Carter v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-0379V

LORI CARTER, Chief Special Master Corcoran

Petitioner, Filed: September 3, 2024

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Glen Howard Sturtevant, Jr., Rawls Law Group (Richmond), Richmond, VA, for Petitioner.

Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION DISMISSING PETITION1

On January 8, 2021, Lori Carter filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the

“Vaccine Act”), which she later amended twice. Petitioner alleges that she suffered a

shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza

(“flu”) vaccine received on February 5, 2020. Second Amended Petition (ECF No. 26) at

1.3 The case was assigned to the Special Processing Unit of the Office of Special Masters.

1

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.

§ 300aa (2018).

3

The Second Amended Petition also includes an alternative claim that, if it was found that Petitioner

suffered from an underlying immunologic, neurologic, or genetic disorder, the February 5th vaccination

significantly aggravated that condition. Second Amended Petition at *1. However, Petitioner has not

For the reasons discussed below, I find that Petitioner has not established by a

preponderance of the evidence that she is entitled to compensation. Thus, the claim is

dismissed.

I. Relevant Procedural History

After the case was activated, Petitioner was directed to file additional complete and

certified medical records, additional evidence addressing onset and severity, and an

amended petition if desired (ECF No. 24). Petitioner filed an amended petition and

medical records (ECF Nos. 26, 28, 31, 34).

Thereafter, Respondent filed a motion to dismiss and Rule 4(c) Report (ECF No.

40), and Petitioner opposed (ECF No. 43). The issue of whether the case should be

dismissed is now ripe for resolution.

II. Relevant Factual History

A. Medical Records

Petitioner received the flu vaccine alleged as causal in her left arm on February 5,

2020. Ex. 1 at 5. Although she had a history of cervical radiculopathy and cervicalgia, her

last treatment for those conditions prior to vaccination was in 2016 (Ex. 4 at 24, 28, 29,

39), and it is not alleged that they contributed to her post-vaccination symptoms.

Petitioner saw her primary care physician (“PCP”), Dr. David Reyes, on February

5, 2020, the date of vaccination. Ex. 6 at 40-50; Ex. 9 at 47-58. The records from this visit

are forms filled in by hand. Id. She reported a history of epilepsy, with a hospital visit

about a year and a half prior, but no musculoskeletal problems. Id. Although the records

are difficult to read, it appears that some testing was done or ordered, and labs were done

later that month. Ex. 6 at 21-24, 52; Ex. 9 at 59, 63-65.

It appears that Petitioner saw Dr. Reyes again on March 5 and May 28, 2020,

although the relevant records are sparse. Ex. 6 at 15-18; Ex. 9 at 21-25. Dr. Reyes

ordered an EEG and pap smear on March 5, 2020. Ex. 6 at 18, 19; Ex. 9 at 24, 25. The

records list the authorizations as “pending.” Id. Dr. Reyes’s records contain a form dated

March 5, 2020 titled “Patient History and Physical Examination.” Ex. 6 at 17; Ex. 9 at 23.

It is filled in by hand and contains Petitioner’s name, date of birth, phone number, and

signature, but is otherwise blank. Id. Dr. Reyes’s records contain an identical document,

with the same information, dated May 28, 2020. Ex. 6 at 15; Ex. 9 at 21. On this date, she

was given a prescription for Keflex. Ex. 6 at 16; Ex. 9 at 22. It is not clear what Petitioner

identified an underlying disorder, and did not address a significant aggravation claim in response to the

motion to dismiss – nor would the record support such a claim.

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was seen for on these dates or whether an examination was done. None of these records

document any concerns with Petitioner’s arm or shoulder.

Petitioner saw Dr. David Reyes on June 25, 2020, and the record of this visit

appears to be an electronic medical record (contrasted with the forms filled in by hand for

the prior visits). Ex. 6 at 4-5; Ex. 9 at 10-11. Her chief complaints were an itchy scalp with

dandruff and a red earlobe. Id. The record states that her extremities functioned within

normal limits, and that she displayed full motor strength for all limbs. Id. The record also

notes that Petitioner reported “shoulder pain after receiving a flu shot. Date and time

unknown. Patient complains of decreased range of motion of shoulder.” Ex. 6 at 5; Ex. 9

at 11. The record does not state which shoulder was affected or specify when the

symptoms began, however, other than identifying the date as “after” vaccination.

The June 25th record also contains two notes that have later dates, and thus

appear to have been added later. First, the record includes a diagnosis of noncompliance

with treatment, explaining that Petitioner “did not return for follow up visit. No show

7/30/2020 Cancelled refused to reschedule.” Ex. 6 at 5; Ex. 9 at 11. Second, the bottom

of the record contains a notation stating that Petitioner called on December 22, 2020,

requesting a copy of her chart, and came in later that day and signed a release form. Id.

She “insisted on talking to Dr. Reyes” in the office lobby (with no other patients present),

and “described incident where her shoulder had been injected with flu vaccine with still

present pain and decreased range of motion.” Id. Dr. Reyes suggested an x-ray and a

follow up appointment. Id. The note further states that Dr. Reyes’s office called Petitioner

on December 30, 2020, requesting that she call back and let them know whether the

problem was with her right or left shoulder. Id. Dr. Reyes sent Petitioner a letter that same

day containing a copy of a portion of the electronic record concerning the December 22nd

and 30th communications. Ex. 6 at 6; Ex. 9 at 12.

Dr. Reyes’s records contain what appears to be a printout of his electronic calendar

for July 30, 2020. Ex. 6 at 26; Ex. 9 at 33. Petitioner’s name appears at 3:30-3:45pm,

followed by “CANCELLED.” Id. Dr. Reyes’s records also contain what appears to be a

printout of his electronic calendar for January 4, 2021. Ex. 6 at 25; Ex. 9 at 32. Petitioner’s

name appears at 4:30-4:45pm, although it is unclear why, and there is no medical record

suggesting that she was seen on that date. Id.

Dr. Reyes’s records further contain a January 5, 2021 prescription and

authorization for a shoulder x-ray, with diagnoses of pain and stiffness of Petitioner’s left

shoulder. Ex. 6 at 13; Ex. 9 at 19, 68. The authorization was approved, although it does

not appear that Petitioner had the x-ray done.4 Id.

4 Petitioner explained in a declaration that she moved out of state in December 2020 (Ex. 13 at 1), which

would explain why she did not have an x-ray that was ordered the following month.

3

Petitioner’s records contain a letter dated February 9, 2021 from Dr. Reyes to

Petitioner. Ex. 6 at 3; Ex. 9 at 2, 9. The letter states that her last visit as a patient was on

June 25, 2020, and her health record has been available for her to pick up since the end

of December 2020. Id.

Petitioner filed primary care records for 2022. Ex. 11. The only reference to

shoulder pain is an August 20, 2022 form where she checked “yes” for shoulder pain, as

well as back and neck pain, without further explanation. Id. at 27. It does not appear that

she sought or received treatment for her shoulder on this date. Id.

B. Declarations

Petitioner filed four declarations in support of her claim. Exs. 2, 7, 8, 13.5 Petitioner

states that her symptoms began with “a great deal of pain” within a few hours of receiving

the flu vaccine. Ex. 7 at 1. Her arm “was so sore all the way up to [her] shoulder,” and she

could not lift it higher than a 45 degree angle. Id. As weeks and months went by, it

worsened rather than improving, with extreme pain if she raised it even slightly. Id. She

could not use her arm to undress, and could only employ her right arm in performing

certain physical tasks. Id. She was no longer able to do her normal exercise, pushups, or

yoga, and could not ride her motorcycle. Id. Six months later, she could finally raise her

arm, but her shoulder would click as it went over her head. Id. As of October 2021 (when

she signed the declaration filed as Exhibit 7), she still had “significant pain” and weakness

in her left arm and shoulder. Id. at 3. She continued to have trouble putting shirts on and

taking them off, and sometimes could not wear a bra. Id.

The flu vaccine, Petitioner maintains, was injected “extremely high” on her arm.

Ex. 7 at 2. When she saw Dr. Reyes on March 5, 2020, she thought that her pain might

be normal, and she did not mention it to him. Id. When she saw him on May 28, 2020,

she “told him what was going on and described my pain from the vaccine and he told me

I had to wait six months to give it time to heal before he did anything.” Id.

Petitioner further alleges that she returned to Dr. Reyes on June 25, 2020, and told

him that her shoulder was not improving. Ex. 7 at 2. He “said to wait another two months

before he would refer me for an x-ray and other treatments.” Id. He told her it sounded

like a rotator cuff injury. Id. She explains:

Dr. Reyes never diagnosed me with anything and did not seem to care one

bit until I requested my medical records for my lawyers at the end of

5

Although Petitioner labeled these documents as affidavits, they are not notarized. Nonetheless, they are

acceptable as declarations pursuant to 28 U.S.C. § 1746 because they are declared true and correct under

penalty of perjury.

4

December and at that point he wanted to take immediate action and refer

me to multiple doctors for x-rays and other things. I feel Dr. Reyes mainly

wanted the money for referrals and I was already moving away in a few

days.

Ex. 7 at 2. Petitioner adds that it was Dr. Reyes who sent her to the pharmacy where she

received the vaccine, and she now thinks he was just trying to protect himself and the

pharmacy. Id. She adds that Dr. Reyes “was not professional and did not seem qualified,”

even falling asleep during appointments at times. Id. at 3.

Petitioner’s experience with Dr. Reyes, she reports, has made her uncomfortable

and less trusting of doctors. Ex 10 at 1. She has not returned to a doctor to treat her left

arm and shoulder, and does not intend to do so. Id. She continues to have a lot of pain,

but has accepted living with a “damaged arm” and thus did not seek care for it with her

new PCP in Nevada. Id. She moved from California to Nevada in December 2020 for

personal reasons, feeling that she needed a change. Ex. 13 at 1.

Petitioner’s mother, Effie Carter, also submitted a declaration in support of the

claim. Ex. 8. Petitioner’s mother states that Petitioner’s arm began hurting on the day of

vaccination and increased in the following days. Ex. 8 at 1. Petitioner’s mother saw

Petitioner the day after vaccination and could not believe how high on her arm the

injection had been administered. Id. Petitioner told her mother that her arm was throbbing

and in a great deal of pain. Id. After “a couple of months,” Petitioner’s mother told

Petitioner to tell her doctor, which she did. Id.

Effie Carter further states that Petitioner saw Dr. Reyes on March 5, May 28, and

June 25, 2020, but that he did not diagnose or treat her symptoms. Ex. 8 at 1. Petitioner

“has been in pain since her vaccination and is still in pain today.” Id. Petitioner has an

“extremely high pain tolerance,” and Effie Carter has never heard her complain over an

injury this much. Id. at 1-2. She has also seen a decline in her daughter’s daily activities,

and Petitioner now has limited ability to exercise alone or with others. Id. at 2. Additionally,

Petitioner is now afraid to get another vaccination. Id.

III. Legal Standards

Before compensation can be awarded under the Vaccine Act, a petitioner must

demonstrate, by a preponderance of evidence, all matters required under Section

11(c)(1), including the factual circumstances surrounding his or her claim. Section

13(a)(1)(A). In making this determination, the special master or court should consider the

record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical

records or by medical opinion. Id.

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To resolve factual issues, the special master must weigh the evidence presented,

which may include contemporaneous medical records and testimony. See Burns v. Sec'y

of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special

master must decide what weight to give evidence including oral testimony and

contemporaneous medical records). “Medical records, in general, warrant consideration

as trustworthy evidence. The records contain information supplied to or by health

professionals to facilitate diagnosis and treatment of medical conditions. With proper

treatment hanging in the balance, accuracy has an extra premium. These records are

also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &

Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

To overcome the presumptive accuracy of medical records, a petitioner may

present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y

of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr.

Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998

WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has

“reject[ed] as incorrect the presumption that medical records are accurate and complete

as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997

F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,

or a physician may enter information incorrectly or not record everything he or she

observes).

The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,

identifies the vaccines covered under the Program, the corresponding injuries, and the

time period in which the particular injuries must occur after vaccination. Section 14(a).

Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48

hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria

establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation

(“QAI”) are as follows:

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests

as shoulder pain and limited range of motion occurring after the

administration of a vaccine intended for intramuscular administration in the

upper arm. These symptoms are thought to occur as a result of unintended

injection of vaccine antigen or trauma from the needle into and around the

underlying bursa of the shoulder resulting in an inflammatory reaction.

SIRVA is caused by an injury to the musculoskeletal structures of the

shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological

injury and abnormalities on neurological examination or nerve conduction

studies (NCS) and/or electromyographic (EMG) studies would not support

SIRVA as a diagnosis (even if the condition causing the neurological

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abnormality is not known). A vaccine recipient shall be considered to have

suffered SIRVA if such recipient manifests all of the following:

(i) No history of pain, inflammation or dysfunction of the affected shoulder

prior to intramuscular vaccine administration that would explain the alleged

signs, symptoms, examination findings, and/or diagnostic studies occurring

after vaccine injection;

(ii) Pain occurs within the specified time-frame;

(iii) Pain and reduced range of motion are limited to the shoulder in which

the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the

patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,

brachial neuritis, mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10).

A special master may find that the first symptom or manifestation of onset of an

injury occurred “within the time period described in the Vaccine Injury Table even though

the occurrence of such symptom or manifestation was not recorded or was incorrectly

recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may

be made only upon demonstration by a preponderance of the evidence that the onset [of

the injury] . . . did in fact occur within the time period described in the Vaccine Injury

Table.” Id.

IV. Parties’ Arguments

Respondent argues that Petitioner has not met the statutory severity requirement

or established that she suffered a Table SIRVA or injury caused in fact by the flu vaccine,

and thus the claim should be dismissed. Respondent’s Rule 4(c) Report and Motion to

Dismiss, filed June 30, 2023 (ECF No. 40) (“Mot.”). Respondent asserts that Petitioner

has not demonstrated that she suffered SIRVA-related symptoms through August 2020

(six months after vaccination), citing “sparse and unclear medical records [that] do not

corroborate petitioner’s allegations of severity from her Petition or affidavits.” Mot. at *5.

In Respondent’s view, there is no objective documentation of left shoulder symptoms

persisting beyond August 2020. Id.

Respondent also argues that Petitioner has not provided preponderant evidence

that she suffered a Table injury. Mot. at *6. The contemporaneous medical records “are

entirely unclear as to the onset (and duration) of petitioner’s alleged left shoulder pain”

after vaccination. Mot. at *7. Respondent asserts that Petitioner’s first – and seemingly

last – medical appointment “that might have included a complaint of shoulder pain was

on June 25, 2020 – more than four months post-vaccination.” Id. And “[i]t is not at all clear

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or apparent whether petitioner ever mentioned left shoulder issues stemming from

vaccination to any medical provider between February and December 2020 (one month

before she filed her Vaccine Program claim).” Although the June 25th record contains a

note about shoulder pain, Respondent notes that the chief complaints for this appointment

were an itchy scalp and red earlobe, and “in December 2020, it seems Dr. Reyes added

comments about shoulder pain from vaccination based on petitioner’s requests on

December 22, 2020.” Id. at n.7.

Additionally, there are no post-vaccination records of any left shoulder

examinations, diagnoses, or assessments that support any vaccine-related shoulder pain

or dysfunction. Mot. at *7. A special master cannot find that a vaccine-related injury

occurred based solely upon the claims of a petitioner pursuant to Section 13(a)(1) of the

Vaccine Act. Id. (citing Lett v. Sec’y of Health & Human Servs., 39 Fed. Cl. 259, 260

(1997)). Respondent adds that Petitioner has not substantiated a causation-in-fact claim

either, and thus the claim should be dismissed. Id. at *7-9

Petitioner maintains that she suffered a Table SIRVA that lasted longer than six

months. Petitioner’s Brief in Opposition to Respondent’s Rule 4(c) Report and Motion to

Dismiss, filed Oct. 20, 2023, at *5 (ECF No. 43) (“Opp.”). Petitioner argues that she sought

timely medical treatment for her left shoulder pain “in the context of the COVID-19

pandemic that was quickly spreading” at the time. Opp. At *5.

Despite COVID-related emergency and stay at home orders, Petitioner asserts

that she sought treatment for her SIRVA on May 28, 2020. Opp. at *6. She acknowledges

that “much is left to be desired by Dr. Reyes’s charting and, unfortunately, he did not

document Ms. Carter’s complaints of left shoulder pain at this visit.” Id. Petitioner returned

to Dr. Reyes complaining of left shoulder pain on June 25th, and this time he documented

her shoulder symptoms. Id.

Petitioner also contends that between June and December 2020, COVID-19

deaths skyrocketed and additional public health restrictions were imposed. Opp. at *6. By

December 22, 2020, Petitioner’s symptoms still had not resolved, so she again visited6

Dr. Reyes. Id. He then ordered an x-ray, but by the time it was approved, COVID-related

restrictions had been renewed and Petitioner had moved out of state. Id. at *6-7.

Petitioner argues that she reported the injury and sought treatment from her PCP.

Opp. at *7. Dr. Reyes “eventually documented those reported symptoms, etiology of the

injury, and timing of onset in two separate notes in Ms. Carter’s chart – one of which was

10 months after the vaccination at issue, clearly establishing Ms. Carter experienced

SIRVA-related symptoms longer than six months.” Id. And Petitioner adds (without

6 Petitioner does not propose, however (and the record does not support) that she saw Dr. Reyes as a

patient on this date. Instead, the record shows that she went to his office for records and spoke with him in

the lobby.

8

support) that her “left shoulder pain began fewer than 48 hours after the vaccination.”

Opp. at *7. Alternatively, Petitioner maintains that her injury satisfies the criteria for a

causation in fact claim. Id. at *7-10.

Analysis

In this case, the medical records barely allude to a reported shoulder problem at

some point after vaccination, but do not specify when, or even in which shoulder. And

there is no objective evidence, such as examination findings or imaging, of a post-

vaccination abnormality in Petitioner’s shoulder. Although Petitioner’s declarations

recount “a great deal of pain” beginning shortly after vaccination, this is not supported by

the medical records. The only medical records that purport to support Petitioner’s claimed

injury are those of Dr. Reyes which, unfortunately, are sparse, difficult to read, and

somewhat unclear.

The medical records suggest, at best, that Petitioner experienced shoulder pain

sometime after vaccination – but do not even hint at the crucial question of when. The

first – and only – medical record documenting shoulder pain (the June 25, 2020 record)

states the pain occurred “after” vaccination, adding “[d]ate and time unknown,” and does

not state which shoulder was affected. Ex. 6 at 5; Ex. 9 at 11. This record is dated nearly

five months after vaccination – a significant length of time, which only exacerbates the

vagueness of the timing noted in the record and the lack of specificity as to which shoulder

was affected. See N.B. v. Sec’y of Health & Human Servs., No. 20-0151V, 2023 WL

183458 (Fed. Cl. Spec. Mstr. Jan. 13, 2023) (dismissing Table claim where Petitioner’s

first complaint was over four months after vaccination, with multiple intervening medical

appointments not mentioning shoulder pain), N.B. v. Sec’y of Health & Human Servs.,

No. 20-0151V, 2023 WL 4573213 (Fed. Cl. Spec. Mstr. June 13, 2023) (dismissing off

Table claim); Porcello v. Sec’y of Health & Human Servs., No. 17-1255V, 2020 WL

4725507 (Fed. Cl. Spec. Mstr. June 22, 2020) (dismissing claim where Petitioner first

sought care over three months after vaccination, finding the evidence as to when her pain

began to be vague and sometimes contradictory).

Petitioner’s case is further weakened by the fact that this record was later altered.

And it is not clear when the portion of the record pertaining to her shoulder condition was

added. It is conceivable that this was added in December 2020 – which would be over

ten months after vaccination.

Similar to Porcello, in this case the records are vague as to when Petitioner’s

shoulder pain began. Although her declaration asserts immediate onset, the medical

records are simply too vague and nonspecific as to the timing, or even which shoulder

was affected. And there is no evidence that an examination of her shoulder ever showed

limitations in her range of motion. Although the June 25th record notes that Petitioner

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reported shoulder pain and decreased range of motion (which may be contemporaneous,

or may have been added later), on examination no abnormalities were noted. Ex. 6 at 4;

Ex. 9 at 10. And on December 30, 2020 – nearly 11 months after vaccination – Petitioner’s

doctor’s office called Petitioner inquiring whether her left or right shoulder was affected –

further suggesting that Dr. Reyes was not familiar with her shoulder problem.

Thus, there is barely any medical record evidence suggesting which shoulder was

affected – much less whether her pain was limited to the shoulder of vaccination. And the

only evidence in her medical records that would support a finding that her shoulder pain

continued for at least six months is a note from a date when the record indicates Petitioner

only spoke to the doctor in a lobby, and there is no evidence Petitioner was actually seen

for a medical consultation. Petitioner cancelled a scheduled appointment with Dr. Reyes

on July 30, 2020 – just before the six month mark. Petitioner has not addressed this

cancellation, and while on its own a cancelled appointment may not establish lack of a

persistent injury, in the context of the remaining evidence, it further clouds Petitioner’s

claim that she was experiencing shoulder pain at that time.

Petitioner’s motion glosses over the inadequacies in the records, relying heavily

on the fact that Petitioner’s alleged injury occurred around the time that the COVID-19

Pandemic was declared and various stay at home orders were issued. Yet records from

before the start of the Pandemic (such as at the March 5, 2020 PCP visit) make no

mention of pain, and Petitioner’s declarations state only that she did not report shoulder

pain at that time because she thought her pain might be normal, and that when she

reported pain on May 28th, Dr. Reyes told her to wait six months before he would treat

her. Ex. 7 at 2. While it is common in Program cases for petitioners to downplay or

misapprehend SIRVA pain, the overall record in this case is far less supportive of that

conclusion.

As to onset, Petitioner’s motion asserts that “it is clear that Ms. Carter’s left

shoulder pain began after receipt of the flu vaccine on February 5, 2020 . . . the left

shoulder pain began fewer than 48 hours after vaccination.” Opp. at *7. But the only

record evidence to this effect is her declaration. While declarations may be used to

corroborate medical records, in this case the medical records are bereft of documentation

of a shoulder condition.

In these circumstances, even if I were to credit all statements in Petitioner’s

declarations, there is simply not enough medical record evidence to support a Table or

off Table claim.

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Conclusion

Petitioner has failed to establish that her injury meets the requirements for a

Table SIRVA, or a shoulder injury caused in fact by the flu vaccine. Accordingly,

Respondent’s motion to dismiss is GRANTED and this case is DISMISSED for

insufficient evidence. The Clerk of Court shall enter judgment accordingly.7

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

11