Lasnetski v. Hhs , 696 F. App'x 497 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOLLY LASNETSKI,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2017-1168
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-vv-00580-MBH, Judge Marian Blank
Horn.
______________________
Decided: August 9, 2017
______________________
RANDALL GORDON KNUTSON, Knutson Casey Law
Firm, Mankato, MN, for petitioner-appellant.
DEBRA ANN FILTEAU BEGLEY, Vaccine/Torts Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by CHAD A. READLER, C. SALVATORE D’ALESSIO,
CATHARINE E. REEVES, GABRIELLE M. FIELDING.
______________________
2 LASNETSKI v. HHS
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Holly Lasnetski appeals from a decision of the United
States Court of Federal Claims (“Claims Court” or “the
court”) affirming the Special Master’s dismissal of her
claim for compensation under 42 U.S.C. §§ 300aa-1 to
300aa-34 (“the Vaccine Act”). See Lasnetski v. Sec’y of
Health & Human Servs., 128 Fed. Cl. 242, 265 (Fed. Cl.
2016) (“Claims Court Decision”); Lasnetski v. Sec’y Health
& Human Servs., No. 14-580V, slip op. at *7 (Fed. Cl.
Spec. Mstr. April 29, 2016) (“Special Master Decision”).
For the reasons that follow, we affirm.
BACKGROUND
I. Relevant Medical History
Ms. Lasnetski was born on November 30, 1986. In
2008, she sought treatment for a history of headaches,
tingling in her left arm, and anxiety. Dr. Raymond Mel-
lema “advised Ms. Lasnetski that she probably belongs at
the Crisis Center” for treatment of anxiety and insomnia.
Claims Court Decision, 128 Fed. Cl. at 245 (internal
quotation marks omitted). In 2009, Ms. Lasnetski again
sought treatment for headaches, numbness in her face,
throat, arms, and hands, and anxiety-related shortness of
breath. In April 2009, she was diagnosed with aphthous
ulcers, which she “was told was the herpes virus” by Dr.
Kristin Wegner. Id. (internal quotation marks omitted).
In July 2009, Ms. Lasnetski believed that she had suf-
fered a miscarriage because she was feeling “worn down
and tired,” and Dr. Michael Nicklawsky diagnosed her as
having sinusitis, depression and migraine headaches. Id.
(internal quotation marks omitted). At the end of July
2009, while starting and stopping the medications Topa-
max, Citalopram, and Augmentin, Ms. Lasnetski sudden-
ly felt numb all over her body, had shortness of breath,
LASNETSKI v. HHS 3
and felt as if she was going to have a panic attack. Dr.
Wegner thought the numbness was “probably secondary
to anxiety or panic,” although he noted that it could have
been a reaction to starting and stopping the medications.
Id. (internal quotation marks omitted).
In February 2011, Ms. Lasnetski presented at an ur-
gent care facility with “urinary frequency and burning,”
while also complaining of back pain. Id. (internal quota-
tion marks omitted). Dr. Mellema assessed a “[p]robable
UTI.” Id. at 246 (internal quotation marks omitted).
On April 3, 2011, Dr. Mellema diagnosed Ms.
Lasnetski with “[c]hronic rhinitis” and noted that:
She gives a history of having been ill a lot this
winter and seems to be describing more of [a] pro-
gression of viral illnesses rather than one specific
thing. . . . She has been on antibiotics multiple
times without benefit. . . . [S]he thinks there is
some mold in her current living environment.
Id. (internal quotation marks omitted).
On July 18, 2011, Ms. Lasnetski received the first
dose of a human papillomavirus (“HPV”) vaccine at a
routine check-up with her primary care physician (“PCP”),
Dr. Sara Jorgensen. Eight days later, she visited a chiro-
practor, complaining of headaches, neck, shoulder, and
lower-back pain, and tingling in her left leg. The chiro-
practor reported that “[Ms. Lasnetski] has a history of a
mild strain to her neck about a year ago that was treated
by a chiropractor and resolved. She has no other health
problems.” Id. (internal quotation marks omitted).
During a visit two days later, she reported that her head-
ache had improved, but she had been having a sharp pain
in her lower back the previous night at her job at a liquor
store, where she had “to lift heavy cases of bottles.” Id.
(internal quotation marks omitted).
4 LASNETSKI v. HHS
On August, 10, 2011, Ms. Lasnetski went to the emer-
gency room (“ER”) because she suspected that she was
pregnant, but the pregnancy test was negative and she
was diagnosed with vaginal bleeding and cramping. Dr.
Jorgensen saw Ms. Lasnetski the next day and noted that
she had been “diagnosed with nothing.” Id. at 247 (inter-
nal quotation marks omitted). That visit with Dr. Jorgen-
sen is the first time in the record that Ms. Lasnetski
spoke of her symptoms in the context of the vaccine
injection. Dr. Jorgensen recorded: “She states she has
had a multitude of symptoms since her annual on 7/26/11.
She states she started to experience nausea and a stiff
neck after her [HPV vaccine] injection. She then devel-
oped a migraine that lasted for 4 days.” Id. (internal
quotation marks omitted).
Ms. Lasnetski returned to Dr. Jorgenson on August
11, 2011, citing nausea, stiff neck, increased urination,
bloating, constipation, and the problems she previously
reported to her chiropractor. The next day, Dr. Gary
Kolle—another PCP in the same group as Dr. Jorgen-
sen—diagnosed her with urinary frequency, gastroesoph-
ageal reflux disease, leg paresthesias, and a paresthesias-
induced headache. Dr. Kolle reported that “Lasnetski has
a history of back problems in the past. [Her] neck was
stepped on in a mosh pit last year.” Id. (internal quota-
tion marks omitted).
On August 14, 2011, Ms. Lasnetski visited the ER,
claiming that “since she had a vaccination,” she suffered
an increased frequency of headaches and numbness in her
arm, leg, and face. Special Master Decision, No. 14-580V,
slip op. at 2 (internal quotation marks omitted). An MRI
and MRA revealed no abnormalities. The ER physicians
diagnosed her with left-side paresthesias and a migraine
and instructed her to see a neurologist.
Ms. Lasnetski followed up with a neurologist—Dr. Iris
Brossard—on August 22, 2011, who noted that she
LASNETSKI v. HHS 5
claimed to have “virtually every symptom on our [medical
history] list” and to “have pain virtually every place.” Id.
(internal quotation marks omitted). A neurological exam
revealed no abnormalities, except for mild back tender-
ness. An antinuclear antibodies (“ANA”) test, which looks
for an autoimmune reaction, was negative. Dr. Brossard
prescribed Ms. Lasnetski two antidepressants and opined
that her symptoms were unrelated to the vaccination and
more likely due to her chronic migraines and potentially a
fibromyalgia syndrome.
The next day, Ms. Lasnetski visited the ER, complain-
ing that her “whole body got tingly.” Id. at *3 (internal
quotation marks omitted). However, most of her symp-
toms cleared up before she arrived at the ER, so the
physicians diagnosed her with numbness of an unknown
etiology.
On September 30, 2011, Ms. Lasnetski saw a new
PCP, Dr. Sam Camp, to whom she reported that she
believed she “had a bad reaction” to the HPV vaccine. Id.
(internal quotation marks omitted). Dr. Camp’s evalua-
tion revealed no abnormalities and he diagnosed constipa-
tion-related abdominal pain, irregular menses, a rash,
neuralgias, and paresthesias.
Ms. Lasnetski met with a rheumatologist, Dr. Robert
Tierney, on December 19, 2011, reporting many of the
aforementioned symptoms. The rheumatologist ran
numerous tests, which were normal except that they
revealed she had a very low level of Vitamin D, which, he
explained, could account for her muscle pain and fatigue.
Ms. Lasnetski visited the ER again on January 28,
2012, complaining of “[c]ramping in the abdomen, left
upper quadrant abdominal pain . . . and blood and mucus
in the stools” along with “ongoing problems with her GI
tract.” Claims Court Decision, 128 Fed. Cl. at 248 (inter-
nal quotation marks omitted). The report of the admit-
ting physician, Dr. Mark E. Hoffman, noted that Ms.
6 LASNETSKI v. HHS
Lasnetski had seen a neurologist and a rheumatologist
and that, “[g]iven the constellation of other symptoms,
apparently she had a positive ANA and a positive rheu-
matoid factor, but they have not pinpointed a specific
autoimmune disorder.” Id. (internal quotation marks
omitted). Dr. Hoffman ultimately diagnosed Ms.
Lasnetski with a “[c]onstellation of multiple symptoms,
not otherwise specified.” Id. (internal quotation marks
omitted).
On February 2, 2012, Ms. Lasnetski returned to Dr.
Camp, complaining of the same symptoms and that she
was “quite convinced” that the HPV vaccine caused a
systemic autoimmune type disorder. Id. (internal quota-
tion marks omitted). Dr. Camp speculated that she might
have postural orthostatic syndrome (“POTS”)—an auto-
nomic nervous system condition characterized by the
“inability to tolerate a standing position as a result of a
sudden increase in heart rate when rising from a seated
or recumbent position”—and, at a follow-up visit in
March, noted that she “fixated on her symptoms because
of her immunization for HPV.” Id. at 249 & n.9. Ulti-
mately, he reported that fibromyalgia and Vitamin D
deficiencies were possible diagnoses and that “autoim-
mune testing has been negative.” Id. (internal quotation
marks omitted).
Ms. Lasnetski visited the Mayo Clinic on May 22,
2012 for a full workup under a POTS framework based on
Dr. Camp’s referral. She reiterated her symptoms, add-
ing that almost all of them appeared within a month after
her vaccination. Dr. R.D. Fealey concluded that she had
neither autoimmune neuropathy nor POTS, but that she
could have an “immune-inflammatory tendency” and that,
although she had a positive ANA test, she did not have a
“really well-defined connective tissue disease.” Id. (inter-
nal quotation marks omitted). Dr. Fealey noted that she
had “sensory dyesthesias following HPV vaccination,” but
made no findings as to whether the sensory dyesthesias
LASNETSKI v. HHS 7
was caused by the vaccination. Id. at 250 (emphasis
added) (internal quotation marks omitted). Another Mayo
Clinic physician, Dr. C.J. Michet, asserted that she had
an “idiosyncratic severe reaction to vaccination” and that
“it would probably be prudent in the future for her to be
cautious about any further vaccinations.” Id. (emphasis
added) (internal quotation marks omitted). The Mayo
Clinic case manager noted that she had a “benign syn-
drome related to activation of her immune system with
perhaps some inflammatory neuritis following her HPV
vaccination last July” and a need to be cautious about
future vaccinations. Id. (internal quotation marks omit-
ted).
For the next year, Ms. Lasnetski sought no medical
treatment. Then, in May 2013, she returned to Dr. Camp
who found that she still had a Vitamin D deficiency. He
reported that Ms. Lasnetski “and her family ha[ve] long
felt that her symptoms in her late teens to early 20s
[were] a complication of the . . . vaccine,” but noted that
he was “skeptic[al].” Id. (internal quotation marks omit-
ted). Dr. Camp referred Ms. Lasnetski to an infectious
disease specialist—Dr. Minces—who observed no abnor-
malities except for a red rash on her back that increased
with anxiety and a Vitamin D deficiency. Dr. Minces did
not believe that the vaccination was the underlying cause
of her symptoms, but rather believed that they likely
resulted from a somatoform disorder—a psychological
disorder defined as “the conversion of mental experiences
or states into bodily symptoms.” Id. at n.11 (quoting
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1734).
However, Dr. Minces admitted that the vaccine could
possibly have triggered a “neuro-immune cascade of
complaints.” Special Master Decision, No. 14-580V, slip
op. at *4 (internal quotation marks omitted). Dr. Minces
referred Ms. Lasnetski to a psychiatrist, but Ms.
Lasnetski refused and “was upset at the suggestion.” Id.
8 LASNETSKI v. HHS
II. Procedural History
On July 9, 2014, Ms. Lasnetski filed a petition for
compensation under the Vaccine Act, alleging that she
incurred “sensory dysesthesias” and a “severe idiosyncrat-
ic reaction” due to the HPV vaccine she received on July
18, 2011. See Special Master Decision, No. 14-580V, slip
op. at *4. A Special Master for the Claims Court dis-
missed her petition, finding that she failed to allege a
“defined and recognized injury.” Id. at *6 (internal quota-
tion marks omitted). The Special Master credited the
testimony of the government’s expert, Dr. Thomas Leist,
that “sensory dysesthesias” and “severe idiosyncratic
reaction” are not diagnoses of an injury. Rather, Dr. Leist
explained, “sensory dysesthesias” is “merely a symptom or
manifestation of an unknown injury” and “severe idiosyn-
cratic reaction” is an “umbrella term which could be used
to describe any manifestation of symptoms that post-dates
a vaccination.” Id. (internal quotation marks omitted).
Thus, in light of the Vaccine Act’s injury requirement, the
Special Master dismissed Ms. Lasnetski’s claim for failure
to allege a “defined and recognized injury.” Id. (internal
quotation marks omitted).
Ms. Lasnetski appealed to the Claims Court, which af-
firmed the Special Master’s dismissal. See Claims Court
Decision, 128 Fed. Cl. at 265. Before the Claims Court,
Ms. Lasnetski argued that the Special Master erred as a
matter of law in requiring that she allege a “defined and
recognized injury,” asserting that such a standard consti-
tutes an “increased burden” over the Vaccine Act’s re-
quirement for an “injury,” for which any medical
“condition” will suffice. Id. at 253, 260. Furthermore, Ms.
Lasnetski argued that the Special Master abused her
discretion in finding that she did not meet that standard
because she had been diagnosed by the Mayo Clinic
doctors with “sensory dysesthesia” and an “idiosyncratic
severe reaction to vaccination.” Id. at 263. Finally, Ms.
Lasnetski argued that the Special Master erred as a
LASNETSKI v. HHS 9
matter of law in terminating her analysis after finding no
defined injury and thus not performing an Althen analysis
for causation-in-fact. Id. at 264 (citing Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005)).
The Claims Court affirmed the Special Master, finding no
error of law and no abuse of discretion.
First, the court explained that the Special Master’s
requirement for a “defined and recognized injury” was
“quoted directly from the Federal Circuit’s decision in
Lombardi” and thus did not constitute a legally errone-
ous, heightened burden. Id. at 261 (citing Lombardi v.
Sec’y of Health & Human Servs., 656 F.3d 1343, 1353
(Fed. Cir. 2011)).
Second, the court found that the Special Master’s de-
cision was not arbitrary or capricious in finding that Ms.
Lasnetski did not allege a “defined and recognized injury.”
The court rejected Ms. Lasnetski’s argument that “dyses-
thesia” is a “defined and recognized” medical condition
because it is defined in Dorland’s Medical Dictionary. The
court explained that Dorland’s defines 124,000 terms,
“including medical procedures, medical instruments,
anatomy, symptoms, and chemical compounds,” id. at
263; thus, simply because Dorland’s defines “dysesthesia”
does not render it a medical condition rather than merely
a symptom or manifestation of an unknown injury, as
found by the Special Master. Furthermore, the court
pointed to the Special Master’s finding that the so-called
“diagnoses” made by the Mayo Clinic physicians were
made “seemingly without consulting [Ms. Lasnetski’s]
medical history,” a finding, the court noted, that Ms.
Lasnetski did not challenge. Id. at 264 (internal quota-
tion marks omitted). Thus, the court found that the
Special Master was not arbitrary or capricious because
she “weigh[ed] the opinions” of the experts and deter-
mined that Dr. Leist’s opinion was “more credible, when
combined with the record before the court.” Id. The court
explained that Ms. Lasnetski “essentially asks this court
10 LASNETSKI v. HHS
to second guess the Special Master’s determination,”
which was not within its purview to do. Id.
Finally, the court found that the Special Master’s
dismissal without performing an Althen analysis did not
constitute legal error. The court cited our decision in
Lombardi where we held that finding an actual injury is a
pre-requisite to an Althen causation analysis. Id. at 262
(citing Lombardi, 656 F.3d at 1352; Broekelschen v. Sec’y
of Health & Human Servs., 618 F.3d 1339, 1349 (Fed. Cir.
2010)). Thus, the court explained, a petitioner must show
that she “suffered from any medically recognized ‘injury,’
not merely a symptom or manifestation of an unknown
injury”; if she fails to do so, the analysis stops there and
the Special Master is not required to perform an Althen
causation analysis. Id. at 260 (citing Lombardi, 656 F.3d
at 1353) (internal quotation marks omitted).
Ms. Lasnetski timely appealed. This court has juris-
diction pursuant to 42 U.S.C. § 300aa-12(f).
DISCUSSION
In Vaccine Act cases, we review a ruling by the
Claims Court de novo, applying the same standard that it
applies in reviewing the decision of the Special Master.
Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,
1330 (Fed. Cir. 2011) (en banc); Moberly v. Sec’y of Health
& Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010).
Therefore, we review the rulings of the Special Master to
determine whether they were “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” Munn v. Sec’y of Health & Human Servs., 970 F.2d
863, 869 (Fed. Cir. 1992).
Because Ms. Lasnetski’s alleged injuries are not listed
on the Vaccine Injury Table, 42 U.S.C. § 300aa-14(a), this
is an “off-Table” case. Moberly, 592 F.3d at 1321–22;
Althen, 418 F.3d at 1278. As such, Ms. Lasnetski was
required to prove, by a preponderance of the evidence,
LASNETSKI v. HHS 11
that the vaccine was “not only a but-for cause of the injury
but also a substantial factor in bringing about the injury.”
Shyface v. Sec’y of Health & Human Servs., 165 F.3d
1344, 1352 (Fed. Cir. 1999).
On appeal, Ms. Lasnetski challenges the Special Mas-
ter’s determination on the same three grounds that she
raised before the Claims Court, namely, that: (1) the
Special Master committed legal error in requiring that
Ms. Lasnetski allege a “defined and recognized injury,”
which Ms. Lasnetski asserts constitutes a heightened
burden over the Vaccine Act’s requirements; (2) even
under that standard, Ms. Lasnetski alleged a “defined and
recognized injury” and thus the Special Master abused
her discretion in finding to the contrary; and (3) the
Special Master committed legal error in failing to perform
an Althen causation analysis. We discuss each issue in
turn.
I. “Defined and recognized injury”
First, Ms. Lasnetski argues that the Special Master
erred in requiring her to allege a “defined and recognized
injury.” Ms. Lasnetski asserts that the Vaccine Act has a
broad “injury” requirement—specifically, it defines a
“vaccine-related injury or death” as including “an illness,
injury, condition, or death.” Appellant’s Br. 14 (altera-
tion in original) (citing 42 U.S.C. § 300aa-11(c); 42 U.S.C.
§ 300aa-33(5)). Thus, Ms. Lasnetski argues, any medical
“condition” will meet the Vaccine Act’s injury-requirement
and the Special Master’s “defined and recognized injury”
requirement was a legally erroneous, narrower require-
ment that precludes a claimant from recovering for a
medical condition simply because it has not yet been
given a label. Furthermore, Ms. Lasnetski asserts, the
case law broadly refers to a “vaccine-related injury” as a
“harm,” thus indicating the broad meaning given to that
term. Id. at 15–16. Furthermore, Ms. Lasnetski main-
tains, although “defined and recognized injury” is a direct
12 LASNETSKI v. HHS
quote from Lombardi, that case is inapposite—it involved
a situation where three different experts suggested three
different diagnoses that could only result from differing
underlying causes, whereas here, Ms. Lasnetski’s expert
and the Mayo Clinic physicians are in agreement as to her
diagnosis.
The government responds that the Special Master
properly required Ms. Lasnetski to prove that she had a
“defined and recognized injury,” in accordance with this
court’s precedent.
We agree with the government that the Special Mas-
ter applied the correct standard. In Lombardi, we ex-
plained that “the statute places the burden on the
petitioner to make a showing of at least one defined and
recognized injury.” 656 F.3d at 1353 (emphasis added)
(citing 42 U.S.C. § 300aa-11(c)(1)(C)(ii)(I)). Because the
Special Master had found that Ms. Lombardi failed “to
show by a preponderance of the evidence that she suffered
from any medically recognized ‘injury,’ not merely a symp-
tom or manifestation of an unknown injury,” we affirmed
its finding that she had “failed to meet her burden.” Id.
(emphasis added). Thus, in light of this court’s precedent,
the Special Master’s requirement that Ms. Lasnetski
prove a “defined and recognized injury” was not legally
erroneous.
II. The Special Master’s finding that Ms. Lasnetski had
not met her burden
We next consider whether the Special Master abused
her discretion in finding that Ms. Lasnetski had not met
her burden to allege a “defined and recognized injury.”
Ms. Lasnetski argues that, even under the heightened
standard, she sufficiently alleged a “defined and recog-
nized injury.” Ms. Lasnetski asserts that she was diag-
nosed with “dysesthesia,” which is defined in Dorland’s
Medical Dictionary and thus is a “defined” medical condi-
LASNETSKI v. HHS 13
tion, as required. Furthermore, Ms. Lasnetski asserts,
the condition she alleged is a “recognized injury” because
the two Mayo Clinic physicians recognized that injury by
diagnosing her with “[s]ensory dysesthesia following HPV
vaccination” and an “idiosyncratic severe reaction to
vaccination.” Furthermore, Ms. Lasnetski continues, the
Special Master and the Claims Court erred in relying on
the medical expert, Dr. Leist, to answer a legal question—
i.e., what qualifies as an injury under the Vaccine Act.
The government responds that the Special Master’s
determination was not arbitrary or capricious. The
government contends that the Special Master reviewed
the record as a whole and found the opinions of Dr. Leist
most persuasive, a fact finding that merits deference on
review. Furthermore, the government argues, Ms.
Lasnetski was given several opportunities to provide
supplemental evidence but declined to do so.
We agree with the government that the Special Mas-
ter did not abuse her discretion. As the Claims Court
found, the Special Master made a well-reasoned determi-
nation based on a rational interpretation of the record
evidence.
The role of appellate review of a Special Master’s de-
cision under the arbitrary and capricious standard “is not
to second guess the Special Master’s fact-intensive conclu-
sions; the standard of review is uniquely deferential for
what is essentially a judicial process.” Locane v. Sec’y of
Health & Human Servs., 685 F.3d 1375, 1380 (Fed. Cir.
2012) (quoting Hodges v. Sec’y of Health & Human Servs.,
9 F.3d 958, 961 (Fed. Cir. 1993); Doe v. Sec’y of Health &
Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010)). If
the Special Master’s conclusion is “based on evidence in
the record that [is] not wholly implausible, we are com-
pelled to uphold that finding as not being arbitrary and
capricious.” Cedillo v. Sec’y of Health & Human Servs.,
617 F.3d 1328, 1338 (Fed. Cir. 2010) (quoting Lampe v.
14 LASNETSKI v. HHS
Sec’y of Health & Human Servs., 219 F.3d 1357, 1360
(Fed. Cir. 2000)). Put another way, if the Special Master
“has considered the relevant evidence of record, drawn
plausible inferences and articulated a rational basis for
the decision, reversible error will be extremely difficult to
demonstrate.” Hines v. Sec’y of the Dep’t of Health &
Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
In this case, the Special Master drew “plausible infer-
ences” from the record evidence and “articulated a ration-
al basis for [her] decision.” Id. Specifically, the Special
Master made a credibility assessment after weighing the
competing evidence from Ms. Lasnetski—i.e., her expert’s
report that interpreted the Mayo Clinic physicians’ find-
ings as “diagnoses” of cognizable injuries—and testimony
of the government’s expert, Dr. Leist, that the so-called
“diagnoses” were not diagnoses at all, but rather a recita-
tion of symptoms of unknown origin. See Claims Court
Decision, 128 Fed. Cl. at 253. Dr. Leist had testified that
“sensory dysesthesias” is “merely a symptom or manifes-
tation of an unknown injury” and “idiosyncratic severe
reaction to vaccination” is an “umbrella term which could
be used to describe any manifestation of symptoms that
post-dates a vaccination.” Id. The Special Master found
Dr. Leist’s testimony more credible in light of the record
evidence.
In fact, Dr. Leist had provided a potential explanation
for the divergence between the year of medical evaluation
with no diagnoses of a vaccine-related injury and the so-
called “diagnoses” by the Mayo Clinic physicians and Ms.
Lasnetski’s testifying expert. Dr. Leist observed that
those physicians reached the “diagnoses” “seemingly
without consulting [Ms. Lasnetski’s] medical history,” but
rather based solely on her report. Id. at 252. Thus, in
light of the record evidence, the Special Master deter-
mined that Dr. Leist’s testimony was more credible and
that the so-called “diagnoses” upon which Ms. Lasnetski
based her claim were not cognizable injuries under the
LASNETSKI v. HHS 15
Vaccine Act, but rather merely symptoms of unknown
origin.
That conclusion was a reasonable inference drawn
from the record evidence. 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 credibility of the witnesses. These are all matters
within the purview of the fact finder.” Munn, 970 F.2d at
871. 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); see also Hines, 940 F.2d at 1524.
III. Failure to perform an Althen analysis
We finally consider whether the Special Master erred
in not performing an Althen analysis for causation-in-fact
after determining that Ms. Lasnetski failed to allege a
“defined and recognized injury.”
Ms. Lasnetski argues that the Special Master was re-
quired to perform an Althen causation analysis. Ms.
Lasnetski asserts that, once a petitioner establishes the
three prongs of the Althen analysis, the burden shifts to
the government to show that the injury was caused by a
factor unrelated to the vaccine. Thus, Ms. Lasnetski
contends, the Special Master improperly avoided the
Althen analysis and thereby avoided shifting the burden
to the government.
The government responds that the Special Master
was not required to perform an Althen analysis after
finding that Ms. Lasnetski suffered no vaccine-related
injury.
We agree with the government that the Special Mas-
ter was not required to perform an Althen analysis here.
In Lombardi, we held that “identification of a petitioner’s
injury is a prerequisite to an Althen analysis of causation”
16 LASNETSKI v. HHS
and thus “in the absence of a showing of the very exist-
ence of any specific injury of which the petitioner com-
plains, the question of causation is not reached.” 656 F.3d
at 1352–53 (emphases added) (citing Broekelschen, 618
F.3d at 1336, 1349).
In this case, 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.
After finding that no “defined and recognized injury” was
supported by the record—a finding we affirm, as dis-
cussed above—she dismissed the case without attempting
to perform an Althen analysis for causation to a non-
existent injury. That approach was in accordance with
this court’s precedent and therefore involved no legal
error.
CONCLUSION
We have considered the remaining arguments but
find them to be unpersuasive. For the foregoing reasons,
we affirm the decision of the Claims Court.
AFFIRMED
COSTS
No costs.