Wilson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-487V

JENNIFER WILSON,

Chief Special Master Corcoran

Petitioner,

v.

SECRETARY OF HEALTH AND Filed: May 1, 2025

HUMAN SERVICES,

Respondent.

Brian C. Duffy, Duffy & Young, LLC, Charleston, SC, for Petitioner.

Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On April 22, 2020, Jennifer Wilson filed a petition for compensation under the

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

“Vaccine Act”). Petitioner alleges that as a result of an influenza (“flu”) vaccine she

received on October 25, 2018, she suffered a shoulder injury related to vaccine

administration (“SIRVA”), a Vaccine Table injury. Petition (ECF No. 1) at Preamble. The

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

For the reasons discussed below, I find that Petitioner is entitled to compensation

for her SIRVA.

1 Because this ruling and decision contains a reasoned explanation for the action in this case, I am required

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 this Ruling/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 (2012).

I. Relevant Procedural History

This claim was initiated on April 22, 2020, and relevant medical records were filed

thereafter. ECF No. 18. On July 2, 2022, Respondent filed his Rule 4(c) Report, indicating

that he was contesting entitlement because there was no vaccination record to

corroborate Petitioner’s claim of the receipt of a flu vaccination on October 25, 2018.

Resp.’s Report at 7. (ECF No. 39). The parties thereafter briefed the matter: on April 21,

2023, Petitioner filed her Motion for Ruling on the Record (ECF No. 43); Respondent filed

his response on August 16, 2023 (ECF No. 46); and Petitioner filed her reply on June 9,

2023 (ECF No. 47). This matter is now ripe for a ruling on entitlement.

II. Evidence

A. Medical Records

Petitioner alleges that she received the flu vaccine at issue on October 25, 2018,

at the Charleston Area Convention and Visitors Bureau (“CACVB”), where she worked as

an advertising sales manager. See Ex. 1 (Affidavit of Petitioner). Petitioner has stated

that CACVB provided access to vaccinations on-site through the Carolina Center for

Occupational Health (“CCOH”). Id.

To prove receipt of the vaccine, Petitioner points to a number of items of

circumstantial evidence. For example, Petitioner submitted an e-mail from the CCOH

clinic manager, Ms. Sonya Rogers, to Amy Hutto at CACVB with the subject line noting

“Flu shots from this morning” that listed the names of employees at petitioner’s work site.

See Ex. 2. The email stated, “here is my list from this morning, I will add all of them to it

and resend them with the bill.” Id. Petitioner also has submitted a list containing names

of “CVB Staff” with check marks and highlighted names including her own. Id. at 4.

Petitioner has not provided any further information documenting her October 25, 2018

vaccination, however, such as a vaccination record documenting the name of the vaccine,

the site of administration, the vaccine administrator and lot number; a billing record or

proof of payment for the vaccine; or insurance records documenting receipt of or payment

for the vaccine.

Eighty-eight days later, on January 22, 2019, Petitioner had an initial physical

therapy (“PT”) evaluation for “right shoulder pain since October” with “no apparent injury.”

Ex. 5 at 31. Petitioner reported that she was continuing to do physical workouts with

weights; she also reported having received a flu vaccine in October 2018. Id. On

examination, Petitioner exhibited “active flexion to 140 degrees, abduction 90 degrees,

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and external rotation to 20 degrees with pain;” petitioner’s goal was to reduce her pain

and improve abduction to 140 degrees and external rotation to 85 degrees. Id.

On February 13, 2019, Petitioner’s physical therapist documented that she had

“[right] neck pain and an MVA [motor vehicle accident].” Ex. 5 at 25. She had seen a

chiropractor, although no details of that treatment were provided. The physical therapist

assessment noted cervical range of motion (“ROM”) limitations on petitioner’s right side

that were suggestive of degenerative cervical disc disease or joint disease for which

traction had provided some relief. Id.

On March 13, 2019, an MRI of Petitioner’s right shoulder showed mild subacromial

and subdeltoid bursitis and mild AC joint degenerative changes. Ex. 3 at 108. The next

day, she saw orthopedic surgeon Dr. John Graham, M.D., for continuing right shoulder

pain and restricted motion. Id. at 305. Petitioner’s recent MRI showed bursitis. Id.

Petitioner’s exam was positive for impingement signs, decreased ROM of the right

shoulder, decreased strength secondary to pain, and tenderness over the proximal

humerus. Id. The assessment was adhesive capsulitis. Dr. Graham opined that petitioner

“appears to have adhesive capsulitis with an inflammatory response after a flu vaccine in

October.” Id. at 306. After discussing treatment options, Petitioner elected to proceed with

arthroscopic surgery followed by PT. Id.

On March 26, 2019, Petitioner underwent right shoulder arthroscopic surgery by

Dr. Graham. Ex. 3 at 24. The operative note documented extensive capsulitis with

adhesions. Id. During the procedure, “[s]erial debridement with manipulation [was]

successful in achieving full [ROM].” Id. The labrum, bursa and rotator cuff and biceps

tendons were intact. Id. The day after her surgery, on March 27, 2019, Petitioner had her

initial PT visit. Ex. 5 at 57.

On April 4, 2019, Petitioner saw Dr. Graham for post-operative follow-up care. Ex

3 at 144. Petitioner reported that she had improved ROM since her arthroscopic surgery

and had been attending daily PT sessions and doing home exercises. Id.

By June 26, 2019, Petitioner had attended twenty-seven PT sessions post-

operatively; she had “85-90%” of her normal motion and less pain and inflammation. Ex.

5 at 3. Almost a month later, on July 8, 2019, she went back to Dr. Graham for follow-up

care. Ex. 3 at 140. Petitioner reported overall improvement with good response to therapy

and injections, but residual discomfort with repetitive activity. Id.

On October 16, 2019, Petitioner saw Dr. Graham for follow-up care. She reported

continued improvement with motion and strength, and also reported residual tenderness

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and internal rotation restriction. Ex. 3 at 138. Dr. Graham’s assessment continued to be

adhesive capsulitis of her right shoulder after receipt of the flu vaccine; petitioner was to

follow-up as needed. Id.

On December 19, 2019, Petitioner returned to Dr. Graham and reported a

“persistent ache along the anterior aspect of the right shoulder since Thanksgiving.” Ex.

3 at 156. Petitioner denied trauma and wanted to ensure that “nothing serious was going

on” with her shoulder. Id. On examination, Petitioner had “active forward flexion to 170

degrees and abduction to 90.” Id. Petitioner was diagnosed with adhesive capsulitis and

biceps tendonitis of the right shoulder. Id. Dr. Graham recommended NSAIDs and formal

PT, but Petitioner preferred home exercises. Id. at 157.

B. Witness Statements

Petitioner has filed several witness statements to support her claim, including two

affidavits from Petitioner herself, one affidavit from her husband, Brad Wilson, and

declarations from three individuals, Amy Hutto, Anne McEwen, and Martha Ralston.

Ms. Wilson’s first affidavit, executed on February 14, 2020, describes how on our

about October 25, 2018, the Carolina Center for Occupational Health (“CCOH”) came to

her work at the Charleston Area Convention and Visitors Bureau (“CACVB”) to administer

flu shots, which they had done in prior years as well. Ex. 1 at 2. She explains that she

began having shoulder pain almost immediately and that after 48 hours she noticed her

pain had progressed and made daily life activities more difficult. Id. at 2-3. The pain

gradually got worse into November and December, which lead to Ms. Wilson seeking PT

starting in January 2019. Id. at 3. Ms. Wilson then describes how this did not help her

symptoms and eventually it was determined that surgery would be necessary, after which

she attended multiple sessions of PT. Id. Although PT and steroid injections helped her

pain, she indicates that she still experiences mild pain and limited range of motion and

does not expect her shoulder to return to her pre-vaccination level. Id. at 4.

Ms. Wilson’s second affidavit, executed on April 20, 2023, describes how she did

not have any right shoulder issues prior to her October 2018 vaccination, and that

although she was involved in a minor motor accident in February of 2019, it did not result

in any damage to her car and the only injury she suffered was some neck stiffness, which

caused her to visit a chiropractor. Ex. 14 at 2. She avers that this accident did not cause

her to have any new pain in her right shoulder, and that the PT she required from James

Island Physical Therapy in 2019 was not for neck pain and was for shoulder pain. Id.

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The third submitted affidavit is from Petitioner’s husband, Mr. Brad Wilson, and

was executed in April of 2023. Ex. 15. Mr. Wilson indicates that his wife gets a flu shot

every year and after the one in October 2019, she came home complaining of pain in her

right shoulder, which progressed over the next few days. Id. at 1. Mr. Wilson also indicates

that his wife never had any issues with pain or range of motion in her right shoulder prior

to receiving the vaccination, nor did she have any other conditions which might explain

her symptoms. Id.

Petitioner has also submitted three witness declarations. The first is from Ms. Amy

Hutto, who is a coworker of Petitioner at CACVB. Ex. 11. Ms. Hutto describes how CCOH

had come to CACVB for several years to administer flu shots in the fall, and that she also

received a flu shot on October 25, 2018. Id. at 2. She also indicated that as part of her

job duties, she was required to collect records of CACVB employees who received a flu

shot administered by CCOH on October 25, 2018, and included the list that she made,

which includes her name as well as Ms. Wilson’s. Id. Ms. Hutto was also able to locate

old bills received from CCOH for flu shots administered in prior years to 2018, and that

those records indicate Petitioner received a flu shot in those years. Id. at 3. Finally, Ms.

Hutto indicates that she requested a copy of her vaccine records from the South Carolina

Department of Health and Environmental Control (“DHEC”) and that upon receiving the

records, there was no record of flu vaccinations administered by CCOH in 2015, 2016, or

2018 even though Ms. Hutto avers she received one on each of those years. Id. at 3-4.

The second declaration is from Ms. Annie McEwen, also a coworker of Petitioner

at CACVB. Ex. 12. Ms. McEwen also states that she had received flu shots with Petitioner

for years and that she also received a flu shot at the same time as Petitioner on October

25, 2018. Id. at 2. She notes that she remembers Petitioner complaining about having

pain in her right shoulder either the day they received their flu shots or the following day

at work. Id. Finally, Ms. McEwen indicates that she requested and received vaccine

records from DHEC and that there was no record of the vaccination received on October

25, 2018. Id.

The final declaration is from Ms. Martha Ralson, a third coworker of Petitioner at

CACVB. Ex. 13. Ms. Ralston indicated that she knew Petitioner had received a

vaccination for several years prior to 2018, that she received the flu vaccine on October

25, 2018, the same day as Petitioner, and that she requested her vaccine records from

DHEC and that upon receiving them, there was no record of the vaccination she received

on October 25, 2018. Id. at 1-2.

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III. Parties’ Respective Arguments

Petitioner argues that her medical records, affidavits, and witness declarations

support her claim that she received a vaccination on or about October 25, 2018.

Respondent argues that Petitioner’s claim must fail because she has not established by

preponderant evidence that she received a flu vaccination on October 25, 2018. Resp. at

7. Respondent also avers that the list of names of people receiving the flu vaccination on

October 25, 2018, “is insufficient to establish receipt of the vaccine, as it appears to be

nothing more than a list of possible attendees at a vaccine clinic. It is not confirmation of

her attendance nor proof of receipt of a flu vaccination and should be given no weight.”

Id.

IV. Applicable Law

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a

preponderance of the evidence, the matters required in the petition by Vaccine Act

Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,

conclusion, judgment, test result, report, or summary concerning the nature, causation,

and aggravation of petitioner’s injury or illness that is contained in a medical record.

Section 13(b)(1). “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 & Hum. Servs., 993

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

Accordingly, where medical records are clear, consistent, and complete, they

should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule

does not always apply. “Written records which are, themselves, inconsistent, should be

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “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 & Hum. Servs., 997 F.3d 1378,

1383 (Fed. Cir. 2021).

The United States Court of Federal Claims has outlined four possible explanations

for inconsistencies between contemporaneously created medical records and later

testimony: (1) a person’s failure to recount to the medical professional everything that

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happened during the relevant time period; (2) the medical professional’s failure to

document everything reported to her or him; (3) a person’s faulty recollection of the events

when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did

not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),

aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

The Court has also said that medical records may be outweighed by testimony that

is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y

of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health

& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).

The credibility of the individual offering such fact testimony must also be determined.

Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley

v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

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.

The special master is obligated to fully consider and compare the medical records,

testimony, and all other “relevant and reliable evidence contained in the record.” La

Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.

Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within

the special master’s discretion to determine whether to afford greater weight to medical

records or to other evidence, such as oral testimony surrounding the events in question

that was given at a later date, provided that such determination is rational).

V. Analysis

I. Legal Standard for Proof of Vaccination

Under the Vaccine Act, providing proof of vaccination is a threshold matter in order

to prevail under either a “Table” injury in which causation is presumed, or an “off-Table”

injury, in which petitioner identifies a causal link between the vaccine and the alleged

injury. § 300aa–11(c)(1)(A) and (B). Petitioner must first prove by a preponderance of the

evidence that he “received a vaccine set forth in the Vaccine Injury Table.” § 300aa-

11(c)(1)(A). A special master shall assess “the record as a whole” and may not “find that

a petitioner received a vaccine ‘based on the claims of a petitioner alone, unsubstantiated

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by medical records or by medical opinion.’ ” Rich v. Sec'y of Health & Human Servs., No.

12–742V, 2013 WL 4476751 (Fed. Cl. Spec. Mstr. July 26, 2013) (§ 300aa–13(a)(1)).

Although contemporaneous documentation of vaccination from a healthcare

provider is the best evidence to prove administration of a vaccine, it is not absolutely

required in all cases. Centmehaiey v. Sec'y of Health & Human Servs., 32 Fed. Cl. 612,

621 (1995) (“[t]he lack of contemporaneous documentary proof of a vaccination ... does

not necessarily bar recovery”). Indeed, as Vaccine Rule 2 states, “[i]f the required medical

records are not submitted, the petitioner must include an affidavit detailing the efforts

made to obtain such records and the reasons for their unavailability.” Vaccine Rule

2(c)(2)(B)(i). Furthermore, if a petitioner's claim is “based in any part on the observations

or testimony of any person, the petitioner should include the substance of each person's

proposed testimony in a detailed affidavit(s) supporting all elements of the allegations

made in the petition.” Vaccine Rule 2(c)(2)(B)(ii).

Special masters have thus found that vaccine administration occurred even in the

absence of direct documentation. In such cases, preponderant evidence was provided in

the form of other medical records and/or witness testimony. For example, corroborative,

though backward-looking, medical notations have been found to tip the evidentiary scale

in favor of vaccine receipt. Lamberti v. Sec'y of Health & Human Servs., No. 99–507V,

2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007) (finding multiple medical

record references to vaccine receipt constituted adequate evidence of administration);

Groht v. Sec'y of Health & Human Servs., No. 00–287V, 2006 WL 3342222, at *2 (Fed.

Cl. Spec. Mstr. Oct. 30, 2006) (finding a treating physician's note—“4/30/97—Hep B. inj.

# 1 (not given here) (pt. wanted this to be charted)”—to be sufficient proof of vaccination);

Figueroa v. Sec'y of Health & Human Servs., No. 10-705V, 2014 WL 6819494, at *4 (Fed.

Cl. Spec. Mstr. Nov. 7, 2014) (finding sufficient proof of vaccination where subsequent

medical records documented that petitioner consistently reported receiving the subject flu

vaccination); Beckner v. Sec'y of Health & Human Servs., No. 11-668V, 2013 WL

3353993, at *8 (Fed. Cl. Spec. Mstr. Apr. 25, 2013) (finding sufficient proof of vaccination

where a medical record created approximately a month after petitioner's alleged receipt

of the subject vaccine documented petitioner's report of his vaccination and the statement

was made “for the purpose of facilitating diagnosis and treatment of his condition...[and]

the vaccination was received in such close temporal proximity to petitioner's admission

that misremembering is unlikely”). But see Matthews v. Sec'y of Health & Hum. Servs.,

No. 19-414V, 2021 WL 4190265 (Fed. Cl. Spec. Mstr. Aug. 19, 2021), aff'd, 157 Fed. Cl.

777 (2021) (finding insufficient proof of vaccination where petitioner's numerous

contemporaneous medical records, petition, and subsequent filings were inconsistent in

reporting whether he received a flu vaccine that season and identifying the time at which

he allegedly received the vaccine).

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In addition to corroborative medical records, witness testimony can also help

establish a sufficient basis for a finding that a vaccine was administered as alleged. Alger

v. Sec'y of Health & Human Servs., No. 89–31V, 1990 WL 293408, at *2, 7 (Fed. Cl.

Spec. Mstr. Mar. 14, 1990) (oral testimony from a parent and the doctor who administered

the vaccine was “more than adequate to support a finding that the vaccine was

administered”). The Court of Federal Claims has recognized the existence of precedent

supporting the proposition that a court may base a finding of vaccination on lay testimony.

Epstein v. Sec'y of Health & Human Servs., 35 Fed. Cl. 467, 478 (Fed. Cl. 1996); see

also Brown v. Sec'y of Health & Human Servs., 18 Cl. Ct. 834, 839–40 (1989) (proof of

vaccination in the absence of contemporaneous medical records established via

testimony of petitioner's parent, her personal calendar, and evidence of a charge for the

vaccine on the physician's billing statement), rev'd on other grounds, 920 F.2d 918

(Fed.Cir.1990); Gambo v. Sec'y of Health & Human Servs., No. 13-691V, 2014 WL

7739572, at *3 (Fed. Cl. Dec. 18, 2014).

II. Factual Findings on Proof of Vaccination

Upon review of the record as it stands, I find that Petitioner has offered

preponderant evidence that she received an influenza vaccine on October 25, 2018.

Petitioner went through great lengths in order to acquire her vaccination record, requiring

subpoenas from both CCOH, the entity which was on-site at Petitioner’s employer to

administer seasonal flu vaccines, and Concentra, an entity which acquired CCOH in June

of 2019. Both of these entities denied having any records. Moreover, Petitioner has

submitted affidavits from three co-workers, all of whom indicate that they knew Petitioner

to receive a seasonal flu vaccination, that they also received flu vaccinations on October

25, 2018, and that they requested their medical records for that flu vaccination and were

told that no records existed of the event. One of these co-workers, who indicated that as

part of her job she was required to collect the names of everyone who received a

vaccination on October 25, 2018, provided a copy of the e-mail she sent to a CCOH

employee containing a document with the list of CACVB employees who received the

vaccination that day, which included Petitioner and herself. Ex. 11.

The reasonable inference from all of this is that the vaccinations likely occurred -

but CCOH, Concentra, or both failed to exert the proper care to make sure these medical

records remained accessible. And other medical records are consistent for Petitioner

mentioning the start of her shoulder pain being a flu vaccination in October 2018.

Accordingly, the record as it stands provides preponderant evidence to support

Petitioner’s claim that she received a flu vaccine on October 25, 2018.

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III. Fact Findings – Onset and Entitlement

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a

preponderance of the evidence, the matters required in the petition by Vaccine Act

Section 11(c)(1). In addition to requirements concerning the vaccination received, the

duration and severity of petitioner’s injury, and the lack of other award or settlement, 3 a

petitioner must establish that he suffered an injury meeting the Table criteria, in which

case causation is presumed, or an injury shown to be caused-in-fact by the vaccination

she received. Section 11(c)(1)(C).

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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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 must consider, but is not bound by, any diagnosis, conclusion,

judgment, test result, report, or summary concerning the nature, causation, and

3

In summary, a petitioner must establish that she received a vaccine covered by the Program, administered

either in the United States and its territories or in another geographical area but qualifying for a limited

exception; suffered the residual effects of her injury for more than six months, died from her injury, or

underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected

an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).

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aggravation of petitioner’s injury or illness that is contained in a medical record. Section

13(b)(1). “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 & Hum. Servs., 993

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

Accordingly, where medical records are clear, consistent, and complete, they

should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the

Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records

are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.

Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical

professionals may not “accurately record everything” that they observe or may “record

only a fraction of all that occurs.” Id.

Medical records may be outweighed by testimony that is given later in time that is

“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42

Fed. Cl. 381 at 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-

2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the

individual offering such testimony must also be determined. Andreu v. Sec’y of Health &

Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.

Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

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.

The special master is obligated to fully consider and compare the medical records,

testimony, and all other “relevant and reliable evidence contained in the record.” La Londe

Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 12(d)(3); Vaccine

Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.

1993) (holding that it is within the special master’s discretion to determine whether to

afford greater weight to medical records or to other evidence, such as oral testimony

11

surrounding the events in question that was given at a later date, provided that such

determination is rational).

A. Factual Findings Regarding a Table SIRVA

After a review of the entire record, I find that a preponderance of the evidence

demonstrates that Petitioner has satisfied the Qualifications and Aids to Interpretation

(“QAI”) requirements for a Table SIRVA. I note that Respondent has not offered any

argument concerning whether he believes Petitioner has failed to satisfy these QAI

requirements.

1. Petitioner has no Prior Right Shoulder Condition or Injury

The first requirement for a Table SIRVA is a lack of problems associated with the

affected shoulder prior to vaccination that would explain the symptoms experienced after

vaccination. 42 C.F.R. § 100.3(c)(10)(i). In this case, the medical records do not indicate

that Petitioner suffered any prior right shoulder pain issues and Respondent does not

contend that Petitioner has failed to carry her burden with respect to this requirement.

Accordingly, the record allows me to find that Petitioner had no prior right shoulder

condition or injury.

2. Pain Occurs with the Specified Timeframe (Onset)

A SIRVA claimant must show that she experienced the first symptom or onset

within 48 hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)), and that her pain occurred

within that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI criteria)). Once again,

Respondent has not offered argument that Petitioner has failed to prove onset by

preponderant evidence and the records are consistent in Petitioner attributing the start of

her shoulder pain to the vaccination she received on October 25, 2018. Accordingly, I find

the second QAI requirement has been met.

3. Petitioner’s Pain and Limited Range of Motion was Limited to her

Right Shoulder

The specific language of a SIRVA injury contained in the QAI of the Vaccine Injury

Table is that “pain and reduced range of motion are limited to the shoulder in which the

intramuscular vaccine was administered.” 42 C.F.R. § 100.3(c)(10)(iii) (QAI criteria)). It

does not appear that Respondent is contesting this criterion and there is nothing in the

submitted record to indicate that Petitioner’s symptoms were not limited to her right

shoulder. Petitioner has consistently complained of right shoulder pain and loss of ROM,

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and she eventually required arthroscopic shoulder surgery in her right shoulder. I

therefore find Petitioner has satisfied the third QAI requirement.

4. There is No Evidence of Another Condition or Abnormality

The last criterion for a Table SIRVA states that there must be no other condition or

abnormality which would explain Petitioner’s current symptoms. 42 C.F.R. §

100.3(c)(10)(iv). Once again, there is no evidence in the record to suggest that another

condition or abnormality could be the cause of Petitioner’s right shoulder injury and

Respondent does not offer any argument to the contrary. Accordingly, Petitioner has

satisfied the fourth QAI requirement.

B. Other Requirements for Entitlement

In addition to establishing a Table injury, a petitioner must also provide

preponderant evidence of the additional requirements of Section 11(c). The overall record

contains preponderant evidence to fulfill these additional requirements.

I have already determined that the record preponderates a finding that Petitioner

received the flu vaccine on October 25, 2018. There is no evidence that Petitioner has

collected a civil award for her injury. Petition at 4; Section 11(c)(1)(E) (lack of prior civil

award).

As stated above, I have found that the onset of Petitioner’s right shoulder pain

occurred within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this

requirement). This finding also satisfies the requirement that Petitioner’s first symptom or

manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42

C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following

receipt of the influenza vaccine). I have also found that Petitioner’s pain and reduced

range of motion was limited to her right shoulder. 42 C.F.R. § 100.3(c)(10). Finally, I find

that there was no condition or abnormality that would explain Petitioner’s symptoms after

vaccination. Id. Therefore, Petitioner has satisfied all requirements for a Table SIRVA.

The last criteria which must be satisfied by Petitioner involves the duration of her

SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner suffer

the residual effects of his or her right shoulder injury for more than six months or required

surgical intervention. See Section 11(c)(1)(D)(i) (statutory six-month requirement).

Starting from September 21, 2019 (48 hours after vaccination), the records undoubtedly

demonstrate that Petitioner suffered the residual effects of her shoulder injury for more

than six months. See, e.g., Ex. 3 at 138 (record from October 16, 2019, when Petitioner

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reported residual tenderness and internal rotation restriction following her surgery, with

Dr. Graham’s assessment being adhesive capsulitis of her right shoulder after receipt of

the flu vaccine). Thus, this requirement is also met.

Based upon all of the above, Petitioner has established that she suffered a Table

SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore

find that Petitioner is entitled to compensation in this case.

VI. Conclusion

In view of the evidence of record, I find Petitioner is entitled to compensation.

The issuance of a damages order will follow the filing of this Decision.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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