In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 19-1620V

(not to be published)

WAYNE VENABLE,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: February 19, 2020

Special Processing Unit (SPU); 

Pneumococcal 23-polyvalent

Vaccine; Shoulder Injury Related to 

Vaccine Administration (“SIRVA”); 

Vaccine Not Covered Under the

Program; Vaccine Act Entitlement; 

DECISION1

On October 17, 2019, Wayne Venable filed a petition for compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.

2 (the 

“Vaccine Act”). (ECF No. 1). Petitioner alleges that he suffered a left shoulder injury which 

was caused by a Pneumococcal 23-polyvalent vaccination he received on October 19, 

2018. Id. at 1-2. The case was assigned to the Special Processing Unit of the Office of 

Special Masters.

On October 22, 2019, I issued an Order to Show Cause informing Petitioner that 

the Pneumococcal 23-polyvalent vaccine is not covered under the Vaccine Program. 

(ECF No. 6). I also provided him an opportunity to offer evidence as to why his Petition 

should not be dismissed. 

 1 Although I am not formally designating this Decision for publication, the fact that it contains reasoned 

analysis requires me to post it on the United States Court of Federal Claims' website in accordance with 

the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of 

Electronic Government Services). This means the Decision will be available to anyone with access to 

the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact 

medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. 

If, upon review, I agree that the identified material fits within this definition, I will redact such material from 

public access. 

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
2

As I explained in my Order to Show Cause, in order to receive compensation under 

the Vaccine Act, a petitioner must show that he received a vaccine set forth in the Vaccine 

Injury Table (the “Table”). See Section 11(c)(1)(A); 42 C.F.R. § 100.3 (2017). “There are 

two types of pneumococcal vaccines . . . pneumococcal conjugate and polysaccharide 

vaccine[s].” Bundy v. Sec’y or Health & Human Servs, No. 12-769V, 2014 WL 348852, 

at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014). But only pneumococcal conjugate vaccines, 

routinely administered to children, are covered by the Vaccine Program. Id.; see also

Morrison v. Sec’y of Health & Human Servs, No. 04-1683V, 2005 WL 2008245, at *1 (Fed. 

Cl. Spec. Mstr. July 26, 2005) (describing how and when pneumococcal conjugate

vaccines were added to the Vaccine Table). Mr. Venable unquestionably received a 

pneumococcal polysaccharide vaccine. Ex. 2, (ECF No. 1-5). 

 

On November 25, 2019, Petitioner filed an Amendment to Petition for Vaccine 

Compensation (“Amended Petition.”). (ECF No. 7). Petitioner’s Amended Petition 

acknowledges he received a Pneumococcal 23-polyvalent vaccination. Id. However, 

Petitioner disputes that the Pneumococcal 23-polyvalent vaccination is not routinely 

administered to children and indicates that “coverage under the Vaccine Act should be 

allowed.” Id. Respondent filed a brief reacting to Petitioner’s Amended Petition on January

3, 2020. (ECF No. 9). Respondent argues that the Petition must be dismissed for failure 

to state a claim upon which relief can be granted. (ECF at 1-2).

Respondent is correct. The Pneumococcal 23-polyvalent vaccine does not appear 

in the Table and is therefore not covered by the Program.3 Whether or not in fact one 

demographic group or another receives a particular vaccine does not control my 

determination – the Vaccine Table does. While Petitioner may have a point that this 

particular vaccine should be a covered vaccine, I am only empowered to grant relief 

regarding those vaccines that are presently covered.

Petitioner has failed to demonstrate that he received a vaccine covered under the 

Vaccine Program. This case is therefore dismissed for failure to failure to state a 

claim upon which relief can be granted. 

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

 3 See National Vaccine Injury Compensation Program: Addition of Pneumococcal Conjugate Vaccines to 

the Vaccine Injury Table, 66 Fed. Reg. 28166 (May 22, 2001) (“[t]hrough this notice, pneumococcal 

conjugate vaccines are now included as covered vaccines under Category XIII of the Table. Because the 

CDC only recommended pneumococcal conjugate vaccines to the Secretary for routine administration to 

children, polysaccharide-type pneumococcal vaccines are not covered under the VICP or included on the 

Table.”).