United States Court of Appeals
for the Federal Circuit
__________________________
PETER BROEKELSCHEN, M.D.,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________
2009-5132
__________________________
Appeal from the United States Court of Federal
Claims in case no. 07-VV-137, Judge George W. Miller.
____________________
Decided: September 10, 2010
____________________
LISA A. ROQUEMORE, Broker & Associates, PC, of Ir-
vine, California, argued for petitioner-appellant.
VORIS E. JOHNSON, JR., Trial Attorney, Torts Branch,
Civil Division, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, TIMOTHY P. GARREN, Director, MARK W. ROGERS,
Deputy Director, and CATHARINE E. REEVES, Assistant
Director.
__________________________
BROEKELSCHEN v. HHS 2
Before GAJARSA, MAYER, and PLAGER, Circuit Judges.
Opinion for the court filed by Circuit Judge GAJARSA.
Dissenting Opinion filed by Circuit Judge MAYER.
GAJARSA, Circuit Judge.
Peter Broekelschen, M.D., appeals the decision of the
United States Court of Federal Claims affirming a special
master’s decision denying Dr. Broekelschen’s petition for
compensation under the National Childhood Vaccine
Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to
-34 (2006). The special master concluded that Dr. Broek-
elschen did not prove by a preponderance of the evidence
that the flu vaccine caused his injury. See Broekelschen v.
Sec’y of Health & Human Servs., 89 Fed. Cl. 336 (2009).
Because the Court of Federal Claims correctly concluded
that the special master’s decision was not arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law, we affirm.
BACKGROUND
I.
A petitioner seeking compensation under the Vaccine
Act must prove by a preponderance of the evidence that
the injury or death at issue was caused by a vaccine. 42
U.S.C. §§ 300aa-11(c)(1), -13(a)(1). A petitioner can show
causation under the Vaccine Act in one of two ways.
Either the petitioner can prove causation by showing that
she sustained an injury in association with a vaccine
listed in the Vaccine Injury Table (“Table injury”). Id.
§ 300aa-11(c)(1)(C)(i). In such a case, causation is pre-
sumed. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1374 (Fed. Cir. 2009). Or, if the complained-of
injury is not listed in the Vaccine Injury Table (“off-Table
injury”), the petitioner may seek compensation by proving
3 BROEKELSCHEN v. HHS
causation in fact. Moberly v. Sec’y of Health & Human
Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); see also 42
U.S.C. § 300aa-11(c)(1)(C)(ii). Once the petitioner has
demonstrated causation, she is entitled to compensation
unless the government can show by a preponderance of
the evidence that the injury is due to factors unrelated to
the vaccine. Doe v. Sec’y of Health & Human Servs., 601
F.3d 1349, 1351 (Fed. Cir. 2010); see also 42 U.S.C.
§ 300aa-13(a)(1)(B).
II.
On October 28, 2005, Dr. Broekelschen received a flu
vaccine. At the time he received the flu vaccine, Dr.
Broekelschen was sixty-three years old and was in excel-
lent health. He had an active medical practice in gastro-
enterology working about sixty hours a week. In addition,
Dr. Broekelschen enjoyed an active lifestyle spending
most weekends jogging, bicycling, swimming, kayaking, or
skiing.
On December 16, 2005, while at work, Dr. Broekel-
schen developed crushing pain in his chest that spread to
his arms, fingers, neck, and around his left scapula. Dr.
Broekelschen was transported by ambulance to Hoag
Memorial Hospital Presbyterian and admitted that same
day. Doctors first performed multiple electrocardiograms
(“EKGs”) to test Dr. Broekelschen’s heart activity, which
appeared normal, thus ruling out a heart attack. Doctors
then performed Magnetic Resonance Imaging (“MRI”)
revealing degenerative changes in the cervical spine.
Additional MRIs revealed two lesions, one in the cervical
spine (C2-C3 level) and one in the thoracic spine (T2
level). Doctors also performed an angiogram revealing an
occlusion of the anterior spinal artery at the C2-C3 level.
While Dr. Broekelschen was hospitalized, he required an
emergency bladder catheterization due to paralysis in his
BROEKELSCHEN v. HHS 4
bladder and bowels. Doctors took a cerebrospinal fluid
sample that revealed normal levels of Immunoglobulin G
(“IgG”), one white blood cell, and an elevated protein
count. According to Dr. Jacob P. Verghese, the doctor who
discharged Dr. Broekelschen, Dr. Broekelschen’s proprio-
ception was unaffected. Proprioception is the ability to
sense the position, location, orientation, and movement of
one’s body and its parts. But Dr. Broekelschen testified
that a neurologist visited him while he was hospitalized
and concluded that Dr. Broekelschen’s proprioception was
abnormal.
While Dr. Broekelschen was hospitalized, the differ-
ential diagnoses included anterior spinal artery syndrome
or transverse myelitis, possibly due to the flu vaccine.
Anterior spinal artery syndrome is a vascular event
caused by an occlusion or blockage in the anterior spinal
artery, reducing blood flow, that disrupts neurological
activity only on the anterior side of the spinal column.
Transverse myelitis is a neurological disorder caused by
an abnormal immune response resulting in inflammation
across both sides of one level of the spinal cord that inter-
rupts communications between the nerves in the spinal
cord and the rest of the body. Ultimately, Dr. Verghese
concluded in a discharge summary that Dr. Broekelschen
suffered from cervical myelopathy, etiology unknown.
Cervical myelopathy is a general term referring to dys-
function of the spinal cord caused by one of many diseases
including anterior spinal artery syndrome and transverse
myelitis.
More than three months after Dr. Broekelschen was
hospitalized, he was examined by various doctors in an
effort to determine the proper diagnosis. Dr. Stanley
vanden Noort, a neurologist, and Dr. John C. Storch, Dr.
Broekelschen’s primary care physician, both examined Dr.
Broekelschen and concluded that he suffered from trans-
5 BROEKELSCHEN v. HHS
verse myelitis secondary to the flu vaccine. However, Dr.
Storch wrote “there is no test available to prove this” and
his conclusion was made “in the absence of another work-
ing diagnosis.” J.A. 119. Dr. vanden Noort observed that
Dr. Broekelschen’s proprioception was affected in his left
foot and simply stated that “[o]ur neuroradiologists con-
cur with the report of transverse myelitis.” J.A. 117. Dr.
vanden Noort, however, concluded that “[i]t is not neces-
sary to pursue alternative diagnoses because [Dr. Broek-
elschen] is improving slowly.” Id.
Despite Dr. vanden Noort and Dr. Storch’s conclu-
sions, Dr. Broekelschen presented symptoms that are
characteristic of both anterior spinal artery syndrome, a
vascular condition, and transverse myelitis, an inflamma-
tory response. Both injuries can cause severe neck or
lower back pain and paralysis of the bladder, bowels, and
extremities. One distinguishing symptom, however, is
that proprioception is affected in transverse myelitis, but
not in anterior spinal artery syndrome. In addition, if a
patient suffers from transverse myelitis, doctors would
typically observe elevated levels of white blood cells and
IgG in the cerebrospinal fluid because transverse myelitis
is often caused by an immune response. On the other
hand, if a patient suffered from anterior spinal artery
syndrome, an angiogram, which is a visualization of blood
flow, would evidence an occlusion in the anterior spinal
artery.
III.
Dr. Broekelschen filed a petition in the Court of Fed-
eral Claims seeking compensation under the Vaccine Act
alleging that the flu vaccine caused him to suffer trans-
verse myelitis. See Broekelschen v. Sec’y of Health &
Human Servs., No. 07-137V, 2009 U.S. Claims LEXIS 137
(Fed. Cl. Feb. 4, 2009) (special master’s published decision
BROEKELSCHEN v. HHS 6
denying entitlement). The case was assigned to a special
master from the Court of Federal Claims. Because trans-
verse myelitis is an off-Table injury, Dr. Broekelschen
was required to prove causation in fact. See 42 U.S.C.
§ 300aa-11(c)(1)(C)(ii).
Both parties retained well-qualified experts, who
submitted reports and testified at a hearing held by the
special master regarding whether the flu vaccine caused
Dr. Broekelschen’s injury. Dr. Lawrence Steinman, Dr.
Broekelschen’s expert, is a Board Certified Neurologist, a
Professor of Neurology and Pediatrics, and chair of the
Program in Immunology at Stanford University. He has
over thirty years of medical experience in neurology and
has dealt with transverse myelitis as a result of vaccina-
tions several times a year as either a treating physician or
in departmental conferences. Dr. Steinman has served on
expert and advisory panels relating to vaccination mat-
ters as well as received various awards for research on the
nervous system. He has also authored over 300 articles
relating to how the immune system attacks the nervous
system with about twenty articles directly dealing with
vaccines. Dr. Steinman opined that the flu vaccine caused
Dr. Broekelschen to suffer transverse myelitis.
Dr. Benjamin Greenberg, the government’s expert,
disagreed and opined that Dr. Broekelschen suffered from
anterior spinal artery syndrome, which was not caused by
the flu vaccine. At the time of the hearing, Dr. Greenberg
was an assistant professor in the Department of Neurol-
ogy at Johns Hopkins School of Medicine. Dr. Greenberg
was also the co-director of the Johns Hopkins Transverse
Myelitis Center, the only center in the world dedicated to
transverse myelitis. As of July 2007, the Johns Hopkins
Transverse Myelitis Center had seen over 1200 patients
with spinal cord disease. Also, the Transverse Myelitis
Center has done extensive research on the diagnosis,
7 BROEKELSCHEN v. HHS
treatment, and long-term care of patients with transverse
myelitis. As a result of his position, Dr. Greenberg
worked with patients suffering from transverse myelitis
on a daily basis.
On February 4, 2009, the special master published a
detailed explanation for his decision denying Dr. Broekel-
schen entitlement under the Vaccine Act. Broekelschen,
2009 U.S. Claims LEXIS 137, at *1. Because there was a
dispute between the parties regarding Dr. Broekelschen’s
alleged injury, the special master considered as a primary
matter which injury, transverse myelitis or anterior
spinal artery syndrome, was best supported by the record.
Id. at *11. The special master conducted a thorough
analysis of all the tests performed on Dr. Broekelschen,
opinions of treating physicians, records after discharge,
and the conflicting opinions of the testifying experts. See
id. at *18–57. The special master found that “[f]or virtu-
ally every point in favor of one diagnosis, there is a point
in favor of the other diagnosis.” Id. at *45. Thus, the
special master considered each piece of evidence and
explained why it supported a finding of transverse mye-
litis or anterior spinal artery syndrome.
The special master also considered the relative weight
of the testifying experts. The special master found Dr.
Greenberg, the government’s expert, to be more persua-
sive. Id. at *49–50. He based his decision in large part on
Dr. Greenberg’s specialization while working at the Johns
Hopkins Transverse Myelitis Center, the only center in
the world devoted to transverse myelitis. Id. In addition,
Dr. Greenberg’s report and testimony incorporated all of
the evidence, whereas Dr. Steinman disregarded an
important piece of evidence, the angiogram, which showed
an occlusion in the anterior spinal artery. Id. at *56. The
special master also indicated that Dr. Greenberg’s “de-
meanor suggested that he was attempting to provide the
BROEKELSCHEN v. HHS 8
basis for his opinion as forthrightly as possible.” Id. at
*36. The special master concluded that “the weight of the
entire record—including (but not limited to) the an-
giogram, the MRIs, the finding regarding proprioception,
the statements of treating doctors, and the testimony of
Dr. Broekelschen, Dr. Steinman and Dr. Greenberg—
indicates that Dr. Broekelschen suffered anterior spinal
artery syndrome.” Id. at *56.
After the special master found that anterior spinal ar-
tery syndrome was the injury best supported by the
evidence, the special master considered whether Dr.
Broekelschen had shown by a preponderance of the evi-
dence that the flu vaccine had actually caused his anterior
spinal artery syndrome. Id. at *57–65. The special
master found that Dr. Broekelschen had not shown by
preponderant evidence “a medical theory causally con-
necting the vaccination and [anterior spinal artery syn-
drome],” Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1278 (Fed. Cir. 2005), and therefore Dr. Broek-
elschen had not shown by a preponderance of the evidence
that the flu vaccine caused his injury. Broekelschen, 2009
U.S. Claims LEXIS 137, at *65–66.
IV.
Dr. Broekelschen sought review of the special mas-
ter’s decision in the Court of Federal Claims. See Broekel-
schen, 89 Fed. Cl. at 336. The Court of Federal Claims
affirmed the special master’s decision, finding that the
special master properly considered the entire record. Id.
at 346. Contrary to Dr. Broekelschen’s argument, the
court found that the experts’ demeanor was only “one
factor among many,” id., and that the special master’s
credibility determination of the experts was “‘virtually
unchallengeable on appeal,’” id. at 345 (quoting Lampe v.
9 BROEKELSCHEN v. HHS
Sec’y of Health & Human Servs., 219 F.3d 1357, 1362
(Fed. Cir. 2000)).
Dr. Broekelschen appeals the decision of the Court of
Federal Claims. We have jurisdiction pursuant to 42
U.S.C. § 300aa-12(f).
DISCUSSION
We review an appeal from the Court of Federal
Claims in a Vaccine Act case de novo, applying the same
standard of review as the Court of Federal Claims applied
to its review of the special master’s decision. Andreu, 569
F.3d at 1373. We owe no deference to the trial court or
special master on questions of law. Id. We uphold the
special master’s findings of fact unless they are arbitrary
or capricious. Capizzano v. Sec’y of Health & Human
Servs., 440 F.3d 1317, 1324 (Fed. Cir. 2006). “Thus,
although we are reviewing as a matter of law the decision
of the Court of Federal Claims under a non-deferential
standard, we are in effect reviewing the decision of the
special master under the deferential and capricious
standard on factual issues.” Lampe, 219 F.3d at 1369.
I.
When a petitioner has suffered an off-Table injury, as
is the case here, this court has established the following
test for showing causation in fact under the Vaccine Act:
[The petitioner’s] burden is to show by preponder-
ant evidence that the vaccination brought about
her injury by providing: (1) a medical theory caus-
ally connecting the vaccination and the injury; (2)
a logical sequence of cause and effect showing that
the vaccination was the reason for the injury; and
(3) a showing of a proximate temporal relationship
between vaccination and injury.
BROEKELSCHEN v. HHS 10
Althen, 418 F.3d at 1278. Because causation is relative to
the injury, a petitioner must provide a reputable medical
or scientific explanation that pertains specifically to the
petitioner’s case, although the explanation need only be
“legally probable, not medically or scientifically certain.”
Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543,
548-49 (Fed. Cir. 1994). “[T]he function of a special
master is not to ‘diagnose’ vaccine-related injuries, but
instead to determine ‘based on the record evidence as a
whole and the totality of the case, whether it has been
shown by a preponderance of the evidence that a vaccine
caused the [petitioner’s] injury.’” Andreu, 569 F.3d at
1382 (quoting Knudsen, 35 F.3d at 549).
Dr. Broekelschen argues that the special master erred
by not first determining whether Dr. Broekelschen estab-
lished a prima facie case that the vaccine caused the
alleged transverse myelitis injury before determining that
Dr. Broekelschen suffered from anterior spinal artery
syndrome, an alternate cause unrelated to the vaccine.
The petitioner makes an argument by analogy to the
statutory scheme provided by the Vaccine Act where a
petitioner is entitled to recover once she has shown by a
preponderance of the evidence that the vaccine caused her
injury, “unless the [government] shows, also by a prepon-
derance of the evidence, that the injury was in fact caused
by factors unrelated to the vaccine.’” Walther v. Sec’y of
Health & Human Servs., 485 F.3d 1146, 1151 (Fed. Cir.
2007) (quoting Whitecotton v. Sec’y of Health & Human
Servs., 17 F.3d 374, 376 (Fed. Cir. 1994), rev’d on other
grounds sub nom., Shalala v. Whitecotton, 514 U.S. 268
(1995)). But the instant action is atypical because the
injury itself is in dispute, the proposed injuries differ
significantly in their pathology, and the question of causa-
tion turns on which injury Dr. Broekelschen suffered.
11 BROEKELSCHEN v. HHS
Therefore, it was appropriate in this case for the special
master to first determine which injury was best supported
by the evidence presented in the record before applying
the Althen test so that the special master could subse-
quently determine causation relative to the injury.
The Act creates a cause of action for persons suffering
a “vaccine-related injury,” see 42 U.S.C. § 300aa-11(c), and
identifies the injuries commonly associated with each
vaccine in the Vaccine Injury Table. See 42 U.S.C. §
300aa-14; 42 C.F.R. § 100.3(a). An off-Table petitioner,
who does not benefit from a presumption of causation,
must specify his vaccine-related injury and shoulder the
burden of proof on causation. Id. Also, a careful reading
of Althen, shows that each prong of the Althen test is
decided relative to the injury: (1) medical theory connect-
ing the vaccination to the injury; (2) cause and effect
showing the vaccination was the reason for the injury;
and (3) proximate temporal relationship between the
vaccination and the injury. See Althen, 418 F.3d at 1278;
Doe, 601 F.3d at 1351. Thus, identifying the injury is a
prerequisite to the analysis.
Moreover, while the two conditions—transverse mye-
litis and anterior spinal artery syndrome—have overlap-
ping symptoms, their underlying causes or etiology are
completely different. Cf. Andreu, 569 F.3d at 1378, 1381
(noting that an exact diagnosis was not required to de-
termine whether the DPT vaccine caused the injury
because while the parties disputed whether the petitioner
suffered a febrile or afebrile seizure, both parties agreed
that “whatever caused [the petitioner’s] first seizure led to
his subsequent seizure disorder”); Kelley v. Sec’y of Health
& Human Servs., 68 Fed. Cl. 84, 100–01 (2005) (finding
that the petitioner was not required to categorize his
injury where the two possible diagnoses were “variants of
the same disorder, as their pathologic features might
BROEKELSCHEN v. HHS 12
suggest”). Transverse myelitis is an inflammatory event
caused by an immune response, whereas anterior spinal
artery syndrome is a vascular event caused by a blockage.
Dr. Broekelschen presented with symptoms common to
both transverse myelitis and anterior spinal artery syn-
drome, and the parties dispute which disease Dr. Broekel-
schen suffered. This is unlike Andreu, where the parties
agreed that the petitioner suffered from a seizure disor-
der, see 569 F.3d at 1378, 1381, or Kelley, where the
competing diagnoses were variants of the same disorder,
68 Fed. Cl. at 100–01. Here, nearly all of the evidence on
causation was dependent on the diagnosis of Dr. Broekel-
schen’s injury. Therefore, it was appropriate for the
special master to first find which of Dr. Broekelschen’s
diagnoses was best supported by the evidence presented
in the record before applying the Althen test so that the
special master could subsequently determine causation
relative to the injury. Accordingly, we review each find-
ing in turn.
II.
The special master’s opinion reveals a thorough and
careful evaluation of all the evidence to ascertain which
injury is best supported by the record. See Broekelschen,
89 Fed. Cl. at 341—46. “He divided the evidence into four
categories: tests; clinical symptoms, including propriocep-
tion; opinions of treating doctors; and opinions of testify-
ing experts.” Id. at 341. He found that certain evidence,
such as the medical records and doctors’ notes, were not
as persuasive as other evidence because the treating
doctors were “not consistent in their diagnoses.” Broekel-
schen, 2009 U.S. Claims LEXIS 137, at *43. Further-
more, the special master noted that the doctors in their
post-hospitalization notes did “not provide any reasoning
for their statements.” Id. at *31. Rather, the special
master found the discharge summary written by Dr.
13 BROEKELSCHEN v. HHS
Verghese more persuasive because Dr. Verghese was very
familiar with Dr. Broekelschen’s experience while in the
hospital and was able to consider all of the medical re-
cords. Id. at *28–30, *32; see also Capizzano, 440 F.3d at
1326 (“[T]reating physicians are likely to be in the best
position to determine whether ‘a logical sequence of cause
and effect shows that the vaccination was the reason for
the injury.’” (quoting Althen, 418 F.3d at 1280)). Dr.
Verghese, in a detailed discharge summary, stated that
the “diagnosis has not been clearly established” and the
etiology was unknown. J.A. 123-24. He also summarized
all of the medical records and concluded that Dr. Broekel-
schen suffered from myelopathy—a general term encom-
passing both anterior spinal artery syndrome and
transverse myelitis. The special master reasoned that
because Dr. Verghese wrote that a diagnosis “has not
been clearly established” Dr. Verghese intended to leave
the question open.
Because the medical evidence was not definitive, the
special master relied heavily on expert medical testimony.
Broekelschen, 2009 U.S. Claims LEXIS 137, at *45, *56.
Expert medical testimony is often very important in
Vaccine Act cases based on off-Table injuries requiring
proof of actual causation. See Lampe, 219 F.3d at 1361
(“As is often true in Vaccine Act cases based on a theory of
actual causation, the expert medical testimony was im-
portant in this case.”). The special master’s decision often
times is based on the credibility of the experts and the
relative persuasiveness of their competing theories. Id. at
1362. As such, the special master’s credibility findings
“are virtually unchallengeable on appeal.” Id. However,
a special master cannot “cloak the application of an
erroneous legal standard in the guise of a credibility
determination, and thereby shield it from appellate
review.” Andreu, 569 F.3d 1379.
BROEKELSCHEN v. HHS 14
The special master recognized that both experts were
well-qualified, but found Dr. Greenberg’s testimony to be
more persuasive for three reasons. First, the special
master noted Dr. Greenberg’s work with patients suffer-
ing from transverse myelitis on a daily basis as the co-
director of the Johns Hopkins Transverse Myelitis Center,
the only center dedicated to transverse myelitis in the
world. Id. at *34–35. Second, the special master found
that Dr. Greenberg’s demeanor was more persuasive as
he was more forthright and independent in his responses.
Id. at *36. Lastly, Dr. Greenberg’s theory incorporated all
of the evidence, whereas Dr. Steinman largely excluded
one of the most important pieces of evidence, the an-
giogram. Id. at *56.
Dr. Broekelschen contends that the special master
improperly used the “guise of a credibility determination”
to exclude evidence that could support a finding of trans-
verse myelitis such as the presentation of two lesions,
abnormal proprioception post-hospitalization, and the
reports and notes of doctors. Dr. Broekelschen places
particular significance on the presence of two lesions and
states that Dr. Greenberg conceded that the finding of a
second lesion “is totally inconsistent with a vascular
event.” Petitioner’s Brief at 47. Dr. Broekelschen, how-
ever, contradicts his own expert and mischaracterizes Dr.
Greenberg’s testimony. Dr. Steinman testified that
multiple lesions “can happen” in a vascular event, albeit
“far less likely.” Dr. Greenberg testified that the presence
of multiple lesions was as likely as “a hole-in-one on a par
5,” 1 but he went on to say, “But is it possible? Absolutely
1 Indeed a hole-in-one on a par 5 is very rare. Gen-
erally, holes-in-one are seen on a par 3, which is known as
an eagle. In 2001, Andrew Magee hit the only hole-in-one
on a par 4—known as an albatross—on the PGA tour. A
hole-in-one on a par 5—known as a condor—has only
15 BROEKELSCHEN v. HHS
it’s possible.” J.A. 837–38 (emphasis added). Dr. Broek-
elschen focuses heavily on Dr. Greenberg’s first statement
and ignores his complete testimony that multiple block-
ages are “absolutely” possible. See id. Also, Dr. Broekel-
schen points to the abnormal proprioception to support a
finding of transverse myelitis. Yet there is no medical
record that Dr. Broekelschen’s proprioception was im-
paired while he was hospitalized; in fact, the discharge
summary states that his proprioception was normal.
“[R]eversible error is ‘extremely difficult to demonstrate’ if
the special master ‘has considered the relevant evidence
of record, drawn plausible inferences and articulated a
rational basis for the decision.’” Hines v. Sec’y of Health
& Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)
Ironically, it is the petitioner that seems to advocate
only reviewing the evidence pertaining to transverse
myelitis and not the totality of the evidence presented on
Dr. Broekelschen’s condition. While Dr. Steinman em-
phasized that the MRIs indicating two lesions is inconsis-
tent with a vascular event, he essentially ignored the
angiogram showing an occlusion in the anterior spinal
artery, which is highly suggestive of anterior spinal artery
syndrome. Nor did Dr. Steinman try to reconcile the MRI
with the angiogram. On the contrary, the special master
found that Dr. Greenberg candidly acknowledged the
rarity of the double lesions but persuasively explained
why Dr. Broekelschen’s angiogram results showing a
blockage in a large artery was supportive evidence of an
underlying mechanism that is vascular in nature. He
testified:
occurred four times of record and never during a profes-
sional tournament. The ‘Condor’—Four Under Par for a Hole,
http://www.golftoday.co.uk/golf_a_z/articles/condor.html (last visited Sep.
7, 2010).
BROEKELSCHEN v. HHS 16
[E]ven when I had a patient who I would bet the
farm had a vascular event in the spinal cord, it’s
actually rare for me to see the smoking gun. See-
ing an abnormal spinal angiogram that matches
with the patient’s presentation, the patient’s MRI,
what the patient is experiencing is, again, a rarity
among rarities. . . .That is a true abnormality that
has to be taken seriously. And in the context of
somebody who has an acute myelopathy, . . .
where we did not have evidence of inflammation,
then we would have actually stopped there and we
would have said that we are most concerned about
vascular events. That’s how profound the evidence
is. . . . If there was only a lesion at the cervical
cord and proprioception was intact and we had
that angiogram, we probably wouldn’t be in this
room today. I think the angiogram findings are so
profound that nobody would have considered mye-
litis ever again.
Broekelschen, 2009 U.S. Claims LEXIS 137, at *38–39.
Also, the spinal tap showed no increase in white blood
cells or IgG, which is highly probative of a finding that Dr.
Broekelschen did not suffer from immune-mediated
transverse myelitis. Dr. Verghese concluded that the
absence of inflammation “would be against [the injury]
being due to a myelitis.” J.A. 123. Although the hospital
reports mention transverse myelitis, they also mention
ischemia, which is a vascular event encompassing ante-
rior spinal artery syndrome. The special master was
presented with all the evidence and after a thorough
review, he found that the evidence did not make it more
likely than not that Dr. Broekelschen suffered from
transverse myelitis. Id. at *36.
Considering all of the evidence, including medical re-
cords, tests, and reports, as well as the experts’ opinions,
17 BROEKELSCHEN v. HHS
the special master did not require certainty or direct
evidence, but rather weighed the evidence as the trier of
fact and found that it was more likely that Dr. Broekel-
schen suffered anterior spinal artery syndrome than
transverse myelitis. This court does not “reweigh the
factual evidence, or [] assess whether the special master
correctly evaluated the evidence. And of course we do not
examine the probative value of the evidence or the credi-
bility of the witnesses. These are all matters within the
purview of the fact finder.” Munn v. Sec’y of Health &
Human Servs., 970 F.2d 863, 871 (Fed. Cir. 1992). Thus,
the special master’s determination was not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B);
Hines, 940 F.2d at 1524.
III.
The dissent criticizes the special master’s decision on
two grounds. First, the dissent characterizes the special
master’s approach of first determining the injury before
applying the Althen test as per se reversible error. Dis-
senting Op. at 3. By ignoring the atypical nature of this
case, however, the dissent improperly forces this case to
align with our Althen precedent. In most cases the injury
is not disputed but this case is unusual in that the exact
injury and its nature—inflammatory response or vascular
event—is in dispute, and, more importantly, the causation
question turns on the determination of the injury.
The Vaccine Act creates a cause of action for persons
suffering a “vaccine-related injury.” See 42 U.S.C. §
300aa-11(a). With regard to the “vaccine-related injury,”
a off-Table petitioner must allege that he “sustained, or
had significantly aggravated, any illness, disability,
injury, or condition not set forth in the Vaccine Injury
Table but which was caused by a Vaccine referred to in
BROEKELSCHEN v. HHS 18
subparagraph (a) . . . . “ Id. § 300aa-11(c)(1)(C)(ii)(I). This
is the same definition quoted by the dissent but it does
not support its argument that proof of an “illness, condi-
tion, or disability” is something less than proof of an
“injury” under the Vaccine Act. Dissenting Op. at 3.
Medical recognition of the injury claimed is critical and by
definition a “vaccine-related injury,” i.e., illness, disabil-
ity, injury or condition, has to be more than just a symp-
tom or manifestation of an unknown injury. Thus, it was
appropriate for the special master to initially determine
which injury Dr. Broekelschen suffered before applying
the Althen test.
The dissent also criticizes the special master’s finding
that the government’s expert had a more persuasive
demeanor. Dissenting Op. at 7. In general, when two
expert witnesses, both highly qualified, dispute an issue
of medical fact with supporting and contradictory evi-
dence, it is immaterial whether one witness makes a
better appearance on the stand. See Andreu, 569 F.3d at
1379; cf. Moberly, 592 F.3d at 1325—26 (stating that in
cases where there is little supporting evidence for an
expert’s opinion, the special master’s “[a]ssessments as to
the reliability of expert testimony often turn on credibility
determinations”). Though the special master may have
improperly considered Dr. Greenberg’s demeanor, it was
not the only factor, or even the most important factor, in
the special master’s analysis. To the contrary, the special
master articulated a number of factors why Dr. Green-
berg’s medical testimony was better supported by sound
medical explanation, including the fact that Dr. Green-
berg’s testimony candidly and forthrightly incorporated
all of the evidence whereas Dr. Steinman largely excluded
an important piece of adverse evidence. Thus, even if the
special master’s consideration of Dr. Greenberg’s “de-
meanor” was error, it would rise at most to the level of
19 BROEKELSCHEN v. HHS
harmless error. Hines, 940 F.2d at 1526 (finding that it
was harmless error for the special master to take judicial
notice of a medical textbook’s statement regarding the
incubation period of measles, even if unfair to the peti-
tioner, because “the special master’s decision was based
on a number of factors and [petitioner had] not shown
that reliance on the . . . textbook was likely critical to the
result”).
IV.
Next, for Dr. Broekelschen to recover under the Vac-
cine Act, he is required to prove by a preponderance of the
evidence that the flu vaccine caused his anterior spinal
artery syndrome, an off-Table injury. As explained above,
the Althen test requires that Dr. Broekelschen prove by a
preponderance of the evidence: “(1) a medical theory
causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a show-
ing of a proximate temporal relationship between vaccina-
tion and injury.” Althen, 418 F.3d at 1278.
The special master found that Dr. Broekelschen did
not meet his burden of proving by a preponderance of the
evidence a medical theory causally connecting the flu
vaccine to anterior spinal artery syndrome. Broekelschen,
2009 U.S. Claims LEXIS 137, at *65; Broekelschen, 89
Fed. Cl. at 346. Dr. Broekelschen does not challenge this
finding; rather, he argues only that anterior spinal artery
syndrome is a cause unrelated to the vaccine that the
special master should not have considered until Dr.
Broekelschen established his prima facie case with the
alleged transverse myelitis injury. As we explained
above, the special master properly considered the gov-
ernment’s alternative evidence on injury prior to deter-
mining causation. See 42 U.S.C. § 300aa-13(a)(1); Doe,
BROEKELSCHEN v. HHS 20
601 F.3d at 1356-58 (stating that the government can
provide and the special master can consider evidence of
“factors unrelated” in determining whether the petitioner
established a prima facie case). Thus, the remaining
question is whether, contrary to the special master’s
finding, Dr. Broekelschen provided proof by a preponder-
ance of the evidence of a medical theory causally connect-
ing the flu to anterior spinal artery syndrome.
The majority of the evidence and testimony presented
by Dr. Broekelschen was directed toward proving the flu
vaccine caused transverse myelitis. Dr. Steinman pre-
sented the same medical theory, molecular mimicry, for
both anterior spinal artery syndrome and transverse
myelitis. Dr. Greenberg pointed out, however, that the
evidence relied upon for connecting the molecular mim-
icry theory to the flu vaccine—a literature review based
on two papers from the early 1950s, which in turn consid-
ered vaccine cases between 1929 and 1952—was quite
weak. Furthermore, there was little said by either party
during the hearing and post-trial briefs regarding
whether the flu vaccine can cause anterior spinal artery
syndrome. “Althen makes clear that a claimant’s theory
of causation must be supported by a ‘reputable medical or
scientific explanation.’” Andreu, 569 F.3d at 1379 (quot-
ing Althen, 418 F.3d at 1278). The special master found
that due to the weak medical evidence presented, Dr.
Broekelschen had not provided a “reliable medical or
scientific explanation” sufficient to prove by a preponder-
ance of the evidence a medical theory linking the flu
vaccine to anterior spinal artery syndrome. See Knudsen,
35 F.3d at 548. We find that this conclusion was not
arbitrary or capricious.
For the foregoing reasons, we find that the special
master’s determination was not arbitrary, capricious, an
21 BROEKELSCHEN v. HHS
abuse of discretion, or otherwise not in accordance with
law. We therefore affirm.
AFFIRMED
No costs.
United States Court of Appeals
for the Federal Circuit
__________________________
PETER BROEKELSCHEN, M.D.,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________
2009-5132
__________________________
Appeal from the United States Court of Federal
Claims in 07-VV-137, Judge George W. Miller.
__________________________
MAYER, Circuit Judge, dissenting.
In my view, the special master and the Court of Fed-
eral Claims failed to properly apply our holdings in Althen
v. Secretary of Health & Human Services, 418 F.3d 1274
(Fed. Cir. 2005) and Andreu v. Secretary of Health &
Human Services, 569 F.3d 1367 (Fed. Cir. 2009). I there-
fore respectfully dissent.
Peter Broekelschen received an influenza vaccination
on October 28, 2005, at the age of 63. Approximately
seven weeks after receiving the vaccination, on December
16, 2005, Broekelschen was hospitalized with severe pain
in his chest, back, and shoulder. While in the hospital he
experienced a range of symptoms, including weakness in
BROEKELSCHEN v. HHS 2
his extremities and sensory deficits. Doctors performed
numerous tests, including several MRIs, computed tomo-
graphy scans, a lumbar puncture, and an angiogram, but
were unable to conclusively determine the cause of Broek-
elschen’s symptoms. Two diagnoses considered by the
treating physicians were transverse myelitis (“TM”), a
condition caused by inflammation of the spinal cord, and
anterior spinal artery syndrome, a condition caused by a
blocked blood vessel in the spinal cord. Broekelschen was
discharged on December 29, 2005, and transferred to a
rehabilitation facility. His discharge summary notes that
a diagnosis was not clearly established, but states that
the symptoms might be due to a post-vaccine immune
reaction. Several months after Broekelschen first experi-
enced symptoms his personal physician noted that, in the
absence of another working diagnosis, TM secondary to
the vaccination was the most likely cause.
Broekelschen filed a petition seeking compensation
under the National Childhood Vaccine Injury Act of 1986
(“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34, alleging that
his symptoms were the result of vaccination induced TM.
The special master denied compensation, finding that
Broekelschen did not suffer from TM but from the alter-
native diagnosis of anterior spinal artery syndrome and
that there was insufficient evidence to support a theory
that this syndrome could be caused by the influenza
vaccine. Broekelschen sought review of the special mas-
ter’s decision in the Court of Federal Claims, which af-
firmed the decision of the special master denying
compensation.
In Althen, we described the burden for a vaccine in-
jury claimant as a three part test. In order to recover, the
claimant must show by preponderant evidence: (1) a
medical theory causally connecting the vaccination and
the injury, (2) a logical sequence of cause and effect show-
3 BROEKELSCHEN v. HHS
ing the vaccination was the reason for the injury, and (3)
a temporal relationship between the vaccination and the
injury. 418 F.3d at 1278. If the claimant is able to make
such a showing, the government is given the opportunity
to show by preponderant evidence that the injury was
caused by factors other than the vaccine. Id. In this case,
the special master recognized the applicability of the
Althen test, but decided that before applying the test it
was necessary to first determine a diagnosis for Broekel-
schen’s symptoms. The special master therefore looked at
the competing theories of Broekelschen’s diagnosis and
determined that Broekelschen suffered from anterior
spinal artery syndrome, as advanced by the government,
and not TM. Only then did the special master apply the
Althen test and determine that the evidence did not
support a finding that the vaccine caused anterior spinal
artery syndrome.
This approach, of first assigning a diagnosis to Broek-
elschen’s symptoms before applying the Althen test, is not
supported by statute, caselaw, or logic, and its effect was
to impermissibly heighten Broekelschen’s burden. Con-
trary to the majority, the language of the Vaccine Act does
not support the special master’s approach by narrowly
limiting its application to known injuries. Instead, it
broadly defines a “vaccine-related injury or death” as “an
illness, injury, condition, or death.” 42 U.S.C. § 300aa-
33(5). Petitions for compensation must demonstrate that
the claimant sustained “any illness, disability, injury, or
condition” caused by a vaccine. 42 U.S.C. § 300aa-
11(c)(1)(C)(ii)(I). Therefore, even in the absence of a
definitively diagnosed injury, claimants such as Broekel-
schen may experience an illness or disability that, with
the proper showing of causation, can meet the criteria for
a vaccine-related injury under the Vaccine Act.
BROEKELSCHEN v. HHS 4
The majority emphasizes that the parties’ dispute as
to the diagnosis makes this case unique and therefore
justifies the initial step of determining a diagnosis before
applying the Althen test. However, every case is unique
and nothing about the facts in this case supports the
majority’s unwarranted departure from our precedent. As
the special master recognized, the range of symptoms
Broekelschen experienced could be explained by either
diagnosis, and “determining which condition affects Dr.
Broekelschen is one step in determining the cause for Dr.
Broekelschen’s condition.” Broekelschen v. Sec’y of Health
& Human Servs., No. 07-137V, 2009 WL 440624 at *4
(Fed. Cl. Sp. Mstr. Feb. 4, 2009). Therefore, the analysis
of the diagnosis should have been part of the first prong of
the Althen test, which requires a “medical theory causally
connecting the vaccination and the injury.” 418 F.3d at
1278. The medical theory proposed by Broekelschen was
that his symptoms were caused by the vaccine through
the pathway of TM; his theory of causation is therefore
inextricably linked to the diagnosis. The special master
should have first determined whether Broekelschen
demonstrated that it was more likely than not that his
symptoms resulted from TM caused by an immune re-
sponse to the vaccine. Only then should the special
master have considered whether the government could
show by preponderant evidence that other factors caused
the injury, i.e., that Broekelschen’s symptoms were
caused by anterior spinal artery syndrome unrelated to
the influenza vaccine.
The majority cites to Doe v. Secretary of Health &
Human Services, 601 F.3d 1349 (Fed. Cir. 2010), in sup-
port of the proposition that the special master appropri-
ately considered the government’s alternative theory of
diagnosis prior to applying the Althen test. That reliance
is misplaced. In Doe we affirmed the decision of a special
5 BROEKELSCHEN v. HHS
master who allowed the government to present evidence
that the cause of death was sudden infant death syn-
drome (“SIDS”), rather than a vaccine, to rebut the claim-
ants’ theory of causation. Id. The claimants in that case,
however, relied on the elimination of SIDS as a potential
cause of death to establish their prima facie case, and the
special master considered the evidence relating to SIDS
only “in evaluating whether Doe’s proposed sequence of
cause and effect was plausible.” Id. at 1353. Here the
special master did not limit his evaluation of the govern-
ment’s theory of diagnosis to determining whether it
undercut the evidence Broekelschen presented to estab-
lish a prima facie case. Instead, he used diagnosis as a
prerequisite step, denying Broekelschen the opportunity
of even attempting to establish a prima facie case. In any
event, Doe does not overrule our precedent that a vaccine
claimant is not required to eliminate alternative causes of
injury in establishing a prima facie case. Id. at 1358 (“A
petitioner’s failure to meet his burden of proof as to the
cause of an injury or condition is different from a re-
quirement that he affirmatively disprove an alternative
cause.”); see also de Bazan v. Sec’y of Health & Human
Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008) (“So long as
the petitioner has satisfied all three prongs of the Althen
test, she bears no burden to rule out possible alternative
causes.”); Walther v. Sec’y of Health & Human Servs., 485
F.3d 1146, 1150 (Fed. Cir. 2007) (“[T]he Vaccine Act does
not require the petitioner to bear the burden of eliminat-
ing alternative causes where the other evidence on causa-
tion is sufficient to establish a prima facie case.”).
The special master also erred in basing his decision,
in part, on his view that the government’s expert witness
was more credible than Broekelschen’s. While the special
master praised the experience and demeanor of both
experts, he stated that he gave more weight to the gov-
BROEKELSCHEN v. HHS 6
ernment’s expert because he found the government’s
expert to have a more persuasive demeanor and a more
impressive background. Broekelschen, 2009 WL 440624
at *13, *18. This analysis is inappropriate for two rea-
sons. First, the Althen test does not support a head-to-
head comparison between dueling experts, but shifts the
burden to the government only after the claimant has
made a prima facie case for entitlement. The special
master therefore should not have analyzed which expert
was more persuasive, but whether Broekelschen’s expert,
along with the record evidence, showed that it was more
likely than not that Broekelschen’s condition was caused
by TM resulting from the vaccination. If so, the special
master’s analysis should have continued to determine
whether the government’s expert showed that it was more
likely than not that the condition was caused by factors
unrelated to the vaccine.
Second, while the credibility determinations of special
masters are owed deference, we have held that credibility
determinations are appropriately used to assess the
candor of a fact witness, “not to evaluate whether an
expert witness’ medical theory is supported by the weight
of epidemiological evidence.” Andreu, 569 F.3d at 1379.
In other words, credibility determinations can be used to
determine if an expert is reliable, but weighing the per-
suasiveness of the competing medical theories is a sepa-
rate analysis. Once the special master determined both
experts were highly qualified and reliable, there was no
reason for him to give any additional weight to the back-
ground or demeanor of the government’s expert. The
focus should have been solely on the “relative persuasive-
ness of the competing medical theories of the case.”
Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357,
1362 (Fed. Cir. 2000).
7 BROEKELSCHEN v. HHS
Our decision in Moberly v. Secretary of Health & Hu-
man Services, 592 F.3d 1315 (Fed. Cir. 2010), in which we
affirmed the denial of a claim where the special master
discredited the testimony of the claimant’s expert, does
not support the approach taken by the special master in
this case. In Moberly, none of the treating physicians
expressed the view that the claimant’s injury was caused
by the vaccination she received. Instead, the record
evidence supporting the opinion of the claimant’s expert
“amount[ed] at most to a showing of temporal association
between a vaccination and a seizure, together with the
absence of any other identified cause for the . . . injury.”
Id. at 1323. In this case, contemporaneous records cre-
ated by treating physicians support Broekelschen’s the-
ory. Furthermore, the special master and both experts
noted that there is evidence in the record to support and
refute each of the two potential diagnoses. While nothing
in the record conclusively proves that Broekelschen’s
symptoms were caused by TM resulting from the vaccina-
tion, conclusive proof is not required. Knudsen v. Sec’y of
Heath & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir.
1994) (“The determination of causation in fact under the
Vaccine Act involves ascertaining whether a sequence of
cause and effect is ‘logical’ and legally probable, not
medically or scientifically certain.”); see also Althen, 418
F.3d at 1280 (“[T]he purpose of the Vaccine Act’s prepon-
derance standard is to allow the finding of causation in a
field bereft of complete and direct proof of how vaccines
affect the human body.”).
The majority holds that the special master’s error in
weighing the expert witnesses’ credibility is harmless.
This is mere speculation. It is not clear that the outcome
of the case would have been the same if the special master
had appropriately weighed the expert witness testimony,
particularly if he had done so within the prevailing
BROEKELSCHEN v. HHS 8
framework of Althen by allowing Broekelschen to attempt
to make a prima facie showing that his symptoms re-
sulted from vaccine-induced TM. I would therefore re-
mand to allow the special master to properly apply the
test laid out in Althen to Broekelschen’s claim and appro-
priately weigh the expert witness testimony.