinates? Sinus Center of Atlanta 2015, https://www.atlantasinus.com/turbinate-hypertrophy/
(last visited June 8, 2018).

5Allergic rhinitis is "an inflam1nation of the nasal passages caused by allergic reaction to airborne substances."
Allergic Rhinitis, Farflex Partner Medical Dictionary 2012, https://medical-
dictionary.thefreedictionary.com/deviated+septum (last visited June 8, 2018).


                                                              2
    II.     Conclusion

        Under the Vaccine Act, the Program may not award compensation solely based on a
petitioner's own claims. Rather, a petitioner must suppmt his claim with either medical records
or the opinion of a competent physician. § 13(a)(l).

        The tmdersigned has fully reviewed the record as it stands, including the transcript of the
status conference. There are two issues with petitioner 's claim. First, the Vaccine Act requires
an injmy to last at least six months in order to seek compensation. §1 l(c)(l)(D). It is doubtful
that petitioner's initial alleged upper respiratory infect ion, resulting in his hospitalization, had
residual effects lasting for at least six months. As that injury did not reach the six-month
threshold, it is not eligible for potential compensation under the Vaccine Act. Accordingly, a
claim for this injury must be dismissed. § 1 l(c)(l)(A).

        Second, it is highly unli kely that petitioner's deviated septum and allergic rhiniti s are
related to the tlu vaccination. Neither a deviated septum nor allergic rhiniti s are autoimmune in
nature, so it is doubtCul that the vaccination caused either injury. Petitioner has not submitted
medical records or an expert opinion to indicate otherwise. Thus, this claim cannot succeed and
must be dismissed. § 1 l(c)(l)(A).

       Petitioner understood these issues and agreed that his claim should be dismissed.
Accordingly, this claim is dismissed for failure to meet the Vaccine Act's severity
requirement and for insufficient proof. The Clerk of the Court shall enter judgment
accordingly.                                                      ~
          IT IS SO ORDERED.
                                                                            'Ll~'l.A~




                                                       Thomas L. Gowen
                                                       Special Master




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