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 Irvine, 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. Broekelschen 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 presumed. 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 excellent health. He had an active medical practice in gastroenterology 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. Broekelschen 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 proprioception 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 differential 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 interrupts 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 dysfunction 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 working 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 concur with the report of transverse myelitis.” J.A. 117. Dr. 

vanden Noort, however, concluded that “[i]t is not necessary to pursue alternative diagnoses because [Dr. Broekelschen] is improving slowly.” Id.

Despite Dr. vanden Noort and Dr. Storch’s conclusions, Dr. Broekelschen presented symptoms that are 

characteristic of both anterior spinal artery syndrome, a 

vascular condition, and transverse myelitis, an inflammatory 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 Federal Claims seeking compensation under the Vaccine Act 

alleging that the flu vaccine caused him to suffer transverse 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 transverse 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 vaccinations 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 matters 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 Neurology 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. Broekelschen 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 virtually 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 myelitis 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 persuasive. 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 “demeanor 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 angiogram, 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 artery syndrome was the injury best supported by the 

evidence, the special master considered whether Dr. 

Broekelschen had shown by a preponderance of the evidence 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 connecting the vaccination and [anterior spinal artery syndrome],” Althen v. Sec’y of Health & Human Servs., 418 

F.3d 1274, 1278 (Fed. Cir. 2005), and therefore Dr. Broekelschen 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 master’s decision in the Court of Federal Claims. See Broekelschen, 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 preponderant evidence that the vaccination brought about 

her injury by providing: (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 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 established 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 preponderance 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 causation 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 subsequently 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 connecting 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 myelitis and anterior spinal artery syndrome—have overlapping 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 determine 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 syndrome, and the parties dispute which disease Dr. Broekelschen suffered. This is unlike Andreu, where the parties 

agreed that the petitioner suffered from a seizure disorder, 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. Broekelschen’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 finding 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 proprioception; opinions of treating doctors; and opinions of testifying 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.” Broekelschen, 2009 U.S. Claims LEXIS 137, at *43. Furthermore, 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 records. 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. Broekelschen suffered from myelopathy—a general term encompassing 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 important 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 suffering from transverse myelitis on a daily basis as the codirector 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 angiogram. 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 transverse 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, however, 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. Generally, 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. Broekelschen focuses heavily on Dr. Greenberg’s first statement 

and ignores his complete testimony that multiple blockages are “absolutely” possible. See id. Also, Dr. Broekelschen points to the abnormal proprioception to support a 

finding of transverse myelitis. Yet there is no medical 

record that Dr. Broekelschen’s proprioception was impaired 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 emphasized that the MRIs indicating two lesions is inconsistent 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 professional 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. Seeing 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 myelitis 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 anterior 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 records, 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. Broekelschen 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 credibility 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. Dissenting 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, condition, 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, disability, injury or condition, has to be more than just a symptom 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 evidence, 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. Greenberg’s medical testimony was better supported by sound 

medical explanation, including the fact that Dr. Greenberg’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 “demeanor” 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 petitioner, 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 Vaccine 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 showing of a proximate temporal relationship between vaccination 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 government’s alternative evidence on injury prior to determining 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 preponderance of the evidence of a medical theory causally connecting 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 presented 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 mimicry theory to the flu vaccine—a literature review based 

on two papers from the early 1950s, which in turn considered 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 (quoting 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 preponderance 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 Federal 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 therefore 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 tomography scans, a lumbar puncture, and an angiogram, but 

were unable to conclusively determine the cause of Broekelschen’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 experienced 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 alternative 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 master’s decision in the Court of Federal Claims, which affirmed the decision of the special master denying 

compensation. 

In Althen, we described the burden for a vaccine injury 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 Broekelschen’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 Broekelschen’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. Contrary 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. § 300aa33(5). Petitions for compensation must demonstrate that 

the claimant sustained “any illness, disability, injury, or 

condition” caused by a vaccine. 42 U.S.C. § 300aa11(c)(1)(C)(ii)(I). Therefore, even in the absence of a 

definitively diagnosed injury, claimants such as Broekelschen 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 response 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 support of the proposition that the special master appropriately 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 syndrome (“SIDS”), rather than a vaccine, to rebut the claimants’ 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 government’s theory of diagnosis to determining whether it 

undercut the evidence Broekelschen presented to establish 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 requirement 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 eliminating alternative causes where the other evidence on causation 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 reasons. First, the Althen test does not support a head-tohead 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 persuasiveness of the competing medical theories is a separate 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 background or demeanor of the government’s expert. The 

focus should have been solely on the “relative persuasiveness 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 & Human 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 created by treating physicians support Broekelschen’s theory. 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 vaccination, 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 preponderance 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 resulted from vaccine-induced TM. I would therefore remand to allow the special master to properly apply the 

test laid out in Althen to Broekelschen’s claim and appropriately weigh the expert witness testimony.