MEMORANDUM OPINION AND ORDER
This case comes before the court on review of a decision after remand. The scope of the remand was narrow, i.e., to make findings of fact and conclusions of law on petitioner’s medical records insofar as they were relied upon as proof of causation. See Veryzer v. Sec’y of Health & Human Servs.,
Petitioner’s assignments of error devolve to pressing an erroneous standard for liability — that a petitioner can satisfy his burden of proof with a plausible medical theory that a vaccine caused an injury. Measured against the correct standard — a legally probable (not medically or scientifically certain) medical or scientific explanation that pertains specifically to the petitioner’s case, which equates to the tort standard of preponderant evidence — the special master’s findings are neither arbitrary nor capricious.
FACTS
The facts before the United States Court of Federal Claims in this review of Special Master Gary J. Golkiewicz’s decision on remand largely are unchanged from those previously before this court on review of the special master’s order of dismissal. See Ver-yzer III,
Robert Veryzer (“petitioner”) was formerly an instructor of business at the [Deleted ] and was an Associate Professor at the [.Deleted ]. Petitioner earned a B.A from [Deleted], an M.B.A from [Deleted], and a Ph.D. from [Deleted ]. He has authored numerous scholarly articles and a book focusing on [Deleted]. On April 25, 2001, at age forty-one, petitioner received both the Hepatitis A and Hepatitis B vaccinations. Veryzer v. Sec’y of Health & Human Servs., No. 06-0522V,
Due to difficulty obtaining an expert to testify in support of petitioner’s Hepatitis B claim, petitioner on November 2, 2004, withdrew his petition. Veryzer II,
On July 17, 2006, petitioner filed a petition in the Court of Federal Claims, claiming entitlement to compensation under the Vaccine Act due to injuries caused by the Hepatitis A vaccine. Pet. at 1, 9. Petitioner’s relevant medical records were submitted on March 9,2007. Petitioner initially obtained a medical expert who opined that the injuries were caused by the Hepatitis B vaccine, not Hepatitis A Veryzer v. Sec’y of Health & Human Servs., No. 06-0522V,
Respondent filed two motions in limine seeking to exclude these experts’ opinions, and Special Master Richard B. Abell granted the motions, Veryzer I,
PROCEEDINGS ON REMAND
On remand this matter was assigned to Special Master Golkiewicz after Special Master Abell retired. The special master was tasked to make “findings of fact and conclusions of law concerning petitioner’s medical records.” Id. at 228. Although not required to do so, the special master reopened the record for additional evidence. See Veryzer IV,
On April 29, 2011, the special master issued a comprehensive opinion in which he separately addressed and analyzed the medical records and reports on which petitioner relied. This undertaking led the special master to make a number of general findings as to the probative value of petitioner’s evidence, contributing to his ultimate conclusion that “petitioner has failed to provide preponderant evidence that he suffered a vaccine-related injury due to the Hepatitis A vaccine.” Id. at *25. The special master first noted his “overarching observation” that, although “petitioner engaged numerous doctors shortly after vaccination[,] ... there was no consensus that petitioner’s complaints were vaccine-related.” Id. at *8. He explained that, despite notations in some records stating that petitioner reacted to the vaccine, no doctor made this sweeping conclusion after testing and examination; rather, this information was often provided to the examining physician by the petitioner at the outset of the examination, and a notation was made in order accurately to document petitioner’s complaints. Id. at *9, *13. Alternatively, the special master found that, to the extent the physicians’ reports contemplated the possibility of vaccine relatedness, they were often hypothesizing on matters outside their specialties and “merely raising the possibility that petitioner’s answers lie with another specialist.” Id. at *8.
Second, the special master observed that “[petitioner repeatedly pulls out of context any reference to the immunization as evidence of causation,” id. at *14, such that a review of the relied-upon report as a whole entirely nullifies its purported value as advanced by petitioner. For instance, in petitioner’s supplemental brief, he references Dr. Bruce A. Beesley’s statement that petitioner “may have had an autoimmune reaction from the vaccine. This could have caused some mild demyelination.” Id. at *12 (citation omitted) (internal quotation marks omitted). Exemplifying his thorough review of petitioner’s medical records and expert reports, the special master noted that this statement was followed immediately by Dr. Beesley’s observation that “I find almost nothing on exam that would suggest [demyelination].” Id. (citation omitted) (internal quotation marks omitted). Dr. Beesley also explained that he “entertained the possibility of purely autonomic dysfunction as a result of the inflammation from the vaccination but ... there are no systemic symptoms.” Id. (citation omitted) (internal quotation marks omitted). Thus, although vaccine relatedness may have been mentioned by physicians and experts, such statements often were of little value for
The special master adopted respondent’s view that petitioner’s treating physicians were doubtful that petitioner’s conditions were vaccine-related or, if they did entertain the idea of relatedness, they did so on account of the temporal proximity between petitioner’s receipt of the vaccine and the onset of his symptoms. Id. at *16. Moreover, none of the physicians “offer[ed] a probable medical theory linking the Hep A vaccine specifically to petitioner’s symptoms.” Id. (citation omitted) (internal quotation marks omitted). To the contrary, where a medical theory was offered, it often implicated the Hepatitis B vaccine or a combination of both vaccines. Specifically, petitioner contends that, due to the vaccine, he suffered thimero-sal (mercury) toxicity. Id. at *21. Dr. Lionel D. Alboum’s opinion supports petitioner’s contention that he suffered from mercury toxicity. Id. at *14. However, as the special master pointed out, although the Hepatitis B vaccine contained thimerosal, which could lead to mercury toxicity, the Hepatitis A vaccine never did, and petitioner did not provide evidence indicating that the Hepatitis A vaccine can cause mercury toxicity. Id. at *21.
The special master acknowledged instruction from the United States Court of Appeals for the Federal Circuit that “[e]vidence from a treating physician can be ‘quite probative since treating 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.’ ” Id. at *16 (quoting Andreu v. Sec’y of the Dep’t of Health & Human Servs.,
Overall, the special master deemed Dr. Astruc’s opinion “vague[ ] and insufficien[t],” commenting that Dr. Astruc failed to reference any of petitioner’s medical records. Id. at *20. Specifically, the special master stated that
[a]ny explanation or theory as to how the Hepatitis A vaccine can cause heavy metal toxic exposure or demyelination is lacking. Without reference to petitioner’s medical records, Dr. Astruc fails to show how petitioner’s presentation fits a logical sequence of cause and effect showing the vaccine caused his alleged injuries____ [Finally,] Dr. Astruc states he is not qualified to opine on the appropriate time from vaccine to onset of petitioner’s symptoms in the case of demyelination____[This] calls into question whether he is qualified to opine regarding a theory and logical sequence of cause and effect regarding demyelination.
Id. The special master concluded: “Dr. As-truc’s reports add[ed] very little qualitatively to petitioner’s evidence on causation....” Id. Based on his review and analysis, the special master denied compensation.
On May 25, 2011, petitioner filed a motion for review. Petitioner urges the court to overturn the special master’s decision based on four errors. First, petitioner contends that the special master applied an overly strict construction of Althen v. Secretary of Health & Human Services,
DISCUSSION
I. Standards
1. Standard of review
The National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (2006) (the “Vaccine Act”), specifies three alternative courses of action available to the Court of Federal Claims in reviewing a special master’s decision. The court may
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusions of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court’s direction.
42 U.S.C. § 300aa-12(e)(2).
In Capizzano v. Secretary of Health & Human Services,
The deferential “arbitrary and capricious” standard, see 42 U.S.C. § 300aa-12(e)(2)(B); de Bazan v. Sec’y of Health & Human Servs.,
Discretionary rulings of the special master, such as the exclusion of evidence, are reviewed under the abuse of discretion standard. Cedillo v. Sec’y of Health & Human Servs.,
2. Proving causation in Vaccine Act cases
To be compensated under the Vaccine Act, petitioners must prove that an injury was caused by a vaccine listed on the Vaccine Injury Table set forth in 42 U.S.C. § 300aa-14. See id. § 300aa-11(c)(1)(A), (C); de Bazan,
Indulgence is requested for a further peroration, which, it is hoped, will explain the narrow focus of the court’s review. Over the past two years, something has leeched into the review process undertaken by the Court of Federal Claims in reviewing special masters’ decisions pursuant to the Vaccine Act. A number of review decisions represent full de novo reviews, with findings of fact and conclusions of law supplied by the Court of Federal Claims. Two justifications underlie this approach to review: the reviewing court’s opinion that the special master has cloaked arbitrary and capricious findings of fact in credibility determinations or its opinion that the special master has imposed a heightened burden of proof, sometimes referred to as a showing of causation to the level of medical or scientific certainty. Framing the standard as whether the condition was “likely caused” by the vaccine has led to invocation of the standard “plausible,” as in “a plausible medical theory,” which has come to be shorthand for the relaxed standard of proof envisioned by the Vaccine Act. Yet, since 2010, the Federal Circuit has stated unequivocally that “proof of a ‘plausible’ or ‘possible’ causal link between the vaccine and the injury ... is not the statutory standard.” Moberly,
It could well be that the word “plausible” fits more comfortably into the scientific lexicon than the legal. Whether a theory of causation is “biologically plausible,” Andreu,
A synthesis of the recent Federal Circuit opinions addressing this issue indicates that plausible causation relates to evaluation of Althen’s first prong, which is satisfied by a “biologically plausible theory.” See Andreu,
Once plausibility is confined properly to general causation — the biological or medical theory put forward — Althen’s second prong turns to examining specific or legal causation: whether the vaccine caused petitioner’s injury or illness. See Pafford,
Applying the Federal Circuit’s governing standard for determining causation in an off-Table injury case, this court is now tasked with reviewing the special master’s decision to deny compensation under the arbitrary and capricious standard set forth in 42 U.S.C. § 300aa-12(e)(2)(B).
II. Petitioner’s assignments of error
1. Theory of causation
Petitioner submits that the special master’s finding that petitioner did not meet his burden of providing a legally probable — but not medically or scientifically certain — medical theory establishing that the Hepatitis A vaccination caused his condition is arbitrary and capricious. According to petitioner, his medical records, as well as Dr. Astrue’s reports and supplemental opinions, are replete with notations that the Hepatitis A and B vaccines can cause injuries of the type experienced by petitioner. Specifically, petitioner faults the special master for disregarding Dr. Astruc’s conclusion that he could find “no other cause [aside from the vaccinations] ... for petitioner’s condition” simply because Dr. Astrue specializes in psychiatry and did not reference petitioner’s medical records. Pet’r’s Br. filed May 25, 2011, at 7. This specialty, petitioner contends, enabled Dr. Astrue to rule out an emotional cause for petitioner’s symptoms, and, in the absence of exposure to other elements that could cause such symptoms, only the vaccines remain as a potential cause. Petitioner then lists notations in various reports purporting to implicate the vaccines as the cause of petitioner’s ailments. Even recognizing that the special master found that many of these notations were mere recordations of information that petitioner had provided to the various physicians, petitioner contends that this determination “is not based in fact or supported by any affidavit or record.” Id. at 14. Finally, petitioner argues that, despite the physicians’ conclusions, respondent has not come forward with a “countervailing opinion or explanation as to what was the cause of petitioner’s disability.” Id. at 3.
Respondent rejoins that the special master applied the proper standard to Althen’s first prong and concluded that “petitioner failed to present preponderant evidence of a theory of causation that was legally probable.” Veryzer IV,
Petitioner argues that, despite the special master’s concession that petitioner’s medical records implicate the Hepatitis B vaccine or a combination of the Hepatitis A and B vaccines, he refused to consider such evidence in determining whether petitioner established a medical theory connecting the vaccines to petitioner’s injury. Dr. Alboum opined that petitioner’s condition resulted from thimero-sal (mercury) toxicity. This suggests a link between the Hepatitis B vaccine, which contains mercury, and petitioner’s condition. Petitioner further notes that in addition to connecting the mercury in Hepatitis B to the mercury poisoning likely suffered by petitioner, Dr. Alboum also explained that other materials, such as aluminum, in both vaccines may have been detrimental.
Respondent defends the special master’s not addressing any references to the Hepatitis B vaccine as beyond the scope of this court’s remand order. See Veryzer III,
This court agrees with respondent that claims based on the Hepatitis B vaccine are not properly the subject of this motion for review. Consequently, the special master’s rejection of medical theories relying on the Hepatitis B vaccine, such as thimerosal toxicity, did not amount to a legal error, nor was it arbitrary or capricious. Although Dr. Alb-oum indicated that other materials in the two vaccines could be detrimental, petitioner and Dr. Alboum did not offer a theory connecting any materials other than mercury, which is not found in the Hepatitis A vaccine, to petitioner’s condition. As such, the special master’s decision reflected a rational basis for his conclusion that “petitioner failed to present preponderant evidence of a theory of causation that was legally probable.” Veryzer IV,
2. Application of Althen’s second prong in determining specific causation
Petitioner contends that the special master “applied an overly strict construction” of Al-then’s second prong. Pet’r’s Br. filed May
The absence of test results was not the sine qua non of the special master’s decision, which is shown by the special master’s review of petitioner’s medical records. The remand order instructed the special master to make findings of fact regarding petitioner’s medical records. The special master reviewed each individual medical record. He separately explained the contents of each record in finding that, cumulatively, they did not amount to preponderant evidence of causation. Petitioner argues that the special master dismissed evidence that did not support the conclusion that the special master sought to reach. Instead of substantiating this charge, petitioner chides respondent for its failure to submit an alternative explanation as to what caused petitioner’s condition. However, an alternative theory is not required unless and until petitioner carries his burden of providing preponderant evidence of causation by satisfying the Althen test. See Althen,
The special master properly assessed the probative value of the statements provided by petitioner’s physicians, explaining why those statements do not demonstrate a logical sequence of cause and effect showing that the vaccine caused injury. The special master discovered that petitioner’s physicians doubted that his condition was vaccine-related. When physicians entertained the idea of vaceine-relatedness, the “driving factor” was the fact that petitioner’s condition developed post-vaccination. Veryzer IV,
In Veryzer III this court noted that “[t]he medical records offer inconsistent indications of possible causes, which the fact finder may deem inconclusive and not a demonstration of a ‘logical sequence of cause and effect showing that the vaccination was the reason for the injury.’”
As noted above, the special master determined that none of petitioner’s physicians offered a legally probable medical theory causally connecting the Hepatitis A vaccine to petitioner’s symptoms. Absent such a theory, a logical sequence of cause and effect showing that receipt of the Hepatitis A vaccine led to petitioner’s condition could not be shown. The special master relied on the deficiencies that he observed in the contents of petitioner’s records and not solely on the absence of medical test results. This court concludes that the special master did not apply a standard of medical certainty. Instead, the special master conducted a thor
3. Temporal relationship between Hepatitis A vaccine and injury
Petitioner argues that the special master’s conclusion that he failed to show a temporal relationship between the vaccine and injury is arbitrary and capricious. Petitioner received the vaccines at the age of forty-one. His medical history up to that point in time is devoid of the cognitive impairments from which he now suffers. Petitioner also contends that in Veryzer III this court concluded that petitioner had satisfied Althen’s temporal proximity prong. See Veryzer III,
As de Bazan indicates, the “etiology” of the disorder determines the appropriate temporal relationship, de Bazan,
The special master explained that petitioner proposed two medical theories— demyelination and thimerosal toxicity — causally connecting Hepatitis A to his condition. He noted that petitioner’s symptoms occurred within hours of receiving the vaccinations. What is missing, however, is any evidence that either of these theories would result in symptom onset within mere hours of vaccination. Absent such evidence, the special master’s finding that petitioner could not meet his burden of proving an appropriate temporal relationship is not arbitrary or capricious.
Even if Veryzer III did conclude that petitioner satisfied Althen’s third prong, the ruling would not stand as the law of the case because the temporal association must relate to the pathology of the specific medical theory alleged to have caused the injury. In Veryzer III the undersigned mentioned the special master’s finding that the record did not establish a plausible medical theory causally connecting the vaccine and the alleged injuries. Absent such a showing, a temporal association cannot be demonstrated.
4. Sufficiency of Dr. Astruc’s opinion letters to satisfy petitioner’s burden
Petitioner’s arguments regarding Dr. Astrue’s opinion are inconsistent. First, petitioner notes that the Federal Circuit has often placed much emphasis on statements from treating physicians — like Dr. Astrue— deeming that these physicians are often in the best position to resolve causation issues. See Cedillo,
The special master noted that Dr. Astrue is a psychiatrist and does not specialize in neurology or toxicology. As a result the special master questioned Dr. Astruc’s ability to rule out non-psychiatric causes of petitioner’s condition. Veryzer IV,
Because the special master concluded that petitioner did not meet his burden, the burden never shifted to respondent to provide an alternative explanation. In finding that petitioner had failed to meet his burden, the special master relied on deficiencies in petitioner’s medical records and the vagueness of Dr. Astruc’s supplemental reports. These factual findings are accorded great deference — “the Court of Federal Claims is not to second guess the Special Masters [sic ] fact-intensive conclusions; the standard of review is uniquely deferential for what is essentially a judicial process.” Hodges,
Petitioner also has argued that the special master relied too heavily on Dr. Astruc’s testimony, “such that petitioner’s claim would succeed or fail on the extent to which the Special Master found him persuasive.” Pet’r’s Br. filed May 25, 2011, at 6. What petitioner fails to note, however, is that he opted to submit supplemental reports from Dr. Astrue when the special master reopened the proceedings. Although the special master does discuss Dr. Astruc’s report under a separate heading, it appears that he did so to distinguish the medical records submitted on remand from the medical records available to Special Master Abell and not because he had placed greater emphasis on Dr. Astruc’s opinion than on those of the other physicians. Thus, the special master neither overstated the importance of Dr. Astruc’s opinion nor disregarded the other available evidence.
CONCLUSION
The court has carefully considered petitioner’s arguments and deems them without merit. The court concludes that the special master applied the correct legal standard and that he examined petitioner’s medical records and reports and set forth his findings leading to his ultimate finding that petitioner had failed to provide preponderant evidence that the Hepatitis A vaccine caused petitioner’s condition. Given the required deference to the special master’s findings of fact, this court concludes that the decision denying compensation was not arbitrary and capricious. Accordingly, petitioner’s motion for review is denied, and the Clerk of the Court shall enter judgment in accordance with the special master’s decision.
No costs on review.
Notes
. Veryzer I and Veryzer II were identified in Ver-yzer III. Both were opinions of the special master then assigned to the case. The earlier granted respondent's motions in limine and excluded opinions from two of petitioner’s experts; the latter denied petitioner's claim based on the Hepatitis A vaccine.
. Petitioner did not appeal the special master’s decision denying his motion to amend to include a claim based on the Hepatitis B vaccine. Veryz- ■ er IV,
. Petitioner characterizes his challenge to whether the special master applied the appropriate theory of causation as predicated on arbitrariness and capriciousness. Recognizing that this is a legal question, see Lombardi,
. Petitioner’s memorandum in support of his motion for review outlined four reasons why the court should overturn the special master's decision to deny compensation. See generally Pet’r’s Br. filed May 25, 2011. Petitioner made a number of arguments in support of these four reasons. Although the four headings in this opinion do not correspond with petitioner’s, they allow the court to more cogently address the arguments made by petitioner and respondent.