Neuss-Guillen v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1463V
Filed: September 29, 2021
PUBLISHED
LISA NEUSS-GUILLEN, Special Master Horner
Petitioner,
v. Finding of Fact; Reactive
Polyarthritis; Diagnosis; Onset;
SECRETARY OF HEALTH AND Treating Physician Statement
HUMAN SERVICES,
Respondent.
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT 1
On September 24, 2018, petitioner, Lisa Neuss-Guillen, filed a petition under the
National Childhood Vaccine Injury Act, 42 U.S.C. §300aa-10-34 (2012) 2, alleging that
she suffered reactive polyarthritis (“RA”) following the receipt of a
tetanus/diphtheria/acellular pertussis (“Tdap”) vaccination in her left deltoid at Beaver
Medical Group on October 22, 2015. (ECF No. 1, p. 4; see also Ex. 2, p. 2.) On
September 30, 2020, petitioner moved for a finding of fact that she was diagnosed with
reactive polyarthritis following her vaccination, and that onset of her condition occurred
“a few weeks” after vaccination. (ECF No. 37.)
For the reasons discussed below, although I find that petitioner
contemporaneously reported a subjective complaint of increased joint pain in her upper
extremities sometime between mid-November 2015 and February 3, 2016, the
1 Because this finding 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 finding 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.
2Hereinafter all “§” citations within this decision are to portions of the Vaccine Act at 42 U.S.C. §300aa-
10-34.
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remainder of her alleged symptoms are not preponderantly established as occurring
within this period. On the current record, I am unable to conclude whether petitioner’s
post-vaccination symptom of increased upper extremity joint pain can be diagnosed as
reactive polyarthritis. Accordingly, petitioner’s motion is GRANTED in part and DENIED
in part.
I. Procedural History
This case was initially assigned to Special Master Roth who ordered petitioner to
file complete medical records and a statement of completion. (ECF No. 4.) Petitioner
filed her medical records on October 29 and October 30, 2018, and a statement of
completion on November 6, 2018. (ECF Nos. 6-8.) However, respondent filed a status
report on February 12, 2019, explaining that petitioner’s Exhibit 4 consisted of 40,938
pages of “disorganized and confusing” medical records from USC’s Keck Medicine, and
identifying some additional records needed to complete his review. (ECF No. 9.)
Special Master Roth issued a scheduling order on March 4, 2019 directing
petitioner to file a motion to strike Exhibit 4 and refile the records from Keck Medicine
organized by date and with PDF bookmarks. (ECF No. 10.) Petitioner filed additional
medical records on March 18, 2019. (ECF No. 11.) On April 8, 2019, Special Master
Roth held a status conference to discuss how petitioner should proceed in order to
address the issues raised regarding Exhibit 4. (ECF No. 12.) Special Master Roth
concluded that the most effective way to proceed would be for petitioner to abandon her
motion to strike, and instead, file an additional exhibit with the same records,
categorized by type of record. (Id.) Petitioner filed additional records on April 15, 2019,
and the reorganized records on July 3, 2019. (ECF Nos. 13, 18.)
On August 26, 2019, this case was reassigned to my docket. (ECF No. 20.) I
held a status conference on September 4, 2019 to discuss the next steps in the case.
(ECF No. 22.) During the status conference, respondent explained that there appeared
to be very little in the record, specifically in Exhibit 4, supporting petitioner’s claim of a
vaccine injury. Petitioner responded that she intended to file an amended petition with
citations to the records supporting her allegations. She also expressed her willingness
to file a statement from her treating rheumatologist, Dr. Ehresmann, in order to resolve
the parties’ concerns regarding the records from Keck Medicine. (Id. at 1.) Petitioner
filed an amended petition on October 4, 2019, and a letter from Dr. Ehresmann on July
16, 2020. (ECF Nos. 23, 34; Ex. 8.)
On July 30, 2020, I held a status conference to follow up with the parties in
regard to Dr. Ehresmann’s letter at Exhibit 8. (ECF No. 35.) Respondent noted that
several statements made by Dr. Ehresmann were not corroborated by any of
petitioner’s medical records. Petitioner’s counsel agreed, but explained that Dr.
Ehresmann’s letter was based on observations he made during petitioner’s IVIG
infusions. Respondent requested that petitioner provide citations to any records that
support the contentions made in Dr. Ehresmann’s letter. Due to the difficulty in
assessing the weight to be given to Dr. Ehresmann’s letter, and because this letter is
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the primary evidence supporting petitioner’s alleged diagnosis, I recommended that the
case proceed to a finding of fact in order to clarify the questions of diagnosis and onset.
The parties agreed. (Id.)
Subsequently the parties raised a concern by e-mail to chambers that the
process of converting Exhibit 4 to optical character recognition (“OCR”) may have
removed images from the medical records. Accordingly, on September 21, 2020,
petitioner re-filed the Keck medical records previously submitted as Exhibit 4 without
OCR capability as Exhibit 9. (This decision references Exhibit 9 in preference to Exhibit
4.)
Petitioner filed a motion for a fact finding on the existing record on September 30,
2020. (ECF No. 37.) Respondent filed his response on March 1, 2021, and petitioner
filed her reply on April 12, 2021. (ECF Nos. 40, 41.) Petitioner’s motion is now ripe for
resolution.
II. Factual History
a. As reflected in petitioner’s medical records
Prior to her vaccination, petitioner had a fifteen-year history of Bechet’s disease. 3
(Ex. 3, pp. 4-7; Ex. 9, pp. 1668-69, 13789-92.) Her medical history also included joint
pain (suspected to be inflammatory), obesity, gastric bypass surgery, osteoarthritis, a
methicillin-resistant Staphylococcus aureus (MRSA) infection, pelvic pain, goiter, and
ganglion. (Ex. 9, pp. 13789-92, 15113-15, 21747, 21749-52, 21752-55, 24111, 24546-
47, 24555-56.) Petitioner’s joint pain was affecting her ability to ambulate as early as
2008. (Id. at 1669.) Petitioner’s records specifically note that she experienced chronic
pain with neuropathic and mechanical features, and complained of joint, hip, ankle, and
back pain that limited her ability to walk. (Ex. 9, pp. 1668-69, 13789-92, 24546-47.) To
manage her symptoms, petitioner was undergoing monthly IVIG infusions, and
prescribed methadone, Vicodin, oxycodone, morphine, Norco, and Percocet. (Ex. 9,
1668, 13789-92, 15113, 24548-50.)
With regard to her pre-vaccination Bechet’s disease, petitioner contends that “her
treatment protocol was controlling it.” (ECF No. 37, p. 3.) Petitioner stresses in
particular a July 24, 2013 appointment in which a review of systems included no
notation of joint, muscle, or neuropathic pain. (Id. at 2 (citing Ex. 9, p. 13761).)
Importantly, however, this particular encounter was for treatment of a separate
complaint, namely chest pain and shortness of breath. 4 (Ex. 9, pp. 13761-62.)
3 Bechet’s disease or syndrome is “a variant of neutrophilic dermatosis of unknown etiology, involving the
small blood vessels, characterized by recurrent aphthous ulceration of oral and pharyngeal mucous
membranes and genitalia, with skin lesions, severe uveitis, retinal vasculitis, optic atrophy, and often
involvement of the joints, gastrointestinal system, and central nervous system.” Dorland’s Illustrated
Medical Dictionary, 33rd Ed. (2020), p. 1792.
4Accordingly, the fact that these specific complaints were not recorded in the review of systems may not
be meaningful. See Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021)
3
Additionally, the fact of petitioner’s Bechet’s disease and her active course of pain
management are discussed in the history of present illness. Other of petitioner’s pre-
vaccination medical records discuss petitioner as suffering “chronic pain” (Ex. 3, p. 13
(March 6, 2015 encounter noting petitioner “has chronic pain”).) Although petitioner’s
treatment may have been effective, petitioner’s medical records do not on the whole
indicate that she was asymptomatic prior to the vaccination at issue. For example, a
March 25, 2014 record indicates that petitioner’s Bechet’s disease was “reasonably
controlled” by her current treatment protocol while also observing her to still be
symptomatic. (Ex. 9, pp. 21749-52.)
Petitioner reported to Beaumont Urgent Care Center for a finger laceration on
October 22, 2015. (Ex. 3, pp. 4-7.) She received several stitches and a Tdap
vaccination. (Id.) The next document available in the medical record following
petitioner’s vaccination is a letter to Gallant Medical Supply from Dr. Ehresmann dated
February 3, 2016. The purpose of the letter was to support petitioner’s request for a
motorized scooter or wheelchair. The letter describes petitioner’s condition as:
Bechet’s syndrome, which results in systemic illness with joint pain diffusely
in addition to . . . significant osteoarthritis of the lower extremities,
particularly the left knee . . . and in the right lower extremity she has a
ganglion cyst which is causing severe pain with weightbearing on that
extremity . . . Additionally, she has upper extremity symptoms with
epicondylitis and joint pain, much of which exacerbated following a tetanus
immunization a few months ago which resulted in a reactive polyarthritis.
(Ex. 9, pp. 27199-201.) Dr. Ehresmann also discussed increasing hip pain attributable to
a traumatic fall occurring two years prior. (Id.)
On March 7, 2016, petitioner received a bilateral hip x-ray. (Ex. 9, p. 26262.)
The x-ray revealed mild degenerative changes of the bilateral hips, pubic symphysis,
and visualized lumbosacral spine. There was mild generalized osteopenia, but no acute
fracture. (Id.) Petitioner also reported a headache, leg pain when walking, joint
stiffness, tingling, generalized muscle aches and pains, and lower back pain. (Id. at
26699.) She did not report any shoulder or neck pain.
On April 12, 2016, Dr. Ehresmann referred petitioner to cardiologist Dr. Ray
Matthews after an abnormal ECG. (Ex. 9, pp. 27197-98.) In his referral letter, Dr.
Ehresmann wrote that petitioner was a:
57-year-old woman with a long history of Bechet syndrome, with many
cutaneous and mucosal ulcerative lesions superimposed on other problems
which include prior obesity and gastric bypass with associated problems . .
. . She has been intermittently on steroids in the past but none recently, and
receives periodic IVIG therapy and rituximab to control the mucocutaneous
(“reject[ing] as incorrect the presumption that medical records are accurate and complete as to all the
patient's physical conditions.”)
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manifestations of her disease. Chronic pain is a significant issue, with the
patient requiring substantial amounts of opioid on a regular basis, which she
is trying to gradually taper.
(Id.) Dr. Ehresmann did not mention reactive arthritis in this letter.
Petitioner was seen for a cardiology evaluation by Dr. Matthews on April 13,
2016. (Ex. 9, pp. 31106-08.) Dr. Matthews noted that petitioner was “a challenging
history teller and speaks with rapid pressured speech and expands off into tangents.”
(Ex. 9, p. 31106.) He discerned that petitioner had some chest discomfort which she
believed was congestive heart failure. (Id.) Petitioner had an abnormal ECG which was
consistent with hibernating myocardium. Dr. Matthews listed petitioner’s Bechet’s,
gastric bypass, skin lesions, and other symptoms in petitioner’s medical history, but did
not include reactive arthritis. (Ex. 9, pp. 31106-08.)
Dr. Ehresmann wrote another letter on May 3, 2016, this time addressed to an
attorney and regarding a dispute with petitioner’s credit union. (Ex. 9, pp. 27610-11.)
The letter explains petitioner’s medical history and requests that it be considered a
“major medical hardship.” (Id.) Dr. Ehresmann mentioned petitioner’s “severe
systemic illness” associated with Bechet’s syndrome, a “traumatic injury” which “further
compromised” her functional capacity, and a possible “significant cardiac issue, for
which she needs some additional medical and radiographic evaluations.” (Id.) Dr.
Ehresmann did not mention reactive arthritis. (Id.)
Petitioner received an IVIG infusion at Keck Hospital on July 6, 2016. (Ex. 9,
30243.) Prior to her infusion, petitioner reported to Dr. Ehresmann for a follow up on
her right ankle ganglion cyst pain. (Ex. 9, p. 30690.) Dr. Ehresmann listed a variety of
problems in petitioner’s chart including Bechet’s, goiter, osteoarthritis, anemia, and
hypothyroidism. (Ex. 9, p. 30691.) Although he also listed “other specified disorders of
ankle and foot joint” he did not specifically mention reactive arthritis. (Id.)
On November 13, 2016, Dr. Ehresmann wrote another letter on petitioner’s
behalf, this time to Banning Superior Court requesting that she be provided additional
time in a court proceeding that appears to have been related to the dispute with her
credit union and a foreclosure on her home. (Ex. 9, pp. 29748-50.) Dr. Ehresmann
explained that petitioner’s “systemic medical illness” was associated “with many painful
ulcerative skin lesions, as well as systemic complications and the need for complex
medical treatments and medications.” (Id. at 29748.) Dr. Ehresmann did not mention
reactive arthritis in this letter. (Ex. 9, pp. 29748-50.)
Petitioner once again saw Dr. Ehresmann for a follow up on her Bechet’s on
December 6, 2016. (Ex. 9, pp. 29311-14.) Dr. Ehresmann noted petitioner’s gastric
bypass, chronic absorption difficulties, lumbar disc disease, foot/ankle ganglion,
hypertension, hypothyroidism, goiter, microcytic anemia, osteoarthritis involving her
knees, and post-contusion pain in her hips. (Id. at 29311.) Petitioner’s physical exam
revealed patellofemoral bilateral knee pain, trochanteric tenderness, and bilateral
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guarding of hip range of motion, with no signs of proliferative synovitis. (Ex. 9, p.
29313.) Dr. Ehresmann’s impression included Bechet’s, gastric bypass, iron deficiency,
hypertension, coronary artery disease, hypothyroidism, goiter, osteoarthritis, hip trauma,
and panic symptoms, but did not mention reactive arthritis. (Ex. 9, p. 29314.)
Dr. Ehresmann wrote another letter for petitioner on January 18, 2017, this time
addressed to petitioner’s insurance reviewer for pharmacy benefits. (Ex. 9, p. 29348.)
In his letter, Dr. Ehresmann explained that petitioner’s Bechet’s syndrome had caused
“painful deep ulcers in various body areas that have been refractory to many therapies
but somewhat improved with IVIG and B-cell depletion with rituximab.” (Id.) Dr.
Ehresmann also noted that petitioner had “significant back disease and osteoarthritis of
the knees and hip symptoms post-contusions.” (Id. at 29349.) Dr. Ehresmann again
did not mention reactive arthritis.
On February 28, 2017, petitioner received an IVIG infusion and a steroid injection
in her left knee at Keck Medicine. (Ex. 9, p. 29065.) Petitioner reported that she felt
very tired and complained about the hospital food but did not mention anything about
arthritic pain. (Id.) She also received x-rays of her left shoulder, pelvis, and both
elbows, knees, and ankles. (Id. at 28670-77.) Her shoulder x-ray revealed mild bilateral
acromioclavicular osteoarthrosis and diffuse osteopenia. (Id. at 28670.) Her elbow x-
ray showed osteopenia and mild ulnotrochlear osteoarthrosis with small osteophyte.
(Id. at 28673.) Her pelvic x-ray showed no acute osseous abnormality, mild bilateral hip
osteoarthrosis, mild degenerative changes of the pubic symphysis, and diffuse
osteopenia. (Id. at 28674.) Her ankle x-ray showed moderate to severe right
talonavicular arthrosis, mild arthrosis involving left talonavicular and bilateral
calcaneocuboid joints with a possible inflammatory etiology, small bilateral tibiotalar joint
effusions, and diffuse osteopenia. (Ex. 9, p. 28675.) Her knee x-ray showed symmetric
mild bilateral medial and lateral tibiofemoral compartment joint space narrowing, mild
bilateral patella, small bilateral knee joint effusions, and diffuse osteopenia. (Id. at
28677.)
Dr. Ehresmann wrote another letter on May 2, 2017 addressed to a judge of the
Pomona County Superior Court in Los Angeles, California, seeking to delay petitioner’s
case six to eight months on account of her medical condition. (Ex. 9, p. 33356-57.) The
nature of the case at issue is not indicated.
Petitioner received another IVIG infusion at Keck Medicine on July 17, 2017.
(Ex. 9, pp. 32729-33.) She reported open lesions on her abdomen and legs, and
increasing pain in her left knee and both ankles where she had radiographic
osteoarthritic changes. (Id. at 32729.) Petitioner’s problem list at this visit included
anemia, Bechet’s, goiter, edema, ganglion, gastric bypass, hypertensive disorder,
hypothyroidism, osteoarthritis, vitamin B deficiency, and other specified disorders of
ankle and foot joint. (Id.) Although none of petitioner’s records of this visit mention
reactive arthritis, the multidisciplinary forms do state that petitioner “had a severe
adverse reaction with tetanus vaccine in the past.” (Id. at 33039.) Petitioner was
discharged from her inpatient IVIG infusion on July 18, 2017. (Id. at 32687.) On
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discharge, petitioner noted that she was concerned that her Tdap vaccination
“precipitated growths in her joints and tendons that are worsening . . . .” (Ex. 9, p.
32687.)
Petitioner received steroid injections in both ankles and her left knee as well as a
ganglion cyst aspiration on August 9, 2017. (Id. at 33024-25.)
Petitioner returned to Keck Medicine on September 7, 2017 for an inpatient IVIG
infusion. (Id. at 32025.) During this visit, petitioner noted that “since her last IVIG
infusion, her diffuse arthralgia symptoms worsened over the last 4 weeks and she
started developing a bitemporal frontal headache that was chronic and worsening
progressively over the last couple of days.” (Id.) She described her headache as “dull .
. . with some sharp spikes in intensity and the sensation of some neck tightness.” (Id.)
Petitioner also reported diffuse pain in her joints, most notably the bilateral DIP and PIP
joints of both hands. (Id.)
Petitioner was also seen by her primary care physician Dr. Donna Shoupe for a
routine checkup on September 7, 2017. (Ex. 9, p. 35219.) Petitioner’s history of
present illness included Bechet’s, gastric bypass, arthritis, and notes that petitioner
“feels [that she] reacted to [the] tetanus vaccine”, however Dr. Shoupe did not opine on
petitioner’s alleged vaccine reaction in this record. (Id.) Petitioner’s problem list at this
visit included anemia, Bechet’s, goiter, edema, abnormal gynecological exam, flexor
tenosynovitis of finger, ganglion of tendon sheath, history of gastric bypass,
hypertensive disorder, hypothyroidism, osteoarthritis, osteoporosis, other specified
disorders of ankle and foot joint, vaginal atrophy, and vitamin B deficiency. Reactive
arthritis was not included in this record. (Id.)
Petitioner was next seen by Dr. Ehresmann on October 11, 2017 for redness and
edema in her left leg. (Ex. 9, p. 34360.) Petitioner reported that she had multiple
episodes of stabbing abdominal pain, complained of increased urinary urgency, mild
eye burning, and discomfort in the left side of her throat. (Id.) Petitioner did not report
any arthritic issues nor were any arthritic issues observed on examination. (Id.)
Petitioner received another IVIG infusion at Keck Medicine on October 12, 2017.
(Id. at 34315.) Petitioner “stated that she had worsened headache, neck tightness, and
pain at her DIP and PIP joints since her last [IVIG infusion]. Her headache is dull and
intermittent. She did not have associated nausea, vomiting, vision changes,
lightheadedness, and fever/chills.” (Id. at 34315.)
On November 22, 2017, Dr. Ehresmann wrote another letter to Pomona County
Superior Court describing petitioner’s condition and requesting that her court date be
continued. (Ex. 9, p. 34393.) Dr. Ehresmann noted that petitioner’s symptoms included
open lesions, kidney function abnormalities, anemia, weakness, osteoarthritis, and
cardiac compromise. (Id. at 34393-94.) He did not mention reactive arthritis. (Id.)
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Petitioner was seen again by Dr. Ehresmann on January 9, 2018 for a follow up
on her osteoarthritis and emerging throat issues. (Ex. 9, p. 35780.) She complained of
a lesion in her throat, skin lesions, eye pain, foot pain, abdominal pain, a thyroid nodule,
and left sided throat pain. (Id.) Petitioner’s exam revealed no inflammatory arthritis,
some guarding bilateral crepitation in the hips and knees, no instability, left foot
ganglion, no edema, no clubbing, no synovitis, bilateral ephemeral arthritis, no effusion,
no ankle synovitis, and decreased size in petitioner’s ganglion. (Id. at 35781.) Dr.
Ehresmann’s assessment included flexor tenosynovitis, cervical radiculopathy, diffuse
goiter, ganglion of the tendon sheath, osteoarthritis, osteoporosis, splenic lesion,
thoracic arthritis, and thyroid nodule. (Id. at 35781-82.) He did not mention reactive
arthritis in this record. (Id.)
Petitioner returned to Dr. Ehresmann on February 20, 2018 for a follow up on her
osteoarthritis and Bechet’s. (Ex. 9, p. 39355.) During this visit petitioner complained of
open sores, neck pain, and a lesion in her ear. Petitioner’s assessment remained
unchanged, and Dr. Ehresmann again did not include reactive arthritis from his
diagnosis. (Id. at 39355-39358.)
On February 21, 2018, petitioner was seen by Dr. Loni Tang at Keck Medicine.
(Ex. 9, p. 39349.) Petitioner was in Los Angeles and requested an IVIG infusion out of
convenience since she typically commuted from Palm Springs. She reported having
some tendonitis related to her earlier tetanus shot, but her EMG was negative. Her
ongoing problem list was largely unchanged from her previous records, with the addition
of hoarseness and splenic mass. Dr. Tang’s record does not reflect any observation of
arthritis or memorialize any complaints from petitioner regarding arthritis. (Id. at 39349-
52.)
On March 20, 2018, petitioner was seen by Dr. Ehresmann for radiculopathy,
osteoporosis, and osteoarthritis. (Ex. 9, p. 38708.) Petitioner reported pain in her right
lateral side, cervical spine, and “crunching” in her left elbow and wrist. (Id.) She
requested a B12 injection and a letter to Pomona County Superior Court regarding her
inability to represent herself in court. She also requested a letter to the California
Department of Health Services recommending she be temporarily excluded from
medical managed care plans. (Id. at 38708-09.) Her exam revealed bilateral
tenderness in her AC and glenohumeral joints, some degenerative mid-foot
osteoarthritis changes bilaterally, primary osteoarthritis in her hands, and patellofemoral
crepitus in both knees. (Id.) There is no mention of reactive arthritis in this record.
Dr. Ehresmann wrote two letters on March 20, 2018, one to Pomona County
Superior Court and one to the California Department of Health Care Services. (Ex. 9,
pp. 38752, 38754.) In both letters, Dr. Ehresmann referenced petitioner’s difficulty with
treatment and discussed her complicated osteoporosis. (Id.) However, he did not
mention reactive arthritis in his letter to the judge. He did, however, mention in his letter
to the California Department of Health Care Services that petitioner “developed a
severe set of symptoms following immunization for tetanus about 2 years ago and has
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had progressive joint pain and other complicating symptoms since that time.” (Id. at
38754.)
Finally on May 11, 2018, petitioner reached out to Dr. Ehresmann reporting that
she was experiencing left ear pain, mild pain in her jaw, inflammation in both hands, a
noticeable change in her lesions, spinal cord pain, and “horrible” pain in her feet. (Ex. 9,
p. 38225.) Petitioner reported that she felt all of these symptoms were the result of her
Prolia medication and that she would not be able to take the Prolia without methadone.
(Id.)
b. As described in testimony
i. Petitioner’s affidavit
Petitioner filed an affidavit, signed September 18, 2018, describing the course of
her condition. (Ex. 1.) She stated that prior to vaccination, around the age of forty, she
began feeling unwell. She was seen by Dr. Ehersmann who diagnosed her with
Bechet’s disease. Petitioner’s symptoms “took [her] out of normal life,” and the fatigue
was so intense that petitioner struggled to lift a roll of toilet paper. (Ex. 1, p. 1.)
Petitioner explained that Bechet’s is a multi-system disorder which made her
IVIG dependent. This means that petitioner is hospitalized each month to receive IVIG
infusions. During the first 15 years of her disease, petitioner would receive her infusions
at Norris Cancer Day Hospital, but then switched to USC’s Keck Hospital. (Id.)
When petitioner began her IVIG therapy, it “helped intensely.” (Ex. 1, p. 1.) She
described her disease as a lifelong condition which causes severe lesions in her mouth
and all over her body. Petitioner explained that in 2009, she had over 200 open lesions
on her body, and because the nerve endings are at skin level, the lesions are agonizing
and “similar to being in a fire.” She also experienced fevers, chills, and skin necrosis.
(Id.) Petitioner explained that prior to her vaccination, she was using one type of pain
medication for her condition and another for “in-between pain,” but stated that she “was
nearly completely off of them prior to vaccination.” (Id. at 2.)
Petitioner stated that she cut her finger October 22, 2015 and went to Beaver
Medical Group where she received stitches and a tetanus vaccination. She reminded
the physician about her autoimmune condition but was assured that she would be fine.
Petitioner notes that at this time she was already told that she was not to receive the
pneumonia vaccine. (Id.)
A few weeks later, petitioner reported “feeling different.” (Ex. 1, p. 2.) She stated
that “maybe a week and a half after getting the stitches out, I started having headaches
and felt pain in my left arm.” (Id.) Although petitioner did not think much of this, she told
her doctor who thought the pain was caused by petitioner’s weaning off narcotics.
Petitioner told her doctor that “[i]t felt like everything changed to a much higher level of
pain from [her] toes to [her] brain.” (Id.)
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Petitioner described feeling painful spasms in her muscles that brought her to
tears. She began treating her pain with narcotics, and stated that she began to
consider whether these new sensations were related to her tetanus vaccination. She
noted experiencing a stiff neck and right shoulder pain that switched to her left shoulder
and left arm. She reported that “it felt like nerve pain with pain all over my body.”
Petitioner explained that this pain continued throughout 2016, and that in February of
2016 she began to experience a painful bone crunching sensation in her left and right
elbow. (Ex. 1, p. 2.)
In May of 2016, petitioner felt that the bone crunching sensation affected her
whole body. She noticed terrible pain in the joints of her fingers and toes in “the exact
same place on every finger and toe.” She noticed that each of her knuckles were very
painful and swollen, and that her mind was also affected, causing her to have difficulty
organizing her thoughts. (Id.)
Petitioner averred that she was diagnosed with reactive polyarthritis, and that Dr.
Ehresmann associated this diagnosis to petitioner’s tetanus vaccination. (Id.)
ii. Dr. Ehresmann’s Letter
On July 16, 2020, petitioner filed a letter dated July 14, 2020 from her treating
rheumatologist, Dr. Glenn Ehresmann, addressed to petitioner’s counsel, Mr. Downing.
(Ex. 8.) Dr. Ehresmann begins his letter explaining that Bechet’s is “a rare chronic
multisystem inflammatory disease which has prominent mucosal and cutaneous
ulcerative lesions as the major manifestation for [petitioner].” (Ex. 8, pp. 1-2.)
According to Dr. Ehresmann, Bechet’s may have various manifestations including
central nervous system involvement, ocular involvement, genital involvement, or other
mucosal or cutaneous manifestations. (Id. at 2.)
Dr. Ehresmann explains that petitioner’s treatment has included IV infusions of
rituximab and antibodies to B cells which seemed to be driving petitioner’s disease. He
explains that B-cell depletion has been “partially effective in controlling the number and
intensity” of petitioner’s lesions, but that petitioner’s immunoglobulin level dropped,
placing her at risk for complicating infections. (Ex. 8, p. 2.) Consequently, she has
received monthly IVIG infusions, which have also had positive effects on her Bechet’s
disease. (Id.)
Dr. Ehresmann also indicates that petitioner has evidence of osteoarthritis
characterized by mild changes in several of her joints evidenced on x-rays over the past
ten years. Petitioner also has coronary artery disease which was stable at the time he
wrote his letter. Although a cardiologist recommended further evaluation of petitioner’s
coronary disease, Dr. Ehresmann reports that petitioner’s illness precluded her from
completing some of the recommended studies. Dr. Ehresmann notes that it is
unsurprising that petitioner shows signs of osteoporosis due to her sedentary lifestyle
and complications related to her vaccination. Petitioner also has a large goiter but no
10
evidence of hyperthyroidism which Dr. Ehresmann explains would lead to worsening
osteoporosis. (Id.)
Dr. Ehresmann further explains that prior to her immunization, petitioner’s
medical status was relatively stable with recurrent cutaneous ulcers requiring rituximab
and IVIG, but nothing that required chronic corticosteroid therapy. (Id.) After her
vaccination, Dr. Ehresmann reports that petitioner developed pain in her shoulders and
other areas that were not involved in her Bechet’s symptoms. In the five years
preceding his letter, he explains that her symptoms of joint pain “have been far out of
proportion to any radiographic changes associated with what has been described in the
report” as “mild osteoarthritis.” (Id.)
Dr. Ehresmann states that petitioner has also experienced symptoms that
suggest an enthesitis 5 involving her achilles and biceps tendons, as well as joint pain in
her hands that “felt like her digits were breaking off” even though the changes exhibited
on her x-rays taken as recently as May 2020 were described as “minimal osteoarthritis
at the thumb carpometacarpal joints.” (Ex. 8, p. 2.) Additionally, Dr. Ehresmann points
out that petitioner complained of “exquisite pain in the hips bilaterally to the point of
severe difficulty walking,” in March of 2016, and her x-rays only showed “very mild joint
space narrowing with minimal marginal osteophytes . . . .” (Id. at 2-3.) Dr. Ehresmann
also notes a February 2017 radiology report which “confirmed evidence of right
talonavicular arthrosis with extension into adjacent areas with enough synovitis that the
doctor suspected an inflammatory etiology.” (Id. at 3.) However, he notes that
petitioner’s inflammatory markers including her sedimentation rate and CRP were
typically low or normal in her routine lab work. Dr. Ehresmann explains that petitioner’s
MRIs have shown tibiotalar joint effusions consistent with an inflammatory response and
not simply degenerative changes. (Id.) Dr. Ehresmann believes that petitioner’s joint
symptoms “cannot be explained by her Bechet’s nor the minimal degenerative changes
that are present radiographically.” (Id.)
According to Dr. Ehresmann, petitioner also experienced neuropathic symptoms
which were evaluated by EMG/NCS studies that excluded any sort of entrapment
neuropathy. Diabetic neuropathy was not considered because petitioner was not found
to be diabetic. Dr. Ehresmann believes that there may, however, be a component of
small fiber neuropathy that could not be confirmed on EMG/NCS. Because all of these
symptoms evolved following petitioner’s vaccination, Dr. Ehresmann believes that they
are “certainly consistent with post-vaccination responses.” (Id.) Dr. Ehresmann
explains that petitioner’s esophageal dysfunction may be neuropathic in nature as well
given that no mechanical abnormality was ever discovered on evaluation. (Ex. 8, p. 3.)
He continues that petitioner’s esophageal study did not suggest Bechet’s or other tissue
disease were to blame. (Id. at 3-4.)
5“Enthesitis” is “inflammation of the muscular or tendinous attachment to bone.” Dorland’s Illustrated
Medical Dictionary, 33rd Ed. (2020), p. 620.
11
Dr. Ehresmann concludes his letter by explaining that although petitioner
endured many difficult symptoms as a result of her Bechet’s illness prior to her
vaccination, her inflammatory joint pain and neuropathic symptoms only arose after she
received her tetanus vaccination. Because no other process can explain the onset of
these symptoms, Dr. Ehresmann concludes that petitioner’s tetanus vaccination
“resulted in a reactive arthropathy superimposed on any pre-existing degenerative
change, which was very modest. The neuropathic symptoms are also attributed to the
tetanus vaccination.” (Id. at 4.) Dr. Ehresmann acknowledges that “Bechet’s disease
can certainly have neurologic sequelae,” but that “the absence of any nerve conduction
or EMG abnormalities favors another etiology.” (Id.)
III. Party Contentions
In her motion, petitioner contends that her sworn statement “uncontrovertibly
places onset a few weeks after vaccination.” (ECF No. 37, p. 13.) She also contends
that Dr. Ehresmann’s February 3, 2016 letter corroborates her account. She argues
that “Dr. Ehresmann is the treating physician in the best position to comment upon
onset, not only because he was familiar with [petitioner’s] autoimmune disease for years
prior to vaccination, but also because he witnessed first-hand the dramatic change she
underwent after vaccination.” (Id. at 13.) Petitioner also explains that although Dr.
Ehresmann did not create contemporaneous records of the observations upon which his
letters are based, the date of Dr. Ehresmann’s February 3, 2016 letter corresponds to
the date of petitioner’s IVIG infusion and therefore should qualify as a contemporaneous
record. 6 (Id. at 13-14) (Ex. 9, pp.27010-27013, accord Ex. 9, p. 27199).
Respondent counters that petitioner has not established her diagnosis by
preponderant evidence. (ECF No. 40, p. 18-19.) He argues that “the contemporaneous
medical records are clear that there is no objective evidence in the record to support
petitioner’s allegation of a reactive polyarthritis diagnosis.” (Id. at 19.) Respondent
notes that Dr. Ehresmann never listed reactive polyarthritis as petitioner’s diagnosis in
any of his medical records as her treating physician, and that no other examination or
clinical notes in the record reflect such a diagnosis. Further, respondent argues, Dr.
Ehresmann never reported such a diagnosis in any of his referrals to other specialists
and only treated petitioner for her Bechet’s and osteoarthritis following her vaccination.
(Id.)
6 The fact that Dr. Ehresmann’s observations stem from his interactions with petitioner during IVIG
infusion encounters is not explicitly stated in Dr. Ehresmann’s July 14, 2020 letter. (Ex. 8.) This
representation was first provided by petitioner’s counsel during a status conference. (ECF No. 35.) After
the parties agreed to proceed via a motion for a fact finding, I instructed petitioner’s counsel to include
this representation in petitioner’s motion for the record. (Id.) In the motion, petitioner’s counsel indicates:
“the Special Master requested that ‘petitioner shall also include for the record counsel’s own description
of Dr. Ehresmann’s explanation that his observations were based on encounters in the infusion labs, and
not separate encounters.’ That is precisely what Dr. Ehresmann relayed to the undersigned as far as why
there are not separate encounter reports that correspond with his substantive letters.” (ECF No. 37, p. 13
(internal citation omitted).)
12
Respondent categorizes Dr. Ehresmann’s final letter at Exhibit 8 as one drafted
“for litigation purposes” and argues that Dr. Ehresmann’s conclusion that petitioner’s
tetanus vaccine led to “a reactive arthropathy superimposed on any pre-existing
degenerative change,” is not supported by any of the other medical records and
“appears to be driven by petitioner’s insistence alone that she had a vaccine injury.”
(Id.) Respondent believes that “as Dr. Ehresmann has done numerous times before, he
drafted the letter . . . at the request of petitioner. That letter, like the ones he drafted
before, conflict[s] with the contemporaneous medical records and should be afforded
little to no weight.” (ECF No. 40, p. 20.) Further, respondent notes that petitioner’s
medical records are “rather extensive and detailed,” but fail to make any mention of
reactive polyarthritis, and contain no clinical basis for such a diagnosis. (Id.)
With regard to onset of petitioner’s condition, respondent also argues that
petitioner has failed to provide preponderant evidence supporting the contention that
her symptoms began within a few weeks of her vaccination. (Id.) Respondent notes
that petitioner did not report any of the symptoms that she associated with her
vaccination until over a year after the fact, and that “the medical records are silent
regarding the symptoms petitioner allegedly suffered from during the weeks following
vaccination. In fact, it was not until July 17, 2017 that petitioner reported increasing
pain in her left knee and both ankles where she had radiographic osteoarthritis changes
. . . .” (ECF No. 40, p. 21.) Respondent further contends that it was not until March 20,
2018 that petitioner complained of “pain in her right lateral side and cervical spine as
well as ‘crunching’ in her left elbow and left wrist.” (Id.) Respondent argues that
petitioner’s account consists of “post hoc statements that conflict with the
contemporaneous medical records,” and should be afforded little to no weight. (Id.) To
further support this argument, respondent notes that petitioner “has a history of reaching
out to providers to make requests and to report issues and pain. However, during the
time of the alleged onset . . . she did not report any of the symptoms outlined in her
affidavit . . . despite numerous opportunities to do so.” (Id. at 21-22.)
Respondent contends that, although Dr. Ehresmann stated that prior to
vaccination petitioner had no symptoms of the inflammatory joint pain or severe
neuropathic symptoms which developed post-vaccination, petitioner’s prior medical
history was significant for joint pain, fibromyalgia, osteoarthritis, and chronic pain with
neuropathic and mechanical features. (Id. at 22.) Respondent also notes that Dr.
Ehresmann wrote in his letter that petitioner’s medical status was stable, and that she
did not require chronic corticosteroid therapy, even though approximately six months
prior to her vaccination he had planned to administer an intraarticular steroid injection,
and had pre-ordered several others. (ECF No. 40, p. 22.) Respondent ultimately
argues that Dr. Ehresmann’s letter, the primary piece of evidence petitioner uses to
corroborate her account of events, is in conflict with the contemporaneous records and
should be afforded little to no weight. (Id. at 23.)
Petitioner’s reply asserts that Dr. Ehresmann’s letter should be afforded
substantial weight because it comes from petitioner’s treating rheumatologist based on
his own contemporaneous observations, even though they were recorded years after
13
the fact. (ECF No. 41, p. 2.) Petitioner disagrees that Dr. Ehresmann’s letter conflicts
with the contemporaneous medical records, but does not cite any specific records to
support this assertion. (Id. at 3.) Petitioner argues that her post-vaccination symptoms
were clearly different from her well-established medical baseline. (Id.) Petitioner further
explains that “Bechet’s . . . is a chronic, lifelong autoimmune disease. The fact that Dr.
Ehresmann continues to treat [petitioner’s] chronic illness bears no relevance to the
case.” (Id.)
Petitioner explains that although there are no contemporaneous records created
by Dr. Ehresmann on February 3, 2016, this date “corresponds to [petitioner] being at
the facility for her monthly treatments . . . which reflects an admission date of February
3, 2016 . . . entered by Dr. Ehresmann that same day,” and argues that the Gallant
Medical Supply letter be treated as a contemporaneous record. (ECF No. 41, p. 4.)
Petitioner argues that Dr. Ehresmann’s March 3, 2016 letter linking her tetanus
immunization to her exacerbated pre-existing medical conditions resulting “in a reactive
polyarthritis,” is enough to carry her burden. (ECF No. 41, p. 7) (citing Ex. 9, p. 27200).)
IV. Legal Standard
The process for making determinations in Vaccine Program cases regarding
factual issues begins with consideration of the medical records. § 11(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.” § 13(b)(1)(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). Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove their claim by a
preponderance of the evidence. A special master must consider the record as a whole,
but is not bound by any diagnosis, conclusion, judgment, test result, report, or summary
concerning the nature, causation, and aggravation of petitioner’s injury or illness that is
contained in a medical record. § 13(b)(1).
V. Discussion
Petitioner’s motion asks that I find that petitioner was diagnosed with reactive
polyarthritis and that her symptoms began within “a few weeks” of her vaccination.
(ECF No. 37, p. 14.) This alleged condition arises in the context of a complicated
medical history. In support of her allegations petitioner stresses her affidavit as well as
Dr. Ehresmann’s July 14, 2020 letter to Mr. Downing written for purposes of this claim
and his earlier February 3, 2016 letter to Gallant Medical Supply. These letters raise a
rare circumstance, because they are documents created by a treating physician that do
not constitute medical records generated in the ordinary course of treatment. Resolving
this motion requires answering several questions: First, how should Dr. Ehresmann’s
14
observations recorded outside the context of diagnosis and treatment be weighed?
Second, which of the symptoms petitioner attributes to her alleged reactive polyarthritis
have been shown by preponderant evidence to have arisen within weeks of the
vaccination at issue as petitioner contends? And, finally, in light of the answers to the
preceding questions and the record as a whole, was Dr. Ehresmann’s assessment of
reactive polyarthritis reliably reached? This decision answers the first two of these
questions, but additional development of the record is necessary to resolve the third.
a. The Nature of Dr. Ehresmann’s Letters
A threshold question posed by this case is how to characterize and weigh the
statements made by Dr. Ehresmann in his July 14, 2020 letter to Mr. Downing and his
February 3, 2016 letter to Gallant Medical Supply. Dr. Ehresmann’s letters place in
tension two considerations that arise often in the context of this program and are usually
viewed as harmonious - the value of treating physician opinions and the value of
contemporaneous medical records. Petitioner focuses on the former consideration.
(ECF No. 41, p. 2.) Respondent, however, emphasizes the latter consideration. (ECF
No. 40, p. 20.)
Although the opinions of treating physicians are not binding (see § 13(b)(1)), the
Federal Circuit has recognized that “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.’” Capizzano v. Sec'y of Health & Human
Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006) (quoting Althen v. Sec'y of Health and
Human Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005)). Accordingly, such opinions are
often considered “quite probative.” Id. This logic has also been applied in the context of
diagnosis. See, e.g., D'Angiolini v. Sec'y of Health & Human Servs., No. 99-578V, 2014
WL 1678145, at *24 (Fed. Cl. Spec. Mstr. Mar. 27, 2014) (finding a treating physician’s
opinion regarding diagnosis “worth a great deal” and “almost definitive evidence on that
point”), mot. for rev. denied, 122 Fed. Cl. 86 (2015), aff'd, 645 F. Appx. 1002 (Mem.)
(Fed. Cir. 2016). As petitioner alludes, the extra weight often assigned treating
physician opinions is premised on the notion that, in addition to being qualified to offer a
medical opinion, the treating physicians were eyewitnesses with personal knowledge of
the unfolding of a petitioner’s condition. Nuttall v. Sec’y of Health & Human Servs., 122
Fed. Cl. 821, 832-33 (2015) (explaining that the Federal Circuit “found that a treating
physician who was familiar with the patient both before and after the alleged vaccine
injury is likely to be in a better position than an expert retained after the fact” to opine
with respect to vaccine causation), aff’d 640 Fed. Appx. 996 (Mem.) (Fed. Cir. 2016).
However, while treating physician opinions expressed in written records are
considered very often in this program, treating physician testimony is comparatively
rare. Although special masters are obligated to consider only medical opinion that has
a reliable basis, cross-examination of treating physicians is generally not considered
necessary because their own medical records are in themselves generally considered
facially trustworthy. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1383
(Fed. Cir. 2009) (citing Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525,
15
1528 (Fed. Cir. 1993).) Reliance on medical records as trustworthy evidence is in turn
premised on two primary considerations. First, the recordings are contemporaneous to
events. Second, they reflect information supplied to physicians specifically for the
purpose of diagnosis and/or treatment, which is thought to include a motivation for
accuracy. Cucuras, 993 F.2d at 1528. Thus, where medical records are clear,
consistent, and complete, they ordinarily receive substantial weight. Lowrie v. Sec’y of
Health & Human Servs., No. 03-1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr.
Dec. 12, 2005).
However, there is no presumption that medical records are complete as to all of a
patient’s conditions. Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 182-83
(Fed. Cir. 2021). Afterall, “[m]edical records are only as accurate as the person
providing the information.” Parcells v. Sec’y of Health & Human Servs., No. 03-1192V,
2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr. July 18, 2006). And, importantly, “the
absence of a reference to a condition or circumstance is much less significant than a
reference which negates the existence of the condition or circumstance.” Murphy v.
Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (quoting the decision
below), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992). The Murphy Court also
observed that “[i]f a record was prepared by a disinterested person who later
acknowledged that the entry was incorrect in some respect, the later correction must be
taken into account.” Murphy, 23 Cl. Ct. at 733.
Nonetheless, when a treating physician offers a statement that is not
contemporaneous to events and is not within the context of diagnosis and treatment, a
special master does not err in concluding that it is not entitled to the same deference as
contemporaneous medical records, even records created by the same physician. See
Milik v. Sec’y of Health & Human Servs., 822 F.3d 1367, 1381-82 (Fed. Cir. 2016). For
example, in Milik, a treating physician recorded in his initial treatment record that a
child’s developmental delay had been “longstanding” in contrast to an “acute” onset of
limping. Id. In a much later letter written to the court, the doctor sought to
recharacterize the word “longstanding” as meaning in effect only preexisting, which the
special master thought incompatible with the original record that contrasted
“longstanding” against “acute.” Id. The Federal Circuit held that it was not error for the
special master to credit the plain meaning of the original treatment record over the
physician’s subsequent reinterpretation of the notation. Id.Although witness testimony (or other evidence) may be offered to overcome the
weight afforded to contemporaneous medical records, such evidence, most notably
testimonial evidence, must be “consistent, clear, cogent, and compelling.” Camery v.
Sec'y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec'y of
Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr.
June 30, 1998)). Further, the Special Master must consider the credibility of the
individual offering the testimony. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health
& Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). In determining whether to
afford greater weight to contemporaneous medical records or other evidence there must
be evidence that this decision was the result of a rational determination. Burns v. Sec'y
16
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). The special master is
obligated to consider and compare the medical records, testimony, and all other
“relevant and reliable evidence contained in the record.” La Londe v. Sec'y Health &
Human Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine Rule 8), aff'd,
746 F.3d 1334 (Fed. Cir. 2014); see also Burns, 3 F.3d at 417.
Here, petitioner and Dr. Ehresmann had an established doctor-patient
relationship both before and after the vaccination at issue in this case. Moreover,
petitioner was presenting repeatedly for treatment of her Bechet’s disease during the
relevant period. Additionally, Dr. Ehresmann is a rheumatologist, which places the
condition of reactive polyarthritis allegedly at issue within his area of qualification.
Accordingly, Dr. Ehresmann is positioned to be credited as a treating physician and his
opinion would clearly be entitled to significant weight when presented in the context of a
facially trustworthy contemporaneous medical record. Critically, however, the
statements by Dr. Ehresmann relied upon by petitioner do not stem from any of
petitioner’s actual treatment records.
In contrast to the statements contained in his letters, Dr. Ehresmann’s
contemporaneous medical records are clear and consistent in providing no indication
that Dr. Ehresmann separately treated petitioner for reactive polyarthritis. It is true both
that the absence of any notation is potentially less significant than a contradictory
notation and that there is no presumption that petitioner’s individual medical records
would be complete as to all of her complaints; however, petitioner’s contemporaneous
medical records demonstrate a total absence of relevant record notations over an
extended period despite her pattern of encounters with Dr. Ehresmann. Although Dr.
Ehresmann and petitioner reportedly discussed her alleged reactive polyarthritis in the
context of her infusion treatment for her Bechet’s disease, Dr. Ehresmann never
recorded these conversations in medical records for these encounters. Nor did he
create separate encounter records relating to petitioner’s alleged reactive polyarthritis.
He never recorded reactive polyarthritis as a diagnosis in petitioner’s medical records
and never identified any treatment plan for that specific condition in any of his medical
records. This is not merely a matter of Dr. Ehresmann having failed to record all of the
details of his interaction with petitioner. Dr. Ehresmann’s treatment records do not
reflect any pattern of care, concern, or treatment, regarding the alleged diagnosis nor
any follow up specifically directed at monitoring the course of that condition.
The suggestion that petitioner used her recurring IVIG infusion appointments as
an opportunity to voice complaints to Dr. Ehresmann is understandable. The idea that
Dr. Ehresmann would receive these complaints as diagnostic of a significant new
condition without acting accordingly is far less understandable. Instead, Dr.
Ehresmann’s conduct as reflected by his treatment records is entirely in keeping with an
understanding that petitioner’s ongoing course of symptoms remained consistent with
the chronic conditions which he was already treating rather than any new onset of a
separate reactive polyarthritis. Petitioner’s contemporaneous medical records
consistently list several medical conditions that petitioner dealt with for years before and
after her vaccination including, inter alia, Bechet’s, goiter, hip trauma, ganglion cysts,
17
osteoarthritis, anemia, hypothyroidism, and joint pain. (Compare Ex. 9, pp. 31106-08,
30691, 29311, 32729, 35219, 35781-82 (post-vaccination) and Ex. 9, pp. 13789-92,
15113-15, 21747, 21749-52, 21752-55, 24111, 24546-47, 24555-56 (pre-vaccination).)
These conditions are consistently listed in assessments, medical histories, lists of active
medical problems, symptoms, and exam findings. (Id.) Ultimately, based on the
entirety of the record, it appears that Dr. Ehresmann never formally diagnosed petitioner
with reactive polyarthritis, and instead, only mentioned it once in a letter drafted to assist
petitioner in obtaining a motorized wheelchair, and once in a letter written to advance
this claim. (See Ex. 9, pp. 27199-201; Ex. 8.)
Petitioner argues that the Gallant Medical Supply letter should qualify as a
contemporaneous record because it was drafted on the same day that petitioner
received an IVIG infusion, and thus it is based on observations that Dr. Ehresmann
made during petitioner’s infusion. (ECF No. 41, pp. 4, 6-7.) However, while I accept
that Dr. Ehresmann’s letter does reference a face-to-face interaction that aligns with
petitioner’s presentation for IVIG treatment, the letter was not drafted for purposes of
diagnosis or treatment. Nor is there is any confirmation in that letter that Dr. Ehresmann
conducted an actual physical examination of petitioner on the date that he drafted this
letter, either separately or during her IVIG infusion. The only medical record that exists
for this date is a list of orders that Dr. Ehresmann made for petitioner’s monthly
treatments. (Ex. 9, pp. 27010-27013.) Dr. Ehresmann’s February 3, 2016 letter is itself
entirely silent as to the nature or extent of his evaluation. Nor is there is any reference
to any specific finding or observation that would allow Dr. Ehresmann to conclude that
the complaint of increased upper extremity pain – the only symptom discussed by Dr.
Ehresmann at that time – constituted reactive polyarthritis or was in itself sufficient to
diagnose reactive polyarthritis. In contrast, petitioner’s affidavit suggests that one of her
treating physicians (unnamed) felt her increased pain was instead likely due to reducing
her narcotic medication. (Ex. 1, p. 2.)
Dr. Ehresmann’s references to reactive polyarthritis appear exclusively in the
context of advocating for additional resources for his patient from third parties (to secure
a motorized wheelchair in the first instance and to support this claim for compensation
in the second instance). Dr. Ehresmann has, in fact, written letters on petitioner’s behalf
on multiple other unrelated occasions as well. Dr. Ehresmann drafted 10 other letters
for a variety of reasons including to help petitioner secure special considerations from
her credit union (Id. at 11694-95, 27610-11), to postpone court appearances on six
different occasions (Id. at 29748, 32762-63, 33356, 34392-94, 38749-51, 38752), to
help petitioner obtain quantities of morphine that Dr. Ehresmann described as
significant (Id. at 29348-49), and to opine on the cause of petitioner’s severe
gastroenteritis, which appears to be related to an evaluation of a claim made by
petitioner against an insurance policy relative to an alleged food-borne illness (Id. at
10525-27). In addition to being inconsistent with the medical records, the two letters
that petitioner relies on to support this claim are also inconsistent with these other
letters that Dr. Ehresmann drafted while treating petitioner. The other letters generally
describe petitioner’s medical history in a manner more closely resembling what appears
in her contemporaneous medical records and none of them include any reference to
18
reactive polyarthritis, though one 2018 letter references severe and progressive post-
vaccination symptoms without identifying any diagnosis. (Ex. 9, pp. 38753-55.)
This is not necessarily to suggest Dr. Ehresmann has acted improperly; however,
the inconsistency among the letters highlights the fact that the advocacy context
evidenced by these letters involves a different set of motivations in general and does
not warrant the same presumption of accuracy as when proper treatment hangs in the
balance. Curcuras, 993 F.2d at 1528 (noting with respect to medical records that “[w]ith
proper treatment hanging in the balance, accuracy has an extra premium.”). For
example, in the letter that Dr. Ehresmann drafted for petitioner for purposes of asserting
an insurance claim relative to a food-borne illness, he opined as to the cause of what he
described as severe gastroenteritis while acknowledging in the same letter that he did
not examine or treat petitioner for the gastroenteritis, nor did any other physician. (Ex.
9, pp. 10525-26 (noting that petitioner “was actually not even able to get in for outpatient
evaluation and treatments to confirm the nature of her gastrointestinal condition”).) An
important and related point is that the record evidence further suggests that these
letters generally were not written by Dr. Ehresmann independently. (See Ex. 9, pp.
22930 (petitioner calling “to inquire about the letter that you are going to speak to her
about.”), 24125-26 (petitioner “eagerly asking” about letter and noting repeated requests
for it), 38726 (requesting a letter and asking that it state specific factual
representations), 23714 (“asking if the letter is ready to be read to her”).)
Additionally, only Dr. Ehresmann’s February 2016 letter, which is far less detailed
regarding the basis for Dr. Ehresmann’s opinion, and not his July 2020 letter, is
contemporaneous to the period of alleged onset. 7 Moreover, the characterization of
petitioner’s condition and numerous specific observations in Dr. Ehresmann’s July 2020
letter also differ significantly from his own prior assessments as contained in his
treatment records and prior letters without any explanation for the resulting change of
view. For example:
• In his 2020 letter, Dr. Ehresmann states that petitioner had only “very
modest” pre-existing degenerative changes in her joints with “minimal”
changes seen radiographically. (Ex. 8, p. 2-4.) However, in his February
2016 letter to Gallant Medical Supply he characterized petitioner’s pre-
existing osteoarthritis as “significant.” (Ex. 9, p. 27199.) Additionally, his
7 The Court of Federal Claims has held that:
To be contemporaneous, the declaration need not be at the exact same time, but must be
so proximate in point of time as to grow out of, elucidate, and explain the character and
quality of the main fact, and must be so closely connected with it as to virtually constitute
but one entire transaction, and to receive support and credit from the principal act sought
to be thus elucidated and explained.
Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 523, 539 n.10 (2011) (quoting Bessierre v.
Alabama City, G & A Ry. Co., 179 Ala. 317, 60 So. 82 (Ala.1912)). In this case, as discussed further
below, petitioner’s affidavit describes symptoms manifesting and spreading between mid-November 2015
and May of 2016. (Ex. 1.)
19
earlier medical records specifically note that petitioner’s joint pain was
severe enough to be contributing to a limitation in her ability to ambulate
as early as 2008. (Ex. 9, p. 1669.) Dr. Ehresmann’s February 2016 letter
to Gallant Medical Supply also urged that petitioner had longstanding
limitations in functional activity related, inter alia, to diffuse joint pain,
osteoarthritis, and a traumatic fall two years prior. (Id. at 27199-200.)
• Dr. Ehresmann has also been inconsistent in discussing whether
petitioner’s arthritis has an inflammatory component. In his 2020 letter,
Dr. Ehresmann indicates that petitioner “has been enduring many difficult
issues related to her Bechet’s illness, for years before the vaccination, but
did not have the symptoms of joint pain of an inflammatory nature . . .”
(Ex. 8, p. 4.) However, in October of 2008, years before the vaccination at
issue, Dr. Ehresmann prescribed Plaquenil to petitioner “in an effort to
control her joint symptoms which are likely to a degree inflammatory.” (Ex.
9, p. 1669.) Conversely, Dr. Ehresmann’s July 2020 letter cites an MRI of
February 2017 as evidence supporting his conclusion that petitioner’s
post-vaccination arthritis is inflammatory rather than degenerative (Ex. 8,
p. 3); however, he recorded in January of 2018, following his own physical
examination, that petitioner had no inflammatory arthritis in her extremities
(Ex. 9, pp. 35780-81).
• In 2020, Dr. Ehresmann cites petitioner’s ankles as being “particularly
symptomatic” and an example of her persistent joint pain in multiple joints
representative of her reactive polyarthritis. (Ex. 8, p. 3.) However, at his
prior July 6, 2016 follow up encounter he diagnosed petitioner only with a
localized ankle condition (“other specified disorders of the ankle and foot
joint” along with “ganglion of the tendon sheath”) (Ex. 9, p. 30691).
Although his 2020 letter describes the results of petitioner’s February 2017
MRI (compare Ex. 8, p. 3 and Ex. 9, p. 30635), by the time of this July
2016 encounter, petitioner’s alleged reactive polyarthritis would have been
fully manifested based on the onset of symptoms described in her affidavit
(Ex. 1).
• Dr. Ehresmann also writes that petitioner’s joint pain was “far out of
proportion to any radiographic changes associated with what has been
described as mild osteoarthritis.” (Ex. 8, p. 2.) Yet petitioner’s medical
records rarely document any reports of worsening pain following her
vaccination. Instead, her records show that she consistently reported
chronic and migrating pain associated with her history of gout,
osteoarthritis, right foot ganglion cyst, and, on one occasion, chest pain.
(See e.g. Ex. 9, pp. 26699, 27188-89, 29065, 29311-29313, 31106-08,
30691.) In fact, petitioner’s earliest reported worsening of pain contained
in her medical records was on July 17, 2017 where she reported
worsening knee and ankle pain. (Id. at 32729, 32025.) Contrary to what
is stated in his 2020 letter, in July of 2017 Dr. Ehresmann did correlate
20
petitioner’s report of increased pain to her osteoarthritis, recording upon
Review of Systems “[i]ncreasing pain left knee and both ankles where she
has radiographic OA changes.” (Id. at 32729; see also 32723 (Dr. Chen
noting Dr. Ehresmann had recently seen petitioner for “worsening pain
due to OA.”)
Accordingly, for all the reasons discussed above, Dr. Ehresmann’s letters lack
the same indicia of credibility and reliability typical of contemporaneous medical
records. Upon my review of the complete record, where Dr. Ehresmann’s letter conflicts
with petitioner’s contemporaneous medical treatment records, petitioner’s medical
records should be given greater weight. 8
b. Symptom onset
Petitioner avers that about a week and a half after having her stiches removed,
she began to suffer headaches and left arm pain. (Ex. 1, p. 2.) Petitioner had her
stiches removed on November 3, 2015, which places onset of these symptoms in mid-
November, between about 20-30 days after her October 22, 2015 Tdap vaccination.
Petitioner also avers that at this point she told her doctor she was suffering “much
higher level of pain from my toes to my brain.” (Ex. 1, p. 2.) Petitioner also indicates,
without specifying onset, that she suffered muscle spasms, a stiff neck, and right
shoulder pain followed by left shoulder pain, and nerve pain all over her body. (Id.)
Petitioner avers that she began experiencing “bone crunching” in her elbows in
February of 2016 that spread to her whole body in May of 2016. (Id.)
In her affidavit, petitioner also indicates that when she first reported her
symptoms to her doctor (unnamed), the doctor indicated that it may be due to her
weaning off of narcotics. (Ex. 1, p. 2.) In her affidavit, petitioner explained that prior to
vaccination she had one type of pain medication she used generally and a second that
she used for breakthrough pain. (Id.) However, she represented that prior to
vaccination she was “nearly completely off” of her pain medication and it was not until
8
Petitioner stresses that “the Court and the parties discussed the need for Dr. Ehresmann to assist the
Court on certain issues, and Dr. Ehresmann took the time to draft a thorough letter in response to these
queries. It is misplaced for Respondent to now turn around and criticize Dr. Ehresmann for his
willingness to participate in this litigation at the parties’ request.” (ECF No. 41, p. 2.) There is no doubt
that Dr. Ehresmann’s participation in this case was voluntary and involved some burden. I also assume
that Dr. Ehresmann’s advocacy for his patient is well meaning. However, in this program treating
physician opinions are not viewed as sacrosanct. 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”). Rather, when considering
medical opinion evidence special masters are required to determine whether it has a reliable basis.
Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1326 (Fed. Cir. 2010)(“Finders of fact are
entitled—indeed, expected—to make determinations as to the reliability of the evidence presented to
them and, if appropriate, as to the credibility of the persons presenting that evidence.”) Nonetheless, I
stress that the instant analysis is limited to determining as a legal matter how Dr. Ehresmann’s letters
should be weighed as compared to the contemporaneous medical records within the context of this claim.
Nothing in this decision is intended to critique the standard of care petitioner actually received from Dr.
Ehresmann relative to the conditions reflected in the medical records.
21
after she started experiencing post-vaccination muscle spasms that she resumed
narcotic medication. (Id.) However, her medical records reflect that as of November
10, 2015, a date falling after her vaccination but prior to the above-described mid-
November symptom onset, she was seeking to have her methadone 9 prescription
refilled at a 60mg dose, which was noted to be higher than the 50mg dose she had
been taking during the summer. (Ex. 9, p. 24539.) Her medical records also reflect as
of June of 2014 that she had begun taking methadone in an effort to taper off of short-
acting opiates. At that time her methadone dose was 40-50mg and she had an
additional prescription for 20mg of oxycodone for breakthrough pain. (Ex. 9, pp. 24111-
12.) Dr. Ehresmann later referenced petitioner as “trying to gradually taper” her opioid
treatment in his April 12, 2016 cardiology referral without specifying the timeframe. (Id.
at 27198.) However, he characterized her as still being on “substantial amounts of
opioids on a regular basis.” (Id.) Accordingly, petitioner’s affidavit does not appear to
be entirely consistent in her recollection of the circumstances surrounding the initial
onset of her symptoms as the medical records do not support her suggestion she was
“nearly completely off” of her pain medication around the time of her vaccination.
The most contemporaneous document discussing these alleged symptoms is the
February 3, 2016 letter by Dr. Ehresmann to Gallant Medical Supply advocating for a
power wheelchair for petitioner. (Ex. 9, pp. 27199-201.) In that letter, Dr. Ehresmann
confirms that he had a face-to-face evaluation with petitioner as of that date and
describes petitioner as suffering a serious medical illness of Bechet’s syndrome, which
includes systemic illness and diffuse joint pain. (Id. at 27199.) He also notes petitioner
to have significant osteoarthritis of the lower extremities, but notes that “[a]dditionally,
she has upper extremity symptoms with epicondylitis and joint pain, much of which
exacerbated following a tetanus immunization a few months ago which resulted in
reactive polyarthritis.” (Id. at 27199-200.) This is the full extent of Dr. Ehresmann’s
contemporaneous reference to any symptoms related to reactive polyarthritis. 10
Dr. Ehresmann’s much later letter of July 14, 2020, further indicates that
petitioner suffered pain in the shoulders, joint pain generally, enthesitis, and neuropathic
symptoms, but was no more specific regarding onset than to state that these symptoms
9Methadone is a synthetic opioid used in the treatment of heroine addiction, but is also used as a narcotic
pain medication similar to morphine. Dorland’s Illustrated Medical Dictionary, 33rd Ed. (2020), p. 1130.
10 However, Dr. Ehresmann drafted a cardiology referral on April 12, 2016, that discussed petitioner’s
overall condition as “a long history of Bechet’s syndrome, with may cutaneous lesions superimposed on
other problems which include prior obesity and gastric bypass with associated problems.” (Ex. 9, pp.
27197-98.) He noted that “[c]hronic pain is a significant issue, with the patient requiring substantial
amounts of opioid on a regular basis,” but offered no discussion of any recent exacerbation or of the
specific symptoms discussed above. (Id. at 27198.) On May 3, 2016, he wrote a letter on petitioner’s
behalf indicating that she suffered “other complicating intervening illness in the last 2 years,” but only
specifically mentioned a traumatic fall occurring two years prior and no discussion of the above-discussed
symptoms. (Id. at 27610-11.) On June 29, 2016, Dr. Ehresmann ordered then cancelled an EMG study
due to pain in the upper extremities attributed to necrotizing vasculitis. (Id. at 47.) On July 6, 2016, Dr.
Ehresmann saw petitioner for right ankle pain due to a ganglion cyst. (Id. at 30690.)
22
presented post-vaccination. 11 (Ex. 8.) Moreover, apart from shoulder pain, these
symptoms are not referenced in Dr. Ehresmann’s February 3, 2016 letter. (Ex. 9, pp.
27199-201.) This weighs against any conclusion that these other symptoms presented
at the same time as the upper extremity joint pain referenced in the February 3, 2016
letter. The earliest objective finding he cites with respect to any of these symptoms is a
hip x-ray of March 2016. That study is cited as failing to provide satisfactory
radiographic evidence to explain petitioner’s “exquisite” hip pain. (Ex. 8, p. 2.)
However, the contemporaneous February 3, 2016 letter, written just one month prior to
the March 2016 hip x-ray, attributes petitioner’s increasing hip pain to a traumatic fall
she experienced two years prior, suggesting that the onset of increasing hip pain was
not associated with the post-vaccination period. (Ex. 9, p. 27200.)
In her motion, petitioner discusses several additional records from the months
following vaccination that she suggests corroborate her account. Specifically, she notes
that she presented for x-rays of her knees and pelvis on March 7, 2016, at which point
she was noted to have leg pain with walking and joint stiffness, tingling, and muscle
aches and pains. (ECF No. 37, p. 6 (citing Ex. 9, pp. 26262, 26699).) Petitioner also
had an April 12, 2016, cardiology appointment that discussed her chronic pain as a
significant issue. (Id. (citing Ex. 9, p. 27198).) Petitioner had an MRI of her back on
April 13, 2016, and a further appointment at which her chief complaint was chronic pain
syndrome. (Id. (citing Ex. 9, pp. 31479, 31106).) However, all of these records relate to
complaints that can be attributed to petitioner’s preexisting conditions and generally
reference her chronic condition without reference to any recent exacerbation. In fact,
petitioner’s records document multiple visits to several different doctors during the
course of her treatment in the months and years following her vaccination. Based on
these records, it appears that petitioner did not specifically report increasing pain until
July 17, 2017, nearly two years after her vaccination. (Ex. 9, p. 32729.) Around this
same time, petitioner began reporting that she had experienced a reaction to her Tdap
vaccine. (Id. at 32687, 35219.) However, she did not report the specific symptoms
described in her affidavit as occurring during the weeks following her vaccination. (See
Ex. 9, pp. 26262, 31106-08, 30690-92, 29311-14, 29065.)
Petitioner relies primarily on her own affidavit to support her specific account of
onset and cites the Federal Circuit’s decision in James-Cornelius v. Sec’y of Health &
Human Servs., 984 F.3d 1374 (Fed. Cir. 2021) to suggest that her affidavit should
receive deference over other forms of evidence, including her contemporaneous
11 The fact that Dr. Ehresmann identifies these complaints as symptoms of reactive polyarthritis is not
helpful in resolving the timing of onset. As a rheumatologist, Dr. Ehresmann likely has some
understanding of the time-course necessary for these subsequent symptoms to be attributed to the
reactive polyarthritis; however, this is not discussed in his letter and, for all the reasons discussed in the
preceding section, this letter does not have the credibility and reliability necessary to presume Dr.
Ehresmann’s association of these symptoms to reactive polyarthritis is accurate. In any event, relying on
Dr. Ehresmann’s medical training and/or role as a treating physician to infer facts not stated in his letter
would be speculative. Notably, a prior 2018 letter to the California Department of Health Care Services
similarly indicates without specificity that petitioner “developed a severe set of symptoms following
immunization for tetanus about 2 years ago and has had progressive joint pain and other complicating
symptoms since that time,” but refrains from attributing petitioner’s post-vaccination course to reactive
arthritis. (Ex. 9, p. 38754.)
23
medical records. However, this is not the holding of James-Cornelius. In James-
Cornelius, the Federal Circuit held, in the context of assessing whether a petition had a
reasonable basis as a condition to an award of attorneys’ fees and costs, that a
petitioner’s statement “may be the best, or only, direct evidence” of timing and severity
of their symptoms. Id. at 1380. This does not mean that a petitioner’s account will
necessarily warrant extensive weight or deserve deference simply by being a statement
of the petitioner regarding onset. In fact, the Federal Circuit specifically noted that
contemporaneous medical records “may indeed serve as important corroborating
evidence for evaluating testimony’s credibility . . . .” Id. Ultimately, James-Cornelius
simply requires a special master to consider petitioner affidavits when evaluating
whether a reasonable basis exists for a petitioner’s claim. James-Cornelius did not
disturb the longstanding understanding in this program regarding the balancing of
contemporaneous medical records against later submitted testimonial evidence as
discussed in the preceding section. 12
Here, Dr. Ehresmann’s February 3, 2016 letter to Gallant Medical Supply
constitutes contemporaneous documentation (albeit not in medical record form)
corroborating petitioner’s complaint of an exacerbation of symptoms subsequent to her
Tdap vaccination. Importantly, however, that letter only evidences that petitioner
suffered a subjective complaint of increased upper extremity pain beginning sometime
prior to February 3, 2016. Dr. Ehresmann’s subsequent July 14, 2020 letter, though it
indicates the fact of additional symptoms purportedly related to reactive polyarthritis, is
inadequate to corroborate the alleged onset of such symptoms. Otherwise, petitioner’s
contemporaneous medical records do not accord with her account and petitioner
provides no explanation for this discordance. Those citations to the medical records
that petitioner does provide from the months following her vaccination do not distinguish
her complaints from her prior chronic condition, a point that is underscored by Dr.
Ehresmann’s February 3, 2016, which attributes ongoing systemic illness and diffuse
joint pain to petitioner’s preexisting Bechet’s disease and osteoarthritis. Accordingly,
the evidence preponderates only in favor of a finding that petitioner suffered a
subjective increase in upper extremity joint pain following her Tdap vaccination no
earlier than mid-November 2015 and no later than February 3, 2016. The record is
inadequate to place onset of any other alleged symptom within that period.
c. Diagnosis
The Federal Circuit has held that contemporaneous records deserve greater
weight than other forms of evidence so long as they are clear, consistent, and complete.
Curcuras, 993 F.2d at 1528; see also Lowrie, 2005 WL 6117475 at *20. In this case,
petitioner’s medical records are very clear and very consistent in not ever recording
reactive polyarthritis as a diagnosis explaining petitioner’s medical history. Accordingly,
petitioner’s medical records weigh against acceptance of the diagnosis of reactive
polyarthritis. Moreover, as explained above, Dr. Ehresmann’s letters to the contrary do
not outweigh the medical records because they were not written in the context of
12 I.e. Cucuras, Lowrie, Kirby, Murphy, Milik, Camery, Burns, LaLonde, supra.
24
diagnosis and treatment and numerous specific assertions in Dr. Ehresmann’s letters
are inconsistent with his own prior assessments. Doe 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 records was rational and consistent with applicable law.”).
Nonetheless, petitioner is permitted under the terms of the Vaccine Act to demonstrate
her claim by either medical record or medical opinion. § 13(a). Thus, the fact that Dr.
Ehresmann’s ultimate diagnosis of reactive polyarthritis is not in itself supported by
contemporaneous medical record entries is not necessarily dispositive of whether
petitioner could be diagnosed with reactive polyarthritis.
However, Dr. Ehresmann’s ultimate diagnostic opinion as contained in his July
2020 letter is also inherently premised on an understanding of the condition at issue –
reactive polyarthritis – that remains unstated. In fact, Dr. Ehresmann focuses primarily
on ruling out other possible explanations for petitioner’s symptoms and does not discuss
what considerations are involved in diagnosing reactive arthritis. Additionally, Dr.
Ehresmann leans heavily on the idea that what petitioner has experienced is a five-year
course of persistent, otherwise unexplained, symptoms and that “[t]he evolution of these
symptoms subsequent to her vaccination are certainly consistent with post-vaccination
responses.” (Ex. 8, p. 3.) However, it has previously been observed that reactive
arthritis is more likely to be a transient condition as compared to other forms of arthritis.
Hock v. Sec’y of Health & Human Servs., No. 17-168V, 2020 WL 6392770 (Fed. Cl.
Spec. Mstr. Sept. 30, 2020). Thus, even if Dr. Ehresmann accurately identified
petitioner’s initial complaint of post-vaccination upper extremity pain as reactive arthritis,
it also remains unclear whether it explains her later symptoms as Dr. Ehresmann further
suggests. Dr. Ehresmann also asserts that a significant part of petitioner’s post-
vaccination presentation is the onset of neuropathic symptoms. However, despite
highlighting neuropathic symptoms as an important part of petitioner’s overall
presentation, he has not identified them as contributing to any unifying diagnosis. Nor
has he alternatively discussed why reactive polyarthritis would remain the best
diagnosis if it does not encompass a substantial part of what he considers her relevant
post-vaccination presentation.
Special masters are not charged with “diagnosing” petitioners. Knudsen v. Sec’y
of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994). Moreover, special
masters “must determine that the record is comprehensive and fully developed before
ruling on the record.” Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362,
1366 (Fed. Cir. 2020); see also Vaccine Rule 8(d); Vaccine Rule 3(b)(2). Accordingly,
given that I have found that there was some change in petitioner’s presentation post-
vaccination, petitioner shall have an opportunity to supplement the record with an expert
opinion addressing whether petitioner’s history is consistent with a diagnosis of reactive
polyarthritis as stated by Dr. Ehresmann. Petitioner’s expert opinion shall rely on the
facts as found in section V(b) above. Additionally, in light of the analysis contained in
section V(a), petitioner’s expert should be careful to distinguish between facts derived
from petitioner’s medical records and facts derived from Dr. Ehresmann’s letters. “When
an expert assumes facts that are not supported by a preponderance of the evidence, a
25
finder of fact may properly reject the expert’s opinion.” Dobrydnev v. Sec’y of Health &
Human Servs., 566 Fed. Appx. 976, 982-83 (Fed. Cir. 2014) (citing Brooke Group Ltd.
v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993)).
VI. Conclusion
For the above reasons I find on the current record that there is preponderant
evidence that petitioner suffered a subjective increase in pre-existing upper extremity
joint pain no earlier than mid-November 2015 and no later than February 3, 2016.
There is not preponderant evidence that any other alleged symptom of reactive
polyarthritis began within that period. Additional expert evidence will be necessary to
determine whether this finding of fact supports the diagnosis of reactive polyarthritis
stated by Dr. Ehresmann.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
26